Telegraph Media Group Ltd v Thornton [2011] EWCA Civ 748

[2011] EWCA Civ 748IN THE COURT OF APPEALON APPEAL FROM THE HIGH COURT OF JUSTICEQUEEN' S BENCH DIVISION(MR JUSTICE TUGENDHAT)Venue Royal Courts of Justice Strand, London, WC2A 2LL 22 Nd June 2011B e f o r e :LORD JUSTICE CARNWATHandLORD JUSTICE LEVESON____________________
Between
TELEGRAPH MEDIA GROUP LIMITEDAppellantSARAH THORNTONRespondent____________________(DAR Transcript ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)____________________Mr David Price QC appeared as a Solicitor Advocate for Appellant.Mr Justin Rushbrooke (instructed by Messrs Taylor Hampton) appeared for Respondent.____________________Judgment(As Approved)Date 2011-06-22
[1]On 1 November 2008 the Telegraph Media Group Limited, hereafter referred to as the Daily Telegraph, published a review of a book by Sarah Thornton, entitled "Seven Days in the Art World". The review was written by Ms Lynn Barber and contained the words:
"She [Dr Thornton] also claims that she practices 'reflexive ethnography', which means that her interviewees have the right to read what she says about them and alter it. In journalism, we call that 'copy approval' and disapprove..."
[2]Dr Thornton has commenced an action based in libel and malicious falsehood. In relation to the libel, an offer of amends was made which has not been accepted; subsequently, Tugendhat J granted summary judgment in favour of the Daily Telegraph in respect of aspects of the libel.[3]As for the malicious falsehood it is alleged that the words were false because Dr Thornton did not give her interviewees the right to alter what she proposed to say about them and that there was no basis upon which the practice of reflexive ethnography could fairly or properly be described as the giving of "copy approval", which provides the interviewee with a right of veto. Malice is pleaded.[4]The defence pleads that Ms Barber expressed her honest opinion about the practice of reflexive ethnography on the basis that copy approval, in a journalistic context, involves the grant of a right to approve what is to be published about an interviewee; what she said was not motivated by any wish to vilify Dr Thornton.[5]Following an order for directions dated 4 February, which in this regard was not contested, the action was ordered to take place with a jury. On 18 May 2010, with a trial date fixed of 4 July, the Daily Telegraph made a number of applications for orders, including for the variation of the mode of trial, and also for an order requiring specific disclosure of documents relating to communications between Dr Thornton and her interviewees. In an ex tempore judgment, Tugendhat J refused the second application and, in a reserved judgment, also refused the first.[6]The Daily Telegraph now seeks to appeal both orders. Sir Henry Brooke refused leave in relation to the first on the basis that it was a case management decision by an experienced judge against a background of consent to that mode of trial. In relation to the application for specific disclosure, however, although equally a case management direction close to trial, he granted leave on the grounds that there was a real prospect of success.[7]I can deal with the substantive appeal in relation to disclosure shortly, because the parties have sensibly now reached agreement. That agreement is to the effect that the court should make an order for specific disclosure of any document evidencing the occasions on which the interviewees identified in paragraph 21 of Dr Thornton's witness statement objected to material that Dr Thornton was intending to include in her book and any responses thereto. For my part I would require disclosure pursuant to this order by 4.00pm on Friday, 24 June on the basis that copies of the relevant documents would also be made available contemporaneously. If the late disclosure causes difficulty to the defendants, doubtless the trial judge will consider what impact that should have.[8]I now deal with the mode of trial. Mr David Price QC argues that the decision of 4 February did not represent a case management decision, for although the judge had power to make the order, he was required to address his mind to all the relevant factors before doing so, irrespective of the consent of the parties, and he simply did not do so. Neither did he say that he would have ordered a jury trial if he considered the matter on that date.[9]He submits that Cook v Telegraph Media Group Ltd [2011] EWHC 763 QB makes it clear that the power of the court to order a jury trial is derived from s.69(1) of the Senior Courts Act 1981, which requires the making of an application within 28 days of service to the defence (see CPR 26.11) in default of which the entitlement is lost. In that event, an application under s.69(3) must be made which proceeds on the premise that the presumption is for trial by judge alone and that this presumption can only be displaced by application, whereupon the court must decide mode of trial, having addressed its mind to all relevant factors. The consent of the parties is but one factor to be taken into account. Both Mr Price and the learned judge were very familiar with this authority. Mr Price acted in the case and the judge decided it.

The judge dealt with this application in a reserved judgment in this way:

"28. 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. 29. 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. 30. 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). 31. 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...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). 32. I accept that it is open to the court at any time to change the mode of trial. ... 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."
[11]Mr Rushbrooke prays in aid this analysis by the learned judge, which he submits was clearly right. Analysing the judgment of the learned judge however, it is clear that he accepts the court could change its mind and he does not reject the proposition that the consensual order of 4 February approached the question of jury trial on a premise that failed to take account of what was later decided in Cook and was based upon s.69(1) of the 1981 Act rather than s.69(3).[12]His reason for rejecting the submission that he ought to reconsider the matter and exercise his discretion against the appropriate principles was the interests of finality. In this case, however, it is difficult to imagine that the parties have taken any steps on the basis that the trial was to be before a jury that would have been different if the trial had been ordered to be by judge alone: no such step has been suggested. In those circumstances finality, although important in many cases, need not be decisive in this.[13]In the circumstances, I believe that the learned judge unnecessarily fettered his consideration of Mr Price's application. In addition to allowing the appeal in the terms agreed in relation to disclosure, I would grant permission to appeal the refusal to reconsider mode of trial, allow that appeal and direct the judge to consider the issue on its merits. Lord Justice Carnwath:[14]I agree. This is a very unusual case. I would normally hesitate long before disagreeing with this judge in an area in which he has enormous experience in relation to cases which he has been handling. However, the circumstances as Leveson LJ has outlined them mean that, in following the consensual order seeking to order a jury trial in February, there was something of a sea change in the approach to the relevant provisions in May, when the judge decided Cook.[15]We have not been asked to review the reasoning in Cook and we must proceed on the basis that it is correct. The practical effect is that, where a party seeking jury trial in circumstances where that is permitted by s.69(1)(b), which includes libel, fails to make the application within the period prescribed, which is 28 days, then the right which it could be said that s.69(1) confers goes and the matter then becomes in the discretion of the judge.[16]This may either be because it falls under s.69(3), where it comes within the general provision for judge trial unless the court in its discretion orders a jury trial, or alternatively, on an application to extend time under Part 3.1(2)(a), where the matter would be at large in the judge's discretion.[17]Now I say all that without in any way seeking to analyse the detail, because the judge here had to deal with the matter in a practical way. It came back before him on the respondent's application to vary the order in the light of the change of approach which was represented by Cook. The emphasis of the argument before him seems to have been largely on the question of jurisdiction. With respect to Mr Price, it seems to be a hopeless argument that the court did not have jurisdiction to deal with the matter in the way that it did in February or indeed in the way it was doing it in May. That is not a particularly helpful way of analysing matters.[18]On the other hand, I do think that when the matter came back in May there was a change of position, because certainly the note we have of the exchanges before the judge in February indicated, as was, I think, generally thought to be the case, that there was still a right to jury trial, even though there had not been a formal application. And indeed, against a background where that had been the assumption for many months, one can understand why that approach was taken in February.[19]But when one comes to the position before the judge in May, it seems to me that he accepted that he had jurisdiction and that it was a question for his discretion, and, as my Lord has said, when one comes to the end of the judgment, the only substantive reasons he gives for not exercising his discretion to order a judge-only trial was the question of certainty.[20]In my view, he ought at that stage to have considered the matter more broadly and asked:
"Well, what is the right position now?"
Although I pressed Mr Rushbrooke, it did not seem to me that there was any suggestion that somehow there was any special reason why a judge-only trial would be inappropriate in this case or would cause any prejudice to his client, or that the fact that this application is made at a late stage would cause any difficulty.[21]In those circumstances, it seems to me that the judge's view was, with great respect, too narrow and I would agree with the order my Lord has proposed.

Order

Application for permission to appeal granted; Appeal allowed.

Cited in 7 later judgments