Exclusively Online January 2022
Each case is different. The fact that a jury trial has been ordered in one defamation action does not mean it must be ordered in an unrelated defamation action. There must, however, be some general principles on the issue so that judicial officers can act on a principled basis, and consistently. What are those general principles?
A convenient starting point is the text of Section 33A of the High Court Ordinance (Cap 4), which provides that where on the application of any party to an action the CFI is satisfied there is in issue a claim of, inter alia, libel, the action “shall be tried with a jury, unless the Court is of the 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”. The key words there are “shall”, and “unless”.
By reason of those words, in DR Esthetic Product v Next Magazine (HCA 2776 / 2006, 21st August 2009), DHCJ Au (as Au JA then was) said (at §13) it was trite that “in a libel trial, the norm is that the action shall be tried with a jury if one party so chooses,” unless the proviso applied.
The proviso is tricky. It always was. Most cases involve some degree of “examination of documents”. But when is the examination “prolonged”? And when would that make a trial by jury inconvenient, or otherwise inappropriate?
The tricky nature of the proviso is best illustrated by what happened in Rothermere v Times Newspapers Ltd [1973] 1 WLR 448, where an appeal on an almost identical provision in England was allowed by the English Court of Appeal by a majority of 2-to-1. There, Lord Denning MR, in favour of trial by jury and giving the lead judgment, effectively made 5 points, as follows: –
(1) The Court should consider whether the number of documents to be placed before the jury can be reduced to a “manageable” number by making “a wise selection”.
(2) The Court should consider whether the issues in dispute will fall to be determined “on a broad picture”, as opposed to “on small details”.
(3) The length and complication of a trial “of themselves are no bar to a jury”.
(4) The Court should consider whether the subject matter is “a matter of large public interest”.
(5) A judge can deal better with documents, and he will give reasons which can be reviewed by a higher court, but “the result is not always better justice”.
Lawton LJ, agreeing with Lord Denning MR on the result, emphasized different things in his judgment.
Firstly, he emphasized the issue of legislative intention. Why, he asked rhetorically, were jury trials abolished for most civil claims but explicitly preserved for actions based on torts like libel and slander? He suggested it was because the trial of such an action “is likely to end with the honour, integrity and reputation of either the plaintiff or the defendant being tarnished or even destroyed” and held that this factor “must be considered”.
Secondly, he emphasized the relevance of the public’s involvement in cases of great public interest, by saying “when the public is likely to be affected by the result of an action for defamation it may be advisable to bring the public into the administration of justice by ordering trial by jury, even though the trial may be long, the issues complex and the documentary evidence massive and formidable.”
Cairns LJ dissented. In his view, as a judge presiding over a trial without a jury must give reasons for his decisions, it is easier to correct his errors on appeal, and thus a trial by judge alone “is more likely to achieve a just result”.
Of course, we are no longer living in the year 1973. Certain things have changed.
For example, in Yeo v Times Newspapers Ltd [2015] 1 WLR 971, Warby J of the English High Court held (at §45) that as Section 11 of the UK Defamation Act 2013, which applied to all defamation actions commenced in England on or after 1st January 2014, removed the statutory presumption in favour of jury trials for defamation actions, for most purposes “a substantial part of the reasoning” in Rothermere ceased to be relevantin England.
Hong Kong never adopted the UK’s recent statutory reforms in relation to this. However, in the local case of Martnok Thanradee v Commissioner of Police (HCA 789 / 2011, 24th January 2014), DHCJ Marlene Ng (as she then was), after most thoroughly examining all recent authorities, also said (at §68) “the sands of time are running out for jury trial in civil matters”.
More recently, in Barilaro v Shanks-Markovina & Another (No 3) [2021] FCA 1100 (§42), Rares J of the Federal Court of Australia suggested the “unpredictability of the impacts of the Covid-19 virus and the real risk of unforeseen disruptions that may occur” should be relevant factors tipping the balance against having a jury trial in defamation actions. That was particularly interesting because some 11 years before then (i.e., before Covid), in Rares, The Jury in Defamation Trials (2010) 33 Australian Bar Review 93, the same learned judge expressed very strong views in favour of retaining the jury in defamation trials. It seems that but for the Covid issue, the learned judge might have ordered a jury trial in Barilaro.
Some other jurisdictions have different considerations.
Notably, the Constitution for the State of Virginia still provides that when it comes to mode of trial for civil actions between individuals, “trial by jury is preferable to any other, and ought to be held sacred”. And that is why Johnny Depp’s much anticipated second libel trial, the one against Amber Heard and due to take place in Fairfax, Virginia, US, on 11th April 2022, will still be a jury trial. Whether the American jury’s factual findings in that second libel trial will be different from those of Nicol J sitting in the Royal Courts of Justice in London without a jury remains to be seen. Those readers who are interested in Nicol J’s factual findings in Depp v NGN can attempt to comb through his 129-page-judgment by searching for “[2020] EWHC 2911 (QB)”, or attempt to read just the English Court of Appeal’s succinct summary of them by searching for “[2021] EWCA Civ 423”.
Given all of the above, what will happen to jury trials in Hong Kong defamation litigation in the years to come? We shall all have to wait and see.
Barrister, Jason Pow SC’s Chambers
Kenneth K Y Lam is a Barrister in private practice. Called to the Bar in 2004, he sat as a Deputy District Judge, and as a High Court Master. He is a Fellow of the Hong Kong Institute of Arbitrators, and a member of Jason Pow SC’s Chambers. He acted for the successful plaintiff in the Social Media Libel case of Chow Wing Kai v Liang Jing [2021] 2 HKLRD 1189. He is recognized as a Leading Junior of the Hong Kong Bar by Legal 500 (Asia Pacific, 2022).
(Source: http://www.hk-lawyer.org/content/jury-trials-defamation-actions-yes-or-no)
Hong Kong Defamation Law 