Gentoo Group Ltd (Formerly Known As Sunderland Housing Company Ltd) & Anor v Hanratty

Under Supreme Court Act 1981, s.69(1), the court must address three related questions: whether prolonged examination of documents is required; whether that examination can conveniently be undertaken with a jury; and, if not, whether the discretion should nevertheless favour jury trial.

Prolonged examination means careful analysis, not merely reading a large volume of documents. Relevant considerations include the complexity of comparative documentary exercises, the likely additional length and cost of jury trial, and the practical assistance a judge can provide to a litigant in person. A reasoned judgment may also serve the interests of fairness and appellate review. Even where the statutory criteria are met, jury trial remains discretionary and will be ordered only in particular circumstances.

The claimants brought proceedings in libel and harassment against the defendant. A pre-trial review was held before the forthcoming trial. The claimants sought trial by judge alone under s.69(1) of the Supreme Court Act 1981; the defendant sought trial by jury.

The documentary issues included allegedly defamatory website and forum publications, questions of authorship and responsibility for publication, numerous aliases, handwriting evidence, and comparisons of style and content. The central issue was whether the statutory criteria for dispensing with a jury were satisfied and, if so, whether the discretion should nevertheless be exercised in favour of jury trial.

1. The claim was ordered to be tried by judge alone. The court held that the criteria in s.69(1) of the Supreme Court Act 1981 were fulfilled, and declined to exercise its residual discretion in favour of a jury.
2. The court applied the three-stage approach identified in Aitken v Preston [1997] EMLR 415: whether prolonged examination of documents would be required; whether that examination could conveniently be carried out with a jury; and, if not, whether particular circumstances nevertheless justified jury trial.
3. Prolonged examination requires careful reading and analysis, rather than the mere reading of many documents. The court considered the guidance in Goldsmith v Pressdram [1988] 1 WLR 64 and Rothermere v Times Newspapers Ltd [1973] 1 WLR 448. The relevant material included documents considered during cross-examination, not only documents strictly admissible in evidence.
4. Convenience is comparative. The court must assess the marginal inconvenience of jury trial against trial by judge alone, including additional trial length and cost and the difficulty of comparing bulky files. Here, approximately 350 documents required close examination, and the issues involved detailed comparisons of postings, aliases, handwriting and authorship. A jury trial would substantially prolong and complicate the proceedings.
5. National interest, the integrity of public figures, and questions of credibility, honour or integrity may justify jury trial in an appropriate case. Those factors are not determinative. The discretion is rarely exercised, as illustrated by the judge’s reference to McPhilemy v Times Newspapers Ltd [2000] 1 WLR 1732 (CA).
6. Article 6 considerations supported a reasoned judgment, which could place vindication or liability in context and assist any appeal. Trial by judge alone was also considered more advantageous to the defendant, who was acting in person, because the judge could assist in presenting and understanding the case without the constraints arising from the presence of a jury.