Phillips v The Commissioner of Police of the Metropolis

The statutory entitlement to a jury in specified Queen’s Bench claims is subject to a practical exception. A judge may refuse a jury where the trial requires prolonged examination of documents or scientific investigation that cannot conveniently be undertaken with a jury. Convenience is assessed by comparison with a judge-alone trial, including likely length, cost, document handling and complexity. Extensive conflicting expert evidence and medical records can satisfy the exception. Section 69(4) permits different factual issues to be tried by different modes, but a split is appropriate only where workable. If credibility and documentary or scientific issues permeate the action, the whole case may be tried by a judge alone.

The claimant brought claims against the police alleging false imprisonment and malicious prosecution arising from his arrest and treatment. He applied for trial by jury under section 69 of the Supreme Court Act 1981. Master Eyre refused the application on 6 February 2002. Judge Chapman, sitting as a High Court judge, upheld that decision on 16 May 2002. The appeal concerned the effect of extensive medical, psychiatric and forensic evidence, documentary examination and future loss claims, and whether liability and quantum could be tried separately. The central issue was whether the action could conveniently be tried with a jury.

Appeal dismissed. The court held that the claims fell within section 69(1)(b) of the Supreme Court Act 1981, so jury trial was the default, subject to the statutory exception.

1. The correct approach was to ask whether the trial required prolonged examination of documents, accounts, scientific investigation or local investigation; whether that process could conveniently be undertaken with a jury; and, if not, whether the court should nevertheless exercise its discretion to order a jury trial. Convenience meant avoiding substantial difficulty compared with a judge-alone trial. Relevant considerations included time, cost, practical handling of documents and their complexity. The approach in Aitken v Preston was applicable.
2. Judge Chapman erred by comparing the proposed trial with criminal proceedings. Civil and criminal procedure differed. The fact that experts commonly gave evidence before criminal juries did not establish that the evidence could conveniently be examined by a civil jury.
3. The extensive conflicts between orthopaedic, psychiatric and forensic experts, together with substantial medical records and other documentary material, were capable of engaging the exception. The court assessed the case as it appeared when the application was decided. The possibility that evidence might later be agreed did not remove the likelihood of prolonged examination. A judge could read the material in advance and identify what was relevant more efficiently than a jury. The estimated 12-day trial would be materially longer and more expensive with a jury.
4. Section 69(4), read with the case-management powers in Civil Procedure Rules 3.1(1)(i) and (m), permitted different questions of fact to be tried by different modes. The division did not have to be between liability and quantum. Such an order was appropriate only where the issues could sensibly be separated. Where credibility was relevant across the case, or documentary and scientific examination permeated liability, the whole action was more appropriately tried by a judge alone.
5. Master Eyre had given inadequate reasons, while Judge Chapman had reached the correct result for partly incorrect reasons. The appeal was dismissed. The respondent’s appeal costs were agreed at £6,925, and the appellant’s costs were subject to detailed assessment and payable from the Community Legal Services Fund.

1. Court of Appeal (Civil Division) — Appeal dismissed. Costs orders made.
2. High Court of Justice, Queen’s Bench Division — Judge Chapman, sitting as a judge of the High Court, upheld the refusal of trial by jury on 16 May 2002.
3. High Court of Justice, Queen’s Bench Division — Master Eyre refused the claimant’s application for trial by jury on 6 February 2002.