Thornton v Telegraph Media Group Ltd

The background to this action for libel and malicious falsehood is set out in the judgment I handed down on 4 February 2011: [2011] EWHC 159 (QB). At para 39 of that judgment I invited the parties to submit a draft timetable so that I might make directions to lead to the early trial of this action. The draft directions prepared by Mr Rushbrooke, and submitted to the court that day, included that the claim should be entered in the Jury list for trial before a Judge sitting with a jury. There was much in dispute between the parties after the handing down of the judgment, but there was no dispute that the mode of trial should be with a jury. The case is listed to be tried in July.

On 5 April the Defendant (“the Telegraph”) issued a notice of an application that the mode of trial be varied to be by judge alone. There were applications for other matters which are not relevant to this judgment. The sole ground of the application argued on 18 May was that “no application for a jury trial has been made under CPR 26.11 or section 69(3) of the Senior Courts Act 1981”. The Notice included the statement:

“For the avoidance of doubt the [Telegraph]’s employees and legal advisers were unaware at the time that the [Telegraph] consented to trial by jury that there had been a failure to comply with CPR 26.11 and that the consequence of such a failure was that any order for a jury trial could only be made following an application under section 69(3) of the Senior Courts Act 1981 and consideration of that application by the Court”.

At the end of the hearing I announced my decision to dismiss the Telegraph’s application and give reasons later. These are they.

The reason for the Telegraph’s change of position is that on 25 February 2011 I heard the applications which were the subject of my judgment in Cook v Telegraph Media Group Ltd [2011] EWHC 763 (QB) (29 March 2011). Mr Price appeared for the Telegraph in that case. In the Cook case no order for trial with a jury was ever made (unlike the present case). At the hearing on 25 February I required counsel for Mr Cook to make submissions as to mode of trial. He had not expected to have to do that. Both he and Mr Price had assumed that there would be a jury in that case until I raised the question of my own motion. When I handed down the judgment on 29 March, I ordered the case to be tried by judge alone. It was following the handing down of that judgment that the Telegraph issued the application notice the subject of this judgment.

However, Mr Price had anticipated that that might be the outcome of the hearing in the Cook case. On 25 February 2011 he wrote to Dr Thornton’s solicitors:

“In an application in the case of Cook v Telegraph Media Group Ltd heard today … the Judge pointed out that an application for a jury trial must be made within 28 days of service of the Defence (CPR 26.11). Judgment is reserved in theapplication.

Our client reserves the right to apply to set aside the order for jury trial in … the order of 4 February in the present case on the basis that it was made without jurisdiction. It seems sensible to await the outcome of judgment in Cook first …”

Section 69 of the Senior Courts Act 1981 regulates civil cases in which there may be, in whole or in part, trial by a jury. Section 69 of the 1981 Act provides:

"(1)

Where on the application of any party to an action to be tried in the Queen's Bench Division, the court is satisfied that there is in issue- …

(b)

a claim in respect of libel, slander, malicious prosecution or false imprisonment; or …

the action shall be tried with a jury, unless the court is of opinion that the trial requires any prolonged examination of documents or accounts or any scientific or local investigation which cannot conveniently be made with a jury.

(2)

An application under subsection (1) must be made not later than such time before the trial as may be prescribed.

(3)

An action to be tried in the Queen's Bench Division which does not by virtue of subsection (1) fall to be tried with a jury shall be tried without a jury unless the court in its discretion orders it to be tried with a jury”.

CPR Part 26.11 prescribes that an application for a claim to be tried with a jury must be made within 28 days of service of the defence.

CPR 23.3 provides:

“(1)

The general rule is that an applicant must file an application notice.

(2)

An applicant may make an application without filing an application notice if –

(a)

this is permitted by a rule or practice direction; or

(b)

the court dispenses with the requirement for an application notice”.

As is well known to practitioners, the court very commonly does dispense with the requirement of an application notice in pursuit of the overriding objective. I dispensed with that requirement in my judgment handed down on 4 February when I invited the parties to submit draft directions.

I refer to paras [75] to [87] in Cook for the full framework in the statute and the CPR. In paras [83]-[87] I said:

“83.

The implications of this for the exercise of the court’s discretion under section 69(3) may not hitherto have been fully appreciated. The implication is that, once the 28 days provided for in CPR 26.11 have expired, it is for the court to decide the mode of trial, and the court must do so starting with the predisposition in favour of a trial without a jury. And this is so whatever the parties may have agreed or may wish. The wishes of the parties are of course a factor. But the court should not abstain from addressing its mind to all the relevant factors, including in particular those of case management, simply because the parties agree between themselves.

84.

It may be, as Mr Crystal submits, that the time for compliance with CPR 26.11 may be extended under CPR Part 3.1(2)(a), and that it may be so extended even after the time for compliance has expired. The editors of Duncan & Neill on Defamation 3rd ed state in para 28.41, footnote 2 that "in practice the determination of the application is often deferred until the likely scope of the issues in the case is clearer". They do not say that the making of the application is often deferred, but they do submit that there is power to grant an extension of time under CPR 3.1(2)(a). They also refer in the next footnote to the discretion under s.69(3).

85.

Any application under CPR 3.1(2)(a) would be a matter for the court's discretion, to be exercised judicially and in accordance with the overriding objective. Whether the court would approach the matter any differently if it was considering the exercise of a discretion arising directly under s.69(3), or one arising under CPR 3.1(2)(a) is a separate point.

86.

Mr Crystal submits that the court should approach the matter differently, in that under CPR 3.1(2)(a) the court should approach the issue on the basis that the exercise of the discretion in a party's favour would have the effect of giving that party the rights that he would have had under s.69(1) if he had made an application within the prescribed 28 days. Mr Crystal also submits that the position is analogous to an application for relief from a sanction, for which provision is made in CPR 3.9(1), and which requires the court to have regard to all the circumstances, including the nine which are listed.

87.

In my judgment in the circumstances of this case it would not make any difference under which of s.69 (3) or CPR 31.1 (2)(a) the discretion arose. No reason is given for the omission to make the application within the 28 days. And CPR 3.9(1) does not assist. The loss of the right to trial by jury under s.69(1) is not a sanction. But even if it were, no good reason has been advanced in this case for the omission to make the application.”.

No application notice was ever issued in this case pursuant to CPR 26.11. The Defence was served on 15 September 2009, so the 28 days expired on 13 October 2009.

However, the mode of trial had been referred to in correspondence before service of the Defence. On 31 July Mr Price wrote to Dr Thornton’s solicitors inviting her to consent to trial by judge alone. On 14 August they replied that she was entitled to a jury (which is obviously a reference to s.69(1) of the 1981 Act).

Shortly after the service of the Defence there was a hearing before Sir Charles Gray at which Dr Thornton applied to strike out the defence of fair comment. At para 14 of his judgment ([2009] EWHC 2863) Sir Charles recorded that Mr Rushbrooke accepted that “the defence of fair comment will only be struck out if a negative answer by the jury to [certain questions] would be perverse”. And at para 49 he said: “… since the trial is due to take place with a jury, I have to be satisfied that it would be perverse for the jury to conclude that the defence of fair comment succeeds”.

It is clear from the foregoing that the hearing before Sir Charles Gray was conducted on the understanding shared by both parties, as well as by the judge, that the trial would take place before a judge sitting with a jury.

Mr Price submitted that if no application is made under CPR 26.11 within the time period specified, it follows that the entitlement under s69(1) is lost, and that the only remaining power to order a jury trial is derived from s 69(3). The presumption under that sub-section is that trial will be by judge alone. An order for trial by jury that is not made in compliance with s.69 is made without jurisdiction. An order made without jurisdiction, or without the court having taken into account the relevant provisions of the statute or the CPR is liable to be set aside or varied under CPR 3.1(7). Alternatively there has been a change of circumstances, as envisaged by Practice Direction to Part 29 para 6.4, namely my judgment in the Cook case.

CPR 3.1(7) provides:

“A power of the court under these Rules to make an order includes a power to vary or revoke the order”.

Mr Price referred to Edwards v Golding [2007] EWCA Civ 416. In that case the Court of Appeal considered CPR 3.1(7). It noted that approval had been given in Collier v Williams [2006] EWCA Civ 20 to the formulation by Patten J (as he then was) in Lloyds Investment (Scandinavia) Ltd and Christian Ager-Hanssen [2003] EWHC 1740 (Ch) as follows:

“It seems to me that the only power available to me on this application is that contained in CPR Part 3.1(7), which enables the Court to vary or revoke an order. This is not confined to purely procedural orders and there is no real guidance in the White Book as to the possible limits of the jurisdiction. Although this is not intended to be an exhaustive definition of the circumstances in which the power under CPR Part 3.1(7) is exercisable, it seems to me that, for the High Court to revisit one of its earlier orders, the Applicant must either show some material change of circumstances or that the judge who made the earlier order was misled in some way, whether innocently or otherwise, as to the correct factual position before him. The latter type of case would include, for example, a case of material non-disclosure on an application for an injunction. If all that is sought is a reconsideration of the order on the basis of the same material, then that can only be done, in my judgment, in the context of an appeal”.

In Edwards at para [25] the Court of Appeal recognised that CPR 3.1(7) could be used in circumstances described (by myself at first instance) as follows:

“The Master's mistake as to the effect of the order of 1^st December 2005 is fundamental. Given that the limitation period had clearly expired, the order is one which he had no jurisdiction to make, whether in the form which it intended to make, or at all. In these unusual circumstances, it seems to me that this is a case which does come within CPR 3.1(7)."

At para [26] Buxton LJ said:

“I would respectfully agree. The procedure adopted by Mr Edwards's lawyers was misconceived. It led to Master Eyre making an order that he had no power to make, a) because there was no live action and b) because the limitation period had expired. Master Eyre did not decide item b). If he had that would be a matter for appeal. He made an order intending to keep that issue live, but the form of his order frustrated his intention. It was open to the judge to hold that since the application should never have been made in that form, it could be set aside. That is not to usurp the power of the Court of Appeal, but rather to correct a fundamental procedural error.”

It is Mr Price’s submission that my decision to direct that trial be with a jury is in a similar way an order that I had no power to make, and which is thus a fundamental procedural error which can be corrected under CPR 3.1(7), rather than on appeal.

Alternatively, Mr Price submits that my judgment in Cook is a change of circumstances, with the same result.

Mr Rushbrooke submits that Mr Price is in error in not recognising that the court can grant an extension of the time limit under CPR 26.11. The power to grant an extension of time is given by CPR 3.1(2), which reads:

“Except where these Rules provide otherwise, the court may –

(a)

extend or shorten the time for compliance with any rule, practice direction or court order (even if an application for extension is made after the time for compliance has expired);…”

Mr Rushbrooke further submits that whether or not the court has power to grant an extension of time, in this case the order of 4 February was made without the Telegraph having raised the point that the application was out of time, and it is now too late for the Telegraph to complain that the order for trial with a jury was made outside the time prescribed by CPR 26.11.

Further, Mr Rushbrooke submits that the Practice Direction to Part 29 provides guidance on application for the variation of directions. It reads as follows:

“6.1

This paragraph deals with the procedure to be adopted:

(1)

where a party is dissatisfied with a direction given by the court,

(2)

where the parties have agreed about changes they wish made to the directions given, or

(3)

where a party wishes to apply to vary a direction.

6.2

(1)

It is essential that any party who wishes to have a direction varied takes steps to do so as soon as possible.

(2)

The court will assume for the purposes of any later application that a party who did not appeal, and who made no application to vary within 14 days of service of the order containing the directions, was content that they were correct in the circumstances then existing.

6.3

(1)

Where a party is dissatisfied with a direction given or other order made by the court he may appeal or apply to the court for it to reconsider its decision.

(2)

Unless paragraph 6.4 applies, a party should appeal if the direction was given or the order was made at a hearing at which he was present, or of which he had due notice.

(3)

In any other case he should apply to the court to reconsider its decision...

6.4

Where there has been a change in the circumstances since the order was made the court may set aside or vary a direction it has given. It may do so on application or on its own initiative”.

Accordingly, Mr Rushbrooke submits that the only remedy that was ever open to the Telegraph was to appeal the order of 4 February, which it did not do. The judgment in Cook is not, he submits, a change of circumstances within para 6.4.

The history of the matter, including the letters exchanged in July and August 2009, as set out above, shows that Dr Thornton made as clear as she could her wish to exercise her right under s.69(1), short of formally issuing an application. And the Telegraph appeared to accept that.

Accordingly, Mr Rusbrooke submits that if the point now raised had been raised on 4 February, the court would have readily granted an extension of time under CPR 3.1(2)(a), or would have said that Dr Thornton had already made, or was to be treated as having made, an application within the time limit.

In my judgment the exchange of letters about trial by jury, and the conduct of the hearing before Sir Charles Gray make this a very different case from that of Cook. I accept that in the circumstances of this case an application for an extension of time could have been made under CPR 3.1(2)(a). I see no reason why CPR 3.1(2)(a) should not apply to CPR 26.11. And Mr Price accepted that this is so in the course of his oral submissions.

I also accept that such an application would have had a fair prospect of success, in so far as I can form a view on the evidence and submissions now before me. But I cannot say how I would have ruled upon it if it had been made and contested, because I have not seen or heard the evidence or submissions that would have been put before the court if such an application had been made.

Alternatively, if the point that I took of my own motion in Cook had been taken on 4 February (namely that the mode of trial was by then a matter within the discretion of the court and no longer a right under s.69(1)), I might nevertheless have dispensed with the requirement of an application notice, as I did in fact, and made the order as an exercise of the discretion given to me whether by CPR 3.1(2)(a) or s.69(3).

But whatever I would have done, it is not in my judgment open to Mr Price to say that the order of 4 February was made without jurisdiction. It is an order which was apt to carry into effect the purpose the court was seeking to achieve (unlike the order of the Master in Edwards) and was not in that sense a fundamental procedural error. It was also made on the application of Dr Thornton, albeit one that was out of time, and for which an application notice had been dispensed with. It was an order that was within the power of the court to make under CPR 3.1(2)(a) or s.69(3).

I accept that it is open to the court at any time to change the mode of trial. That happened at a very late stage in Fiddes v Channel Four Television Corporation [2010] 1 WLR 2245. In that case there was a change of circumstances. It had become apparent that the trial would require prolonged examination of documents that could not conveniently be made with a jury. However, in the interests of justice to the parties, there must be a degree of certainty that directions once given will continue to have effect, as is provided for in the Practice Direction paras 6.1 to 6.4.

It is for these reasons that I held that the order of 4 February directing the trial to be with a jury was not made without jurisdiction and ought not to be varied.