2nd July 2024

A decade of the Defamation Act 2013 – PART 5: the abolition of jury trial, removal of statements, slander and general provisions

By Daniel Shaw & Mollie Jackson

Executive Summary 

  • The Defamation Act 2013 came into full force on 1 January 2014.
  • The Act reformed defamation law in England and Wales and was designed to strike a balance between the protection of reputation and freedom of expression.
  • In a five-part series, we evaluate the Act’s impact on defamation claims during the past decade and consider the findings in key case law within the context of each provision and the effect of litigating defamation claims.
  • In the preceding chapters we considered: the serious harm test; the defences of truth and honest opinion; remaining defences such as public interest, privilege and secondary defences, including the defence for operators of websites and peer-reviewed statements; and the single publication rule and jurisdiction and the developing jurisprudence.
  • In the conclusion of this series, we consider the abolition of jury trial, removal of statements, slander and general provisions.

PART 5 – Abolition of jury trial, removal of statements, slander and general provisions

Section 11 – Trial to be without a jury unless the court orders otherwise

Section 11 was a noteworthy addition to the Act as it reversed the previous presumption that defamation cases in England and Wales be tried by jury. The effect is that defamation trials are tried without a jury, unless ordered by a court. In Stocker v Stocker [2019] UKSC 17, the Supreme Court referred to Section 11 as the ‘almost complete abolition’ of a jury trial.

In the decade since the Act’s implementation, the customary practice is that all trials in defamation claims are now by a judge alone and a jury trial is the exception. As set out in part one of this series, all defamation claims must be issued in the High Court and new claims issued in the Royal Courts of Justice, in the specialist Media & Communications list (‘MAC list’) following a rule change in 2019. This means a defamation claim will usually be adjudicated by a specialist judge.

Cases where ‘trial without jury’ applications failed

Yeo v Times Newspapers [2014] EWHC 2853

Since 2014, there have been two attempts to have a defamation claim tried with a jury which both failed. In Yeo v Times Newspapers [2014] EWHC 2853, the Claimant, Tim Yeo, then Conservative Member of Parliament for South Suffolk and at the time relevant to this claim, the Chairman of the House of Commons Energy and Climate Change Select Committee (“ECCSC”), brought libel proceedings against the publisher of the Times and the Sunday Times. The claim concerned two articles published in The Sunday Times on 9 and 23 June 2013 but proceedings were not issued until 2 May 2014. While the articles did not identify the Claimant by name, he complained they contained a defamatory meaning that in breach of the rules of the House of Commons, he was prepared to act and had offered himself as willing to act as a paid Parliamentary advocate, who would (a) push for new laws to benefit the business of a client for a fee of £7,000 a day; and (b) approach Ministers, civil servants and other MPs to promote a client’s private agenda in return for cash. The Defendant, Times Newspapers Ltd, applied for a trial with a jury and in the event the application failed, the Claimant, Tim Yeo, sought a determination on the defamatory meaning.

In 2014, Mr Justice Warby refused the Defendant’s application for a trial with a jury, holding there were three factors that not only tended to support the statutory presumption in Section 11 of trial by judge alone, but also pointed strongly for such an order in favour of a trial without a jury. The factors included the advantage of a reasoned judgment, proportionality, and case management. The Court held that there was no doubt a trial with a jury would take more time and be more costly than trial by judge alone. In addition, such a trial by judge alone meant early rulings on meaning could save expense and ensure the case was dealt with expeditiously, as well as affecting the shape of the case and the issues which would have to be tried.

Blake v Fox [2022] EWHC 1124

More recently in Blake v Fox [2022] EWHC 1124, the Claimants, Simon Blake and Colin Seymour, who were public persons,  brought proceedings against the Defendant, Laurence Fox, the actor and political activist. The proceedings concerned a tweet published by the Defendant criticising Sainsbury’s supermarket over an announcement it was providing “our black colleagues with a safe space to gather in response to the Black Lives Matter movement”, with the Defendant describing it as “racial segregation and discrimination”. Each of the Claimants responded with tweets containing allegations of racism against the Defendant, who responded with allegations that each of the Claimants were paedophiles. The Claimants brought proceedings against the Defendant for the paedophile allegation, while the Claimant counterclaimed in respect of the allegation he was a racist. In 2022, the Defendant applied for a trial to be by Judge and Jury pursuant to section 69(3) of the Senior Courts Act 1981. The Defendant argued there was a risk of the Judge hearing the case and determining issues in connection with racism suffering from “involuntary bias”, in part as a result of what was said to be the ‘expansive’ definition of racism adopted by the Judicial College in the most recent edition Equal Treatment Bench Book. Mr Justice Nicklin approached the Defendant’s application in two stages: (i) whether the Defendant had demonstrated that there was a real prospect of the appearance of “involuntary bias” that could be overcome by ordering trial by judge and jury; and, if not, (ii) considering the application under section 69(3) of the 1981 Act by exercising discretion, as guided by the authorities.

In ruling against the Defendant, the Judge found that the Defendant had not persuaded him that a fair-minded and informed observer would conclude there was a real possibility that a judge trying this case alone would suffer from “involuntary bias”, because the definition to be applied to “racism” in the case was a core issue. Necessarily, the Judge deciding the issue would have to give a reasoned judgment on this very point, which was a better safeguard to avoiding any error than directing a jury trial. If the Judge made an error in determining issues relating to racism, then the Court of Appeal and ultimately, the Supreme Court, exist to put right that error and an appeal court would have an “immeasurably easier” task with a reasoned judgment. The Judge disagreed with the Defendant’s argument that the difficulty of challenging a jury verdict was somehow a virtue. The Court held the reason a jury verdict would be difficult to appeal on such a point was not because being a verdict of a jury, it was in some way unassailable, but rather, unless the jury were to give a narrative verdict, it would be very difficult to identify whether and where they might have gone wrong.

The Judge had no hesitation in rejecting the application to exercise discretion to order a trial by jury under Section 69(3), for the same reasons given by Mr Justice Warby in Yeo. This included:

  1. The importance of a reasoned judgment.
  2. Proportionality, effective case management and furtherance of the overriding objective weighed “very heavily” against trial by jury.
  3. The substantive law of defamation has become more complicated since jury trial was effectively abolished by the 2013 Act and examples given included the formerReynolds defence, which had also been abolished, where a public interest defence was now in a statutory authority by Section 4 of the Act and Section 1 established a need to prove serious harm to reputation; and
  4. The Judge was not persuaded by the Defendant’s “enhanced impartiality” argument that any vindication he achieved would be enhanced by a jury trial over a judge trial and the Judge did not see how this made up in any way for the substantial and obvious disadvantages of jury trial. The Judge ruled the Court cannot take important decisions of case management in an effort to avoid some people thinking less of any vindication of the Claimant, because they believe that it has come, from what the Defendant said was a “white judge [who] sided with a white man who denied being a racist“.

In January 2024 and following trial, Mrs Justice Collins Rice ruled two of the libel claims on the allegations the Claimants were paedophiles succeeded against the Defendant, and his counterclaims on the allegations that he was a racist were dismissed, as the Court was not satisfied the tweets had caused the Defendant serious harm to his reputation. In April 2024, the Court ruled in respect of remedies that the Claimants were awarded £90,000 each as ‘a purely compensatory award to redress the damage done and restore the equilibrium that [the Defendant’s] libels violated, and which he has not taken the opportunity to restore more fully himself. The Defendant was also ordered not to repeat the same or similar allegations.

Preliminary Issue Meaning Trials – the new norm

The effect of the Act in the ‘almost complete abolition’ of a jury trial means it is the role of the court to assess the meaning of the words complained of. In cases without a jury, either party can apply under the Civil Procedure Rules (which govern the conduct of cases) for a ruling by the court on the meaning of the words complained of, including whether the words complained of are defamatory at common law and whether the allegation is one of fact or opinion. The absence of juries has led to determinations of meaning as a preliminary issue being common and since the implementation of the 2013 Act, a considerable proportion of all reserved judgments in defamation cases have followed trials of preliminary issue (‘TPIs’) on determinations of meaning.

This increase of TPIs on determinations of meaning illustrates a useful procedure for the effective and swift resolution of libel claims, as a ruling on meaning is a final determination of the matter, subject to appeal. Some claims will be finally disposed of by such a ruling on the meaning of a publication and/or a determination of fact/opinion. Other cases will proceed but with significant costs saved, especially as the common practice is that the hearing and determination on meaning precedes the stage where a defendant pleads its defence(s). There have been rare cases where a defendant has pleaded its defences before a TPI on the determination of meaning, as was the case in Vardy v Rooney (discussed in part 2 of this series). However, the risk is that the determination on meaning may require a defendant to amend its case if the court makes any finding that conflicts with the meaning in a pleaded Defence.

There is no relevant provision in the Civil Procedure Rules or any Practice Direction, but the practice has developed so that defendants are ordered to serve a statement of case, setting out the natural and ordinary meaning which a defendant contends is made out by the words complained of. Equally, a developing practice is to determine meaning on the papers, rather than at an oral hearing.

In Hewson v Times Newspapers Ltd [2019] EWHC 650 (QB), the Court ruled that a preliminary issue on meaning could be determined on the basis of the parties’ written submissions though there may be circumstances where the procedure is not suitable and the example given was where one or more of the parties is not legally represented. To counter the potential adverse impact on the principle of open justice, Mr Justice Nicklin proposed a procedure ensuring that judgments would be handed down in open court and written submissions would be made available. It is understood such determinations have become relatively common.

It does remain that if any cases are ordered to be tried by a jury, the determination of meaning will be left to the jury at trial. However, the rulings in Yeo and Blake suggest it would be extremely rare for any defamation claim to be tried by judge and jury.

Section 12 – Power of court to order a summary of its judgment to be published

Section 12 of the Act provides where the court gives judgment for a claimant, it may order the defendant to publish a summary of the judgment. If necessary, such as where the parties cannot agree, a court will decide upon the wording and give directions as to the time, manner, form or place of publication.

The principles of Section 12 were considered by Mr Justice Nicklin in Monir v Wood [2018] EWHC 3525, where the Court noted the purpose of Section 12 was to assist a claimant in repairing the damage to their reputation and obtaining vindication, but s.12 Orders are not to be made as any sort of punishment of the defendant. Nevertheless, a court exercising the discretionary power conferred by Section 12 would interfere with the Defendant’s ‘freedom of expression’ right in Article 10 of the European Convention on Human Rights and accordingly, the interference must be justified. The interference may be capable of being justified in pursuit of the legitimate aim of “the protection of the reputation or rights of others” and whether a Section 12 Order can achieve this aim will be a matter of fact in each case. In Monir, the Court, having applied the relevant principles, ruled a Section 12 Order was not appropriate and effective vindication for the Claimant was more likely to occur by advertising the success of his claim in the local media.

Section 12 Orders have been granted in Shakil-Ur-Rahman v ARY Network Ltd [2016] EWHC 3570 (QB), Lachaux v Independent Print Ltd [2021] EWHC 1797 (QB) (discussed in part 3 of this series and Sahota v Middlesex Broadcasting Corporation Ltd [2021] EWHC 3363 (QB).

Section 13 – Order to remove statement or cease distribution etc

Section 13 of the Act provides where the court gives judgment for a claimant, it may order the operator of a website (on which the defamatory statement is posted) to remove the statement, or any person who was not the author, editor, or publisher of the defamatory statement to stop distributing, selling or exhibiting it.

A Section 13 Order is complementary to the provisions in Section 5 for Operators of websites (discussed in part 3 of this series) and Section 10 for action against a person who was not the author, editor etc. (discussed in part 4 of this series) and is a useful mechanism for claimants.

Like Section 12, the court’s remit to make an order under Section 13 is discretionary and a respondent to any application may want to submit reasons why the order should not be granted. Similarly, Section 13 could interfere with the exercise of a defendant’s Article 10 right and therefore, as a general principle, a court is required per Section 12 of the Human Rights Act 2000, which concern cases where “a court is considering whether to grant any relief which, if granted, might affect the exercise of the Convention right to freedom of expression”, to consider a defendant’s Article 10 right when considering whether to make a Section 13 order.

Section 14 – Special damage

Section 14 of the Act removed previous provisions affecting ‘women and girls’ and separately, a person with a ‘contagious or infectious disease’.

The Act repealed the Slander of Women Act 1891 and overturns a common law rule relating to special damage. In relation to slander, some special damage had to be proven to flow from the statement complained of, unless the publication fell into certain specific categories. These included a provision in the 1891 Act which provides that “words spoken and published … which impute unchastity or adultery to any woman or girl shall not require special damage to render them actionable”. The effect of Section 14 is that these circumstances are no longer exempt from the requirement for special damage.

Section 14 also abolished the common law rule that provided exemption from the requirement for special damage, where the publication of a statement that implies a person has a contagious or infectious disease does not give rise to a cause of action in slander, unless the publication causes the person special damage. In case law dating from the nineteenth century and earlier, the exemption has been held to apply in the case of imputations of leprosy, venereal disease and the plague.

Decade of the Defamation Act conclusion

At the outset of this series, we discussed the genesis of the Defamation Act 2013 and how it was conceived in an effort to combat any misbalance between protecting reputation and freedom of speech. The Act has introduced a number of significant changes to the law, particularly for prospective claimants, who are now required to establish ‘serious harm’ as part of any claim. This became the subject of hard-fought litigation and before the Supreme Court between 2015 and 2019 and remains an ongoing consideration for future claims.

Through various court decisions in the past decade, it is arguable the Act has balanced the competing rights at the centre of any dispute. Any defendant, whether a traditional media defendant or a non-media defendant, benefits from the statutory codification of the previous common law protections. What the case law in the past decade confirms is that defendants must still be responsible if they have any hope of a defence succeeding, but equally, trivial claims will not survive the current provisions.

Even after 10 years, there are some provisions yet to receive the dissection of learned judges and lawyers. The single publication rule may become a key feature during the next decade, and it is likely artificial intelligence and new technology will be a significant factor in future decisions on defamation law.

It remains to be seen whether claims against traditional media defendants will become regular as it was the position before 2013 increase. The application of defamation law in England and Wales to existing social media platforms such as Meta (Facebook and Instagram) and X (formerly Twitter) remain an ongoing challenge. Arguably, the development and popularity of new platforms such as Tik Tok, are taking place at a rate the law cannot keep pace with. While platforms currently benefit from the provisions for operators of websites this could well change depending on how future claims are litigated. Whether the Act will require further amendment to deal with ongoing advancements in social media and technology remains to be seen.

Hamlins’ Media Disputes department is one of the most successful Reputation Management teams in the UK and widely recognised as an advisor of choice for both public and private figures seeking advice in relation to reputation management and pre-publication complaints in defamation and privacy law. If you would like to find out more about how Hamlins can help you, please get in touch.

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.

This series of posts will be published as an article in the forthcoming September issue of Communications Law.

 

 

A decade of the Defamation Act 2013 – PART 5: the abolition of jury trial, removal of statements, slander and general provisions

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