Safeway Stores plc v Tate

In a libel action, the right under Supreme Court Act 1981 section 69 to have the jury determine whether words are in fact defamatory is a substantive statutory right. A general procedural power, including CPR rule 24.2, cannot remove or limit that right without clear statutory authority.

The judge decides whether words are capable of bearing a defamatory meaning. If they are capable, the jury decides their actual meaning and whether they are defamatory. CPR summary judgment may determine matters within the judge’s proper jurisdiction, such as absolute privilege, but cannot determine a factual issue reserved to the jury.

Safeway sued Mr Tate for libel and an injunction after he displayed signs alleging that Safeway engaged in fraud. His pleaded defence of justification had been struck out. When the listed jury trial could not proceed because no jury panel had been arranged, Safeway applied without prior notice for summary judgment.

HHJ Barry Green QC granted judgment for Safeway under CPR rule 24.2, ordered damages to be assessed by a jury, and granted an injunction. Mr Tate appealed on the ground that he had been denied a jury trial. The central issue was whether CPR rule 24.2 permitted a judge to decide that the words were defamatory despite the statutory jury right in a libel action.

1. Appeal allowed unanimously. Otton LJ, with whom Mantell LJ and Sir Ronald Waterhouse agreed, set aside the summary judgment and discharged the injunction granted by HHJ Green. The action was remitted for a short jury trial on meaning and damages.

2. Section 69(1) of the Supreme Court Act 1981 preserved a mandatory right to jury trial in a libel action when invoked by a party, subject only to its express exceptions. Those exceptions did not apply. The statutory right, particularly the right to have the question of libel determined by a jury, was substantive rather than merely procedural.

3. CPR rule 24.2 was expressed generally and did not expressly alter the statutory right. It could be used to determine issues within the judge’s jurisdiction in a defamation action, such as whether publication was absolutely privileged. It could not empower a judge alone to decide whether words were in fact defamatory of the claimant.

4. The general rule-making powers in the Civil Procedure Act 1997, including sections 1(3) and 4, did not authorise delegated legislation to abolish or curtail that fundamental statutory right by implication. The later, specific provision made by the Defamation Act 1996 for summary disposal without a jury confirmed that an express statutory intervention was required.

5. The proper division of functions was that the judge determines whether words are capable of a defamatory meaning, while the jury determines their actual meaning and whether they are defamatory. The county court judge had wrongly assumed the jury’s role. If the jury found for Safeway, the judge could then consider whether an injunction was required. Blofeld J’s earlier interim injunction remained pending trial unless Mr Tate gave an undertaking.

• Court of Appeal (Civil Division): Allowed Mr Tate’s appeal, set aside the summary judgment and injunction, and remitted the action for a jury trial.
• Central London County Court: HHJ Barry Green QC had granted Safeway summary judgment under CPR rule 24.2, ordered damages to be assessed by a jury, and granted an injunction.