England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		8 October 2008

Mr Justice Eady :

1. This claim, founded in libel and harassment, is due to be tried in the week beginning 20 October of this year. On 1 October I heard a pre-trial review and resolved a number of issues. Perhaps the most significant related to mode of trial. The Claimants seek trial by judge alone, in accordance with the terms of s.69(1) of the Supreme Court Act 1981, whereas the Defendant wishes to have trial by "his peers". I gave my ruling but, in order to save time which might be needed for the remaining applications, I indicated that I would deliver my reasons in writing.
2. I need not rehearse the background to this litigation in great detail, since it has already been addressed in a number of judgments in other proceedings and also in my reserved judgment in this case on 7 April 2008: [2008] EWHC 627 (QB).
3. It is unnecessary to set out the terms of the statutory provisions, which are very familiar and which Mr Tomlinson QC went through at the hearing in order to explain their significance for the benefit of Mr Hanratty. It is clear from the authorities, and in particular from the decision of the Court of Appeal in Aitken v Preston [1997] EMLR 415, that the court needs to address three separate, but closely related, issues:

i) Will there be prolonged examination of documents?

ii) If so, can that examination be conveniently carried out with a jury?

iii) If not, should the court exercise its discretion in favour of jury trial (notwithstanding the contrary presumption which has been acknowledged in the modern authorities)?

4. Since juries in criminal cases regularly find themselves committed in long and complex trials, it is obviously not enough for a party, in order to dispense with jury trial, to demonstrate length or complexity. The criteria set out above need to be strictly fulfilled.
5. "Prolonged examination" in this context is not to be taken to include the mere reading of a large number of documents. What is required is "careful reading": see e.g. Goldsmith v Pressdram [1988] 1 WLR 64. It has been said that the question will often depend on factors such as the extent to which counsel will be able to simplify matters for the jury, and whether or not the central issues in the case involve broad-brush questions or close analysis of detail: see e.g. Rothermere v Times Newspapers Ltd [1973] 1 WLR 448, 451, 457. Naturally, it is accepted that it is appropriate to take account of all documents which fall to be considered, for example in the course of cross-examination, and not merely those which are strictly admissible by the rules of evidence.
6. When considering the notion of "convenience", it is important to bear in mind that it is a relative term. It is necessary to address the marginal degree of inconvenience involved in jury trial, as opposed to that inherent in trial by judge alone. It is quite appropriate to take into account any anticipated increase in the length of the trial and additional costs. Particular problems arise when the members of a jury are required to go through bulky files and to compare documents alongside one another.
7. Where the court is satisfied that prolonged examination of documents will be required, and that this cannot be carried out conveniently with a jury, it is nonetheless sometimes still appropriate to order trial by jury in certain circumstances. These cannot be defined exhaustively. The court might be inclined to order jury trial, by way of example, where the case gave rise to unusual matters of national interest or concerned the integrity of prominent figures in public life. Indeed, it is recognised, more generally, that a jury may be the appropriate tribunal for determining questions of credibility, honour and integrity. Nevertheless, this cannot be regarded as a necessarily determinative factor in every case. It is a question of closely considering the particular circumstances. The discretion is not often exercised. Indeed, I only recall exercising it on one occasion myself: that is to say, in a pre-trial ruling in July 1999 in the case of McPhilemy v Times Newspapers Ltd [2000] 1 WLR 1732, CA.
8. Another factor to be weighed in the balance, and especially having regard to the requirements of Article 6 of the European Convention on Human Rights and Fundamental Freedoms, is that it will very often be in the interests of all parties to have a reasoned judgment – not least because it will set a claimant's vindication or the defendant's liability in its proper context, and because it may well be easier to formulate grounds of appeal.
9. The reasons relied upon by the Claimants in this case for seeking to dispense with a jury are to be found primarily in the third witness statement of their solicitor, Mr Tench. It is said, in my view convincingly, that there are a number of categories of documents which do indeed require prolonged and careful scrutiny. It is not a case in which the issues can be resolved in a broad-brush way.
10. It is necessary to remember the sheer scale of publication to be relied upon, for one reason or another, in this litigation. The defamation claims relate to words published in six sections of the "Dadsplace" website. For convenience, they are attached to the particulars of claim and extend to nearly fifty pages. Altogether, it is necessary for the tribunal of fact to come to a conclusion on ten allegedly defamatory meanings, which are to be found in one or more of these sections.
11. The Second Claimant relies on certain matters of aggravation of damage (naturally not open to the First Claimant, since it is a corporate entity) and for this purpose wide-ranging reference is made to the content of the relevant website and its associated forum.
12. So far as the harassment claim is concerned, there is another annex attached to the particulars of claim identifying words published on the website and forum (as well as on a postcard). This involves something of the order of 100 pages.
13. The Claimants' case on the Defendant's alleged responsibility for publication is largely circumstantial. An inference is to be invited from a large body of documentary material (together with some evidence from witnesses). It requires close examination of the style and content of published material for the purpose of identifying the Defendant as the supposed "culprit". To a lesser extent, examination of the Defendant's handwriting will be required in the light of assistance from an expert witness.
14. Much would appear to turn on the use of various user names (or "aliases") by means of which it is said that the Defendant communicated some of the offending material. It will be necessary to consider, in particular, 28 user names including "TheScurra".
15. Issues arise as to whether the Defendant used any or all of these aliases; whether "TheScurra" was a moderator, having editorial control over the forum; whether he was behind admissions in postings to the effect that he was the author of material on the website and that he had editorial responsibility in respect of some of it. It will also be required to investigate whether or not he was aware of material to be published on the website, in advance. All of this requires careful consideration of a large number of postings and other written material.
16. As I have already noted, it will be necessary to compare for style and content some of the material appearing on the website with extraneous statements made by the Defendant. Is the extent of the correspondence such that an inference can be drawn that the author is one and the same? At the moment there is a limited amount of material in the Defendant's handwriting which has already been subjected to expert scrutiny. On 1 October, one of the orders I made was that the Defendant should supply further samples of handwriting to be submitted to the expert. He told me that he writes very little because of an accident which he suffered about ten years ago. Nevertheless, he did agree to provide some samples of his handwriting from personal diaries. A supplemental expert report will probably be served by an appointed date. The fact-finding tribunal will need to do, to some extent, a corresponding exercise in comparison for the purpose of deciding how much weight can be placed upon the expert.
17. The best estimate that the Claimants' legal team could give as to the number of documents requiring close examination (or "careful reading"), as opposed to being scanned for background, was of the order of 350. From my reading of the documents, I did not find this surprising. The current estimate for the trial is 5 to 8 days, but that would be considerably prolonged with a jury. What is more, the trial would be more expensive, not only because of increased length but because of such factors as increased copying charges. I came to the conclusion that it would be very inconvenient to attempt these comparative exercises, and come to a decision on the inferences invited, with a jury. Indeed, I expressed the view (simply based on practical experience) that to attempt to reach a fair solution in this case with a jury grappling with so many different documents would be something of a "nightmare".
18. I am satisfied that the criteria under s.69(1) of the statute are fulfilled. Neither Mr Hanratty himself nor his helpful "McKenzie friend", Mr Thompson, was able effectively to rebut the powerful arguments advanced on the Claimants' behalf. This was not through lack of "equality of arms", which is a factor requiring to be carefully taken into account, but simply because the nature of the case and the scale of the documentary enquiry speaks for itself. I would not in any way wish to diminish the importance which Mr Hanratty attaches to jury trial and his desire to be tried by "his peers". Nevertheless, since he is going to be conducting the trial himself, I cannot see that it is in his interests to have a trial by jury. Not only would there be the significant advantage of a reasoned judgment, but a judge would be able to offer him much more assistance in developing his case and making it comprehensible in the absence of a jury. It is a common problem that a jury may perceive unfairness in the interventions which a judge often has to make when dealing with a case conducted by a litigant in person. This is very often a necessary exercise, in order to enable the court fully to understand the litigant's case and to ensure that he is, so far as possible, not at a disadvantage through lack of representation. A judge need be much less inhibited when there is no jury present.
19. In conclusion, I can see no reason at all to exercise the court's discretion in favour of a jury trial despite the statutory criteria having been fulfilled.
20. I have not gone into all the detail canvassed in the evidence, as to the scale of documentation and the need for its analysis, because I think it unnecessary to do so. Nonetheless, in broad terms these are my reasons for ruling that it is appropriate that this case, both in relation to defamation and harassment, should be tried by judge alone.