England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE QBENI 97/0685/E

COURT OF APPEAL (CIVIL DIVISION )

(MR JUSTICE POPPLEWELL )

Royal Courts of Justice

The Strand

London

Thursday 15 May 1997

B e f o r e:

THE LORD CHIEF JUSTICE OF ENGLAND

(Lord Bingham of Cornhill )

LORD JUSTICE HIRST

and

LORD JUSTICE MILLETT

B E T W E E N:

THE RIGHT HON JONATHAN WILLIAM PATRICK AITKEN MP

Appellant/Plaintiff

and

(1) PETER PRESTON

(2) DAVID PALLISTER

(3) GUARDIAN NEWSPAPERS LTD Respondents/Defendants

B E T W E E N:

THE RIGHT HON JONATHAN WILLIAM PATRICK AITKEN MP

Respondent/Plaintiff

and

GRANADA TELEVISION LIMITED Appellant/Defendant

A N D B E T W E E N:

THE RIGHT HON JONATHAN WILLIAM PATRICK AITKEN MP

Respondent/Plaintiff

and

(1) GRANADA TELEVISION LIMITED

(2) GUARDIAN NEWSPAPERS LIMITED Appellants/Defendants

____________________

J U D G M E N T

(As Approved by the Court )

____________________

_______________

(Computer Aided Transcription by

Smith Bernal, 180 Fleet Street, London EC4A 2HD

Telephone 0171 831 3183

Official Shorthand Writers to the Court)

_______________

MR CHARLES GRAY QC, MR JUSTIN RUSHBROOKE and MR MARK WARBY (instructed

by Mr Richard CM Sykes, London SW1) appeared on behalf of

THE PLAINTIFF

MR GEORGE CARMAN QC, JAMES PRICE QC and MISS ALEXANDRA MARZEC

(instructed by Messrs Olswang, London WC2) appeared on behalf of

THE DEFENDANTS PETER PRESTON, DAVID PALLISTER

and GUARDIAN NEWSPAPERS LTD

MR GEORGE CARMAN QC, JAMES PRICE QC and MISS ALEXANDRA MARZEC

(instructed by Messrs Goodman Derrick, London EC4) appeared on behalf

of THE DEFENDANT GRANADA TELEVISION LIMITED

_______________

THE LORD CHIEF JUSTICE: This is an appeal by the defendants against an order of Popplewell J made on 9 May 1997 by which he ordered on the application of the plaintiff, The Rt Honourable Jonathan Aitken, that the trial of three libel actions due to begin on 3 June 1997 should be by judge alone and not by judge and jury.

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.

The plaintiff, Mr Jonathan Aitken, was until the recent dissolution of Parliament the Member of Parliament for South Thanet. He was first elected to Parliament in 1974, and from 1992 to July 1994 he was Minister of State for Defence Procurement. He was then appointed Chief Secretary to the Treasury and as such became a member of the Cabinet until his resignation from that office on 5 July 1995.

In the first action the defendants are Guardian Newspapers Ltd, the former editor of that newspaper and a journalist; in the second action the defendant is Granada Television Ltd, and in the third both Guardian Newspapers Ltd and Granada Television Ltd are defendants. All three actions have now been consolidated.

The first two actions relate to connected publications by the defendants on television and in the Guardian newspaper on 10 April 1995. The third action relates to connected publications by the two defendants respectively on television on 11 December 1995 and in the Guardian newspaper on 12 December 1995.

The defamatory allegations of which the plaintiff complains in each pair of publications can for present purposes be treated as identical, and contain the following imputations, each of which is specifically justified by each defendant:

(i) that the plaintiff's business career and fortune has depended upon his connection with several members of the Saudi royal family which runs a corrupt and repressive regime, and that the full extent of such connection and dependence had been concealed from his constituents and the electorate and the public generally;

(ii) that the plaintiff sought to persuade the principal and matron of an English health hydro to procure call girls for visiting Arabs;

(iii) that the plaintiff failed properly or fully to carry out his duties as a director of a British defence equipment manufacturer (BMARC), having been hired for his Saudi connections on the footing that he would supplement his salary as a director by participating in the commission taken by those connections on any Saudi contracts;

(iv) that the plaintiff failed to make proper or full disclosure of his directorship of a defence equipment supplier called FMS and, contrary to his public protestation which lacked candour, continued to see principals of that company on defence business after his appointment as Minister for Defence Procurement;

(v) that the plaintiff lied in his formal public statements concerning payment of his bill for a visit to the Ritz Hotel in Paris in 1993, which the defendants contend was a business visit;

(vi) that in March 1985 during the Iran-Iraq war the plaintiff had offered to assist a British defence company Astra in its efforts to obtain orders for defence equipment from Iraq in disregard of Government policy and of restrictions on the export of such equipment;

(vii) that the plaintiff while an MP and director of BMARC, had wilfully or recklessly failed to inform himself of the fact that BMARC in breach of Government policy and of its embargo on the sale of arms to Iran and Iraq, was manufacturing naval cannons for use in Iran, and had turned a blind eye to the fact that the company was trading in military products with Iraq; that the plaintiff had thereby failed properly to fulfil or carry out his duties as an MP; and that he had sought to excuse his ignorance of the true nature of BMARC's business by making statements which he knew to be false.

In addition, the defendants have recently amended their defence to include an allegation which was not specifically made in the publications complained of: that in relation to TV AM, of which he was a director, the plaintiff concealed from his fellow directors, from the IBA, and from the public, the fact that the Saudis had a major voting stake in TV AM, which put the company in breach of the terms of its broadcasting licence and of the IBA regulations, and thus placed its licence in jeopardy.

In addition to the manifold issues which arise on liability (particularly of course in relation to justification), there is a claim by the plaintiff for aggravated damages which is supported by extensive particulars relating to the conduct of each defendant in respect of each publication, their handling of the preparatory material, and other allegedly aggravating factors.

As will be readily apparent from the above summary, all the imputations at issue on justification relate essentially to the plaintiff's public life and public activities, and the underlying thrust of all those imputations is a charge that the plaintiff's conduct rendered him unfit for public office.

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 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 [1988] 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 [1990] 1 WLR 1042 especially per Stuart Smith LJ at page 1047 C - D and per Neill LJ at page 1055 H, referred to and applied in the recent case of Taylor v Anderton [1995] 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 71 H 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)).

The judge made his decision at the end of a pre-trial review which lasted some five days. Having cited section 69, he quoted from the relevant authorities and made specific reference to a passage in the judgment of Lord Denning MR in Rothermere v Times Newspapers at page 453F, where the Master of the Rolls said:

"Looking back on our history, I hold that, if a newspaper has criticised in its columns the great and the powerful on a matter of large public interest -- and is then charged with libel -- then its guilt or innocence should be tried with a jury, if the newspaper asks for it, even though it requires the prolonged examination of documents."

The judge reviewed the issues in the case and observed at page 13 of the transcript of his judgment:

"Mr Price [Leading Counsel for the defendants] is quite right to observe that in the end the credibility of the plaintiff is the central issue. In broad terms, if he is believed, he wins. If he is not believed, he will lose. He is also right to observe that this case involves matters of great national interest."

The judge considered the pleadings, basing himself on the meanings which the defendants had undertaken to justify, some of which, in the course of his judgment, he cited at length. At page 18 he summarised the position as it then was relating to the documentation in the case, and he then went on to consider the expert evidence which is likely to be called. He surveyed various areas of controversy between the parties, analysing the extent to which they were complex and the extent to which they would attract a volume of documentation. It would appear to me that this survey was carried out in a notably fair-minded and even-handed manner. For example, in relation to an issue concerned with TV AM and documents which had come to light in Curacao, he observed that it did not appear to him that the issue was enormously complex. So far as the allegation in relation to the Hydro is concerned, again he thought there was no complexity. In relation to the Ritz Hotel issue, he thought that the question was not particularly complex. Similarly, there were aspects of the BMARC matter which he thought might be more difficult for a jury to comprehend than other issues. At page 27 of his judgment he expressed a conclusion relating to the whole body of evidence and in particular the reports of various bodies which he expected to be used in evidence. He observed:

"If they are to be used in any shape or form, one wonders how a jury could possibly cope."

He then expressed his general conclusions in these terms:

"So I stand back from this case. I have to look at the matter overall and make the best judgment I can on the material as it presently stands to which I have been referred. I bear in mind the authorities and the helpful submissions of the Bar. As I have indicated, I do not think that the material itself is particularly complex. If complexity were the sole test in this case, I would certainly say the jury are capable of dealing with it. But in my judgment the sheer volume of written material which is likely to be used in this case is such as to require a prolonged examination by the jury. Having regard to the general interpretation of the word 'convenient', it is plainly wholly inconvenient for the jury to be faced with all that material.

I then have to exercise a discretion under section 69(3) which, as I understand it, is in favour of trial by judge alone. In the instant case I have no difficulty in deciding that it is 'judge alone' for a number of reasons, but two in particular. One is that these trials now, as opposed to trials in earlier days are conducted with witness statements being exchanged and standing as evidence-in-chief. With a jury it is quite clear the old-fashioned method of calling the witness and taking him through his evidence-in-chief via the witness statement will have to be done. I observe that Mr Aitken's witness statement itself amounts to some 205 pages. Thus it will be seen that the length of trial and the expense will be enormously enlarged if this case were to be tried by a jury.

Secondly, as I have indicated, the defendants have pleaded justification and they will be required to prove the allegations that they make. In their defence to an allegation of aggravated damage they are entitled to say: 'Not only was it true but on the hypothesis that it is not true, we believed it was true'. Evidence on the latter point is not admissible on the former, a lot of which is hearsay. For a judge that is a simple concept. He can control the evidence relating to it. It has been agreed that in the event of a jury trial, liability and quantum should be separated. This will add immeasurably to the length and cost of the trial. I take the view that, as the Master of the Rolls said in Taylor v Anderton :

'The case as it stands will be very lengthy, very expensive, very burdensome and very difficult to control if tried by a judge alone. If tried by a judge and jury it will be even lengthier, even more expensive, even more burdensome and even more difficult to control.'

I echo those words because although I am, I hope, sufficiently experienced to be able to conduct a trial of this nature, I view it with no little apprehension. But the idea of it being tried by a jury with all these documents is quite unthinkable."

Mr George Carman QC for the defendants challenges the judge's conclusion that the two statutory conditions in section 69(1) have been fulfilled. He contends that the judge was wrong to form the opinion that the trial required prolonged examination of documents and wrong to form the opinion that such prolonged examination, if any, could not conveniently be made with a jury. But in the forefront of his opening submissions he drew attention to what he advanced as a more fundamental argument. He suggested that there were at the forefront of this case two aspects which commanded attention: first, the essential issue as to the plaintiff's fitness for public office was, he contended, a matter of national interest. Second, he argued that where Parliament gives a prima facie right to trial by jury, the public interest is best served by the trial of those issues by a jury. He argued that, where the court is examining the conduct of a Member of Parliament or a Minister or a Cabinet Minister against the standards of what the public would expect, it was valuable that such judgments were made by the fellow citizens of the individual involved. He went on to argue that these considerations should have weighed very heavily with the judge who should have been concerned above all to maintain public confidence in the administration of justice. The public perception was that trial by jury was preferable in the case of a public figure because of the public dimension in such a case. Trial by jury should therefore be the starting point. It was not a conclusive consideration, but it should have been in the forefront of the judge's mind. He also placed reliance on the extract from Lord Denning's judgment in the Rothermere case to which I referred and echoed the observation that, if a newspaper attacks a public figure and is then obliged to defend itself, the right to do so before a jury should not be lightly taken away. Where a public figure is involved and the public interest is involved, the natural right of the media to seek jury trial should not be lightly denied.

This is an aspect of the matter to which Mr Carman returned in his closing submissions and to which I shall return. It is, however, appropriate at this point to bear in mind a number of facts. The first is that this case does concern a very well-known public figure, formerly the holder of high office, who complains of an attack on his integrity which would, if true, reflect adversely not only on him but also perhaps on the Government and party of which he was a member. It is true, as Mr Carman reminded us, that the plaintiff originally consented to trial by jury and only recently made this application that there should be trial by judge alone. Trial by jury is a course which it appears that the plaintiff originally favoured.

Secondly, we must bear in mind that the defendants are two well-known and influential organs of the media, asserting a right and indeed a duty to expose misconduct in high places boldly and fearlessly. It is important in the public interest that their activity in that regard should not be unfairly muzzled or restricted.

Thirdly -- and again this is an aspect to which I shall return -- our overriding concern must, as it seems to me, be to ensure that justice is done: justice to the plaintiff and justice to the defendants. It would be very wrong of us to consider which mode of trial might be more favourable to which party, even if it were possible (which in my view it is not) to make any confident prediction. That is simply not our concern.

The fundamental issue in this action is whether the defendants' allegations are shown to be true. It is very important in the interests of both parties and the public at large that an answer is given which is, and is convincingly demonstrated to be, unassailably reliable.

On the two conditions specified in section 69(1) it seems to me relevant to acknowledge that there are many ways of conducting defamation proceedings. Sometimes the plaintiff may present the complaint in simple, black-and-white terms and the defendant may resort to minute detail in an attempt to justify what was published. Sometimes the proceedings are conducted in the opposite way: the plaintiff seeks to present the case in a very detailed, document-intensive manner and the defendant presents a case in simple, black-and-white terms. Sometimes (increasingly rarely nowadays) both parties adopt the simple, black-and-white approach to the matter. Sometimes both parties resort to a minute document-intensive approach. Mr Carman tells us that it is his intention on behalf of the defendants to present the defendants' case on simple lines, seeking to attack the plaintiff's credibility and adopting a blunt, broad-brush (although he disclaims that description) approach, not relying on a detailed, highly-documented approach to the case.

Mr Gray for the plaintiff tells us that, whatever line the defendants adopt, he will present his case with detailed reference to the many documents which bear on these issues.

If both parties pursue the lines they have indicated, then the trial would fall into the second of the situations which I have broadly described. I have no doubt that both leading counsel are entirely accurate in describing their intentions. If they implemented them it would, as I say, be a case in class 2. I do, however, for my part entertain some doubt, not of Mr Carman's sincerity, but of his ability to implement his intention if it be the case that the plaintiff's conduct of the case is as proposed. If the plaintiff makes detailed reference to a large number of documents, then I can see that the defendants will be ineluctably drawn into a detailed consideration of those documents, and indeed of additional documents, which will undoubtedly enter the arena in the course of the trial to show that the plaintiff's explanations are not to be accepted.

It is true that the credibility of the plaintiff lies at the heart of this case, but the answer on that issue is likely to turn on a detailed scrutiny of what he did at various times and what he later said about what he had done. It seems probable that close attention will be paid to previous statements, answers, explanations, transcripts, reports and letters. The same is true (albeit to a lesser extent) with other witnesses.

The first question we have to decide is whether the judge was wrong to find that the two qualifying conditions in section 69(1) were fulfilled. I do not conclude that he was. I am sure the defendants are right when they submit that this is by no means the most document-intensive case that has come before a judge and jury in the civil courts, let alone the criminal courts. But that is not the test. The judge was fully entitled to form the opinion that the trial would require prolonged examination of documents and that that examination could not conveniently be made with a jury. It is, I think, right that this court should respect his judgment on these questions, given his close familiarity with the case and his record as an immensely experienced and respected judge.

Despite the defendants' submissions, the judge's opinion accords with my own expectations based upon what we have seen and heard. There are hundreds of pages of very detailed allegations and counter-allegations in this case. I have formed a clear impression that the trial will be a very dogged infantry battle with every foot of territory contested to the utmost. It seems to me very likely, if not inevitable, that there will be a significant volume of documents even at the outset and that the documents will mount and mount as the battle progresses. I would be surprised if, by the end of the trial, there had not been prolonged examination of a large, if not record-breaking, volume of documents and such an examination cannot be conveniently made with a jury.

That brings us to review of the judge's exercise of discretion. Ordinarily it is, as already pointed out, difficult for an appellant to challenge successfully a judge's exercise of discretion. Where a judge finds that the conditions in section 69(1) are fulfilled he will ordinarily require persuasive reasons to order a mode of trial which he has concluded would be inconvenient. But Mr Carman submits, with very considerable force and eloquence, that such persuasive reasons are here to be found. He submits that even if, contrary to his earlier submissions, the trial would require prolonged examination of documents which could not be conveniently made with a jury, there should nonetheless be trial by jury of this case because the public would perceive jury trial as the appropriate way of deciding a dispute between a senior public figure elected by and accountable to the public, and major organs of the news media. Anyone in the position of this plaintiff should, Mr Carman submits, be tried by a jury because of the public perception that such trial is superior. In a case of this kind this factor, Mr Carman argues, is all but conclusive in favour of jury trial.

I have for my part considered this submission with care because, although these considerations were in the judge's mind, I am clear that the submission was made much more fully and forcefully to us than to the judge. This is certainly an aspect which deserves the most serious attention. I am not, however, sure that public perception is a reliable guide. Those convinced that the charges made against the plaintiff were true might be tempted to criticise a judicial decision in the plaintiff's favour as a whitewash. Similarly, those convinced that the charges made against the plaintiff were false might criticise the jury's verdict against him as a lottery or the product of incomprehension (a not unfamiliar complaint when a jury returns a surprising or unpopular verdict).

The judge, and we in our turn, are, I think, better advised to concentrate on what will best serve the interests of justice. Given the overall complexity of this case resulting from the proliferation of issues and sub-issues, the amount of detail, the body of documentation and the number of witnesses, the interests of justice are, in my view, best served by a painstaking, dispassionate, impartial, orderly approach to deciding where the truth lies. Furthermore, it seems to me important in the public interest and in the interest of each of the parties that the case should culminate in findings, for or against the plaintiff, on each of the main issues in controversy. A general verdict of a jury could well leave room for doubt and continuing debate whether, on important and hotly contested issues, the plaintiff or the defendants had been vindicated. A reasoned judgment, giving the judge's conclusions and his detailed reasons for reaching them, would by contrast settle, one would hope once and for all, whether or not the plaintiff had misconducted himself in each and every one of the ways charged. It also seems to me a serious disadvantage of jury trial that there should be a first trial of liability only immediately followed, if the general verdict were in the plaintiff's favour, by a further trial on quantum. This would almost certainly lead to the recalling of certain witnesses and it would lead to the leading of considerable evidence concerning the aggravation of damages which is pleaded in this case with unusual fullness. This is an exercise which would have to be carried out on the basis of no more than surmise about which of the libels had been found proved.

Given the strong and unambiguous view expressed by the judge charged with the heavy and responsible duty of conducting this trial, I would for my part be very hesitant to overrule his discretion. I am not, however, persuaded that grounds have been shown for doing so. I consider that the interests of justice in the widest sense will be best served by the order which he made. I would accordingly dismiss this appeal.

LORD JUSTICE HIRST: I agree.

LORD JUSTICE MILLETT: I also agree.

ORDER: Appeal dismissed with costs of the appeal; order under section 4(2) revoked.

____________________________