Jury trials in libel cases in England & Wales are very much a thing of the past – it is believed the last one was Frankie Boyle v the Daily Mirror back in 2012.

However, a recent case involving the actor and political activist, Laurence Fox seems to have reignited debate over the issue of “jury v. judge”.

The case has been brought in England & Wales, and since the implementation of the Defamation Act 2013, libel cases in this jurisdiction are to be tried by judge alone “unless the court orders otherwise”.

In practice, libel trials were largely heard by a judge alone in England & Wales even prior to the implementation of the new Act, but the statutory change cemented the fate of the jury trial.

Mr Fox is being sued by Simon Blake, star of RuPaul’s Drag Race, Crystal, and actress Nicola Thorp following Tweets he published in October 2020. Fox is counterclaiming against the claimants for publishing Tweets that he says mean he is “racist”.

The default position is that the trial, should it get that far, would be heard by judge alone. However, Mr Fox applied to the Court for the trial to be heard by a judge and jury on the basis that a judge hearing the case would suffer from “involuntary bias”.

In his arguments, Mr Fox referred to the “expansive” definition of racism in the Equal Treatment Bench Book, which is used by the Judicial College.

Mr Fox argued that the definition does not align with how “ordinary people use the word”, and with a jury being reflective of ordinary people, it was the most appropriate mode of trial. It was also argued that Mr Fox would receive greater vindication from a jury, as it would circumvent the argument that a white judge simply sided with the white man “who denied being racist”.

However, Mr Justice Nicklin ruled that no fair-minded observer could decide that a judge alone would be involuntarily biased because of the definition of “racism” used in the Equal Treatment Bench Book. He denied the application, and if it gets to trial, the case will be heard by a judge alone.

In his ruling, Mr Justice Nicklin also rejected the “vindication” argument on the basis that jury verdicts are difficult to challenge because they are not required to give a narrative verdict, whereas a judge would give a written Judgment explaining their reasoning.

Mr Justice Nicklin also noted that permission to appeal would not be given on the basis that the case involved a “culture war” and in fact it would only be granted if there was a real prospect of success, or some other compelling reason.

In stark contrast, in the separate jurisdiction of Northern Ireland, the presumption of a jury trial in libel cases still exists. Whilst the Defamation Act 2013 reformed libel law considerably in England & Wales, Northern Ireland did not adopt the same changes.

(Apologies to my friends in Scotland.  Sadly, I am not familiar with the system North of the Border)

From a strategic standpoint, a plaintiff in NI usually opts for a jury trial. Whilst a defendant can challenge this, the procedure is complicated and costly, and the outcome is uncertain.

The presumption of a trial by jury in Northern Ireland is often cited as a reason for increased legal costs in that jurisdiction, as well as encouraging parties to settle the claim before they get to the point of having to fund an (even more) expensive trial. It is for this reason that very few libel cases reach trial in this jurisdiction.

It remains to be seen whether Northern Ireland adopts the approach now taken in England & Wales, but there is certainly appetite for it from some quarters – particularly publishers.

In the meantime, with Mr Fox’s application being unsuccessful, the jury libel trial will remain something of a unicorn in England & Wales.  From the perspective of publishers and journalists, this is a very good thing.