Lewis v Commissioner of Police of the Metropolis & Ors

Under section 69(3) of the Senior Courts Act 1981, the starting point is trial by judge alone. A jury may be ordered only where the court’s discretion justifies departure from that position. The fact that a public authority is a defendant is relevant, but creates no general preference for trial by jury. Public prominence, national interest and issues of honour or integrity may strongly support a jury. They must be weighed against the complexity of meaning, the difficulty of jury directions, the risk of disagreement or an unsuccessful trial, the need for a reasoned judgment, and case-management considerations. In an exceptional defamation claim involving legally framed communications and a professional publishee, those countervailing factors displaced the arguments for a jury. The trial was therefore ordered before a judge sitting alone.

The claimant brought a defamation claim concerning an email sent by a lawyer acting for the Metropolitan Police to the Press Complaints Commission. The claimant alleged that the email conveyed that he had lied to a Parliamentary Select Committee.

Following an earlier judgment on other issues, the court had adjourned the question of mode of trial. The proposed trial would involve meaning, truth, possible malice and damages, with certain preliminary issues to be determined by a judge. The central issue was whether the statutory presumption in favour of trial by judge alone should be displaced by the public importance of the case and the claimant’s prominence.

1. Disposition. The trial was ordered to take place by a judge sitting alone.
2. Section 69(3) of the Senior Courts Act 1981 gives the court a discretion to order trial by jury where the action does not fall within section 69(1). The governing starting point is trial by judge alone. The discretion is exercised rarely and with regard to proportionality, predictability, reasoned decision-making and case management.
3. The court corrected its earlier statement that trial by jury would generally be appropriate where the state or a public authority was a defendant. Public-authority status is only one factor. The absence of allegations of abuse of power or a claim for exemplary damages weakened the case for a jury. The court also took account of the gravity of the harm, the risk of a lengthened trial or jury disagreement, and uncertainty in the applicable law.
4. The claimant’s prominence at the date of trial, the national importance of the phone-hacking context, and the fact that the honour and integrity of the claimant and a police officer were in issue provided strong arguments for a jury. Those factors did not overcome the statutory presumption. Meaning was unusually suited to determination by a judge because the publication was a formal communication by a lawyer to a senior professional recipient. The directions on meaning and possible malice would be novel and difficult, and a reasoned judgment was especially important in a case where a general jury verdict could obscure the basis of success or failure.
5. A judge-alone trial also avoided the need for a split hearing, since qualified privilege and release were already to be tried by a judge and a submission of no case was anticipated on malice.

The judgment followed an earlier decision in the same proceedings, [2011] EWHC 781 (QB), which had adjourned the mode-of-trial issue. The present court determined that issue and ordered a judge-alone trial.