Armstrong v Times Newspapers Ltd & Ors

Where the statutory criteria against jury trial are satisfied, the court should assess the appropriate mode of trial by reference to the action as a whole. It may nevertheless direct that different questions of fact be tried by different modes of trial, exercising the jurisdiction recognised in Phillips v The Commissioner of Police of the Metropolis [2003] EWCA Civ 382.

In a complex libel action, the traditional description of meaning as a jury issue does not create a presumption in favour of jury trial. The court should weigh the practical advantages and disadvantages dispassionately. Difficulties in obtaining a single, appealable and reasoned formulation of meaning may justify determining meaning by judge alone.

The claimant brought a libel action against the defendants. The parties had agreed that the action as a whole should be tried by a judge alone because it required prolonged examination of documents and scientific investigation.

The claimant sought determination of meaning by a judge. The defendants sought to have that preliminary issue determined by a jury. The claimant also argued that, on the proper construction of section 69 of the Supreme Court Act 1981, the court lacked jurisdiction to divide the modes of trial. The central issues were whether that jurisdiction existed and, if so, how the discretion should be exercised.

1. Jurisdiction. The court accepted that section 69(4) of the Supreme Court Act 1981, read with the guidance in Phillips v The Commissioner of Police of the Metropolis [2003] EWCA Civ 382, permits different questions of fact to be tried by different modes of trial. A first-instance judge should proceed on the basis that the jurisdiction exists, although the arguments now advanced had not been considered in Phillips or Gregson v Channel 4 Television Corporation [2002] EWCA Civ 941.
2. Discretion. Once the exclusionary criteria in section 69(1) are satisfied, the modern approach leans towards trial by judge alone. The court should consider the action as a whole. A split trial should be ordered only in appropriate circumstances and where a sufficiently clear countervailing advantage justifies the disadvantages of two modes of trial.
3. Meaning in libel. Although meaning has traditionally been regarded as a classic jury issue, the jury’s freedom to identify the single defamatory meaning cannot be artificially restricted by a short list of suggested alternatives. Slim v Daily Telegraph [1968] 2 QB 157 recognises that jurors are not confined to the parties’ pleaded meanings. In a complex article, requiring twelve jurors to formulate a single meaning creates a substantial risk of drafting in committee, disagreement and stalemate.
4. The possible advantages advanced for jury trial, including lay openness and a supposedly closer approximation to the reasonable reader’s meaning, did not outweigh those difficulties. A reasoned judicial determination, together with an opportunity to appeal, was an advantage rather than a disadvantage, particularly in light of Article 6 of the European Convention on Human Rights.
5. The issue of meaning was therefore to be determined by a judge alone, like the other issues in the action. The court concluded that a separate jury trial would not further the overriding objective.