Mitchell v News Group Newspapers Ltd

In related civil proceedings involving substantial common issues, the court may order a preliminary trial where doing so is likely to avoid duplication, inconsistent findings and unnecessary expense. The issues must be defined clearly enough to be manageable and sufficiently broad to have a reasonable prospect of resolving the dispute or materially reducing the issues for later trial. The court may approve trial without a jury where the statutory exception for prolonged examination of documents or local investigation is satisfied. Practical case management may include provisional assumptions about disputed matters where those assumptions promote an efficient preliminary determination.

Two related libel actions arose from the same altercation between Andrew Mitchell MP and PC Toby Rowland outside Downing Street on 19 September 2012. Mitchell sued News Group Newspapers Ltd over a newspaper article alleging that he had insulted police officers. Rowland sued Mitchell over later statements alleging that Rowland had fabricated evidence and participated in a campaign against Mitchell.

The parties sought a joint trial of preliminary issues, without a jury, concerning meaning, justification and an issue concerning Mitchell’s knowledge of the alleged falsity of Rowland’s allegations. The court was required to decide whether the proposed case-management arrangements were appropriate.

1. The court approved a joint trial of preliminary issues in both actions, sitting without a jury. The arrangement served the important objectives of avoiding duplicated evidence and expense and reducing the risk of inconsistent findings.

2. Where common issues form only part of the disputes in related actions, a preliminary trial may be appropriate if the issues can be defined with sufficient clarity and have a reasonable prospect of resolving the disputes or saving significant resources. The court must guard against defining the issues too narrowly, so that the trial fails to resolve matters, or too broadly, so that it defeats the intended saving of time and cost.

3. Under section 69 of the Senior Courts Act 1981, the applicable pre-amendment regime required a libel action to be tried with a jury unless the court was satisfied that prolonged examination of documents or accounts, or scientific or local investigation, could not conveniently be undertaken with a jury. Where that exception applied, the presumption was in favour of trial without a jury. Section 11 of the Defamation Act 2013 had removed the relevant words and introduced a general presumption against jury trial, but section 16(7) preserved the former regime for actions begun before commencement.

4. The proposed preliminary issues were sufficiently clear and self-contained. They comprised the meaning of the words complained of, the justification defences, and the allegation that Mitchell knew Rowland’s allegations were baseless, together with the related plea of malice. It was appropriate to assume, for the preliminary trial, that disputed statements referred to Rowland where that pragmatic assumption facilitated efficient determination.

5. The separate qualified-privilege defences were properly left for later consideration because they raised largely distinct factual and legal issues. Differences in the parties’ burdens of proof were unlikely to cause practical difficulty because the preliminary issues were supported by substantial evidence.

The court made an order substantially in the terms proposed, with the preliminary trial brought forward to 17 November 2014.