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Cite as: [2002] EWCA Civ 941

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    Neutral Citation Number: [2002] EWCA Civ 941
    Case No: A2/2002/1254

    Mr Justice Morland

    Royal Courts of Justice
    London, WC2A 2LL
    4 July 2002

    B e f o r e :



    David Gregson
    - and -

    Channel Four Television Corporation


    (Transcript of the Handed Down Judgment of
    Smith Bernal Reporting Limited, 190 Fleet Street
    London EC4A 2AG
    Tel No: 020 7421 4040, Fax No: 020 7831 8838
    Official Shorthand Writers to the Court)


    Desmond Browne QC; Mr Matthew Nicklin (instructed by D J Freeman for the Defendant/Appellant)
    Patrick Moloney QC; Miss Catrin Evans (instructed by Russell Jones & Walker for the Claimant/Respondent)



    Crown Copyright ©

      Lord Justice Waller:-

    1. The trial of this libel action was due to commence before judge and jury on 11th June 2002 i.e. Tuesday of last week. On Friday 31st May just before the vacation, the claimant, through his advisers, gave notice of an application to switch the mode of trial to judge alone. On the first day of the trial, for administrative convenience and without prejudice to either side’s position, a jury was sworn in. There was then argument on the claimant’s application. At 2 p.m. Morland J ruled that the question of meaning should be tried by judge and jury. He reserved his judgment overnight as to whether other issues i.e. qualified privilege, malice, and damages should thereafter be tried by judge alone. On Wednesday 12th June he ruled that those issues should be tried by judge alone.
    2. The directions for trial had always contemplated that the issues would be divided up with the question of meaning being tried in the first week and that happened with the jury retiring on Thursday to consider that question. The judge having refused permission to appeal from his ruling, the defendant wished to challenge the ruling changing the mode of trial of the other issues. Obviously it was urgent to hear the application for permission to appeal and indeed hear the appeal if permission were granted, so that if the judge’s order is reversed the same jury could continue to hear the remaining issues. The application was accordingly adjourned into open court and expedited with both sides present so that if permission to appeal were granted the appeal could follow straight on.
    3. Mr Desmond Browne QC with Mr Matthew Nicklin put in a full skeleton argument, a speaking note, and addressed us extensively orally. Mr Patrick Moloney QC had also put in a skeleton but since following Mr Browne’s submissions there were points on which we felt that we needed his help, we granted permission to appeal and heard oral submissions from Mr Moloney to which Mr Browne then responded. We retired to consider our decision and because of the urgency announced that we were dismissing the appeal and would provide our reasons in writing at a later date. These are my reasons.
    4. The starting point as the judge recognised, and as each side has recognised, is section 69 of the Supreme Court Act 1981 which provides so far as material:
    5. “69. (1) Where, on the application of any party to an action to be tried in the Queen’s Bench Division, the court is satisfied that there is in issue –
      (a) . . .
      (b) a claim in respect of libel, slander, malicious prosecution or false imprisonment; or
      (c) . . . . the action shall be tried with a jury, unless the court is of opinion that the trial requires any prolonged examination of documents or accounts or any scientific or local investigation which cannot conveniently be made with a jury.
      (2) An application under subsection (1) must be made not later than such time before the trial as may be prescribed.
      (3) An action to be tried in the Queen’s Bench Division which does not by virtue of subsection (1) fall to be tried with a jury shall be tried without a jury unless the court in its discretion orders it to be tried with a jury.
      (4) Nothing in subsections (1) to (3) shall affect the power of the court to order, in accordance with rules of court, that different questions of fact arising in any action be tried by different modes of trial; and where any such order is made, subsection (1) shall have effect only as respects questions relating to any such charge, claim, question or issue as is mentioned in that subsection. ”
    6. The judge’s approach was to explain first that he had ordered the trial of meaning to be by a jury, and why he had done so; the reasons included the fact that he had previously expressed a view on meaning which would have meant that if that issue were to be tried by a judge alone the trial would have to be adjourned and be listed before another judge. So far as qualified privilege was concerned he explained the more limited role of the jury. He quoted at page 6 Lord Nicholls in Reynolds v Times Newspapers [2001] 2 AC 127 at 204D:
    7. “My conclusion is that the established common law approach to misstatements of fact remains essentially sound. The common law should not develop “political information” as a new “subject matter” category of qualified privilege, whereby the publication of all such information would attract qualified privilege, whatever the circumstances. That would not provide adequate protection for reputation. Moreover, it would be unsound in principle to distinguish political discussion from discussion of other matters of serious public concern. The elasticity of the common law principle enables interference with freedom of speech to be confined to what is necessary in the circumstances of the case. This elasticity enables the court to give appropriate weight, in today’s conditions, to the importance of freedom of expression by the media on all matters of public concern.
      Depending on the circumstances, the matters to be taken into account include the following. The comments are illustrative only. 1. The seriousness of the allegation. The more serious the charge, the more the public is misinformed and the individual harmed, if the allegation is not true. 2. The nature of the information, and the extent to which the subject matter is a matter of public concern. 3. The source of the information. Some informants have no direct knowledge of the events. Some have their own axes to grind, or are being paid for their stories. 4. The steps taken to verify the information. 5. The status of the information. The allegations may have already been the subject of an investigation which commands respect. 6. The urgency of the matter. News is often a perishable commodity. 7. Whether comment was sought from the plaintiff. He may have information others do not possess or have not disclosed. An approach to the plaintiff will not always be necessary. 8. Whether the article contained the gist of the plaintiff’s side of the story. 9. The tone of the article. A newspaper can raise queries or call for an investigation. It need not adopt allegations as statements of fact. 10. The circumstances of the publication, including the timing.
      This list is not exhaustive. The weight to be given to these and any other relevant factors will vary from case to case. Any disputes of primary fact will be a matter for the jury, if there is one. The decision on whether, having regard to the admitted or proved facts, the publication was subject to qualified privilege is a matter for the judge. This is the established practice and seems sound. A balancing operation is better carried out by a judge in a reasoned judgment than by a jury. Over time, a valuable corpus of case law will be built up.”
    8. He also referred to the fact that if he ruled that the question of qualified privilege was to be tried by judge alone both counsel accepted that malice and damages should also be tried by judge alone. [page 3-14]. He does not refer to any difficulty in relation to trying the qualified privilege or malice aspect which might flow from such view as he might have expressed previously on meaning. It seems that before him no suggestion was made that there was any such difficulty.
    9. The judge then took the matter in stages and considered each stage in turn by reference to Section 69. That approach is not criticised. I shall follow the same pattern but before doing so it is convenient to set out a summary of the principles in the words of Lord Bingham, when Lord Chief Justice, in Aitken v Preston and others [1997] EMLR 415 at 421:
    10. “In the course of his judgment the judge conducted an extensive review of the relevant authorities and correctly extracted the following principles:
      (i) the basic criterion, viz. that the trial requires a prolonged examination of documents, must be strictly satisfied, and it is not enough merely to show that the trial will be long and complicated (Rothermere v Times Newspapers Ltd [1973] 1 W.L.R. 448). However, the word “examination” has a wide connotation, is not limited to the documents which contain the actual evidence in the case and includes, for example, documents which are likely to be introduced in cross-examination (Goldsmith v Pressdram Ltd [1988] 1 W.L.R. 64).
      (ii) “Conveniently” means without substantial difficulty in comparison with carrying out the same process with a judge alone. This may involve consideration of several factors, for example:
      (a) the additional length of a jury trial as compared with a trial by judge alone;
      (b) the additional cost of a jury trial taking into account not only the length of the trial but also the cost of, for example, additional copies of documents;
      (c) any practical difficulties which a trial by jury would entail, such as the handling of particularly bulky or inconvenient files, the need to examine documents alongside each other, and the degree of minute scrutiny of individual documents which will be required;
      (d) any special difficulties or complexities in the documents themselves (Beta Construction Ltd v Channel Four Television Co Ltd [1990] 1 W.L.R. 1042 especially per Stuart Smith LJ at page 1047C-D and per Neill LJ at page 1055H, referred to and applied in the recent case of Taylor v Anderton [1995] 1 W.L.R. 447).
      (iii) The ultimate exercise of discretion will in each case depend substantially on the circumstances of each individual case, and it would be idle to attempt to enumerate all the factors which might arise.

      There are, however, four factors which have been identified in the earlier cases, which have some general application and which are presently relevant, as the judge recognised:

      (1) The emphasis now is against trial by juries, and this should be taken into account by the court when exercising its discretion (Goldsmith v Pressdram (supra) at page 68 per Lawton LJ with whom Slade LJ expressly agreed. This conclusion is based on section 69(3), which was a new section appearing for the first time in the 1981 Act to replace section 6(1) of the Administration of Justice (Miscellaneous Provisions) Act 1933, the provision in force at the date when Rothermere v Times Newspapers was decided.
      (2) An important consideration in favour of a jury arises where, as here, the case involves prominent figures in public life and questions of great national interest (Rothermere v Times (supra)).
      (3) The fact that the case involves issues of credibility, and that a party’s honour and integrity are under attack is a factor which should properly be taken into account but is not an overriding factor in favour of trial by jury (Goldsmith v Pressdram (supra) at page 71H per Lawton LJ).
      (4) The advantage of a reasoned judgment is a factor properly to be taken into account (Beta Construction v Channel Four Television (supra)). ”
    11. The first question Morland J posed was whether there would be a prolonged examination of documents? He was quite clear that there would be and expressed himself succinctly in these terms:
    12. “In this case will there be a prolonged examination of documents? The first test. In my judgment there assuredly will be. The programme took six months in the making and involved a team of journalists. Their basic material was very substantially documentary; used and unused material in Eddie Gilfoyle’s trial, the summing up, the judgment of the Court of Appeal and the conclusions of the police complaints authority. The many journalists, who worked on the programme, made notes and records of their conclusions as their research continued. There were many drafts of the programme before the final broadcast version was broadcast.
      Inevitably the journalists will be questioned in detail as to why they gave weight to this matter or omitted to give weight to that matter. That questioning will require referencing and cross-references to documentary material in the possession of the programme-makers before the broadcast.”
    13. Mr Browne seeks to attack that finding. He spent some time demonstrating that the claimant’s solicitors thought there could be a jury trial right up until the moment they made their application. He emphasised how both sides’ solicitors thought jury trial possible even before issues were considerably narrowed. It seems to me that solicitors’ attitudes at various times could only be of marginal significance. Their attitude might well have been that despite prolonged examination of documents and despite inconvenience they were content with a jury trial. The further points made by Mr Browne are as follows. He submitted that the judge did not give sufficient weight to the fact that it was “careful reading” which should be needed before the court should conclude that examination was prolonged, and he relied on a dictum of Slade LJ in Goldsmith v Pressdram. He said that the judge did not properly identify the issues to which documents went, the documents that needed examination, and how much of individual documents would need to be read carefully.
    14. He suggested that despite a throwing down of the gauntlet Mr Moloney had not been prepared to identify the documents he would be relying on. He had got his junior thus to look at matters from the claimant’s point of view and produce the documents that on that basis his junior considered would be the maximum required by Mr Moloney. Those documents filled one lever arch file. Mr Browne also sought to pray in aid the fact that the jury had now returned a verdict on meaning (a point to which I will return) thus limiting further the documents or parts of documents on which reliance could be placed.
    15. Mr Moloney’s response was that it could not be up to Mr Browne’s side to decide what documents he (Mr Moloney) would need for cross-examination. He asserted that during his cross-examination of the witnesses for the defendant, there would hardly be a moment when he was not referring to documents. He would indeed be likely to be cross-referring and wanting different documents looked at at the same time. He asserted it would take 10 days before a jury but 5 days before a judge alone. Mr Browne did not accept those time estimates.
    16. I do not accept that the judge misdirected himself. With widely differing views from counsel the judge was entitled to find that there are going to be three lever arch files composed of a thousand pages of documents. It would seem to me surprising if in such a case there were not going to be a prolonged examination of documents. But, more relevantly, although this is a finding of fact and thus in one sense no different from other findings of fact by a judge at first instance, in the modern context it is a finding by a judge who has been managing this trial and has a detailed knowledge of the issues. Furthermore, I think the judge’s approach must be considered by reference to the position as it was – not after a return of the verdict. His finding on this aspect should in my view be upheld.
    17. I next turn to the question of convenience. In Beta Construction v Channel Four Television [1990] 1 WLR 1042 at 1055 Neill LJ reviewed certain of the passages in judgments in Court of Appeal decisions dealing with the meaning of “conveniently” and summarised the position as follows:-
    18. “In the light of these judgments and in the light of the fact that in section 69(1) of the Act of 1981 reference is also made to “any scientific or local investigation,” I would venture to formulate the test to be applied as follows: (1) The primary question to be decided is whether trial with a jury would be consistent with the efficient administration of justice. (2) In deciding this question all the circumstances can be taken into consideration and in particular the following: (a) The additional length of a jury trial as compared with a trial by judge alone. (b) The additional cost of a jury trial; this will take account not only of the length of the trial but also the cost of, for example, additional copies of documents. (c) Any practical difficulties which a trial by jury would entail. Thus there may be cases where the documents are particularly bulky or inconvenient to handle or (as Slade LJ mentioned in Goldsmith v Pressdram Ltd) the examination of the documents may require to be detailed and minute. (d) Any special complexities in the documents or the accounts. This is a subsidiary point because, as was pointed out in the earlier cases, juries in criminal cases may often have to try to understand complex material with which they may not deal in their daily lives. Nevertheless I agree with Stuart-Smith LJ that the fact that the jury do not give any grounds for their verdict whereas a judge gives a reasoned judgment is a matter which cannot be overlooked.”
    19. Where there is wide divergence between experienced counsel as to the way in which cross-examination will take place, its length, and as to the convenience or otherwise of a jury having to handle files, it seems to me, firstly that recognition must be given to the fact that each are advocates for their own point of view, but secondly that one counsel is not in as strong a position to say what the position will be while the other is cross-examining, as he or she is in relation to the way they are going to conduct their own case. More importantly, a judge who has managed the case for some time is going to be in a stronger position than the Court of Appeal to assess the position. Such assessment has in any event to be on a broad basis.
    20. As already indicated the judge was entitled to find that three files of documents would be necessary with about 1000 pages overall. He was entitled to recognise that cross-referencing was likely to occur and cause delay while all jurors found the right documents. He was entitled to recognise the fact that a judge alone can more easily clarify points being made on documents than can any individual member of the jury.
    21. It is unsurprising that the judge should conclude that the amount of documentation which he assessed as likely to be necessary would make it inconvenient to try this action with a jury rather than a judge alone. It being clearly a conclusion he was entitled to reach, there is no basis for interfering with that finding.
    22. Discretion. - Having ruled that there would be a prolonged examination of documents which could not conveniently be made by a jury, the judge still has a discretion to order trial by a jury. The judge identified two cogent points in favour of the defendant. First, the application was made very late, and second, the charge made against the individual journalists of express malice was a very serious charge, and it is understandable why they should wish their integrity and good name to be vindicated by a jury.
    23. On lateness the question is whether that has prejudiced the defendant. What is relied on by Mr Browne is the inconvenience caused by having to deal with the application on the first day and the disruption to the trial by having to come to the Court of Appeal, but that in my view is not relevant prejudice. The relevant question is whether the defendant would have been in any different position if the application had been made earlier? It is difficult to see how they would have been.
    24. On the more powerful point that the journalists understandably wish their good name and integrity to be vindicated by a jury, the judge pointed out how in a Reynolds qualified privilege case, the question of malice is intertwined with the question of responsible journalism, and it was in that context that the judge said:
    25. “In my judgment the factor which militates most strongly in favour of trial by judge alone is the number of primary detailed facts still in dispute on which the jury would have to be asked to make unanimous findings. The claimants have lodged 12 proposed questions and the defendants have lodged 48 proposed questions . . . ”

      He recognised that in the alternative to their 48 proposed questions the defendant had proposed a short form of jury questions but he took the view that the form of those questions were wholly inappropriate. Mr Browne challenged the judge’s view of the short form question before us in the context of the point to which I should now turn.

    26. Before us Mr Browne sought to take a further point, not taken before the judge, and taken for the first time in the grounds of appeal. This point at one stage gave me some cause for concern. Mr Browne suggested that, particularly in the context of the jury’s verdict on meaning, Morland J who had previously expressed a view on meaning, was not the most appropriate tribunal of fact to decide relevant facts on the Reynolds qualified privilege aspect. The argument was in essence:
    27. (1) the jury’s verdict shows that they did not take the view that the meaning was as serious as the judge had expressed himself as thinking it was,

      (2) on Reynolds privilege the question which would ultimately arise would relate to whether the journalists had acted responsibly or with reasonable skill and care;

      (3) that factual issue should as far as possible be left to a tribunal who had not expressed an adverse view as to meaning because an adverse view as to meaning might colour that tribunal’s view as to whether the journalists were acting responsibly.

    28. During argument in relation to this point, it appeared that there was a divergence of view between counsel as to exactly what questions would be put to the jury if a jury were to try the case including the Reynolds privilege issue. Reynolds contemplates as per the speech of Lord Nicholls (see above) facts being found by the jury, and the ultimate balancing exercise being carried out by the judge. Mr Browne was seeking to argue that a question such as “Did the defendant act responsibly in broadcasting the programme including the parts that related to the action of the claimant?”, was an appropriate question for the jury. It is that question that the judge thought was wholly inappropriate expressing the view “that that question would transfer from the judge to the jury the very question that the law requires a judge to decide”. I am inclined to think that the judge was right in the view that he expressed, but it is unnecessary to explore the point further because the very fact that there is a debate as to what questions should be put to the jury when Reynolds privilege is in issue, would be a further factor in favour of exercising a discretion that this case was more appropriate to be tried by a judge alone. The intertwining of the role of the judge and jury (if there is one) without an absolutely clear demarcation line would itself favour exercising a discretion in the way that the judge did.
    29. But to return to the point based on the judge having expressed a view on meaning. If it was ever a point, it was a point for disqualifying Morland J from trying this case at all. Even with a jury, if his ruling on qualified privilege would be coloured by a previous expressed view on meaning, that was always going to be so if the jury came to a different view on meaning. It had never been suggested, and nor could it be, that Morland J was unsuitable to try this case. Judges are used to following loyally findings or rulings with which they may not agree. There is absolutely no reason for contemplating Morland J’s ruling on qualified privilege being tainted by some view he previously expressed on meaning. That would explain why it was not a point even thought of when the question of jury trial was argued before him.
    30. The question as in all cases where discretion is being attacked is not simply whether the Court of Appeal might disagree with the judge’s decision but whether the judge’s ruling has exceeded the generous ambit within which reasonable disagreement is possible [to quote the well-known words of Lord Fraser in G v G [1985] 1 WLR 647 at 652].
    31. In my view the judge having found as a fact that the trial required a prolonged examination of documents which could not conveniently be made with a jury, the exercise of his discretion was unimpeachable.
    32. These are my reasons for dismissing the appeal.
    33. Lord Justice Robert Walker

    34. I agree with all my lord’s reasons. I would only add, in relation to the issue of ‘prolonged examination’, that it was relevant for the judge to consider (as no doubt he did) not only the number of documents likely to be used in the case, but also their character. In this case little of the material is technical, but it does consist of an aggregation of disparate material from different sources, probably having very varied evidential value. Most of the documents referred to will have to be read carefully, considered, compared with other documents, and assessed. That would have been a very heavy task for a jury.
    35. Order:

    36. Appeal dismissed
    37. Orders as per consent order agreed between counsel
    38. (Order does not form part of the approved judgment)

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