Right Hon Aitken MP v Preston & Ors

In a libel action, a prima facie right to jury trial is displaced where the court is satisfied that the trial requires prolonged examination of documents which cannot conveniently be undertaken with a jury. The threshold is strict: length or complication alone is insufficient. Convenience is assessed against trial by judge alone, including extra time and cost, document-handling difficulties and the need for close comparison or scrutiny. If the statutory conditions are met, the court has a discretion which gives weight to the modern emphasis against juries. Public prominence, national interest and attacks on credibility remain relevant, but they do not override the interests of justice. A reasoned judgment may be preferred where it can resolve numerous document-heavy issues and avoid uncertainty from a general verdict.

Three consolidated libel actions brought by the Rt Hon Jonathan Aitken against newspaper and television defendants concerned allegations about his public conduct and fitness for public office. Following a five-day pre-trial review, Popplewell J ordered on 9 May 1997 that the trials should be by judge alone rather than judge and jury. The defendants appealed, arguing that the document examination was neither prolonged nor inconvenient for a jury, and that public importance, credibility and media freedom strongly favoured jury trial. The Court of Appeal had to apply section 69 of the Supreme Court Act 1981 and decide whether the judge’s discretion should be disturbed.

Lord Bingham of Cornhill delivered the leading judgment. Lord Justice Hirst and Lord Justice Millett agreed. The appeal was dismissed, with costs, and the order under section 4(2) was revoked.

1. Section 69(1) of the Supreme Court Act 1981 imposes two cumulative conditions before the prima facie entitlement to jury trial in a libel action is displaced. The trial must require prolonged examination of documents, and that examination must be incapable of being conveniently conducted with a jury. The threshold is strict. A trial being long or complicated is insufficient. Examination is not confined to documents containing the evidence and may include documents likely to be used in cross-examination. The approach was consistent with Rothermere v Times Newspapers Ltd [1973] 1 WLR 448 and Goldsmith v Pressdram Ltd [1988] 1 WLR 64.
2. Convenience means avoiding substantial difficulty compared with the same process before a judge alone. Relevant considerations include additional length and cost, the handling of bulky files, the need to compare documents, minute scrutiny and difficulties arising from the documents themselves. The principles in Beta Construction Ltd v Channel Four Television Co Ltd [1990] 1 WLR 1042 and Taylor v Anderton [1995] 1 WLR 447 were applied.
3. The judge was entitled to find that the three trials would involve prolonged examination of a substantial and increasing body of documents which could not conveniently be examined with a jury. The fact that more document-intensive cases had previously been tried by juries did not alter the statutory test.
4. Where the section 69(1) conditions are satisfied, section 69(3) leaves a discretion whether to order a jury trial. The modern statutory emphasis is against jury trial. Prominent public figures and matters of national interest remain important considerations in favour of a jury, while credibility and attacks on honour and integrity are relevant but not overriding. The advantage of a reasoned judgment is also relevant. The court’s overriding concern is the interests of justice, not which mode of trial may favour either party.
5. In this case, the volume of issues, documents and witnesses made a painstaking and reasoned determination preferable. A general jury verdict could leave uncertainty about which allegations had been proved, while separate liability and damages trials would increase length, cost and the need to recall witnesses. The judge’s decision was not plainly wrong and there were no sufficient grounds to interfere with his discretion.

1. Court of Appeal (Civil Division): dismissed the defendants’ appeal against the order for trial by judge alone, with costs of the appeal, and revoked the order under section 4(2).
2. High Court, Queen’s Bench Division: Popplewell J, after a five-day pre-trial review, held that the statutory conditions under section 69(1) of the Supreme Court Act 1981 were satisfied and exercised the discretion under section 69(3) in favour of trial by judge alone.