Prince Radu of Hohenzollern v Houston & Anor

When deciding the mode of trial for a preliminary issue concerning qualified privilege in a libel action, the court must assess the case as it stands and apply the overriding objective. An earlier order for trial by judge and jury does not prevent later case management reconsideration. Questions of evaluation, including responsible journalism and whether privilege attaches, are for the judge. A jury should be retained only where it has a clearly defined and useful role in determining essential primary facts. The court may also consider documentary volume, delay, cost, duplication of evidence and the risk of inconsistent findings between tribunals. Where the issue is essentially evaluative and a jury’s role would be uncertain or largely irrelevant, trial by judge alone is appropriate.

The claimant brought a libel claim concerning an article published in Royalty Monthly. A preliminary issue concerning qualified privilege was due to be tried, including Reynolds public interest privilege, conventional privilege and reportage privilege. An earlier order directed trial by judge and jury, but the parties had reserved the right to seek trial by judge alone.

The claimant applied for the preliminary issue to be tried by a judge alone. The court had to decide whether the earlier order constrained its case management discretion and whether the nature of the privilege issue, the documentary evidence and the likely division of functions between judge and jury justified changing the mode of trial.

1. The court was not inhibited by the earlier order for trial by judge and jury. The mode of trial had to be reconsidered in the light of the current position, the overriding objective and the relevant case management factors.

2. Section 69(4) of the Supreme Court Act 1981, as construed in Armstrong v Times Newspapers Ltd, permitted different questions of fact in the same action to be tried by different modes. It was therefore unnecessary, when considering whether privilege questions should be tried by judge or jury, first to establish the statutory threshold of prolonged examination of documents under section 69(1). The scope of the documentation nevertheless remained relevant to proportionality and convenience.

3. The defendants bore the burden of demonstrating the scope of the qualified privilege defence. In a Reynolds case, the judge had to determine whether the journalism was responsible and whether privilege attached, applying the principles stated in Reynolds v Times Newspapers Ltd and Jameel v Wall Street Journal Europe (No. 2). Those were evaluative questions for the judge. Any jury could properly be asked only to return special verdicts on identified essential primary facts.

4. A jury should not be empanelled merely because factual issues might emerge during the evidence. The parties should identify its proposed role and provide jurors with clear signposts. The court considered the difficulties identified in Galloway v Telegraph Group, Charman v Orion Publishing Group Ltd and Loutchansky v Times Newspapers Limited, including confusion, trivial factual issues and the difficulty of separating issues of law, fact and evaluation.

5. Meaning ordinarily had to be determined at the outset because it affected whether the words were defamatory and the existence of duty and public interest. The documentary material would be extensive, much of it irrelevant to any primary factual issue for a jury, and a jury trial would create delay, expense, possible inconsistency with later tribunals and possible repetition of evidence. Applying the overriding objective, and with Aitken v Preston providing additional support for the assessment of documentary convenience, the preliminary issue was ordered to be tried by judge alone.