English libel juries are among the most generous in the world – so generous that plaintiffs will cross the Atlantic for the booty. But extravagant awards have damaged the law of defamation and although the Court of Appeal has had the power to reduce them since 1990, juries continue to make enormous awards.
But juries are not entirely to blame. They have been left to pluck figures from the air, with awards like Jeffrey Archer's £500,000 to give them a clue. In (Elton) John v MGN, on 14 December 1995, the Court of Appeal recommended guidelines for judges to give juries to assist them in assessing awards. However, this does not appear to have been very effective.
Some lawyers would welcome the elimination of the jury because it is an expensive and time-consuming addition to a trial and the jurors can be unpredictable and biased in assessing awards.
The new Defamation Bill, currently going through Parliament, does attempt to reduce the role of the jury and enlarge that of the judge. Under the Bill, the court without a jury will evaluate all cases. If the plaintiff can be adequately compensated following the summary procedure, the court will dispose of the case without a jury. Otherwise it will go to trial.
But will the new law reduce awards, costs and the element of unpredictability? Under the summary procedure the damages award will be limited to up to £10,000. In reviewing cases, the court will be able to “weed out greedy plaintiffs,” according to Rupert Grey, partner at Crockers. But £10,000 is a very low award and it is hard to envisage plaintiffs who were formerly in the running for £400,000 being content with such a small sum.
Nigel Tait, a partner at Peter Carter-Ruck, which acts for plaintiffs, does not think the new summary procedure will make libel cases cheaper and quicker. He says: “It will drive up costs by introducing another interlocutory step in the proceedings, and where judges give summary judgments in favour of plaintiffs, the defendants will inevitably appeal.”
But it is more likely that lawyers acting for plaintiffs will persuade the court that a trial by jury would be a fairer treatment of the case. If the summary procedure is circumvented in this way, it will simply be viewed as a costly complication.
A further complication is the possibility of bias on the part of the jury. Jurors may be more easily moved by the plight of an individual than a corporate body. “Where the plaintiff is a popular figure and the defendant a commercial enterprise, they naturally sympathise with the plaintiff,” says Lawrence Abramson, senior solicitor at Denton Hall.
But judges also have prejudices and there is a danger that different judges will take different stances. A severe judge may let very few cases go to trial, a lenient one may let too many through.
In addition, it is not certain that the intervention of the judge will clear up matters. He may add problems of his own.
David Hooper, partner at Biddle & Co, says there is the fear of “too much pressure being put either on defendants or plaintiffs to settle their cases, with the judge indicating that he will make fairly draconian orders if that doesn't happen”. The jury, despite its failings, can balance the judiciary.
Robert Clinton, a partner at Farrer & Co, is concerned about another of a judge's powers: “The judge will now be able to order the publication of an apology. This goes way beyond the relief available in any other proceedings.” At his discretion a judge could order front-page apologies in banner-headlines, or the broadcasting of apologies on a news programme.
Many defendants would probably prefer to pay higher damages than submit to this level of judicial control. There is also the difficulty of implementing the power. For example, if an apology was not made, or not made in the form specified, would it mean another trip to court?
The new summary procedure is a double-edged sword and could have the opposite of its desired effect. For Denton Hall partner Alan Williams, the summary relief is only “tinkering, playing around with procedure”. He believes the law of defamation needs a much more fundamental overhaul: “The balance is too far in terms of protecting character; it prevents freedom of speech and investigative journalism. What is needed is a lighter libel law with a stronger law of privacy.”
The new legislation is not ambitious and merely helps to form a strange hybrid system which has no guarantee of working. The danger is that libel cases will remain costly and time-consuming and awards will still be high.