Gregory v The Commissioner of the Police for the Metropolis

In claims for malicious prosecution or false imprisonment, the statutory entitlement to jury trial depends on a timely application. Under Senior Courts Act 1981, read with CPR 26.11, the application must ordinarily be made within 28 days after service of the defence. An amended defence does not restart that period where the issues were already in dispute.

After expiry, the court’s discretion is exercised with a predisposition towards trial by judge alone. Relevant considerations include delay, case management, proportionality, the complexity of documents or accounts, the advantages of a reasoned judgment and the parties’ interests.

The claimant brought proceedings concerning two arrests, alleging wrongful arrest, false imprisonment, malicious prosecution and assault. The defence to the first arrest was served on 8 January 2013. Proceedings were then stayed, and an amended defence concerning the second arrest was served on 8 July 2013.

The claimant applied for trial by jury in July 2013. Master Yoxall held that the application was out of time and ordered trial by judge alone. Permission to appeal was granted on the mode of trial. The central issues were whether CPR 26.11 restarted time on service of the amended defence, and how the discretion under section 69 of the Senior Courts Act 1981 should be exercised after the deadline.

1. Appeal dismissed. The claimant was not entitled to a jury trial if the claim proceeded.
2. “Defence” in CPR 26.11(1) refers to the defence initiating the relevant period, not each later amended defence. The 28-day period therefore ran from service of the original defence. The relevant causes of action were already in issue because the Commissioner had not admitted them. The amended defence did not restart time.
3. Civil jury trial could not be treated as a constitutional right. The statutory and procedural history did not justify a broader construction of CPR 26.11(1).
4. If the application had been made in time, section 69(1) of the Senior Courts Act 1981 would have created a presumption in favour of jury trial, subject to the exception for a prolonged examination of documents or accounts which could not conveniently be made with a jury.
5. Once the application was more than three months late, the case fell within the discretion under section 69(3), with contemporary practice predisposed against jury trial. The discretion under CPR 3.1(2)(a) to extend time was to be exercised consistently with the same approach and did not provide a route around it.
6. The Master had considered the documents and accounts involved, the judge’s specialist understanding of costs bills, efficiency, the claimant’s wishes and reputational interests. His conclusion that a judge-alone trial was appropriate was neither plainly wrong nor unjust.

The claimant appealed Master Yoxall’s order refusing trial by jury. Swift J granted permission to appeal on the mode of trial. The High Court dismissed the appeal and confirmed that there would be no jury trial if the claim proceeded.