Mr Justice Tugendhat, the judge in charge of the jury list and the de facto chief media judge in England and Wales, has delivered a lecture on the role of specialist judges in deciding cases in the field. The Judge was giving the keynote address, to an audience of media lawyers and others, at the 5RB Media and Entertainment Law Conference in London on Thursday 27 September 2012.
Mr Justice Tugendhat has handed down landmark judgments in many of the most significant media law cases in recent years, such as JIH v News Group Newspapers Ltd ( EWHC 2818 (QB)) and Flood v Times Newspapers Ltd ( EWHC 2375 (QB)); his work in mapping out the current media law landscape is hugely significant.
His speech, however, focused not on the law, but on the part played by those whose decisions make it, prompted by the imminent retirement of Mr Justice Eady in a few months, and his own in two years’ time. While the Queen’s Bench Division also has two other judges with specialist knowledge of defamation and privacy law, Mrs Justice Sharp and Mr Justice Nicol, these two departures will leave a particularly large hole in the current judicial line-up at the High Court. As he put it, the current difficulty in finding a specialist judge for freedom of expression cases will only increase.
The Judge outlined the public interest in having specialist media judges, indicating a number of ways in which their knowledge may be relevant: issues of law arising in relation to Articles 8 and 10 ECHR would be difficult for a non-specialist to deal with in the time available; and defamation and privacy litigants are often self-represented, a situation in which “it is unrealistic to expect a non-specialist judge to be able to manage the case effectively”.
Mr Justice Tugendhat referred to the time constraints under which all Queen’s Bench Division judges operate, pointing to the startling fact that in July 2012 he handed down about 50,000 words (over 100 pages of judgments). In the same month there were only three days in which no hearing was listed before him. Even a rudimentary grasp of arithmetic shows that the officially-sanctioned time available for committing those decisions to paper is hardly adequate.
A further reason for the requirement for specialist judges to which he drew attention is one which is important to all those with interests at stake in this area:
“When injunctions are granted in privacy and defamation cases, third parties are affected, in particular the media. Third parties have a right to apply to the court for a variation or discharge of an injunction that affects them. But, as I have remarked in a number of judgments, media organisations rarely do apply to the court. This is not because they are content with the injunction. On the contrary, they often criticise the grant of the injunction in the pages of their newspapers.”
The role played by a judge in freedom of expression cases is a non-traditional one, in the sense that not all interested parties are represented:
“in a freedom of expression case the judge is obliged not to interfere withthe rights of third parties, even if those third parties choose not to attend court.”
The pressure to write such judgments without the benefit of submissions from an advocate on behalf of those whose rights may be affected is something which “places a very great burden on judges”.
The Judge urged all those present at the conference to consider “where the specialist judges are to come from in the future to hear freedom of expression cases”. But he also reminded them of the nature of the job, which is to abide by the terms of the judicial oath to
“do right by all manner of people, after the law and usages of this realm, without fear or favour, affection or ill will.”
There is no shortage of opinion on judges’ decisions, but Tugendhat J pointed out potential shortcomings in some points of view:
“Those who criticise the decisions of judges may not always have in mind what the judicial oath requires. This applies both to the media and to politicians. If judges are publicly criticised for making unpopular decisions which the judicial oath requires them to make, no good can come of that.”
Rather than focusing on particular judgments, the media and the public should “express views about diversity and other issues relevant to the appointment of judges.” The Judge went on to say that the reasons for media lawyers not wishing to apply for judicial appointments should be made known.
Media law judges have in the past been subject to the force of the megaphone which the British press wields, and any future applicant in the selection process mentioned by the Judge must be prepared to take up a position squarely in front of it . The clamour surrounding media law reform and regulation is rising to a crescendo at the moment. But, amidst the uproar, this contribution suggests that the debate should focus not only on changes to the system of law and regulation but also on the demanding role of those whose job it is to make any new settlement work for all concerned.
Gervase de Wilde is a pupil barrister at 5RB, and a former journalist at the Daily Telegraph