Neutral Citation Number: [2012] EWHC 2700 (QB)
Case No: HQ11D03262
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 09/10/2012

Before :

THE HONOURABLE MR JUSTICE TUGENDHAT
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Between :

	Frankie Boyle	Claimant	
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	MGN Ltd	Defendant	

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David Sherborne (instructed by Lee & Thompson) for the Claimant
Ronald Thwaites QC and Adam Wolanski (instructed by Davenport Lyons) for the Defendant

Hearing dates: 3 October 2012
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Judgment

Mr Justice Tugendhat : 

1.	By an Application Notice dated 26 September 2012 the Claimant asks for an order that this action be tried without a jury.  The primary claim in this action is in respect of libel.  Provided that an application is made in time, as it was in this case, the Senior Courts Act 1981 s.69 provides that:
“(1) … the action shall be tried with a jury, unless the court is of the opinion that the trial requires any prolonged examination of documents… which cannot be conveniently made with a jury…
(3) An action … 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”.
2.	It is common ground that there are three questions for the court to decide in determining this application: Will there be a “prolonged examination” of documents in this case? If so can it be “conveniently made with a jury”? If not, should the court nonetheless in its discretion order it to be tried with a jury?
3.	The Claimant describes himself as a well known comedian and writer.  The Defendant is the publisher of the Daily Mirror.  It is also the publisher of a website.  The words complained of appeared in both forms. 
4.	In the issue of the Daily Mirror for 19 July 2011 there appeared an article which includes the following words which are complained of:
“Racist comedian Frankie Boyle could soon be returning to TV despite upsetting thousands of viewers with his sick jokes. … The new show is expected to feature a panel of comedians discussing the week’s news like BBC 2 series Mock the Week, on which Boyle appeared until he was forced to quit in 2009.  He left after controversy over a joke about Olympic swimming gold medallist, Rebecca Adlington’s appearance”.
5.	The Claimant attributes the following defamatory meanings to the words complained of:
“1.  The Claimant is a racist.
  2. The Claimant was justifiably sacked by the BBC from the television show, Mock the Week, in 2009 being given no choice but to quit because of his grossly offensive jokes”.
6.	There is also a claim in malicious falsehood in respect of the allegation that he was “forced to quit in 2009”, but in the circumstances of this case that is not material to the decision I have to make as to the mode of trial.
7.	The Claimant also alleges that the publications he complains of have caused him considerable, hurt, distress and embarrassment.  He makes a claim for aggravated damages which includes the following:
“8.2 Had the Defendant bothered to do so, it would have readily discovered that they were completely untrue.  Not only did the Claimant choose to leave the programme in order to pursue other projects, despite the producer seeking to dissuade him from leaving, but he is also well known for his anti-racist views (such as those expressed in his recent autobiography).  The implicit suggestion therefore that these views must be disingenuous or hypocritical only serves to increase the injury and hurt caused by the Defendant’s allegation that he is a racist”.
8.	It is a notable feature of this case that on issues of liability there is no dispute of primary fact between the parties.  The Defendant admits that the words complained of were defamatory insofar as they contained the allegation that the Claimant is a racist.  The Defence pleads that the words made clear that he is a racist by reason of the jokes he tells, that is, he is a racist comedian.  But it denies that it is defamatory of him to report that he was forced to quit in 2009.  The Defendant also denies that the words complained of mean that he was sacked.  Thus there are issues of meaning, both as to what the words meant and as to whether they were defamatory in this respect. 
9.	The main defence pleaded is that the words complained of were fair comment on a matter of public interest.  It is pleaded that by referring to the Claimant’s “sick jokes”, and the Defendant’s earlier coverage of the Claimant’s use of racist language, the words complained of indicated in general terms the facts upon which the comment was based.  The facts relied on are set out in eleven sub paragraphs.  These identify broadcasts by the Claimant on Channel 4 TV in the series Tramadol Nights. There are pleaded jokes broadcast on 21 December 2010, 7 December 2010, 17 June 2008 on Radio 4, and 14 December 2010, again on Tramadol Nights. 
10.	A defendant is not entitled to rely on the defence of fair comment (or honest opinion) if the comment was made maliciously. For this purpose, the only issue is whether he believed that his comment was justified: see Spiller v Joseph [2010] UKSC 53; [2010] 3 WLR 1791. There is a Reply, but it does not contain an allegation that, if the words complained of are held to be comment or opinion, the Defendant (or anyone responsible for the publication) did not believe that the comment was justified.
11.	In the alternative there is in the Defence a plea that it is true that the Claimant is a racist by reason of the jokes he tells (that is that he is a racist comedian), and the same particulars are relied on in support of this defence as are relied on in support of the defence of honest opinion.  The Defendant pleads that the broadcasts referred to demonstrate that the Claimant uses gratuitously racist language and targets members of other races in his jokes.
12.	As to the claim for aggravated damages, the Defence pleads that he has deliberately courted a reputation as a comedian who shocks and offends audiences, and so it is denied that he suffered hurt distress or embarrassment.  A number of further broadcasts are identified, both on Tramadol Nights and on other occasions.  The pleading refers to complaints from members of the public, including from persons who hold responsible positions in society, and a decision by OFCOM. In respect of this it is said that the Claimant has never publicly expressed regret at the offence he has caused or apologised to those whom he has offended.  It is said that he courts controversy in order to obtain substantial financial rewards in his profession.
13.	In the Reply the Claimant makes clear that there is no issue as to the facts relied on by the Defendant in respect of the broadcast it identifies.  In addition the Claimant pleads that he will rely on a further compilation of footage taken from his appearance on Mock The Week. He contends that these demonstrate what he says is a critical distinction between, on the one hand, a comic who satirises or makes fun of stereotypical or institutionally racist comments or whose comic character or stage persona tells jokes containing racial elements, and, on the other hand, a comic who personally holds racist beliefs or views.  It is said that only the latter could sensibly be accused of being a racist.  The Claimant also relies on a number of publications in which he has expressed anti-racist views which he says that he in fact holds.  These include newspaper reports, and his autobiography.
14.	On 8 December 2011 Master Leslie made an order by consent of both parties in which he ordered that the claim be tried with a jury.  The Claimant submits that it was made clear on his behalf at the time that that consent was given conditionally. He submits that he is entitled to ask the court to vary the mode of trial now.  
15.	The trial is imminent, being fixed for 15 October.  Mr Thwaites submits that the application is made very late and is unmeritorious on that account.  However, it is common ground that it is open to the court, even now, to vary the mode of trial if the conditions set out in the 1981 Act are satisfied.
16.	A number of witness statements have been served on behalf of the Claimant, but the main evidence in support of his case will be from himself.  His witness statement has attached to it 215 documents. These are largely print outs from websites and transcripts. There are also documents which have been disclosed on discovery by the Defendant, but which Mr Thwaites states he does not intend to refer to at the trial. However the main documentary evidence will be in the form of video recordings of the parts of the broadcasts which include the words he spoke to audiences, and which are relied on by the parties.
17.	There is a draft trial timetable prepared for the Defendant, based on the assumption that the trial will be with a jury. It provides for a five day trial, four days of which are attributed to the claim in libel, and one to the claim in malicious falsehood.  Mr Thwaites will call no evidence and make no opening speech.  The timetable provides one day for the summing up. So, in effect, it allows three days for the Claimant’s opening and each party’s closing speeches, evidence in chief and cross-examination of the Claimant and his witnesses.  
18.	Before the hearing of the application I was provided with a DVD containing the video recordings as prepared for the Defendant.  From these it can be seen that the shows were recorded in a large theatre.  The Claimant can be seen standing or walking around on a stage, and interacting with members of the public who are sitting in the front rows of the theatre.  As is typical of a stand up comedy show, the words are largely in monologue, interspersed with some dialogue, and in each case the words are spoken quickly.  I understand that the broadcasts were mainly shown late at night and preceded by warnings that some viewers might be offended by the content.  
19.	The provisions of the 1981 Act s.69 have been considered in a number of authorities. The parties have cited Rothermere v Times Newspapers [1973] 1 WLR 448, Goldsmith v Pressdram Limited [1988] 1 WLR 64 (CA), De L’Isle v Times Newspapers Ltd [1988] 1 WLR  49, Aitken v Preston [1997] EMLR 415, Beta Construction v. Channel Four [1990] 1 WLR 1042, Culla Park Ltd v Richards [2007] EWHC 1687 (QB), Gentoo Group Ltd v Hanratty [2008] EWHC 2328 (QB) and Fiddes v Channel Four [2010] EWCA Civ 730.
20.	Mr Sherborne submits, as is not in dispute, that the following propositions can be derived from the authorities.
21.	“Examination” means careful reading or watching, and does not relate to the volume of the documentation. The documents in question include not only the evidence adduced in chief, but also those introduced in cross-examination. In Aitken Lord Bingham noted that a case may be presented in simple black and white terms or in minute detail, noting that the former was increasingly rare nowadays. He observed that, whatever intentions counsel may have formed before a trial, they may find that at the trial it is necessary to present a case in more detail than had been anticipated.
22.	“Convenience” means without substantial difficulty in comparison with the same exercise carried out by a judge alone. There are obvious increased difficulties and costs associated with trial by jury, including multiplication of files and the longer time taken to explain matters to a jury. On the other hand, where a case is relatively straightforward the decision of a jury is likely to be reached and made known more quickly by the taking of a verdict than by the delivery of what is commonly a reserved, rather than an ex tempore, judgement. 
23.	In some cases the reasoning of a judgment advances the interests of justice when compared with the unreasoned verdict of a jury.
24.	In some cases the fact that a case involves issues of credibility, and the honour and integrity of a Claimant, is a factor which should properly be taken into account, but is not an overriding factor, in favour of trial by jury.
25.	The preparation for the trial is now advanced. There is a measure of agreement between the parties as to the length of time it will take the court to view the video material. Mr Sherborne submits it will take over two hours to view the whole of it once. But of course much of it will have to be viewed more than once. The exact words that the Claimant uses in each of his performances are not always easy to hear. This is partly on account of his mode of speech (he adopts various accents), and may partly be due to the quality of the audio recording. Transcripts are being prepared in the usual way for a jury trial, so that there will be little if any disagreement as to what the words spoken actually were. But the issues between the parties are such that the most important evidence will be the video recordings, and not the transcripts. It is how the Claimant said things, as much as what he said, that will be important.
26.	As Mr Sherborne expresses it, in Tramadol Nights “… much of the Claimant’s comic material is not aimed at a mass popular market; it is deliberately controversial and provocative, highly satirical, often premised on other cultural or social references and heavily dependent on challenging the boundaries of humour and taste”. Both parties contrasts this with Mock The Week, which was a panel show aimed at a different market.
27.	Thus Mr Sherborne submits that the determination of the central issues in the case will require a careful examination of the recorded material, and thus a prolonged examination within the meaning of s.69.
28.	Mr Thwaites estimates that the relevant portion of the recordings relied on by the Defendant in its Defence last no longer than 15 minutes. He will object to the introduction of the additional material which the Claimant wants to rely on. I indicated in argument that since I have not been asked to rule on whether the Claimant can adduce the additional material, I shall reach my decision on mode of trial on the assumption, favourable to the Claimant, that he will be allowed to adduce all the additional material in evidence.
29.	Mr Thwaites submits, and there has been prepared a detail schedule in support, that most of the 215 documents attached to the Claimant’s witness statement will also be inadmissible. I make the same assumption in respect to these, namely that the Claimant will be permitted to refer to them in his evidence in chief, if he wishes to do so.
30.	Mr Thwaites submits that the relevant material was always intended by the Claimant to be heard once, whether by the live audience or those viewing on television. He submits that that is how the court should view it. It is not complex. So the viewing of the whole of the material should not take two hours, but rather 1 hour 15 minutes.
31.	Mr Thwaites submits that watching television comedy shows is an activity of which many members of a jury are likely to have more experience than a judge, and that a jury is a more appropriate tribunal for determining the issues in this case arising as they do out of the broadcast of such shows.
32.	In my judgment, after making the assumptions favourable to the Claimant on the length it will take for a single viewing of the whole material, and assuming also that the court will view that material more than once, this will not be a trial which requires a prolonged examination of documents. I accept that there will be more than one viewing of the material, but I also accept the submission of Mr Thwaites that the material must be viewed bearing in mind that it was broadcast to audiences who would not be viewing it more than once, and would not be following it with a transcript. A highly analytical examination of the material would be inappropriate. And in my judgment the written material will not require prolonged examination either. It is not central to the issues in the action.
33.	Further, I do not accept the submission of Mr Sherborne that, even if there is to be an examination which is more prolonged than I consider would be appropriate, that that would be an examination “which cannot conveniently be made with a jury”. It would no doubt take somewhat longer in court than it would take if the judge were alone. The judge could repeat a viewing at his or her desk. But there are no particular difficulties in viewing the material. It is not, for example, like the poor quality CCTV images commonly seen in the Crown Court. These often do require very prolonged examination if the viewer is to understand what events or sounds are truly recorded. And this is not a case where there are any issues as to the editing of the material.
34.	It follows that in my judgment, the issue of discretion under s.69(3) does not arise. However, if it did arise, I would exercise my discretion in favour of trial by jury. I have very much in mind recent case law on the exercise of this discretion. But I accept Mr Thwaites’s submission that the material in this case is material that is very well suited to consideration by a jury, and that a judge would have greater difficulty than a jury, in that he or she would bring to the case the experience and knowledge of the world of only one person, instead of twelve, persons.
35.	It is for these reasons that I announced at the end of the argument that I would dismiss the application to vary the mode of trial. The trial will be by a judge sitting with a jury.
36.	At the start of the hearing I made an order under the Contempt of Court Act s.4(2) prohibiting the reporting of the this application until after the conclusion of the trial.