Times Newspapers Ltd & Ors v Armstrong

Section 69(4) of the Supreme Court Act 1981 gives the court an open discretion to direct that different questions of fact in any action be tried by different modes. It does not extend to mixed questions of law and fact, and its second limb does not curtail that discretion in a libel action.

There is no presumption that a discrete factual question in a libel claim should be tried by a jury where the action itself is properly to be tried by a judge alone. The court must make a neutral case-management assessment. It may give weight to the benefit of one tribunal, the need for a single definitive meaning, the difficulty of applying an unexplained jury finding, and the advantages of a reasoned judicial decision.

The claimant, a professional cyclist, sued the newspaper publisher, a journalist and an editor over an article which he alleged accused him of taking performance-enhancing drugs and of being a fraud, cheat and liar. The defendants contended for a lesser meaning that there were reasonable or strong grounds for suspicion.

The parties agreed that justification and Reynolds qualified privilege were too complex for a jury, and that the action should be tried by a judge alone. They also agreed that meaning should be determined as a preliminary issue. Eady J ordered that issue to be tried by a judge alone, rather than by a jury, in [2005] EWHC 2816 (QB).

The defendants appealed. The central questions were whether section 69(4) permitted a jury determination of the factual issue of meaning in those circumstances and, if so, whether the judge had wrongly exercised his discretion.

1. Appeal dismissed. The court held that section 69(4) of the Supreme Court Act 1981 gives an open discretion, in any action, to order different questions of fact to be tried by different modes. The provision concerns questions of fact only. It does not authorise the severance of mixed issues of law and fact.

2. The actual defamatory meaning borne by words, as distinct from their legal capability, is a question of fact: Slim v Daily Telegraph, [1968] 2 QB 157. Accordingly, meaning could in principle be determined by a jury under section 69(4). If it were, the jury would need to return a special verdict.

3. The second limb of section 69(4) did not remove or qualify that power in libel proceedings. Its effect was that section 69(1) remained applicable to the remainder of the action after an order under section 69(4). It did not prevent an order concerning a selected factual question.

4. The discretion under section 69(4) carries no predisposition towards either jury trial or judge-alone trial. The judge was entitled to assess the relative advantages and disadvantages from a case-management perspective. Although meaning was a short and discrete issue, he could properly take account of the benefit of a single tribunal, the need to determine one definitive meaning from a range of shades, the difficulty of using an unexplained jury finding in the later judge-alone trial, and the advantages of a reasoned judgment capable of appeal.

5. Eady J had considered the asserted advantages of a jury deciding a traditionally jury-based question. His conclusion that there was no significant countervailing advantage sufficient to justify two modes of trial disclosed no error of principle and was within his discretion. The preliminary issue of meaning was therefore to remain for determination by a judge alone.

• Court of Appeal (Civil Division) — dismissed the defendants’ appeal and upheld the direction that the preliminary issue of meaning be tried by a judge alone.
• High Court (Queen’s Bench Division) — Eady J ordered that the action be tried without a jury and that the preliminary issue of meaning also be determined by a judge alone: [2005] EWHC 2816 (QB).