Mark Lewis v Commissioner of Police for the Metropolis

Mark Lewis, a solicitor with Taylor Hampton, brought libel proceedings against the Metropolitan Police Service (MPS) over an email sent to the Press Complaints Commisson in November 2009 which he alleged accused him of lying to a Parliamentary Select Committee.

The MPS disputed the case on meaning, and sought to defend the claim on the grounds of qualified privilege and justification.

Mr Justice Tugendhat made a number of rulings in a judgment handed down on 31 March 2010: [2011] EWHC 781 (QB). See the 5RB Case Report here.

The issue of mode of trial was postponed until after disclosure and the exchange of witness statements.

The Claimant did not apply for trial by a Judge sitting with a jury within the time specified by CPR 26.11, thereby losing the presumption in favour of jury trial in defamation claims under Senior Courts Act s.69(1).

The question of mode of trial therefore fell to be determined under Senior Courts Act s.69(3), pursuant to which the presumption is in favour of trial by Judge alone.

Should the mode of trial be Judge alone or Judge and jury?

The trial should be heard by Judge alone.

(1) The fact that the Defendant was a public authority was not a reason why trial with a jury would generally be ordered as a matter of discretion, but was one factor amongst others.

(2) Although prolonged examination of documents would not be required, the statutory presumption in favour of trial by Judge alone was not displaced, because (i) the issue of meaning was, exceptionally on the facts of this case, an issue which would better be decided by a judge (ii) any direction as to meaning to a jury may well be novel and difficult (iii) the significant national interest in the case made it all the more important that there should be a reasoned judgment.

The decision itself was highly fact specific, but is notable for the qualification by Mr Justice Tugendhat of some obiter remarks made in Cook v Telegraph Media Group Ltd [2011] EWHC 763 and in his previous judgment in this case concering the relevance of the fact that a party to a defamation claim is a public authority to the issue of mode of trial. Having taken into account two cases not previously cited to him. the Judge decided that he had been wrong to suggest that in such cases trial with a jury should “generally” be ordered, but rather that the public authority status of one party was one factor amongst others to be taken into account.

Although the draft Defamation Bill currently before Parliament removes the presumption in favour of jury trial, this case may remain of continuing interest as it was decided under s.69(3) of the Senior Courts Act, which (under current proposals) will continue to allow for trial with a jury in defamation claims in exceptional cases.