An order for trial by judge alone has been made in the libel claim brought by solicitor Mark Lewis against the Metropolitan Police arising out of an email which, it is alleged, accuses him of lying to the Select Committee. In a judgment handed down today (Lewis v Commissioner of Police (No.2)  EWHC 1391 (QB)) Tugendhat J rejected the claimant’s application for trial by judge and jury which was made on Monday 21 May 2012. The trial will take place over a period of 5 to 7 days commencing on 3 July 2012.
The case arises out of Mr Lewis’ evidence to the Culture, Media and Sport Committee in 2009, in which he said a detective had told him privately that phone hacking was far more widespread than police had revealed at the time.
Mr Lewis complained that in an e-mail to Mr Toulmin of the Press Complaints Commission, a lawyer for the police wrote, in reference to Mr Lewis’s) evidence to the Select Committee:
“Your understanding is correct that DI Maberly has been wrongly quoted, and that you should rely on what Assistant Commissioner Yates and DCS Williams told the Select Committee“.
The meaning claimant attributes to these words is that he lied to the Select Committee about what he had been told by DI Maberly. Mr Lewis brought a claim for libel against the Metropolitan Police, Baroness Buscombe and the PCC. The claim against the second and third defendants was settled, the claim against the first continues.
In relation to mode of trial, an application for an order for trial by jury was not made within the time limit laid down by CPR 26.11 and, as a result, the right to jury trial had been lost. The claimant made an application for an order for jury trial under section 69(3) of the Senior Courts Act 1981. This originally came before Tugendhat J on 3 and 4 March 2011 and was adjourned ( EWHC 781 (QB). see  to ).
The claimant then made a renewed application for trial by judge and jury which was heard on Monday 21 May 2012 with judgment being reserved to today.
In this judgment, after setting out the background Tugendhat J considered submissions made as to his statement in his earlier judgment that
“trial with a jury will generally be ordered as a matter of discretion, in particular where the state, or a public authority, is a defendant” 
He accepted that, in the light of cases such as H v Ministry of Defence ( QB 103) and Racz v Home Office ( 2 AC 45) he should have omitted the word “generally”. He went on to note that
“The absence of any allegation of abuse of power or claim for exemplary damages in the present case reduces the strength of the argument for trial with a jury. And I must also have regard to the arguments that found favour with all the House of Lords in Racz: the gravity of the harm alleged, the risks of a lengthening of the trial and the jury disagreeing, and the inconvenience of trial by jury where there is uncertainty as to the law”. 
The Judge accepted that Mr Lewis was a prominent figure in public life and that the “honour and integrity” of both him and DI Maberly was in issue. He also accepted that the case was an “exceptional” one and that there were “strong arguments in support of trial with a jury” .
Nevertheless, these arguments were not sufficient to displace the statutory presumption in favour of trial by judge alone. The Judge gave three particular reasons for this conclusion:
(i) the issue of meaning is, exceptionally, an issue that would be better decided by a judge alone rather than a jury;
(ii) any direction as to meaning to a jury may well be novel and difficult;
(iii) the significant national interest in this case makes it all the more important that there should be a reasoned judgment .
He also noted that trial by judge alone will bring significant case management advantages.
As has been pointed out on this blog on a number of occasions, there has been no libel jury trial in England since Desmond v Bower, which concluded on 22 July 2009: more than a 1,000 days. The Lewis decision confirms that “discretionary jury trials” are very rarely ordered. Such an order was refused by the same judge in Bento v Chief Constable of Bedfordshire earlier this year (a judgment subsequently upheld by the Court of Appeal).
The reason why the issue of “discretionary jury trials” has come before the courts so often in recent times is because parties have, repeatedly, failed to apply for an order for trial by jury within 28 days of service of the defence (as required by CPR 26.11). As a result, the “right” to jury trial has been lost and the issue has been one of discretion. This discretion is now very rarely exercised in the light of the “statutory presumption” of trial by judge alone in section 69(3).
Clause 11 of the Defamation Bill removes the statutory right to jury trial in libel and slander cases. This means that there will be no libel jury trials unless the section 69(3) discretion is exercised in favour of this mode of trial. The Lewis decision confirms how high the hurdle is for a person who seeks a discretionary jury trial. It seems likely that, if clause 11 is passed, libel jury trials will become a thing of the past. It remains to be seen whether MPs and peers are content to discard this ancient right in favour of efficient case management.