Libel and juries of our peers... not anymore

Libel claims are like buses at the moment; they come in threes (at least!) leaving us spoiled for choice in relation to what to read next.

Here we see actor Laurence Fox, who is being sued over "paedophiles" tweets and is counter-suing in relation to an accusation of racism, failing to secure a jury trial.  "Meaning" of the racism allegation will now be determined by a judge, not a jury as Fox had hoped.  

Why is this interesting?

Among other things a libel claimant must prove the publication of "something defamatory", leading to a two stage analysis: (i) what do the words mean to the hypothetical reasonable reader (think "man on the Clapham omnibus")? and (ii) is that meaning defamatory?.  Fox's attempt to secure a jury trial suggests he had little confidence in the ability of a judge to put himself in the shoes of the hypothetical reasonable reader when determining meaning, or perhaps a belief that our judiciary are not in the habit of riding the Clapham omnibus! And so he argued the invidious position of a single judge having to define racism in the current day, and his concerns appear to have been compounded by the presence of pre-existing guidance to the judiciary on the subject of racism (different context), leading to the possibility, he said, of involuntary bias. Hence the application for a jury trial: "All 12 people pooling their life experience and use of the English language to determine the natural and ordinary meaning of that word… A jury simply would be better at doing that task than one judge”.

The fact that Fox failed in this application demonstrates the Courts' reticence to ever return to jury trials for libel cases. Reasons for this include the desirability of having strong case and cost management, including an early determination of meaning well before trial, and thereby avoiding massive costs being spent on arguments related to competing meanings all the way up to and through trial.

{Note: Until 2013 there was a presumption of jury trials for libel cases, but the Defamation Act of that year did away with that and now trials are typically heard by Judge alone, like other civil claims, unless the Court says otherwise}.