Boyle v MGN Ltd

Under Senior Courts Act 1981, a libel action remains jury-triable unless the case requires prolonged examination of documents which cannot conveniently be undertaken with a jury. “Examination” includes careful reading or viewing of evidential material, while “convenience” requires comparison with the exercise undertaken by a judge alone. The volume of material is not decisive. Where the statutory exception is not established, the court’s discretion under section 69(3) does not arise. Even if it did arise, the nature of the evidence and the jury’s collective experience may justify retaining jury trial.

The claimant brought libel and malicious falsehood claims against the publisher of the Daily Mirror concerning an article describing him as a racist comedian and stating that he had been forced to leave Mock the Week. The claimant applied shortly before trial to vary an earlier consent order requiring trial by judge and jury.

The application concerned whether the action required prolonged examination of documents which could not conveniently be undertaken with a jury under section 69 of the Senior Courts Act 1981, and, if so, whether the court should nevertheless exercise its discretion in favour of jury trial.

1. The application to vary the mode of trial was dismissed. The trial was to proceed before a judge sitting with a jury.

2. The court identified three questions under section 69 of the Senior Courts Act 1981: whether there would be a prolonged examination of documents; whether that examination could conveniently be undertaken with a jury; and, if the statutory exception applied, whether the court should exercise its discretion to order jury trial.

3. “Examination” means careful reading or viewing. It is not determined merely by the volume of material. The relevant material may include documents introduced in cross-examination. “Convenience” involves comparison with the same exercise undertaken by a judge alone, taking account of the additional time, cost and practical difficulty associated with a jury.

4. The principal evidence consisted of recordings of comedy performances. Although some passages would need to be viewed more than once, the material was sufficiently clear and straightforward. It was inappropriate to subject broadcasts intended for one-time viewing by an audience to an excessively analytical examination. The written material was not central and did not require prolonged examination.

5. The court therefore concluded that the statutory exception was not satisfied. In any event, if discretion under section 69(3) had arisen, it would have been exercised in favour of jury trial because the material was well suited to consideration by a jury and collective experience was relevant to the issues.

An order under section 4(2) of the Contempt of Court Act prohibited reporting of the application until conclusion of the trial.