THE MITCHELL CASE RUMBLES ON: MORE PROCEDURAL ISSUES: SPLIT TRIAL ORDERED
I feel almost duty bound to continue to report on the Mitchell case, even if now has limited relevance to the question of sanctions. The latest case management decision offers an interesting decision on whether there should be a split trial.
THE ISSUE: TWO ACTIONS SIMILAR ISSUES: COULD THERE BE A TRIAL ON CERTAIN PRELIMINARY ISSUES?
Mr Mitchell’s action against News Group had been ordered to be heard alongside a claim brought by a police officer against him. There was considerable overlap between the two actions, relating as they did to the precise terms of what was said at the gate outside Downing Street. Mr Justice Warby explained his decision that there should be a preliminary trial of certain issues.
- It will be obvious from this summary that there is a great deal of overlap between the issues that arise in the two actions. At the heart of each action is the issue of what was said by Mr Mitchell at the Downing Street gates on the evening of 19 September 2012. Closely allied to that issue, there are questions about whether Mr Mitchell or PC Rowland has lied about what took place.
- In general terms, it is clearly desirable to avoid the same or similar issues being tried in two or more different actions. The drawbacks are obvious. Trying the same issue twice is inherently wasteful. It involves duplication of time, effort and cost. There is a risk of inconsistent or apparently inconsistent outcomes. Difficulties can and often do arise, however, in finding a way to manage two cases so that issues common to both of them are tried together, fairly and conveniently. Often, the actions will be proceeding at different speeds, so that tying them to one another leads to the slowing down of the more advanced action. That is not the position here, where the actions are at closely similar stages of preparation for trial. Another difficulty that can arise is that the common issues may form only a small part of the overall picture in the actions. If that is so, it may well be inconvenient to try all the issues in both actions at the same time. In these two libel cases there are several issues which are not common, but unique to each action. The question of whether News Group has a defence of Reynolds qualified privilege has no counterpart in PC Rowland’s action. Mr Mitchell’s defence of qualified privilege raises different issues from that of News Group. The defence of honest opinion arises only in PC Rowland’s action. Questions of damages in each action are of course quite separate and distinct from one another.
- A solution, where common issues form only a sub-set of what is at stake in two actions, may be to have a preliminary trial of those issues which are common to the two actions, leaving other issues over for trial at a later time to the extent that is necessary. This can be hard to achieve, however. There can be difficulties in defining clearly the boundaries of the common issues. There is a danger that the preliminary trial can cover too little, and fail to resolve the case for that reason. Or it may expand so as to cover more than was intended at the outset, defeating or undermining the aim of saving costs and time. In libel cases, there is another factor that has in the past been an obstacle to using preliminary issues as a case management tool: the “right” to a trial by jury.
- The question of whether a trial should be by Judge alone or with a jury is governed by s 69 of the Senior Courts Act 1981. The version of s 69 which is relevant to these actions provides as follows:-
(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—
(b) a claim in respect of libel, slander ….
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.
- Under these provisions, as long as an application for trial by jury is made in time, the starting point is a mandatory rule that a libel claim must be tried by jury. That rule is displaced if the court is satisfied that the case falls within one of the exceptional categories specified in s 69(1). If it does fall within one of those exceptions the court has a discretion, but the presumption is in favour of non-jury trial. Section 11 of the Defamation Act 2013 amended s 69(1) by removing the words I have emphasised in bold above. The effect was to apply to all libel and slander cases the presumption against jury trial contained in s 69(3). This amendment has no effect, however, in relation to actions begun before the commencement of the section: see s 16(7) of the 2013 Act. Since the actions of Mr Mitchell and PC Rowland were both begun before the commencement of s 11 of the 2013 Act, the “old” provisions remain relevant.
- If, on the proper application of these provisions, a case falls to be tried by jury that is likely to make it more difficult to identify issues that can safely be extracted and tried as preliminary issues. One of the difficulties with ordering preliminary issues is the tendency for issues to overlap, sometimes in ways that are not apparent in advance. Whilst it will ordinarily be possible for the same Judge to deal with different stages of a case, it is highly unlikely that this would be possible with a jury.
- An alternative to the trial of preliminary issues can be to have the actions tried sequentially by the same tribunal, with the evidence in the first trial standing as evidence in the second. In that way the tribunal only hears the evidence once, and the risk of inconsistent findings is all but eliminated. This solution can however have its own problems. Among them is the difficulty of ensuring that a party to the second trial who is not a party to the first has a proper opportunity to challenge evidence in the first trial which is adverse to his case. In these actions that problem could arise, if Mr Mitchell’s action was tried first with that of PC Rowland to follow because, although PC Rowland’s evidence would seem central to the issues in that action, he is not a party to the action.
- The parties were until recently taking different stances on how the actions should be tried. Mr Mitchell initially exercised his right to seek trial by jury. In his action against News Group a provisional direction for jury trial was made at a relatively early stage. In June 2014 Mr Mitchell reasserted his wish to have that action tried with a jury. He also applied, in time, for an order for PC Rowland’s claim against him to be tried by jury as well. By a letter of 20 June 2014 Mr Mitchell proposed that his action should be tried with a jury, with the trial of PC Rowland’s claim to follow a few days later, before the same jury, with the evidence in the first trial standing as evidence in the second. PC Rowland was not content with that for the reasons that I have identified above. The approach of News Group and PC Rowland was to seek orders for trial by Judge alone and for a preliminary issue trial in both actions. Trial by Judge alone was proposed on the basis that the trials would each require “prolonged examination of documents [and] … local investigation which cannot conveniently be made with a jury” within the scope of s 69(1) of the 1981 Act. The proposal initially was that the preliminary issue should be “what words did [Mr Mitchell] use when he spoke to [PC Rowland] on the evening of 19 September 2012 at the Downing Street gates”. Applications for orders to that effect were issued by News Group on 2 July and PC Rowland on 10 July 2014.
- By 17 July 2014 Mr Mitchell had changed his position about jury trial. A letter of that date from his solicitors stated that his overwhelming concern was to retain the December 2014 trial date and that “he accepts that in reality trial by jury would preclude split trials, and that full trial of both actions by jury would probably involve loss of the trial date. He is therefore willing to forgo jury trial to retain the December trial date.” By the same letter Mr Mitchell put forward a counter-proposal for the trial of differently defined preliminary issues. The parties thereafter reached an agreement that, subject to the court’s approval, both actions should be tried without a jury and that there should be a trial of preliminary issues, along essentially the lines set out by Mr Mitchell. That proposal was before me for consideration on 24 July.
- The preliminary issues proposed were these:
i) Meaning of the words complained of in the Particulars of Claim in both actions;ii) The justification defences pleaded by the Defendants in both actions;
iii) The issue pleaded in paragraph 37.4 of the Particulars of Claim in Rowland v Mitchell.
Subject to some minor modifications and qualifications I made an order for the trial of those issues. I was persuaded that the proposal met the important objectives of avoiding inconsistent findings and duplication. I was persuaded that these issues encapsulated, in a sufficiently clear and well-defined way, issues the determination of which stands a reasonable chance of resolving the disputes between the parties and thereby saving resources. I also bore in mind the public interest in focusing resources on ascertaining the truth of the allegations and counter-allegations about these events which have attracted so much publicity, involving as they do a senior politician and a police officer.
- The issue of what the words complained of meant is a crucial issue in any libel action. The decision-making task is however an inherently straightforward one, involving the application of well-settled principles of law to the particular words in issue, and there are no great complexities arising in this case. Mr Mitchell denies that some of the statements made by him and complained of by PC Rowland referred or were understood to refer to PC Rowland. However, I approved the parties’ proposal that for the purposes of the preliminary trial it should be assumed in those instances where there is a dispute that the words were understood to refer to him. This seems a pragmatic approach, particularly as there are similar statements which were made later on in which PC Rowland was mentioned by name. Mr Mitchell disputes in relation to some of the statements of which PC Rowland complains that they were defamatory of PC Rowland. That issue will be dealt with as an integral part of issue (i).
- The justification defences are sufficiently clear and self-contained to make the preliminary issue trial manageable in that respect. As to the allegation under paragraph 37.4 of the Particulars of Claim, this is that at all material times Mr Mitchell knew that the allegations complained of by PC Rowland were baseless. The reason why it is appropriate to include that issue in the preliminary trial will be obvious. It is so closely related to the issues of justification that it would be artificial to leave it out.
- In support of the allegation in paragraph 37.4 of the Particulars of Claim PC Rowland places reliance on what he says are the true events on the night of 19 September 2012 and on subsequent events up to and including February 2014. Those same allegations are incorporated by reference into the plea of malice contained in paragraph 26 of the Reply. To ensure that the preliminary issue order covers what it should, a reference to paragraph 26 of the Reply will be added to issue (iii), subject to one qualification. Paragraph 26 also incorporates by reference some allegations in paragraph 29 of the Reply, where it is alleged in aggravation of damages that in a letter of 20 May 2014 which Mr Mitchell disclosed to the press he deliberately misrepresented the content of some police disciplinary hearings, thereby causing further media publications libellous of PC Rowland. Ms Evans on behalf of PC Rowland accepted that it was inappropriate to include this material within the scope of the preliminary issues, as it involves several factual issues which it will be unnecessary to explore for that purpose.
- The order for preliminary issues leaves on one side the Reynolds qualified privilege defence relied on by News Group. That is an advantage, at least in the short term, as such defences tend to be complex, time-consuming and expensive to try. Whilst it is true that this defence may still be relevant after determination of the preliminary issues, it is not inevitable that it would need to be tried in that event. It raises, in any case, factual and legal questions that are largely if not entirely separate and distinct from those arising from the preliminary issues as defined. Therefore, there would little or no duplication of evidence or submissions ifReynolds did have to be tried. Mr Mitchell’s qualified privilege defence, also removed from the scope of the preliminary trial, may be less time-consuming and expensive to try than the Reynolds defence but again it is separate and distinct from the preliminary issues. Moreover, Mr Price QC made clear on Mr Mitchell’s behalf that his main concern is to obtain a decision on the question of what he did or did not say that night.
- In deciding whether to approve the parties’ proposal I had in mind the question of the burden of proof. In theory, there could be difficulties. In Mr Mitchell’s action, News Group bears the burden of proving that Mr Mitchell launched the foul-mouthed attack on the police which was alleged in the Sun article. In PC Rowland’s action Mr Mitchell bears the burden of proving that PC Rowland’s account is false and invented. This, however, seems to me unlikely to present a problem in practice. It is extremely rare that issues in civil litigation are resolved on the basis of the burden of proof. One reason why that might happen is if there is a shortage of evidence. It does not seem that there is likely to be a shortage of evidence on the preliminary issues in these actions.