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Response of the Judicial Steering Group to Ministry of Justice Consultation Paper CP3/11 – Draft Defamation Bill


This is the Response of the Judicial Steering Group (the Master of the Rolls, Maurice Kay, Moore-Bick and Jackson LJJ) to those parts of the consultation paper which relate to the Costs Review Final Report (“FR”). This Response has been written by Jackson LJ and adopted by other members of the Judicial Steering Group.

Questions 20 and 21. We support the proposal to remove the presumption in favour of juries. Despite the existence of that presumption, jury trials are already a rarity. Furthermore, when a jury is empanelled the trial costs generally increase by about 20-30%: see FR chapter 32, section 6.

In our view the wording of clause 8 of the draft Bill is satisfactory. There is no need to set out guidelines on how the court should exercise its discretion whether to order a jury trial. We say this for two reasons. First, there is already judicial guidance on when juries may or may not be appropriate in libel trials. This matter is better dealt with by case law rather than by statutory provisions, which cannot readily be amended. Secondly, clause 8 (1) of the Bill, if enacted, would leave s. 69 (3) of the Senior Courts Act 1981 as it now stands, namely without statutory guidelines concerning the exercise of the discretion for which it provides.