Simon Blake and Ors. v Laurence Fox

In post-2013 defamation proceedings, trial by jury is exceptional. The court must first address any properly established risk of apparent bias. The test is whether a fair-minded and informed observer would conclude that there was a real possibility of bias. Controversial subject matter, public criticism, or guidance issued by the Judicial College does not itself establish such a risk.

Where no such risk is shown, the discretion under Senior Courts Act 1981, section 69(3), ordinarily favours trial by judge alone. The value of a reasoned judgment, proportionality, active case management, early determination of meaning and fact-or-opinion issues, and the complexity of modern defamation law strongly weigh against jury trial.

The claimants brought libel claims concerning tweets in which the defendant described them as paedophiles. The defendant counterclaimed in respect of tweets describing him as racist. He applied under section 69(3) of the Senior Courts Act 1981 for trial by judge and jury.

He argued that judicial guidance on racism created a real risk of institutional or involuntary bias, and that a jury would provide enhanced impartiality and more valuable vindication. The claimants opposed the application and relied on the benefits of a reasoned judgment and proportionate case management. The court also considered whether proposed preliminary issues should proceed.

1. Application of apparent-bias test. The court adopted the two-stage test stated in Bubbles & Wine Limited v Lusha [2018] EWCA Civ 468: ascertain the circumstances bearing on the allegation, then ask whether a fair-minded and informed observer would conclude that there was a real possibility of bias. The test applies equally where bias is alleged against any judge who might try the case.
2. The defendant failed to establish that risk. The trial judge would determine the meaning of the tweets objectively, without relying on dictionary definitions or the Equal Treatment Bench Book. Any later truth issue would be determined by a dispassionate assessment of the evidence. Judges are capable of excluding irrelevant material from consideration.
3. A reasoned judgment was a safeguard against error, particularly because the meaning of racism was a central issue. The possibility of public criticism or an appeal did not justify transferring responsibility to a jury.
4. Under section 69(3) of the Senior Courts Act 1981, the discretion was exercised against jury trial. The abolition of the former presumption in favour of jury trial, the importance of reasoned reasons, proportionality, the overriding objective, and the substantial case-management advantages of preliminary determination weighed heavily against the application.
5. Jury trial would restrict early rulings on meaning, whether the words were defamatory, and whether they were fact or opinion. It would risk the expenditure of substantial resources on irrelevant issues and would require complex directions concerning serious harm, truth, honest opinion and the statutory public-interest defence.
6. The application for trial by jury was refused. Consequential orders and directions for the preliminary-issue application were adjourned to 26 May 2022.