McKeown v Attheraces Ltd

Permission to amend a defence should generally be granted where the proposed defence is arguable, although other defences may be excluded or limited for independent case-management reasons. An application for jury trial must be made within 28 days after service of the defence; filing is immaterial. Where the case involves prolonged examination of documents, the statutory discretion concerning jury trial must be considered, with judge-alone trial favoured where it is faster, less expensive and more transparent. A preliminary issue should be ordered only where it offers a clear procedural advantage. Separate determination of privilege issues is inappropriate where the factual evidence substantially overlaps with justification or fair comment and would cause duplication.

The claimant brought a libel action concerning a live broadcast interview about his conduct as a jockey. The defendant sought permission to re-amend its defence to add a Reynolds privilege defence and to supplement its existing pleas. It also sought to set aside an earlier consent order for trial by judge and jury, and requested a preliminary issue on privilege.

The court considered whether the jury-trial application had been made within the period required by CPR 26.11, whether the statutory criteria relating to prolonged examination of documents were met, whether the residual discretion should nevertheless favour a jury, and whether privilege issues could conveniently be tried separately.

1. Re-amendment. Permission was granted to add the proposed Reynolds privilege defence. The defence was at least arguable. Its addition did not imply that the existing pleas of justification, fair comment or statutory reporting privilege were weak, and any case-management objection to those pleas had to be considered separately.
2. Mode of trial. CPR 26.11 required an application for jury trial within 28 days after service of the defence. The rule referred to service, not filing. Since the defence had been served in May 2010 and its service had always been treated as effective, the relevant provision was section 69(3) of the Senior Courts Act 1981, under which the presumption favoured trial by judge alone. This accorded with Thornton v Telegraph Media Group Ltd [2011] EMLR 29.
3. The statutory criterion of prolonged examination of documents was satisfied. The court would need to analyse digitised recordings of rides frame by frame, examine detailed telephone-timeline evidence and cross-refer to substantial technical material. The process would be considerably less convenient with a jury.
4. The residual discretion should not be exercised in favour of jury trial. A reasoned judgment would improve transparency and facilitate any appeal, particularly because a jury verdict might appear inconsistent with earlier findings. Trial by judge alone would be quicker, cheaper and more transparent.
5. Preliminary issue. Privilege should not be tried separately. Determining Reynolds privilege would require close examination of the same disputed factual and expert evidence relevant to justification and fair comment. There would be substantial duplication, and the issues could not conveniently be compartmentalised. The application for a preliminary issue was therefore rejected.

The defendant succeeded on permission to re-amend and mode of trial. The case was to proceed to trial by judge alone, with all issues heard together.

The judgment records that Tugendhat J had previously refused the defendant’s application for summary judgment and that a consent order had provided for trial by judge and jury. This court permitted re-amendment, set aside jury trial in favour of trial by judge alone, and refused a preliminary issue on privilege.