Thornton v Telegraph Media Group Ltd

An out-of-time application for trial by jury does not necessarily deprive the court of power to order a jury trial. The court may extend the time for compliance under CPR 3.1(2)(a), even after expiry, or exercise its discretion under section 69(3) of the Senior Courts Act 1981. An order made in those circumstances is not made without jurisdiction merely because no formal application notice was issued. Although the court may change the mode of trial at any stage, procedural certainty requires directions to retain effect unless there is a proper basis for variation, such as a material change in circumstances.

The claimant brought proceedings for libel and malicious falsehood. The court had directed on 4 February 2011 that the action should be tried by a judge sitting with a jury, following the parties’ submissions on case directions. The defendant later applied to vary the mode of trial to judge alone, arguing that no application for a jury trial had been made within the 28-day period prescribed by CPR 26.11 and that the earlier order was therefore made without jurisdiction.

The central issues were whether the court could extend the time for the jury application, whether the earlier order could be revoked under CPR 3.1(7), and whether a later judgment concerning jury trial amounted to a change of circumstances.

1. Application dismissed. The order of 4 February 2011 directing trial by jury was not made without jurisdiction and was not varied.
2. Section 69 of the Senior Courts Act 1981 gives the court power to order a jury trial in libel and malicious falsehood proceedings. After expiry of the period prescribed by CPR 26.11, the statutory entitlement under section 69(1) may be lost, but the court retains discretionary powers under section 69(3) and CPR 3.1(2)(a).
3. CPR 3.1(2)(a) permits the court to extend the time for compliance with CPR 26.11 after the time has expired. The court may also dispense with the requirement for an application notice under CPR 23.3 where appropriate to further the overriding objective.
4. On the evidence, the claimant had clearly indicated her wish for a jury trial. The parties and the judge had proceeded on the shared understanding that the trial would be before a judge and jury. The earlier order was apt to achieve the court’s intended purpose and was within the court’s power under CPR 3.1(2)(a) or section 69(3). It was therefore not comparable to the fundamental procedural error in Edwards v Golding.
5. The court may change the mode of trial at any time. However, the Practice Direction to Part 29 requires a degree of certainty that directions will continue to have effect. A later judgment concerning jury trials was not, in these circumstances, a sufficient change of circumstances to justify variation.

First-instance decision. The judgment states that the earlier directions were made by the High Court on 4 February 2011 and declines to vary them.