We’re better off without libel juries, says judge

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Sep 27, 2017
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Mr Justice Warby said that the removal of juries in libel cases had stopped the practice of arguing “the same point to different threshold standards on different occasions”

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Inheritors of the mantle of legendary QC George Carman can forget the days of playing to the emotions of a jury, if comments by a High Court judge in charge of defamation disputes are anything to go by. 

Claiming that he “does not regret the passing of the jury at all”, Mr Justice Warby said that there were many advantages to the “virtual abolition” of juries in defamation cases. 

“It has removed the territorial disputes that quite often used to arise over whether a given issue is within the province of the judge, or that of the jury,” he said, adding that it had all but eliminated the practice of arguing “the same point to different threshold standards on different occasions. It is now possible for many more cases to reach a final resolution more economically by early judicial decisions on key issues of fact, or mixed of law and fact”. 

The judge was speaking at the annual conference of the Media Law Resource Centre, an American organisation, at the Law Society headquarters in London. He said that as a barrister specialising in media law he had spent time arguing points before a judge and then again before a jury. “It was not a particularly worthwhile activity or one that gave me particular pleasure,” he said. 

Earlier this year, the judge launched a consultation with media law litigators and judges to see how procedures might be improved. He said that the response was high and about 90 per cent of respondents said the relevant civil procedure rules fell short. The vast majority considered costs to be the most important case management issue, followed by delay. Almost all respondents supported the creation of a users' group, he said. 

One proposal is the creation of “a kind of judicial triage” with each media case reviewed by a specialist judge at the time of filing or soon after with a view to taking case management measures. 

“In principle one can see the attraction, though it would be a marked departure from the norm,” the judge said, pointing out that the move had “fairly obvious and potentially problematic resources implications”.

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