MacIntyre v Chief Constable of Kent & Ors

Case management decisions are matters for the trial judge’s discretion. There is no general rule that qualified privilege must be tried as a preliminary issue in a defamation action. The judge must balance possible savings against factual complexity, the likelihood of appeal and the claimant’s interest in prompt vindication.

Similar fact evidence is admissible only where it is logically probative, fair and properly notified. Evidence of a general disposition is insufficient. The judge may exclude otherwise relevant evidence where it would distract the tribunal, complicate the issues or prolong the trial. An appellate court should intervene only where the decision falls outside the generous ambit of reasonable disagreement or is plainly wrong.

The claimant, a journalist, brought libel proceedings against the Chief Constable of Kent and two police officers concerning a police report and statements to the media about a BBC programme presented by him.

At a case management conference, Gray J directed a jury trial. He refused permission to amend the defence to rely on alleged editorial distortions in an earlier programme and declined to order preliminary trials of issues concerning statutory and common-law qualified privilege and malice.

The defendants appealed against the amendment decision and sought permission to appeal the refusal of preliminary issues. The central questions were the proper scope of appellate intervention in case management decisions and whether the proposed evidence and preliminary issues should be dealt with before the main trial.

1. Appeal dismissed. Gray J’s refusal to permit the similar fact amendment and his refusal to order preliminary issues were within the wide discretion available to him in managing the action.
2. Similar fact evidence may be admitted in a civil action where it is logically probative of an issue, provided that its admission is not oppressive or unfair and the opposing party has fair notice and a proper opportunity to deal with it. It is not admissible merely to show a disposition to commit the conduct alleged. The court must also consider its probable probative value and the extent to which it would complicate or prolong the trial.
3. The proposed evidence concerning a different television programme was contentious and risked distracting the jury from the central issues concerning the programme in question. The judge was entitled to conclude that the case should remain within manageable and economic bounds.
4. The authorities concerning preliminary trials of qualified privilege did not establish a new rule of practice. They preserved the discretion of the judge at the case management conference. A preliminary issue may often be appropriate, particularly where it could avoid a lengthy trial, but the judge must consider factual difficulty, the likelihood of an appeal and the claimant’s interest in timely vindication.
5. The proposed privilege issues involved substantial factual questions, including responsibility, the circumstances of publication and malice. The judge was entitled to regard the defence as problematical and to refuse a preliminary trial. His minor errors concerning earlier dicta did not undermine the overall decision.
6. Dyson LJ agreed. Wall J also agreed with Brooke LJ and emphasised the particular difficulty of challenging case management decisions made by a specialist judge with detailed knowledge of the case.

• Court of Appeal (Civil Division) — dismissed the defendants’ appeal and application for permission to appeal against case management directions made by Gray J on 24 January 2002.
• Queen’s Bench Division — Gray J directed a jury trial, refused the proposed similar fact amendment and declined to order preliminary trials of privilege and malice issues.