Fiddes v Channel Four Television Corporation & Ors

In a libel action, Supreme Court Act 1981, section 69 requires a three-stage inquiry: whether the trial requires prolonged examination of documents; whether that examination can conveniently be conducted with a jury; and, if not, whether the court should nevertheless exercise its discretion to order a jury trial. Document numbers, trial length and cost are not decisive. Additional time and cost may provide a quantitative guide to inconvenience, but should receive little independent weight because jury trial has constitutional importance. Relevant examination may include video and documents used in cross-examination. An appellate court should respect an informed first-instance assessment, while still correcting legal error or a plainly wrong conclusion.

Matthew Fiddes brought a libel claim concerning a Channel Four documentary. The defendants pleaded justification and fair comment, and Mr Fiddes alleged malice. The action had initially been ordered to be tried by judge and jury. On a late application, Tugendhat J ordered that it be tried by judge alone under section 69 of the Supreme Court Act 1981. Mr Fiddes appealed. The Court of Appeal granted permission and heard the interlocutory appeal urgently because the trial was imminent. The central issue was whether the judge had correctly applied the three statutory questions and properly exercised the residual discretion concerning jury trial.

1. Disposition. Permission to appeal was granted, but the appeal was dismissed. The order that the libel action be tried by judge alone was upheld.
2. Statutory framework. Section 69 of the Supreme Court Act 1981 requires the court to consider whether there will be a prolonged examination of documents, whether that examination can conveniently be conducted with a jury, and, if both questions are answered against jury trial, whether the residual discretion should nevertheless be exercised in favour of a jury. The constitutional importance of jury trial must be borne in mind. The governing principles in Aitken v Preston [1997] EMLR 415 were applicable.
3. Prolonged examination and convenience. The first question requires more than a long or complicated trial. The examination may extend beyond documents containing primary evidence and may include material used in cross-examination. The relevant inconvenience under the second question is inconvenience arising from the prolonged examination of documents. The number of documents is not decisive. Extra time and cost may be used as a quantitative cross-check, but should not be given substantial independent weight. The judge was entitled to regard the footage, electronic diary and email chains as requiring sufficiently detailed examination.
4. Residual discretion. Relevant considerations included the constitutional value of jury trial, public prominence and national interest, credibility and attacks on honour and integrity, the desirability of a reasoned judgment, and the potential effect of costs on freedom of expression. Credibility and integrity were relevant but not overriding. The absence of a public figure was not itself a factor against jury trial. A reasoned judgment could properly be considered in light of the Human Rights Act 1998 and article 6 of the Convention, but was not inherently preferable to a jury verdict. The judge had not failed to consider the allegations of dishonesty or the claimant’s article 8 rights.
5. Appellate review and practice. The judge had detailed knowledge of the case and had directed himself correctly. His conclusion was therefore unassailable. An appellate court must examine the reasoning and must not simply rubber-stamp it, but should be slow to interfere with an informed assessment of this kind. Oral observations made during an interlocutory hearing are ordinarily provisional and should not be relied on to establish reasoning absent from the final judgment, save in exceptional circumstances.

1. Court of Appeal (Civil Division): Permission to appeal was granted and the appeal against the judge-alone order was dismissed: [2010] EWCA Civ 730.
2. High Court of Justice, Queen’s Bench Division: Tugendhat J ordered on 28 May 2010 that the libel action be tried by judge alone, following a late application by the defendants.