Niri Shan, head of media and entertainment, Taylor Wessing
Opinion: It’s time for defamation proceedings to ditch the jury
21 June 2010
11 November 2013
28 July 2014
11 December 2013
3 June 2014
25 March 2014
The recommendation in Lord Lester’s Defamation Bill that the presumption of trial by jury be reversed, and the recent decision of the Court of Appeal of Fiddes v Channel 4 have put the spotlight back on the question of whether jury trials are desirable in defamation proceedings.
In Fiddes, Matt Fiddes, a former bodyguard to Michael Jackson, is suing Channel 4 over a 2008 programme entitled The Jacksons Are Coming, claiming it included fabricated footage and false statements about him. At first instance, Tugendhat J decided against a jury trial as he believed (among other things) that a jury would increase the costs of the action (which had already reached £3m). Mr Fiddes appealed, but on 10 June 2010 the Court of Appeal upheld Tugendhat J’s decision. We await the court’s written judgment at the time of writing while the trial is due to start today without a jury.
In my view, jury trials in defamation proceedings are a historical relic and represent the greatest hurdle to procedural reform. Originally, the jury’s main role in defamation proceedings was to decide whether the the words complained of had been published. In 1792 the jury’s role was broadened by the Fox’s Libel Act, which allowed it to decide whether the words were defamatory. As a result of the struggle for the 1792 reform in combination with a government that was increasingly relying on the law to suppress free speech, the jury came to be perceived as a true guarantor of free speech.
However, this historical reasoning has no application in today’s civil libel law. Today’s judiciary are more than capable of undertaking the modern day jury’s role of determining the natural and ordinary meaning of the words complained of (as seen by the ordinary reasonable reader) and whether that meaning is defamatory in the estimation of right-thinking members of society. Indeed, judges already frequently determine issues akin to these in other areas of law, such as negligence (the ’man on the Clapham omnibus’) and trade marks (the ’ordinary consumer’).
Defamation is a complicated area of law and I am not convinced that all jurors fully understand its complexities. The position is exacerbated by the fact that it is human nature to make snap decisions about people before even hearing them speak. Studies have shown that what you say makes less of an impact than your body language and the way you look. Judges are more comfortable with looking beyond first impressions and attributing the appropriate weight to a witness’ evidence. By abolishing juries, there would be more certainty of outcome and a coherent body of jurisprudence could be created.
Above all, libel litigation could be streamlined significantly without juries, which would result in a reduction in both trial times and the substantial costs of defamation proceedings, which can often have a chilling effect on free speech.
For example, you could have an early determination of meaning, which would bring an end to the guessing game that the parties currently play whilst waiting for the trial to begin. As a consequence, many more cases would settle at an early stage. Also, witness statements could stand as evidence in chief, so the trial itself would be significantly shorter.
Whilst juries represent an essential part of our legal system in criminal cases, there is no need for a jury in defamation proceedings. Since 1792, juries have been perceived as protectors of free speech, but in my view they have now become one of the biggest obstacles to that protection. Hopefully the recommendation in Lord Lester’s Bill and the Court of Appeal’s decision in Fiddes will signal the first step towards their abolition in defamation proceedings.