Gregson v Channel Four Television Corporation

Section 69 of the Supreme Court Act 1981 preserves a default of jury trial for libel, but permits a judge-alone trial where the statutory test concerning prolonged documentary examination is met. The examination criterion is strict and extends to material used in cross-examination. Convenience is judged against the efficient administration of justice, including trial length, cost, document handling, cross-referencing, complexity and the benefit of a reasoned judgment. The case-management judge is well placed to make that assessment. The judge retains a discretion, balancing prejudice, lateness, jury vindication and the modern preference against juries. In qualified privilege cases, difficulty separating jury fact-finding from the judge’s balancing role may support judge-alone trial. The appeal was dismissed.

David Gregson brought libel proceedings against Channel Four Television Corporation arising from a television programme. The action had been listed for trial by judge and jury. After a jury was sworn, the claimant applied to change the mode of trial. Morland J directed that meaning should be decided by the jury, but that qualified privilege, malice and damages should be tried by him alone.

The defendant appealed. It challenged the finding that the documentary examination could not conveniently be undertaken with a jury, relied on the journalists’ interest in jury vindication, and argued that the judge’s earlier view on meaning made him unsuitable to determine the remaining issues. The central questions were whether the statutory exception and discretion were properly applied, and whether the Court of Appeal should interfere.

Appeal dismissed. Waller LJ gave the leading reasons. Robert Walker LJ agreed and added that the character of the documents was relevant as well as their number.

1. Section 69 of the Supreme Court Act 1981 made jury trial the starting point for a libel claim, subject to the exception for prolonged examination of documents or other specified investigations which could not conveniently be undertaken with a jury. Section 69(4) permitted different questions of fact to be tried by different modes.
2. The prolonged-examination criterion had to be strictly satisfied, but examination had a wide scope. It could include documents likely to be used in cross-examination. The assessment was not confined to the documents containing the primary evidence. The principles summarised in Aitken v Preston and others [1997] EMLR 415 and Beta Construction Ltd v Channel Four Television Co Ltd [1990] 1 W.L.R. 1042 were applied.
3. Convenience was assessed by comparison with a judge-alone trial and by reference to the efficient administration of justice. Relevant matters included additional length and cost, practical handling, cross-referencing, the complexity and character of the documents, and the advantage of a reasoned judgment. Morland J was well placed, as the judge managing the case, to assess the likely burden of examining about 1,000 pages in three files. His finding that examination would be prolonged and inconvenient for a jury was upheld.
4. Even where the statutory condition was met, the judge retained a discretion. Lateness mattered only if it caused substantive prejudice. The seriousness of allegations and the desire for jury vindication were relevant, but not decisive. The large number of disputed primary facts and uncertainty about the form of jury questions supported trial of the remaining issues by judge alone.
5. In a qualified-privilege case, Reynolds v Times Newspapers [2001] 2 AC 127 distinguished factual findings, which could be left to a jury, from the ultimate balancing exercise for the judge. The difficulty of maintaining a clear division between those functions was itself a factor favouring judge-alone trial. The judge’s earlier view on meaning did not disqualify him from trying the remaining issues; if it had been a real concern, it would have affected his suitability to try the case altogether.
6. On appeal, the question was whether the discretionary ruling exceeded the generous ambit of reasonable disagreement, applying G v G [1985] 1 WLR 647. It did not. The appeal was dismissed, with orders pursuant to the consent order agreed between counsel.

• Court of Appeal (Civil Division): The court dismissed the defendant’s appeal and upheld the order that meaning be tried by jury, while qualified privilege, malice and damages be tried by judge alone: [2002] EWCA Civ 941.
• High Court of Justice, Queen’s Bench Division: Morland J made the split-mode order after directing that meaning should be determined by a jury.