Telegraph Media Group Ltd v Thornton

A party does not retain an automatic right to a jury trial where the required application is made out of time. Under the Senior Courts Act 1981 and Civil Procedure Rules 1998, the court must then address the mode of trial as a matter of discretion. A prior consensual order for a jury trial does not prevent reconsideration where the legal approach has materially changed. Finality and certainty of case-management directions are important, but they are not decisive if the parties have not acted in reliance on the order and no prejudice is shown. The judge must consider the merits broadly and determine the right position at the time of reconsideration.

A book review published by the Daily Telegraph led to claims in libel and malicious falsehood by its author. The action had been directed to proceed with a jury. After a later decision, Cook v Telegraph Media Group Ltd [2011] EWHC 763 QB, the newspaper applied to vary the mode of trial and sought specific disclosure about objections raised by interviewees. Tugendhat J refused both applications. The Court of Appeal considered whether the earlier order had to be reconsidered under the correct statutory and procedural framework, and whether the disclosure issue should be resolved by an agreed order.

Appeal allowed. Leveson LJ held that the judge had not lacked jurisdiction to make the February order, but had unnecessarily fettered his consideration when refusing to revisit the mode of trial. The application had to be considered under the approach established in Cook v Telegraph Media Group Ltd [2011] EWHC 763 QB.

1. Where a party seeking jury trial in a libel case failed to apply within 28 days, the statutory right under section 69(1)(b) of the Senior Courts Act 1981 was lost. The mode of trial then fell within the judge’s discretion under section 69(3), or could be considered at large on an extension application under rule 3.1(2)(a) of the Civil Procedure Rules 1998. Carnwath LJ agreed and proceeded on the basis that Cook was correct.
2. The court had jurisdiction to revisit the mode of trial. The February order had been made against a background in which the parties generally assumed that a right to jury trial still existed. By May, there had been a material change in the legal position, so the judge had to consider what the correct position was at that time.
3. Finality and certainty of directions were relevant, but not decisive. No step had been identified as having been taken in reliance on a jury trial, and no prejudice or special reason against a judge-only trial had been shown. The refusal to reconsider the mode of trial was therefore set aside and the issue was remitted to Tugendhat J for determination on its merits.
4. On the disclosure appeal, the court gave effect to the parties’ agreement. The Daily Telegraph was ordered to disclose documents evidencing objections by the interviewees identified in Dr Thornton’s witness statement to intended book material, together with the responses, by 4.00pm on 24 June 2011.

• Court of Appeal (Civil Division) — [2011] EWCA Civ 748, 22 June 2011: permission to appeal was granted and the appeal was allowed. The mode-of-trial issue was remitted to the judge for reconsideration on its merits, and an agreed specific disclosure order was made.
• High Court, Queen’s Bench Division — Tugendhat J: a directions order had directed trial by jury; applications to vary the mode of trial and for specific disclosure were refused.