Lewis v Commissioner of Police of the Metropolis & Ors

On 31 March 2011 I handed down a judgment in this case (Neutral Citation Number: [2011] EWHC 781 (QB) – “my 2011 judgment”). In it I made a number of rulings, and gave reasons for adjourning other rulings which had been sought. One of those which was adjourned was a ruling as to the mode of trial. This is the issue that is the subject of this judgment.

The facts giving rise to this action are set out in my 2011 judgment at paras [7] to [27]. In brief, Mr Lewis complains that in an e-mail to Mr Toulmin of the Press Complaints Commission, a lawyer for the First Defendant wrote, in reference to his (Mr Lewis’s) evidence to a Parliamentary 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 Mr Lewis attributes to these words is that he lied to the Select Committee about what he had been told by DI Maberly.

The reasons why I did not decide on the mode of trial at that time are set out in paras [30] to [40] of my judgment, and (for reasons which are explained in para [33]) in my judgment in Cook v Telegraph Media Group Ltd [2011] EWHC 763 (QB) (29 March 2011) (“Cook”).

The application for trial by a judge with a jury arises under the Senior Courts Act 1981 s.69(3). As May LJ noted in Times Newspapers Ltd v Armstrong[2006] EWCA Civ 519, [2006] 1 WLR 2462 at paras [15] and [19]:

"… an action which does not come within section 69(1) has to be tried without a jury, unless the court in its discretion orders it to be tried with a jury. The discretion is now very rarely exercised, reflecting contemporary practice. Contemporary practice has an eye, among other things, to proportionality; the greater predictability of the decision of a professional judge; and the fact that a judge gives reasons ... The overriding objective in rule 1.1 and rule 3.1(2)(m) are there for general case management purposes."

In Cook at para [89] I recited the factors that have been authoritatively identified as relevant to the exercise of the court’s discretion under s.69(1) (where the presumption is in favour of a jury) as summarised by Bingham LJ in Aitken v Preston[1997] EMLR 415, 419, and recently re-iterated by Lord Neuberger MR in Fiddes v Channel Four Television Corporation[2010] EWCA Civ 730, [2010] 1 WLR 2245. At para [91] of Cook I considered a factor which did not arise in those cases, or in the case of Rothermere v Times [1973] 1 WLR 448, from which those principles were in part derived. That factor exists in the present case: it is that the Defendant is a public authority. Although this point did not arise in Cook, it did arise in the present case, and I had heard argument on it in the present case before I finalised the judgment in Cook.

In my 2011 judgment, after referring to Cook, I said the following:

“35.

There remain circumstances in which 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, as is the case here …

36.

However, even if trial with a jury is to be preferred where the state or a public authority is a party, it may nevertheless be against the interests of justice to order such a trial. Mr Browne accepts that that may be the case here if the trial would involve a prolonged examination of documents that could not conveniently be made with a jury. It was because the scope of the trial of the present action is as yet uncertain that Mr Browne [who then appeared for Mr Lewis] and Mr Dean had agreed, rightly as I ultimately found, that it was too soon to decide on the mode of trial in this case...

39.

… it is only because, in the present case, the defendant is the MPS, and because my provisional view is therefore that there is likely to be a strong argument in favour of trial with a jury, that I considered it right not to make the decision as to mode of trial at this stage. The main reason for deferring the decision is to consider whether, in spite of that strong argument, there will be some other stronger argument tending the other way, …”

Ms Page submits that I misdirected myself in those passages of my 2011 judgment. It does not follow from the authorities cited in Cook thattrial with a jury is generally more appropriate where the state or a public authority is a party. It is no more than one factor. There are cases decided under s.69(3), which were not cited to me in 2011, in which the state or a public authority was the defendant, but where the court held that trial should be by judge alone: H v Ministry of Defence [1991] QB 103 and Racz v Home Office [1994] 2 AC 45.

In H v Ministry of Defence the claim was for personal injuries suffered by a serviceman allegedly as a result of the negligence of the Defendant’s medical services. (In fact most medical negligence cases are brought against public authorities, usually bodies which are part of the National Health Service). The Court of Appeal held that it was not an appropriate case for trial with a jury. Having explained that decision, Lord Donaldson MR went on to make observations as to when a trial by jury might be held appropriate under s.69(3). He gave as an example a case where personal injuries resulted from conduct on the part of those who were deliberately abusing their authority and where there might exceptionally be a claim for exemplary damages. He noted that such a case might not be dissimilar to a claim for malicious prosecution or false imprisonment, both of which are specified in s.69(1).

In Racz v Home Office the claims for assault, battery and misfeasance in public office, including claims for aggravated and exemplary damages, were in respect of personal injuries allegedly suffered at the hands of prison officers while the plaintiff was a prisoner. For reasons given by Lord Jauncey at p55, the House of Lords upheld the decisions of the judge and the Court of Appeal not to order trial by jury. The members of the Court of Appeal had considered that the case was exceptional in so far as it was a claim for exemplary damages such as might arise in a claim for false imprisonment or malicious prosecution. On the other hand, Neill LJ noted that the action “neither raised matters of constitutional importance nor involved the actions of senior officials”, and that the injuries were not grave. And Beldam LJ had expressed concern at the possibilities of a jury lengthening the trial and of the jury disagreeing. The House of Lords saw no criticism to be made of the reasoning in the Court of Appeal. In addition the House added that:

“the apparent uncertainty of the precise ambit of the tort of misfeasance in public office, with the consequent likelihood of prolonged legal argument in the absence of the jury, would have been a further factor militating against trial by jury”.

I accept Ms Page’s submissions to this extent: I should have omitted the word “generally” from para [35] of my 2011 judgment. 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 trial of this action is listed to take place over 5 to 7 days commencing 3 July 2012. That estimate is considered sufficient for a trial with a jury. There is agreement between the parties that if the court orders trial by jury, then two issues will be tried as preliminary issues by judge alone. These are whether the words complained of were published on an occasion of qualified privilege (Re-Amended Defence paras 24-26) and whether the causes of action in relation to the publications for which the First Defendant is said to be jointly responsible with the Second and Third Defendants (namely publication of the Second Defendant’s speech pleaded in para 48.1.4 of the Amended Particulars of Claim) have been satisfied by the payment of damages by the Second and Third Defendants (Re-Amended Defence paras 37A). Further, the First Defendant will wish to submit that there is no case in malice to go to a jury.

The effect of all this will be that the issues which would remain for a jury to decide if there is to be a trial by jury would be: (1) meaning, (2) truth, (3) malice (if the court holds both that words were published on an occasion of qualified privilege and that there is a case in malice to go to the jury) and (4) damages. If the defence of release (Re-Amended Defence paras 37A) is upheld by the judge, the claim will go forward as a publication to a single publishee, namely Mr Toulmin, to whom the e-mail containing the words complained of was addressed (and perhaps a very small number of others in the PCC office).

Mr Thwaites submits that an important factor in favour of trial by jury is that this case comes within the principle that: “An important consideration in favour of a jury arises where, as here, the case involves prominent figures in public life and questions of great national interest (Rothermere v Times [1973] 1 WLR 448)”. He cites from the judgment of Lawton LJ at p457C:

“When the public is likely to be affected by the result of an action for defamation it may be advisable to bring the public into the administration of justice by ordering trial by jury, even though the trial may be long, the issues complex and the documentary evidence massive and formidable”.

This case concerns the phone hacking scandal, which has grown to be a matter of the highest public importance. Mr Lewis, who at the time of the publication of the words complained of was acting for only two complainants, has since acted for very many clients, and many of these are themselves prominent figures in public life. The resolution of these claims has been the subject of much public interest. His own credibility and that of the police are important issues in the affair. This is an exceptional case such as is referred to in H v Ministry of Defence and Racz.

Mr Thwaites submits that meaning depends on a simple analysis of the words in issue. The issue on truth is whether on 7 December 2007 DI Maberly said to Mr Lewis what Mr Lewis says he said, or not. This is a short issue. For Mr Lewis, in addition to himself, there will be two witnesses, to whom he spoke shortly after his conversation with DI Maberly on 7 December. For the Defendant the evidence will be that of DI Maberly alone. The potentially relevant contemporaneous documents are those which recorded the evidence available to DI Maberly before 7 December 2007. To the extent that these may be said to support, or not to support, what he is alleged to have said to Mr Lewis, they may demonstrate that one or other of the two versions of events is the more probable. While these documents are numerous, they will not need to be examined for any length of time. Rather, in so far as they contain names, the numbers are likely to be agreed, and any differences as to how they are to be interpreted can be narrowed to a form which can conveniently be presented for resolution by a jury.

Ms Page submits that the issue of meaning is unusually complicated, and well suited for trial by a judge alone, for a number of reasons. In my 2011 judgment I accepted that the evidence of the Second Defendant’s (Lady Buscombe’s) response to the words complained of in her written and spoken remarks on 15 November 2009 was admissible on the issue of the meaning of the words complained of against the MPS for the purposes of the application then before me (and that whether they are to be admitted at the trial will be a matter for the trial judge) (paras 133(iii) and 71).

The words complained of were in a formal communication written by a lawyer for the MPS in response to a request from Mr Toulmin, who held a senior professional position. Lady Buscombe is also a lawyer. In deciding the meaning of words complained of as defamatory the court must be put itself in the position of a hypothetical reasonable reader: see in Jeynes v News Magazines Ltd [2008] EWCA Civ 130 at para [14], as discussed in paras [48] to [55] of my 2011 judgment. So a jury would be directed by a judge, and listen to submissions from counsel, to the effect that they must put themselves in the position of a reasonable professional person. They might not find the task easy, nor understand why they are being asked to undertake it by those who would be better equipped to do it than themselves. They would not enjoy the advantage that a jury enjoys over a judge in cases where the words complained of are in a newspaper or otherwise published to members of the public generally.

Further, the direction that the judge would be required to give to the jury on the relevance of Lady Buscombe’s speech, if that evidence is admitted in evidence at the trial, would be a novel direction, and not easy for a jury to understand. The difficulty will be the greater because Lady Buscombe’s speech will, if admitted, be relevant on the issue of responsibility for republication (if that remains live after the hearing of the preliminary issue).

Ms Page submits that, if the issue of malice remains live, that too will require unusual and complicated directions. This submission is based on the contents of DI Maberly’s witness statement as to his role in the drafting of the words complained of, and his other communications with the writer of those words. There is no evidence of any other police officer being involved, and no issues of constitutional importance or abuse of power.

Finally, Ms Page emphasises the value of a reasoned judgment in this case. Even in a case where the only issues are meaning and truth, if the jury give a general verdict it is commonly open to contradictory interpretations.

If the general verdict is in favour of the defendant, the parties and the public do not know whether the claimant has lost on meaning or on truth. But it is in the public interest that it should be known why the loser has lost. So, if a claimant loses on meaning (eg because the jury consider he has not been accused of lying), then his reputation should be intact. But if he loses because the jury finds that he has been accused of lying, and the charge is true, then his reputation should be seriously damaged.

Correspondingly, if Mr Lewis were to win his claim, it could be because the jury accept that he has been accused of lying, and accept DI Maberly’s evidence, but find that Mr Lewis was honestly mistaken in his recollection of what DI Maberly said to him. But the public would not know, and might reasonably understand that DI Maberly had been disbelieved by the jury, when in fact he had not been disbelieved.

There is a possible solution to this difficulty in understanding a general verdict. The jury may be asked to give special verdicts in the form of answers to a list of questions. But this raises its own difficulties, since not all the relevant questions can be answered Yes or No. In particular, difficulties arise out of the single meaning rule, which requires a jury to answer a question as to meaning, namely what is the meaning that the hypothetical reader would attribute to the words. This may cause difficulties even to lawyers who understand the purpose of that unfamiliar rule: Jameel v Wall Street Journal [2003] EWHC 37 (QB); [2004] EMLR 11 at para [6].

Ms Page also submits that there a prolonged examination of documents would be required.

I have not explained in detail all Ms Page’s submissions because I do not need to address them. I do not accept that it is likely that a prolonged examination of documents will be required. As Mr Thwaites submits, where a trial is to be by jury, it is incumbent upon the lawyers to present the case accordingly. In spite of pessimistic submissions made at interim hearings by counsel seeking trial by judge alone, in practice predictions of prolonged examination of documents are rarely fulfilled.

I accept that Mr Lewis has become a prominent figure public life, and that it is his prominence at the date of trial that is important (as opposed to what it may have been in 2009). I also accept that his and DI Maberly’s honour and integrity are in issue, and that in the context of the phone hacking scandal, the honour and integrity of each of them is a matter of significant national interest. I accept Mr Thwaites’ submission that this is an exceptional case. And I consider that the arguments he advances are strong arguments in support of trial with a jury.

Nevertheless, in my judgment the statutory presumption in favour of trial by judge alone that applies in this case cannot be displaced. Trial will be by judge alone.

My reasons for reaching this conclusion include:

Although I have already reached my decision for other reasons, I note that trial by judge alone will bring significant case management advantages. By agreement between the parties, there is in any event to be trial by judge alone of the issues of qualified privilege and release, and there is to be a submission of no case in respect of the plea of malice. If the trial is to be by judge alone there need be only one hearing when all the issues could be resolved, rather than the split hearing that would be required if some issues are to be tried by a jury.

It is for these reasons that I order that the trial will be by judge alone.