Defamation Bill

Debate between Lord Mawhinney and Lord Brown of Eaton-under-Heywood

Thursday 17th January 2013 Grand Committee

[Lord Mawhinney]

My Lords, there is no need to take any time to establish that all of the members of the Joint Committee believe in the importance of trial by jury. That was not the issue. The issue was whether jury trial was appropriate in defamation cases. Most of us went into the committee being unsighted, and the evidence was very quick and almost unanimous: judges had in effect already decided that jury trials were probably not the way to go in defamation cases. A number of witnesses told us that there had not been a jury trial for defamation or libel in the past 18 months to two years; the practice had largely ceased. We were moving to a position of saying that we endorsed the present situation.

Then we got evidence from the editor of the Guardian. In his evidence, he said something which caused us all to perk up. He referred back to the case of the Guardian against Jonathan Aitken. He said that he and his newspaper had wished that that trial had been conducted in front of a jury. He made the case that occasionally, perhaps even exceptionally, people in public life needed to be tried in front of their peers simply because of the public perception and ramifications of someone in high office being in that position. He specifically mentioned judges, Members of Parliament and, if my memory is right, very senior people in the Armed Forces, where the credibility of the public and the individual were such that they needed to be tried in those circumstances. However, other than that, he said that what the judges had already established was the way to go. All I have sought to do in this amendment is accurately to reflect our evidence. I hope that I have done so faithfully. I beg to move.

[Lord Brown of Eaton-under-Heywood]

My Lords, there can be few occasions, particularly at five past five on a Thursday afternoon, when one feels entitled to tell, so to speak, a story from one’s own experience. However, I believe this to be just such an occasion.

Over a quarter of a century ago, I tried, with a jury, the case of the late Robert Maxwell suing Private Eye. It was a defamation case. The burden of the central complaint that Maxwell was making was that Private Eye had published a piece which insinuated that he had tried, by means of free holidays and the like, to bribe the then leader of the Labour Party—Neil Kinnock—to recommend him for a peerage: plus ça change. The case was opened—as all these cases invariably are—at great length and the witnesses started to go into the witness box. I came back from lunch on the fourth day to find a note from the jury which read, “Please, sir, can you tell us what a peerage is?”. On the fourth day of a case all about peerages they did not know what that meant, which did not increase my faith in, and admiration for, juries.

A later case over which I presided in the Court of Appeal was that of Grobbelaar, who secured a very large award from the jury—I cannot remember the exact amount but I think that it was about £100,000—on the basis that he had been libelled by a newspaper which had accused him of match fixing. Noble Lords will remember that he was a Zimbabwean who I think played for Liverpool at the time. We eventually held—we were upheld in this by the Appellate Committee of the House of Lords—that that was a perverse award. Again, that was not greatly to the credit of juries. Therefore, I confess that I am very strongly opposed to juries in defamation cases, not least when important people—celebrities—are involved. Juries tend to be mesmerised by celebrity. Indeed, that is true of defamation cases and there are many other instances—it is perhaps invidious to mention them—where that can be seen to be so in the libel context and perhaps more widely.

Under Clause 11 as drafted, defamation cases will be tried without a jury unless a court orders otherwise. The matter is left to the general discretion of the court. Obviously, only very exceptionally would it be thought a good idea to have a jury trial with all the disadvantages of such a trial in terms of length, expense, unreasoned judgment and all the rest of it. If I may respectfully say so, the problem as I see it in this proposed amendment is that it is, first, too prescriptive and, secondly, may well encourage the use of jury trial. In the original report of the Joint Committee, it was recognised in paragraph 25 that it would be undesirable to restrict this discretion—that is, the court’s general discretion—although it is fair to say that it went on to state that it should be possible to outline general principles. The general principle later referred to was that the circumstances in which the discretion should be exercised,

“should generally be limited to cases involving senior figures in public life and ordinarily only where their public credibility is at stake”.

The first problem with the proposed amendment is that it limits the discretion of the court because it states that:

“A court may only order a trial with jury”,

in this class of case, and there may be others. For that reason, it also raises in acute form the definition problem of deciding who is properly to be regarded as a senior figure in public life and when that person’s credibility is at stake. Perhaps more fundamentally, the amendment raises the very concerns that the Government in their response to the Joint Committee report refer to in paragraph 62. It was there said that:

“Concerns were expressed that including guidelines in the Bill could be too prescriptive and could generate disputes”.

I have already alluded to that as one of the problems. It goes on to say that:

“There would also be a risk that detailed provisions setting out when jury trial may be appropriate could inadvertently have the effect of leading to more cases being deemed suitable for a jury than at present”,

which would work against the committee’s view, one that the Government share, that jury trials should be exceptional. If this clause is amended as proposed, there is a risk that if somebody who claims to be a senior figure in public life whose credibility is at stake wants a jury or, indeed, the defendants to a claim by someone who is arguably within that description want a jury, then initially you have a dispute and a debate as to whether it is a case where it is permissible to have a jury and, if so, the suggestion would be that Parliament would have implicitly sanctioned the thought that that is indeed a case where it is appropriate, whereas I would suggest through my earlier illustrations that not even in that case would it generally be appropriate for a jury trial. I would respectfully oppose the amendment.