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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Fiddes v Channel Four Television Corporation & Ors  EWCA Civ 730 (29 June 2010)
Cite as:  WLR 2245,  1 WLR 2245,  EWCA Civ 730
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ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
Mr Justice Tugendhat
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE MAURICE KAY VP
LORD JUSTICE SEDLEY
| MATTHEW FIDDES
| - and -
|CHANNEL FOUR TELEVISION CORPORATION
STUDIO LAMBERT LIMITED
(3) JANE PRESTON
Adrienne Page QC and Yuli Takatsuki (instructed by Aslan Charles Kousetta LLP) for the Respondents
Hearing dates : 10 June 2010
Crown Copyright ©
Lord Neuberger MR :
"The decision as to mode of trial is governed by section 69 of the Supreme Court Act 1981 which so far as relevant reads:
'(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 --
(b) a claim in respect of libel....
the action shall be tried with a jury, unless the court is of opinion that the trial requires any prolonged examination of documents .... which cannot conveniently be made with a jury.
(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.'
The judge correctly identified the three issues which he had to decide as follows:
(i) Will there be a prolonged examination of documents?
(ii) If so, can it conveniently be made with a jury?
(iii) If not, should the court nonetheless exercise its discretion to order trial with a jury?
The judge answered the first question in the affirmative and the second in the negative. On the third, having regard to a number of considerations, he decided that he should exercise his discretion in favour of trial by judge alone.
All three of these conclusions are attacked by the defendants, and plainly if the judge was wrong in his answer to either of the first two questions then the defendants would indeed be entitled as of right to trial by jury. If, however, he was right in his answer to the first two questions, then, as is well settled and not disputed, this court may properly interfere with his exercise of discretion only if he was plainly wrong."
"(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  1 WLR 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  1 WLR 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  1 WLR 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  1 WLR 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)).