Clause 11 - Trial to be without a jury unless the court orders otherwise
Simon Hughes (Bermondsey and Old Southwark, Liberal Democrat)
I have just one question. This is obviously the clause that says that, in the future, the presumption in favour of jury trial will be changed to a presumption against jury trial in libel cases. I do not have a fundamental problem with that, but I raised the question with the Minister when we were debating the public interest test and I am somewhat concerned that in terms of the effectiveness and authority of a court decision in a libel case in which the key issue is public interest, that may be better determined if it is done by a jury. Of course the clause does not remove jury trial. It allows the judge to decide that there should be a jury trial. However, I am keen to know how the Minister thinks that will work. I am not against the clause, but I need to be persuaded that we have sufficient flexibility to ensure that the 12 representatives of the public can be there, determining what the public interest is.
Let me give two examples. The first—I am going back a long way—is in relation to literature that was not the subject of a defamation case; there were public order issues. I am referring to “Lady Chatterley’s Lover”. Obviously, that was adjudicated on by the courts, but it involved the public intervening as to what was appropriate. I remember more recently the case that Mary Whitehouse took against the publishers of a magazine in relation to a poem that was regarded as defamatory. Again, I think that the authority of the decision was the greater because it was taken by the public—by a cross-section of people, with different views, different faiths, different outlooks and so on. Deciding what the public interest is may, if it is a very important public issue, be better done by a jury, rather than by a single judge, however good and experienced that judge is.
I would be grateful if we could explore where the Minister thinks the balance will fall. I would like him to say on the record if he can that it certainly is not the wish of the Government that this should mean the end of jury trial for all defamation cases and to say that judges should be absolutely free to continue to decide that there ought to be a jury trial where that is appropriate.
Paul Farrelly (Newcastle-under-Lyme, Labour)
I welcome the clause. I believe that some of the calls for jury trials to be maintained in what is a civil arena are misplaced. The overall right to trial by jury is utterly inimical to having early hearings on meaning that give clarity and reduce the cost of defamation cases and to having early hearings on whether a publication is fact or comment. Like the right hon. Member for Bermondsey and Old Southwark, I would like to hear from the Minister exactly how he envisages that the jury trial discretion would be used.
Robert Flello (Stoke-on-Trent South, Labour)
I should like to give an early indication that I would like to speak briefly on clauses 12 to 14 and 16.
Clause 11 is another fairly simple clause, which will remove the presumption in favour of a jury trial in defamation cases. As the explanatory notes to the Bill explain, the Senior Courts Act 1981 and the County Courts Act 1984 provide a right to trial with a jury in cases of libel and slander, unless the specifics of the case lead a court to consider that to be inappropriate. Clause 11 will simply remove the words “libel” and “slander” from the relevant sections of both Acts.
The main benefit from the clause appears to be in the cost of defamation cases. The Publishers Association, in its submission to the Ministry of Justice consultation on the draft Bill, suggested that defending a libel case that reached the courts cost on average £1.33 million—a staggering figure. While the vast majority of cases already take place before a judge alone, with six cases in total between 2008 and 2010 taking place with a jury, the fact that the presumption is in favour of a jury means that unnecessary costs are still incurred in the preparation of a case, as all eventualities are prepared for.
That said, Liberty noted in its submission that the clause will make clear that
“actions in defamation will not be heard by a jury in any case unless the court orders otherwise.”
It drew attention to the fact that
“Lord Lester’s Private Member’s Bill similarly reversed the presumption of jury trial in defamation proceedings. Significantly …Lord Lester qualified the reversal by stating that the court may order a trial by jury on application by any party if satisfied ‘it is in the interests of justice to do so’.”
That is quite markedly different from what we have in clause 11. Liberty continued:
“In so deciding the judge would be required to have regard to all the circumstances of the case, including, but not limited to, the public interest in the action, the identity of any parties to the action, the extent to which early resolution is likely to facilitate settlement of the action, etc.”
Liberty is quite clear that it does not support the approach either in the Bill or in Lord Lester’s proposals, but it felt that the latter was more palatable. It believed that
“juries serve a particularly important function in defamation proceedings and that the current strong presumption in favour of trial by jury should remain…Liberty understands the desire to reduce costs in jury trials and action reform that addresses the impact of real inequality of arms. We believe, however, that the presumptive right to a jury trial is an unnecessary casualty in the overall context of this reform.”
While I do not entirely share Liberty’s view of the matter, it is worth pointing out its view that having regard to overall justice is an important issue, rather than how it is narrowly confined in clause 11. I have not felt sufficiently strongly about the matter to table an amendment, but I hope the Minister will respond to the question of whether a wider reading in terms of when justice is served by having a jury trial will apply, not least for the situations described by the right hon. Member for Bermondsey and Old Southwark.
Jonathan Djanogly (Parliamentary Under Secretary of State (HM Courts Service and Legal Aid), Justice; Huntingdon, Conservative)
Clause 11 will remove the presumption in favour of jury trial in defamation cases, which currently exists under section 69 of the Senior Courts Act 1981 and section 66 of the County Courts Act 1984. In practice, few defamation cases actually involve juries, and a substantial majority are heard by judges alone. However, the retention of the right to jury trial creates practical difficulties and adds significantly to the length and cost of proceedings. That is because of the role that juries, if used, have to play, such as in deciding the meaning of allegedly defamatory material. It means that issues that could otherwise have been decided by a judge at an early stage cannot be resolved until trial, whether or not a jury is ultimately used. That means that proceedings take longer and cost more than they should.
More than three quarters of responses to our public consultation supported the proposed change, which also received support from the Joint Committee on the draft Bill. In light of that, subsections (1) and (2) respectively amend the 1981 and 1984 Acts to remove libel and slander from the list of civil proceedings where a right to jury trial exists. The court will retain the general discretion that it has to order jury trial where it considers that it is appropriate to do so. The result will be that defamation cases will be tried without a jury unless a court orders otherwise.
My right hon. Friend the Member for Bermondsey and Old Southwark asked in what circumstances would jury trial be appropriate. I can tell him that the courts are familiar with exercising their discretion in relation to jury trial. We considered that it would be preferable to allow them to continue to do so without specifying particular circumstances in the Bill. The issue of the public interest will of course be something that the courts will wish to consider.
I will speak more generally, because hon. Members have voiced general concerns. My right hon. Friend the Member for Bermondsey and Old Southwark and the hon. Members for Newcastle-under-Lyme and for Stoke-on-Trent South have all asked this question. Let me put it on the record that the Government are firmly committed to maintaining the right of a defendant to a trial by jury in criminal proceedings. However, although the position relating to juries in civil defamation proceedings can be clearly distinguished from this, I can confirm that it is not the wish of the Government to end jury trials in defamation trials where the court feels that it is appropriate.
Robert Flello (Stoke-on-Trent South, Labour)
I was listening carefully to what the Minister said and I was waiting for a little more clarity on the point about the courts currently having a wide scope. He touched on it in his first few comments about the court having discretion, but I have a slight fear that the measure narrows that discretion. Will he put on the record that the clause does not narrow in any way the right of the court to, in the wider sense of justice, take the case before a jury?