Bento v Bedfordshire Police

Where a party has lost the statutory right to insist on a jury trial in a libel action by failing to apply within the prescribed time, the action is ordinarily tried by a judge alone. The court retains a discretion to order a jury under section 69(3) of the Senior Courts Act 1981, but the starting point is a presumption for trial by judge alone. On appeal, intervention is justified only where no reasonable judge could have reached the decision made. The judge may give substantial weight to the value of a reasoned judgment, particularly where justification and qualified privilege could produce a jury verdict liable to be misunderstood as a finding that the words were true. A public authority’s interest in having the underlying allegation tried by a jury does not make jury trial mandatory.

The respondent brought libel proceedings against the Chief Constable over a police press release issued after his murder conviction had been quashed and a retrial did not proceed. The claim was defended by justification and qualified privilege. Bean J later held that the words conveyed that the respondent had probably killed the deceased and awarded damages of £125,000: [2012] EWHC 1525 (QB).

The action was initially listed for judge and jury by consent. The respondent later argued that the Chief Constable had lost the statutory right to jury trial by failing to apply within 28 days of service of the defence. Tugendhat J accepted that the right was lost and declined to exercise the discretion under section 69(3) of the Senior Courts Act 1981 to order a jury. The central issue on appeal was whether that discretionary decision was one no reasonable judge could have made.

The appeal was dismissed. The Court of Appeal upheld the decision that the libel action should be tried by a judge alone.

1. Statutory starting point. A libel action falls within the statutory jury-trial provision where a party makes a timely application, subject to the exception for prolonged examination or investigation that cannot conveniently be made with a jury. The appellant had not applied within the period prescribed by CPR 26.11, so the statutory right to insist on a jury trial had been lost. Section 69(3) therefore applied, creating a presumption in favour of trial by judge alone.
2. Appellate restraint. An appeal against the exercise of that discretion succeeds only if no reasonable judge could have decided not to order a jury in the circumstances. It is insufficient that the appellate court might have balanced the relevant factors differently.
3. Relevant considerations. Tugendhat J was entitled to regard the factual issues, including the CCTV evidence and witness accounts, as complicated but capable of being tried with a jury. He was also entitled to give particular weight to the legal complexity and to the advantages of a reasoned judgment. Such a judgment could distinguish a finding that qualified privilege was established from a finding that the defamatory words were true, avoiding the possible misunderstanding of an unreasoned jury verdict.
4. Public authority. The Chief Constable’s status, the public interest in the allegation and the claimed advantages of jury determination were relevant, but they did not compel jury trial or displace the statutory presumption. The judge was entitled to give those considerations less weight than the advantages of a reasoned judgment. The threshold for appellate intervention was not met.

• Court of Appeal (Civil Division): [2012] EWCA Civ 956 dismissed the Chief Constable’s interlocutory appeal.
• High Court of Justice, Queen’s Bench Division: Tugendhat J held that the right to jury trial had been lost through failure to make a timely application and declined to exercise the discretion to order trial by judge and jury.