McPhilemy v Times Newspapers Ltd & Ors

In a civil jury trial, a party who positively insists that an issue be left to the jury cannot later argue on appeal that an adverse answer was perverse. The rule applies where the party resisted withdrawal of the issue and thereby accepted that the jury had a real function to perform. An appellate court may ordinarily consider perversity despite a failure to seek withdrawal at trial, but that principle does not excuse an express insistence that the issue be decided by the jury. Entertaining such an appeal may amount to an abuse of process and bring the administration of justice into disrepute. The court did not decide whether the jury’s answer on the existence of the alleged committee was right or wrong.

A journalist sued the publishers and journalists responsible for a Sunday Times article alleging that a television programme about Loyalist conspiracies to murder was a hoax. After a lengthy jury trial, the claimant obtained judgment and £145,000 general damages. One question asked whether the defendants had proved that the alleged Ulster Central Co-ordinating Committee did not exist.

The defendants had urged the judge to leave that question to the jury, despite the claimant’s request that it be withdrawn and answered in the defendants’ favour. The jury answered it negatively. On appeal, the defendants argued that the answer was perverse and that the verdicts should be set aside. The central issue was whether, in those procedural circumstances, the Court of Appeal should entertain that challenge.

1. Appeal dismissed. The Court of Appeal declined to entertain the argument that the jury’s negative answer to question (2) was perverse. It did not determine whether the answer was rational or irrational, and remained neutral on whether the alleged committee existed.
2. The ordinary rule, illustrated by Banbury v Bank of Montreal [1918] AC 626, is that failure to ask the trial judge to withdraw an issue does not necessarily prevent an appellate perversity challenge. Withdrawal should ordinarily occur only where one verdict alone is rational and any other would necessarily be perverse, as explained through Kingshott v Kent Newspapers Limited [1991] 1 QB 88 and Alexander v Arts Council of Wales [2001] EWCA CIV 514.
3. The appellants had expressly resisted withdrawal and positively insisted that the jury decide question (2). Having obtained that course, they had to accept the result. To argue afterwards that only an affirmative answer was legally permissible was an abuse of the appellate process.
4. The general appellate power under Civil Procedure Rules 1998, CPR 52.11(3), did not resolve the prior question whether the appeal could properly be entertained. The overriding objective in CPR 1.1 reinforced the conclusion that permitting the challenge would be unfair, disproportionate and damaging to the administration of justice. Lord Justice Chadwick applied the inherent-power principle stated in Hunter v Chief Constable of the West Midlands Police [1982] AC 529.
5. The judges differed on the correctness of preventing counsel for the claimant from inviting a negative answer. Lord Justice Simon Brown considered that, if the issue genuinely remained for the jury, counsel should be permitted to argue for either answer. Lord Justice Longmore considered the trial judge right to prohibit that submission where the alleged members had not been challenged. The difference was unnecessary to the common disposition.
6. The court gave wider guidance that the sub-issue may have been unsuitable and unnecessary for resolution in the libel action. That observation was not necessary to the dismissal.

• Court of Appeal (Civil Division): The appeal was dismissed. The court declined to entertain the challenge to the jury’s answer as perverse and did not decide the substantive truth of the alleged committee’s existence.
• Queen’s Bench Division: Following a 38-day jury trial before Eady J, judgment was given for the claimant on the jury’s verdict, with £145,000 general damages and special damages left for assessment.