In Blake & Ors v Fox (Re Trial by Jury) [2022] EWHC 1124 (QB) Mr Justice Nicklin refused the defendant’s application for a jury trial of a defamation action.

“… since the removal of the statutory presumption in s.69(1), jury trials in defamation claims are now as likely to be tried by a jury as a personal injury claim or a contractual dispute.”


The claimants bring an action for defamation, the defendant counterclaims, also for defamation. The claimant made an application that the trial be head by a jury.


(1) Defendant’s submissions
    1. The Defendant argues that this is a one of the rare cases where the Court should direct trial by jury because of the appearance of “involuntary bias” on the part of the judiciary. Ms Marzec made clear during her submissions that the contention is not that there is the appearance of bias in respect of any individual judge, still less actual bias, but that the issues that call for determination in the proceedings – principally the issues connected with “racism” – raise a real prospect of the appearance of “involuntary bias” on the part of any judge who was called upon to try the case. The Defendant submits that this is a case where the ‘enhanced impartiality’ of a jury justifies an order for trial by judge and jury.
    1. This appearance of “involuntary bias” is said to arise because the judiciary – as a whole – have been given guidance, in the ETBB, as to the definition of racism. The ETBB is published by the Judicial College, the chair of which is, currently, Eleanor King LJ, a senior member of the judiciary and member of the Court of Appeal and who sits, with the most senior judges in England & Wales, on the Judicial Executive Board. The Judicial College – as a result of delegated responsibility from the Lord Chief Justice – is responsible for maintaining appropriate arrangements for the training of the judiciary, imposed by s.7(2)(b) Constitutional Reform Act 2005.
    1. The ‘Foreword’ to the 2021 edition of the ETBB, written by the chair of the Judicial College, begins:
“The Equal Treatment Bench Book has, particularly since its last major revision, published in February 2018, become a key work of reference. It is used, daily, by the Judiciary of England & Wales. It is referred to in their training courses and commended by the appellate courts. It is admired and envied by judiciaries across the world.
It is also a living document, constantly updated and amended to reflect changing circumstances and to incorporate the most up to date knowledge.”
    1. The Defendant submits that the Acknowledgments in the ETBB make clear that many, if not most, contributors are themselves serving members of the judiciary, including at least one sitting Judge of the Court of Appeal, and several Judges of the High Court.
    1. Ms Marzec argues that a judge who has been trained in accordance with, and presumably seeks to apply, the recommendations of the ETBB “might well be thought to feel some reluctance in holding that a party’s case on the meaning of “racism” which entirely accords with the ETBB is wholly wrong“. It is submitted that this is exactly what the Defendant asks the Court to find, in his definition of racism (set out in [16] above). In her skeleton argument, Ms Marzec contended:
“[The Defendant’s] case is that racism is not, as the Judicial College asserts, a term that is defined more by effects/outcomes than by motives. The ETBB definition does not reflect the way ordinary people use the word. The instruction in the ETBB, running directly contrary to [the Defendant’s] case, gives rise to strong apparent bias and involuntary bias against [the Defendant] on a key issue in the Counterclaims” (emphasis in the original).
    1. In consequence, the Defendant submits that the perceived advantages of a reasoned judgment could be “a positive disadvantage”. Ms Marzec argues that there is little risk of a jury verdict in this case being impugned, but there are several very serious problems with a judge being required to give a reasoned judgment choosing the right definition of “racism”, whether that advanced by the Defendant or the Claimants (and by extension, the Judicial College). The Defendant argues that whatever definition is chosen, there would be, “inevitable excoriation of not only the judgment and the judge, but the judiciary as an institution, by those who are supportive of the perspective of the losing side threatens the perception of political and ideological impartiality that the judiciary rightly works so hard to preserve.”
    1. Further, it is contended, a reasoned judgment in this case would be “an open invitation to appeal” (with the attendant increase in cost). Ms Marzec cites the decisions of Forstater -v- CGD Europe [2022] ICR 1 and R (Miller) -v- College of Policing [2021] EWCA 1926 as support for the submission that “culture war cases are magnets for appeals“, whereas a determination on the facts of this case by a jury would reduce the prospect of the unsuccessful party being able to bring an appeal.
    1. The Defendant advances a further ground in support of a direction for trial by jury. He contends that, even if his Counterclaim succeeds at trial, “the quality and nature of the vindication he seeks could be undermined by the lack of diversity of the judiciary itself”. He relies upon publicly available data as demonstrating that the number of High Court Judges who do not identify as ‘white’ “will not be more than a handful at most“. In the skeleton argument filed on his behalf, the Defendant explained:
“The vindication that [the Defendant] can obtain from a jury – selected from London, and so very likely to properly reflect the racial diversity of the capital – will be worth all the more, not least for being incapable of being undermined on the lazy basis that a white judge sided with a white man who denied being racist. A single person, especially one statistically highly likely to be white, does not enjoy the ‘enhanced impartiality’ of a jury when dealing with a determination of whether something constitutes ‘racism'”.
    1. Ms Marzec recognises that, since the Woolf reforms which led to the Civil Procedure Rules, there has been a greater emphasis on case management, and the need to dispose of cases in a way that is cost-effective and efficient, and that this has been held to weigh heavily against jury trial. She also accepts that it could not be contended that a jury should be empanelled in every defamation case involving publications on social media simply because of it is argued that jury members were likely to be more experienced social media users than judges. Nevertheless, Ms Marzec contends that a jury would bring distinct benefits. Twelve, randomly selected, jurors would bring their collected life experience to bear on the determination of the issues related to “racism” that were required to be resolved in the case. They would be more likely to reach the “social consensus” of the notional right-thinking ordinary member of society by whose judgment the Court approaches the objective assessment of several important issues in defamation claims.
  1. Finally, the Defendant submits that the Court should not attach undue importance to the fact that, if jury trial is ordered, the Court will be unable to resolve, by trial of preliminary issue, the conventional issues that are now routinely resolved in this way early in defamation claims. Ms Marzec submits that this is a “paradigm case” in which the Court would conclude that it was inappropriate to order a preliminary issue trial (principally for the reasons advanced in support of the Set-Aside Application – see [32] above).


The judge did not accept the defendant’s arguments.  He held that this was not an appropriate case for a jury trial.

H: Decision
    1. It seems to me that I must approach the determination of the Defendant’s application in two stages. If I were to be persuaded that the Defendant had demonstrated that there was a real prospect of the appearance of “involuntary bias” on the part of any judge who was called upon to try the issues in this case, then, if I was satisfied that the appearance of “involuntary bias” could be overcome by ordering trial by judge and jury, then I would so order. It does not seem to me that there can be any question of weighing the appearance of “involuntary bias” against other factors that would conventionally be considered under s.69(3). If, however, the Defendant has not satisfied me that there is a real risk of the appearance of “involuntary bias”, then I would determine the application under s.69(3) by exercising my discretion having regard to the various factors that have been identified in the authorities.
Has the Defendant demonstrated that there is a real risk of involuntary bias if the case were determined by a Judge alone?
    1. Neither party addressed me on the test to be applied on determining apparent bias. That may be because the test is so well-established that it did not need stating. I can take the relevant principles from Bubbles & Wine Limited -v- Lusha [2018] EWCA Civ 468 per Leggatt LJ:
[17] … [T]he test for apparent bias involves a two stage process. The court must first ascertain all the circumstances which have a bearing on the suggestion that the judge was biased. It must then ask whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility that the judge was biased: see Porter -v- Magill [2002] 2 AC 357 [102]-[103]. Bias means a prejudice against one party or its case for reasons unconnected with the legal or factual merits of the case: see Flaherty -v- National Greyhound Racing Club Ltd [2005] EWCA Civ 1117 [28]; Secretary of State for the Home Department -v- AF (No.2) [2008] 1 WLR 2528 [53].
[18] Further points distilled from the case law by Sir Terence Etherton in Resolution Chemicals Ltd -v- H Lundbeck A/S [2014] 1 WLR 1943 [35], are the following:

(1) The fair-minded and informed observer is not unduly sensitive or suspicious, but neither is he or she complacent: Lawal -v- Northern Spirit Ltd [2003] ICR 856 [14] (Lord Steyn).

(2) The facts and context are critical, with each case turning on “an intense focus on the essential facts of the case”: Helow -v- Secretary of State for the Home Department [2008] 1 WLR 2416 [2] (Lord Hope).

(3) If the test of apparent bias is satisfied, the judge is automatically disqualified from hearing the case and considerations of inconvenience, cost and delay are irrelevant: Man O’ War Station Ltd -v- Auckland City Council (formerly Waiheke County Council) [2002] UKPC 28 [11] (Lord Steyn).

[19] In Helow -v- Secretary of State for the Home Department Lord Hope observed that the fair-minded and informed observer is not to be confused with the person raising the complaint of apparent bias and that the test ensures that there is this measure of detachment: [2]; and see also Almazeedi -v- Penner [2018] UKPC 3 [20]. In Resolution Chemicals Sir Terence Etherton also pointed out that, if the legal test is not satisfied, then the objection to the judge must fail, even if that leaves the applicant dissatisfied and bearing a sense that justice will not or may not be done: [40].
    1. Those principles apply when it is contended that there would be an appearance of bias in respect of a particular judge hearing a case, but they must apply when the contention is that there would be an appearance of bias if any judge heard the case.
    1. The Defendant has not satisfied me that a fair-minded and informed observer would conclude that there was a real possibility that a judge trying this case alone would suffer from “involuntary bias”.
    1. The fair-minded and informed observer must be taken to know that, faithful to his/her judicial oath, the Judge in this case would be required to apply the law to the determination of the issues in the case, without fear or favour, affection or ill-will. I accept that “racism” is a term upon which there is not a settled meaning and that what amounts to “racism” is a subject of controversy. But this is a defamation claim. The three Claimants used the word “racist” in their respective Tweets. Three issues (at least) that require resolution in the case are therefore (1) the natural and ordinary meaning of this term as it is used in the relevant Tweet; (2) whether the meaning found is defamatory at common law; and (3) whether each Tweet was or included an expression of opinion or a statement of fact. These three issues will be resolved by application of the well-established principles: Koutsogiannis -v- Random House Group Ltd [2020] 4 WLR 25 [11]-[17] (and approved, together with a statement of test of the assessment of whether a statement is defamatory at common law, by the Court of Appeal in Millett -v- Corbyn [2021] EMLR 19 [8]-[9]).
    1. Of importance, for the present application, is the well-established principle that no evidence, beyond publication complained of, is admissible in determining these issues. In Stocker -v- Stocker [2020] AC 593 upheld a decision of the Court of Appeal that it was not appropriate to have regard to dictionary definitions of words when deciding meaning of a publication. Lord Kerr explained [25]:
“Therein lies the danger of the use of dictionary definitions to provide a guide to the meaning of an alleged defamatory statement. That meaning is to be determined according to how it would be understood by the ordinary reasonable reader. It is not fixed by technical, linguistically precise dictionary definitions, divorced from the context in which the statement was made.”
    1. Consequently, any Judge considering the issues I have identified in the preceding paragraph will not consider definitions given to “racism” whether provided in a dictionary or in the ETBB. A Judge in this case will determine the natural and ordinary meaning of the relevant Tweets solely by application of the principles I have identified to the relevant publications complained of. In particular, s/he will do so without regard for the definition of “racism” in the ETBB. Whether ultimately a truth defence is advanced in answer to the Counterclaim is a matter that would depend on future developments in the case, but even if it were necessary for the Judge to determine whether the Claimants have proved substantially true that the Defendant is a “racist”, s/he will do so on a dispassionate assessment of the evidence. Insofar as any Judge trying the case was already aware of the guidance given in the ETBB on this issue, then s/he would put this out of his/her mind. It is well-recognised, and would be understood by the fair-minded and informed observer, that Judges are able to exclude irrelevant material from consideration. In my judgment no fair-minded and informed observer could conclude that there was a real possibility that the Judge who ultimately tries this case would be involuntarily, but institutionally, biased because of the definition of “racism” used in the ETBB.
    1. Perhaps more importantly, because the definition to be applied to “racism” in this case is a core issue, necessarily the Judge deciding this issue will have to give a reasoned judgment on this very point. That is a better safeguard of avoiding error than directing a jury trial. Ms Marzec appeared to argue that the difficulty of challenging a jury verdict on this issue was a virtue. I disagree. The reason that a jury verdict is difficult to appeal on such a point is not because, being a verdict of a jury, it is in some way unassailable. Rather, unless the jury has given a narrative verdict, it is very difficult to identify whether they have gone wrong, and if so, on what issue. If the judge has made an error in his/her approach to determination of the issues relating to “racism”, then the Court of Appeal, and ultimately the Supreme Court, exist to put right that error. To do so, the appeal court’s task is made immeasurably easier with a reasoned judgment. I reject the suggestion that a reasoned judgment is any ‘invitation’ to appeal. Permission to appeal is given on the basis that the grounds of appeal have a real prospect of success or that there is some other compelling reason to grant permission. Permission is not given on the basis that the decision relates to a “culture war”.
    1. It may well be that a Judge may be required, as part of the resolution of the issues in this case, to define “racism”, whether as part of the determination of meaning of the relevant Tweets, or in the assessment of any truth defence. The definition applied may provoke criticism, even “excoriation” to use Ms Marzec’s term. Public criticism of the decisions of the Court is an important dimension of freedom of expression in a liberal democracy. It must be – and is – accepted by every Judge as an occupational hazard; it is one which, when discharging his/her duty to “do right to all manner of people” each Judge, by his/her oath or affirmation, has sworn not to fear. Nor is such controversy a justification for abdicating responsibility for what may prove to be controversial decisions to juries, who may themselves not escape public criticism (see Lord Bingham’s observations in Aitken – quoted by Warby J in Yeo at [57]).
    1. I therefore reject the Defendant’s contention that jury trial should be directed in order to avoid the appearance of “involuntary bias”.
    1. Turning to the broader issues of discretion under s.69(3), I have no hesitation in rejecting the application for trial by jury, largely for the same reasons as were carefully and compellingly explained by Warby J in Yeo.
i) I have already explained the importance of a reasoned judgment generally. In her submissions, Ms Rogers correctly identified the importance of such a judgment in this case (see [65] above).
ii) Proportionality, effective case management and furtherance of the overriding objective weigh very heavily against trial by jury. Jury trial effectively disables the court from performing any meaningful case management. Not only does that mean that a defamation action will cost more and take longer during its procedural and trial phases, it raises, as it always did, the spectre of the waste of enormous costs on the trial of issues that are ultimately found to be irrelevant. A return to such an inconvenient mode of trial would require the most compelling justification before the Court would exercise the discretion under s.69(3) to order jury trial. In this case, for example, if the Court were to direct trial, as a preliminary issue, whether the Claimants’ Tweets contained or were an allegation of fact or expression of opinion, that determination would ensure that time, costs and resources were not expended on a trial of a substantive defence that was irrelevant.
iii) The substantive law of defamation has become more complicated since jury trial was effectively abolished by the 2013 Act. The former Reynolds defence has been abolished and a new public interest defence put on a statutory footing in s.4 Defamation Act 2013. The need to prove serious harm to reputation has been added by s.1. I considered at the hearing what would be required in terms of jury directions in light of the issues in both the Claim and Counterclaim as they appear now. Although the Defendant had refused the invitation to put forward a draft ‘route to verdict’, I am satisfied that such a document – and the directions of law that would have to accompany of them – would be complex and challenging.
iv) The only factors raised by the Defendant in favour of jury trial are what is said to be the “enhanced impartiality” of jury trial over judge alone, in the particular circumstances of the case and particularly in light of the issues surrounding “racism”, and that the Defendant believes that the quality and nature of his vindication (were he to achieve that) would be undermined if it came in a judgment from a High Court Judge. In respect of the first point, I am simply not persuaded that the value of this – somewhat nebulous – factor makes up in any way for the substantial and obvious disadvantages of jury trial. Equally, the Court cannot take important decisions of case management in an effort to avoid some people thinking less of any vindication of the Claimant because they believe that it has come from a “white judge [who] sided with a white man who denied being a racist”.
  1. If the decision were therefore purely an exercise of discretion under s.69(3), I would refuse to direct trial by jury. As recognised in Yeo, since the removal of the statutory presumption in s.69(1), jury trials in defamation claims are now as likely to be tried by a jury as a personal injury claim or a contractual dispute.