Gregory v The Commissioner of the Police for the Metropolis [2014] EWHC 3922 (QB)

Case No HQ12X05068[2014] EWHC 3922 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 27/11/2014
Before
MR JUSTICE CRANSTON
Between
Kevin GregoryClaimantThe Commissioner of the Police for the MetropolisDefendant
John Benson QC and Rayan Imam (instructed by Thomas More) for ClaimantMark Ley-Morgan (instructed by Weightmans LLP) for DefendantHearing Hearing dates: 10 November 2014
Judgment

INTRODUCTION

[1]This appeal concerns issues of law relating to jury trial in civil cases, in particular the need for the timely application by a party that a matter be tried with a jury rather than by judge alone. The appeal is against an order refusing the claimant’s application for trial by jury in a claim for damages arising out of the claimant’s arrest which he contends led to his false imprisonment and malicious prosecution. Under the Senior Courts Act 1981 there is a presumption in favour of trial by jury in such cases but an application for this must be made within 28 days of the defence.

BACKGROUND

[2]On 20 January 2010 the claimant was arrested and detained by the Commissioner’s officers. He was subsequently charged with harassment and assault of a woman. She had made a complaint and subsequently a statement. There was also a charge of harassment concerning a male. The Crown Prosecution Service issued a notice of discontinuance in these matters on 25 January 2011.[3]The claimant was arrested a second time on 3 October 2012. This arose as a result of a complaint made to the police by Her Majesty’s Courts and Tribunal Service. The complaint was that an organisation called Charles Henry had attempted to defraud them by submitting false invoices to their National Taxing Team. The claimant is the principal and trustee of a charity called Legal Action, which trades as Charles Henry.[4]The claimant issued particulars of claim against the Commissioner on 29 November 2012. These were served on 11 December 2012. They contained allegations of wrongful arrest, false imprisonment, malicious prosecution and assault in relation to the two arrests. There was an Acknowledgment of Service on 13 December 2011, in which the Commissioner notified his intention to defend the claim. A defence was lodged on 8 January 2013. It rejected the allegations about the first arrest. As to the second arrest, it stated that the Commissioner was unable to respond on the basis that the allegations in the particulars of claim in relation to it were still the subject of an ongoing criminal investigation.[5]Because of the ongoing criminal investigation Master Yoxall stayed proceedings pursuant to a without notice application by the Commissioner on 9 January 2013. He lifted the stay on 19 March 2013 and ordered the Commissioner by 28 June 2013 to file and serve an amended defence pleading to the matters arising out of the second arrest. An amended defence doing this was lodged on 8 July 2013. It contains details of three cases where sums had been submitted to the National Taxing Team by Charles Henry. The first is for a sum of £24,574.25 in respect of the defence of the case involving the first arrest of the claimant. In essence the amended defence alleges that the three claims to the National Taxing Team were without foundation. The amended defence also states that the relevant detective inspector had reasonable grounds to suspect that the claimant had committed the offences for which he was arrested the second time on the basis of the evidence set out in the amended defence, and that it was necessary to arrest him for the prompt and effective investigation of the offence.[6]There was a case management conference before Master Yoxall on 24 July 2013. He ordered standard disclosure by list by 21 August 2013. The claimant did not comply with the Master’s disclosure order; the Commissioner did. At that case management conference the claimant applied for trial by way of judge and jury. The Master directed that a formal application for this should be made to him in writing no later than 16 September 2013. On 13 September a formal application was made for trial by jury. Meanwhile, on 9 September 2013 the Commissioner applied for disclosure by list. At a case management conference on 14 October 2013 Master Yoxall ordered the claimant to serve a supplemental list of documents. The claimant did so. On 11 December 2013 Master Yoxall ordered that unless the claimant served amended particulars of claim positively pleading his case on malicious prosecution by 8 January 2014 the claimant would be debarred from pursuing that aspect of the claim. The claimant did not comply with this order.[7]On 14 January 2014 Master Yoxall heard the claimant’s application for jury trial and rejected it. Before the Master the claimant’s counsel contended that the time for applying for jury trial commenced with the amended defence and as a consequence the application was not out of time. After considering submissions on the law, the Master rejected this and said:
“12. Amendments go back to the date of the original proceedings. The rule is only workable if we go back to the time the original defence was lodged … The defendant now accepts that because of the stay imposed the actual date for the application was 16 April 2013.”
The Master then considered whether he should exercise his discretion to order a jury trial. He said:
“14. I accept as a starting position that the claim of this kind should be tried by jury if the application is made in good time. I am not convinced that had the application been made in time I would have rejected the application on the basis that it involved a prolonged examination of documents. There is no doubt in my view that documents will be a significant feature of this case but will not result in the prolonged examination of documents. Critically the court will be required to have a ready understanding of what was involved in the system by which costs orders were made, bills prepared following criminal proceedings. The case will require consideration of the underlying documents behind the bill in order that the defendant can justify their position and the Tribunal will need a ready understanding of the preparation of the bill of costs, how the hours are compiled and how bills are submitted. It seems to me that this issue will be better looked at by a judge alone. A judge would have a much better and ready understanding of the process. I also think that this is a case where a judge alone would take less time than a jury and that the case would be more effectively conducted by judge alone.”
The Master added that he had reached his decision with some hesitation since to a degree the claimant’s reputation was at stake and the claimant would have preferred jury trial: [15].[8]On 4 February this year the claimant filed a notice of appeal against Master Yoxall’s decision on jury trial, without notice to the Commissioner. Two days later, on 6 February 2014 the claimant made a without notice application for a stay. Eder J refused the stay. On 10 February 2014 the claimant issued a without notice application requesting that the order of Eder J be varied or set aside. There were listing appointments on 11 and 25 February 2014 when the Commissioner attended but the claimant did not. The claimant also failed to comply with an order made earlier by Master Yoxall as to the exchange of witness statements. On 27 February 2014, the day before the application for the set aside of Eder J’s order was to be heard, the claimant withdrew the application without prejudice to it being restored. The following day the claimant made an application to restore the application.[9]There was a listing application before Mitting J on 3 March 2014. On 11 March the claimant attended in person before Green J on a ex parte basis, who ordered that pending a decision on the application for permission to appeal all further steps in the claim were to be stayed. On 19 March the Commissioner applied to lift the stay. There was a hearing on 7 April before Wilkie J who ordered that the stay be lifted save as it related to listing. The claimant was ordered to pay the Commissioner’s costs. Three days later, on 10 April, the claimant notified a change of representation, that he was now acting in person, and made an application to go before Wilkie J. Wilkie J made no order and on 28 April the claimant made an application for permission to appeal the order of Wilkie J. That application is pending.[10]Swift J rejected the claimant’s application to stay other matters on 11 June 2014 but granted the claimant permission to appeal the order of Master Yoxall as regards the mode of trial. On 7 July the claimant notified a change of representation: Charles Henry was now acting again on his behalf. The Commissioner’s application to strike out was heard that day and Master Yoxall made an unless order that the claimant to serve witness statements by 28 July 2014. The Commissioner was again awarded costs. On 28 July 2014 the claimant applied to set aside Master Yoxall’s order of 7 July 2014.[11]The claimant’s application hearing was to take place on 22 August 2014 but he did not attend. Andrews J adjourned the application and awarded the Commissioner costs. On 5 September 2014 the claimant made an application to appeal the order to Andrews J. That application is pending. The claimant’s adjourned application hearing was to take place on 10 October 2014. The claimant had failed to pay costs by 5 September 2014, as ordered, and therefore the application was struck out and the hearing did not proceed. On 23 October 2014 the claimant withdrew his application for permission to apply for judicial review in advance of the oral permission hearing on 31 October 2014. The matter came before me on 10 November.

Legal framework

[12]Until the Judicature Act 1873 there was a right to trial by jury in common law cases. That Act enabled the Rules of Court to introduce restrictions, although the right to jury trial continued except in a few specified cases: see Ford v Blunton (1922) 38 TLR 801.[13]During World War I the shortage of eligible men made it difficult to find juries for civil trials. The Juries Act 1918, a war time measure with a sunset clause, provided that a judge alone should try cases except where fraud was alleged; where there was a claim in respect of libel, slander, malicious prosecution, false imprisonment, seduction, or breach of promise of marriage; or where the matter was “more fit to be tried with a jury than without a jury…” After the war the effect of the Administration of Justice Act 1920 was to confer a right to trial by jury in cases of fraud etc., but allowed the court or judge in other cases to displace that right if they considered the case could not be as conveniently tried with a jury. There was criticism and the pre-war position was restored in the Administration of Justice Act 1925: see Kodak Ltd v Alpha Film Corporation Ltd [1930] 2 KB 340, 356, per Greer LJ.[14]Section 6(1) of the Administration of Justice (Miscellaneous Provisions) Act 1933 created a presumption in favour of trial by jury where there was a charge of fraud against a party, or the claim was for libel, slander, malicious prosecution, false imprisonment, seduction, or breach of contract. Otherwise the mode of trial was within the discretion of the judge. In Hope v Great Western Railway Company [1937] 2 KB 130 the trial judge affirmed the Master’s order that a personal injury action by a young girl should be heard by a jury. The Court of Appeal upheld his exercise of discretion, rejecting the appellant railway company’s argument that there was a presumption against jury trial. Section 6, it held, “leaves the matter completely in the discretion of the Court or a judge … “ (at p. 139, per Lord Wright MR).[15]Lord Wright’s statement was considered in Ward v James [1966] 1 QB 273. Lord Denning MR (with whom the other four members of the Court of Appeal agreed) said that Lord Wright had not meant that the judge had an unfettered discretion. He rationalised the decision for jury trial in Hope as a case depending on the credibility of witnesses and where the pleadings disclosed a difficult point of law. Lord Denning MR said that it should not be supposed that the court was in any way opposed to trial by jury, which had been “the bulwark of our liberties too long for any of us to seek to alter it”. In trials for serious crime, when in a civil case a person's honour or integrity was at stake, or when one or other party may be deliberately lying, it had no equal. But in personal injury cases trial by jury had given place of late to trial by judge alone; because of the lack of certainty rarely did a party ask in these cases for a jury (at p. 295). Lord Denning MR added that the problems in assessing damages in such cases, and the need for uniformity and predictability in awards, meant that even if the issue of liability was one suitable for jury trial, only in exceptional circumstances should a jury be used for the assessment of damages (at p. 303).[16]Section 6(1) of the 1933 Act was repealed by the Senior Courts Act 1981. Section 69(1) of the latter provided that when, on the application of any party to an action to be tried in the Queen's Bench Division the court was satisfied that there was in issue(a) a charge of fraud against that party; or(b) a claim in respect of libel, slander, malicious prosecution or false imprisonment; or(c) any question or issue of a kind prescribed for the purposes of the paragraph, the action was to be tried with a jury, unless the court was of opinion that the trial required a prolonged examination of documents or accounts or any scientific or local investigation which could not conveniently be made with a jury. Under sub-section (3) an action which did 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…”[17]In Goldsmith v Pressdram Ltd [1988] 1 WLR 64 the Court of Appeal held that with the introduction of section 69 (3) into the legislation the balance now was against trial with juries: at p. 68, per Lawton LJ (with whom Slade LJ agreed) at p. 72, per Kerr LJ. That approach was approved in another defamation case,Viscount De L'Isle v Times Newspapers Ltd [1988] 1 WLR 49. There May LJ said that the answer to the questions posed by s 69(1), on which the ultimate decision as to the mode of trial would be made, must depend in the first place on the nature of each party’s case. In that case it was difficult to know what the case was on either side: at p. 58. The court allowed the appeal and ordered trial by jury.[18]In yet another defamation case, Aitken v Preston [1997] EMLR 415, Lord Bingham CJ said that the three issues which the judge had to decide under section 69(1) were(i) will there be a prolonged examination of documents?(ii) if so, can it conveniently be made with a jury? and(iii) if not, should the court nonetheless exercise its discretion to order trial with a jury? If the judge was right in his answer to the first two questions, the Court of Appeal could properly interfere with his exercise of discretion only if he was plainly wrong. Later Lord Bingham CJ said that there were four factors which had been identified in the earlier cases, which have some general application: “(1) The emphasis now is against trial by juries, and this should be taken into account by the court when exercising its discretion (Goldsmith v Pressdram case…(2) An important consideration in favour of a jury arises where…the case involves prominent figures in public life and questions of great national interest (Rothermere v Times [ [1973] 1 WLR 448] (3) The fact that the case involves issues of credibility, and that a party's honour and integrity are under attack is a factor which should properly be taken into account but is not an overriding factor in favour of trial by jury (Goldsmith v Pressdram…)(4) The advantage of a reasoned judgment is a factor properly to be taken into account..”.[19]Oliver v Calderdale Metropolitan Borough Council, Court of Appeal 23 June 1999, involved the equivalent provision to section 69(1) in section 66(3) of the County Courts Act 1984. The appeal had come on quickly, since the county court trial was to take place the following day. The judges gave ex tempore judgments. Buxton LJ gave the lead judgment and referred to what he characterised as a presumption under the section in favour of trial by jury, which could be displaced if the circumstances set out in the sub-section obtained. He held that the application in that case had been made well out of time and was wholly unreasonable. (There was no time specified in the County Court rules in the circumstances of that case.) Buxton LJ said:
“It cannot possibly be right in a case where a non-jury trial is fixed for the month of June to come along more than a year after the action was commenced and make the applications in April. I would, for my part, dismiss the application on that ground alone.”
[20]In giving the judgment of himself, Sir Anthony Clarke MR and Dyson LJ in Armstrong v Times Newspapers Ltd[2006] EWCA Civ 519; [2006] 1 WLR 2426, May LJ said that 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”:[15]. The court there upheld the decision of the judge, who had decided that a preliminary issue as to defamatory meaning should be tried by a judge alone. It noted that the first instance judge had not started with a predisposition in favour of trial by judge alone and had taken account of all the points in favour of a jury trial.[21]The principles Lord Bingham CJ enunciated in Aitken v Preston were approved in the judgment Lord Neuberger MR gave on behalf of himself, Maurice Kay and Sedley LJJ in Fiddes v Channel Four Television Corporation [2010] EWCA Civ 730; [2010] 1 WLR 2245. Lord Neuberger MR said that jury trial in defamation cases was a constitutional right: [9]. That was undoubtedly a factor, he said, which had to be borne in mind in the court’s exercise of discretion: [21]. That characterisation of jury trial in defamation cases as a constitution right was perhaps surprising in view of the legislative history and the recent caselaw I have outlined. Lord Neuberger MR cautioned against attaching too much independent weight to the additional length and cost of jury trial in considering section 69(1). However, he upheld Tugendhat J’s decision at first instance not to order trial by jury, in particular his reference to the cost of jury trial and the advantages of a reasoned judgment from a judge sitting alone: [40]-[42].[22]Any constitutional right to trial by jury in a defamation case disappeared overnight following the Defamation Act 2013. The Act removed claims in respect of libel and slander from the ambit of section 69(1) of the Senior Courts Act 1981. Trial by jury in defamation cases will now be the exception. The Westlaw annotation to the statutory amendment sets out the government’s justification for the change: in defamation cases jury trial has not been the norm and, when it occurred, it greatly increased the cost and time taken, a factor deliberately used to the advantage of one or other of the parties in negotiations and bargaining. As a result of the changes in 2013 CPR 26.11(2), now provides that a claim for libel or slander must be tried by judge alone unless at the first case management conference a party applies for trial by jury and the court orders it.[23]The current form of section 69 of the Senior Courts Act 1981, governing trial by jury in civil cases, thus reads in its relevant parts as follows:
“69.— Trial by jury. (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— (a) a charge of fraud against that party; (b) a claim in respect of malicious prosecution or false imprisonment; … 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. …. (4) Nothing in subsections (1) to (3B) shall affect the power of the court to order, in accordance with rules of court, that different questions of fact arising in any action be tried by different modes of trial; and where any such order is made, subsection (1) shall have effect only as respects questions relating to any such charge, claim, question or issue as is mentioned in that subsection.”
[24]Pursuant to section 69(2), CPR 26.11(1) prescribes the period in which the claim must be made as within 28 days of service of the defence. “Defence” in not defined in CPR 2.3 (Interpretation) or the Glossary to the rules.[25]When the case does not fall within section 69(1), such as with section 69(3), how should the court’s discretion be exercised? In Frank Cook v Telegraph Media Group Limited [2011] EWHC 763 (QB). Tugendhat J quoted May LJ in Armstrong v Times Newspapers Ltd, that contemporary practice is against juries. Later in the judgment,Tugendhat J referred to the Overriding Objective in CPR 1 and the case management powers such as in CPR 3.1(2)(a) to extend time. He stated that the implications of these provisions for the exercise of the court's discretion under section 69(3) was that, once the 28 days provided for in CPR 26.11 have expired, the court would decide the mode of trial by starting with the predisposition in favour of a trial without a jury. 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: [83]. Tugendhat J held that any application under CPR 3.1(2)(a) to extend the 28 day period would be a matter for the court's discretion, to be exercised judicially and in accordance with the Overriding Objective. The court would not approach the matter any differently if it was considering the exercise of a discretion arising directly under section 69(3) or under CPR 3.1(2)(a). The loss of the right to be tried by jury was not a sanction falling under CPR 3.9(1): [87].[26]Tugendhat J’s approach to the exercise of discretion under section 69(3) was before the Court of Appeal in two defamation cases, Thornton v Telegraph Media Group Ltd [2011] EWCA Civ 748; [2011] EMLR 29 and Bento v Chief Constable of Bedfordshire Police [2012] EWCA Civ 956. In Thornton the court proceeded on the basis that Tugendhat J’s reasoning was correct, although it noted that the court had not been asked to review it. In Bento the 28 days under CPR 26.11 had expired and Tugendhat J had held at first instance that in exercising the discretion there was a presumption in favour of trial by judge alone. The Court of Appeal held that to succeed the appellant had to show that no reasonable judge could, in the circumstances, have decided not to order jury trial. Tugendhat J had identified factual complexities in the case, in particular the interpretation of CCTV images. Also involved was the legal complexity of qualified privilege, where with a jury the claimant who loses will be thought to have lost because the words complained of were true, whereas a judge alone will explain in a reasoned judgment the true position. The Court of Appeal held that the appellant had not shown that no reasonable judge would have reached Tugendhat J’s conclusion. Tugendhat J was entitled to give greater weight to the factors he identified, in particular the advantages of a reasoned judgment: [26].

The 28 day time limit to apply for jury trial

[27]The claimant contends firstly that “defence” in CPR 26.11(1) includes “amended defence” so that the 28 day period in which to apply for jury trial prescribed under section 69(1) of the Senior Courts Act 1981 runs from when an amended defence is served. In this case the amended defence was lodged on 8 July 2013 and the claimant’s application for a jury was raised before the Master on 24 July 2013. Thus the 28 day time limit was well and truly satisfied.[28]There is no authority on the point. Mr Benson QC invoked both high principle and practical reasoning for his interpretation of CPR 26.11(1). As to principle, he submitted that the right to trial by jury is of constitutional importance so that CPR 26.11(1) should be construed in favour of that right. Accordingly “defence” should be interpreted to include amended defence. Enough has been said already to put paid to that argument: trial by jury in civil cases cannot be said to be a constitutional right.[29]As to practical reasoning, Mr Benson gave the example of a defendant changing his defence to allege fraud after the 28 day period: is the claimant to be denied trial by jury, he asked rhetorically, subject only to the exercise of the court’s discretion? If the courts were to limit the meaning of defence to the version first filed, and not the actual defence at trial, it would be an open invitation, he submitted, for defendants to file anodyne defences and hold back the real issues in the case until after the 28 days had elapsed. That would be contrary to the CPR’s Overriding Objective. In this case, Mr Benson submitted, CPR 26.11 cannot have been intended to exclude from consideration the amended defence which for the first time made specific averments in relation to the second arrest. One concerned the basis on which the detective inspector made the decision to arrest. Further, the amended defence in effect raised fraud against the claimant not until then flagged.[30]In my judgment there are good practical reasons for the 28 day limit running from the date of the defence. Otherwise there would be uncertainty, since the defence might be amended at any time. Moreover, once a claimant advances particulars of any claim, the matters are in issue unless the defendant admits them. In this case it was plain from when the defence was first served that malicious prosecution and false imprisonment were in issue as to both the first and second arrest. Certainly in relation to the second arrest the Commissioner stated that he could not respond since there were ongoing criminal investigations, but in no way did the Commissioner concede the truth of the claimant’s case. Even if it be accepted that the amended defence raised fraud, that added nothing in the circumstances of this case. To my mind Mr Benson’s fraud example is wide of the mark, since it overlooks that the court has a discretion under CPR 17.1(2)(b) to refuse an amendment to a defence. Manipulative action of the character in his example would be a very strong reason for the court to refuse to exercise its discretion to allow an amendment to the defence.[31]In this case the claimant knew from the defence on 8 January 2013, indeed from the Acknowledgment of Service three weeks earlier, that the Commissioner did not admit any of what he was alleging in relation to unlawful arrest, malicious prosecution or false imprisonment. The claimant had 28 days to apply for jury trial; he did not take advantage of his right to do that. Thus the matter fell within the Master’s discretion. There was no unfairness. That is especially so given that the claimant “is plainly well versed in court proceedings”: see Gregory v City University London [2014] EWHC 2937 (Admin), [12], per Davis LJ. In this case the procedural history I outlined shows that the claimant’s failure to apply for a jury trial within time was not an isolated failure to follow rules and time limits. He failed to complete standard disclosure on time; failed to exchange witness statements on time; failed to attend listing appointments; made applications without notifying the Commissioner; and had had two unless orders made against him. In summary the claimant has consistently failed to follow the rules and his failure to apply for a jury trial within the specified time is not an isolated example.

The Master’s exercise of discretion

[32]If the application for trial by jury had been in time there would have been a presumption of trial by jury, as Buxton LJ expressed it in Oliver v Calderdale Metropolitan Borough Council. That presumption could have been displaced if the court was of the opinion that the trial requires a prolonged examination of documents or accounts which cannot conveniently be made with a jury. Whether the latter is the case is not a question which calls for the exercise of discretion and I could have reviewed it: Aitken v Preston [1997] EMLR 415. Of course, the Master was inclined to conclude that the trial would not involve a prolonged examination of documents or accounts so trial by jury would have followed.[33]However, the claimant was over three months late in applying for trial by jury. The presumption as a result was against it. The Master had a discretion to order it under section 69(3) but contemporary practice, as May LJ put it in Armstrong v Times Newspapers Ltd [2006] EWCa Civ 519; [2006] 1 WLR 2426, was against it. In encapsulating the court’s approach in this way, May LJ was simply echoing the approach in earlier Court of Appeal decisions such as Goldsmith v Pressdram Ltd [1988] 1 WLR 64, Viscount De L’Isle v Times Newspapers Ltd [1988] 1 WLR 49 and Aitken v Preston [1997] EMLR 415. Given the weight of this authority it is impossible to accept Mr Benson’s submission that section 69(3) does not reverse the presumption in favour of jury trial when an application is out of time, provided the trial involves one of the issues in section 69(1), notwithstanding his concession that an out of time application for jury trial is less likely to be granted the greater the delay and the less cogent the reason for it.[34]Mr Benson sought to avoid the difficulty by submitting that the court retained the discretion as part of its case management powers conferred by CPR 3.1 to extend time for an application for jury trial outside the 28 day period. CPR 3.1(2)(a) gives the court a jurisdiction, except where the Rules provide otherwise, to extend time for compliance with any rule. Mr Benson submitted that in all the circumstances of the case an order granting more time would be a just order and one which would not undermine the need for the litigation to be conducted efficiently and at proportionate cost. The Master was wrong not to use his case management powers in this way.[35]In advancing that submission Mr Benson conceded that it flew in the face of Tugendhat J’s decision in Frank Cook, that the discretion to be exercised under CPR 3.1(2)(a) in this type of case runs in tandem with that to be exercised under section 69(1) and that it is not an issue of relief from sanction under CPR 3.9. It is true, as Mr Benson submitted, that the Court of Appeal in Thornton and Bento did not expressly consider the correctness of Tugendhat J’s reasoning in Frank Cook. However, in both cases they applied his approach. Even if I thought Tugendhat J in Frank Cook was wrong, which I do not, it is impossible for me not to follow it in the light of these two Court of Appeal decisions.[36]The Master in this case exercised his discretion to order trial by judge alone. There is no suggestion that he ignored relevant considerations or that he took into account irrelevant considerations. He considered the knowledge needed to understand how bills of costs are drawn and the shorter time which would be taken by a judge alone trying the case. On the other side of the balance he acknowledged the claimant’s wishes and the possible impact of the case on his reputation. By no stretch of the imagination could it be said that no reasonable Master would have reached his conclusion that trial by judge alone was appropriate. Nor could his decision be said to be unjust in any way because of any procedural error or other irregularity.

CONCLUSION

[37]For the reasons I have given I dismiss the appeal: there will be no jury trial if this case proceeds.