About this case:

• Citation:
  [2023] NICA 19
• Judgment:
  External link
• Court:
  NI Court of Appeal
• Judge:
  Mrs Justice Keegan

The court found that the trial judge erred in considering the facts and issues in the two cases together to deny the right to jury trial applied for in each separate case.

Background

These were appeals brought by Sir Van against orders for ‘judge only’ trials in two defamation cases. There were also cross appeals raised by Robin Swann, the respondent, who was the Northern Ireland health minister, and the Department of Health.

The central point in this appeal was whether the judge was correct in ordering judge only trials in both actions for a special reason, which he determined as being that the actions were interlinked.

Both of the actions at issue related to the Covid-19 pandemic and differing views about the health minister’s response to restrictions on the public. Van Morrison announced that he would release three protest songs about the UK government Covid-19 lockdown policy, with the proceeds creating a hardship fund for musicians who were facing restrictions on live performance.

In 2020, the Department of Health provided copy to the publisher of Rolling Stone magazine, commenting on these songs. The respondent was reported as saying: “His words will give great comfort to the conspiracy theorists — the tin foil hat brigade who crusade against masks and vaccines.”

Thereafter, in 2021, a socially distanced event was proposed in the Europa Hotel, which would be without live music. Addressing the guests, and referring to the Rolling Stone article, it was stated that “Robin Swann has got all the power […] Robin Swann is extremely, extremely dangerous”.

Following this, the writ Swann v Morrison issued, concerning two spoken statements of the appellant (alleged slander) and two online publications (alleged libel), and a second action relating to the Rolling Stone article was brought by the appellant alleging libel.

The law

Section 62 of the Judicature (Northern Ireland) Act 1978 concerns the issue of trial with and without jury, and notes that trials relating to libel or slander “shall, if any party to the action so requests, be tried with a jury”.

Section 62(2)(d) clarifies that a court may order that the trial be heard without a jury where the court is of the opinion that there is any special reason which makes it unsuitable to be tried with a jury.

Mr Justice McAlinden, the trial judge, analysed each of the actions, and decided that, on their own, they did not have a complexity or a special reason to come within the parameters of section 62(2) to allow for the presumptive right to jury to be removed.

However, the judge ultimately determined that these two actions were “inextricably linked” to each other. On this basis, the court came to the view that “these two actions should be carried out by a judge alone” due to the common issues between the two actions.

Grounds of appeal

The appellant argued that the judge misdirected himself in combining the facts and issues of the two actions to create a “special reason” under section 62(2)(d), and the finding that there was a special reason for overriding the right to jury trial was wrong in law.

Cross appeals in the Swann v Morrison action maintained that the judge erred in finding that the complexity of the issues in the action were not sufficient to constitute a special reason under section 62(2)(d) of the 1978 Act and that the judge failed to record any special reasons in contravention of section 62(2)(d).

In Morrison v Swann it was accepted that there were no grounds to displace the right to jury trial on the basis of the facts of that action alone.

Consideration

This appeal centred on whether the judge was correct to find special reasons under section 62(2)(d) of the 1978 Act to dispense with the presumption for jury trial in these defamation cases.

It was accepted that the judge erred by not including his reasons in each order, however, all parties knew what his rationale was and so this appeared to the court to be a technical error.

The court also noted that these issues were all somewhat premature, given that section 62 deals with what mode a trial will take, and so “one would think that consolidation or sequencing of the trial might be determined first”.

The court emphasised that the appeal itself could only be considered where it could be shown that the trial judge exercised his discretion under a mistake of law, took into account irrelevant matters, or that the conclusion reached was “outside the generous ambit within which a reasonable disagreement is possible”.

Section 62(1) creates a statutory presumption in favour of a jury trial upon request by virtue of the word “shall”. That presumption may be displaced if any of the exceptions found in section 62(a)–(d) are satisfied. The onus is on the party applying to establish a reason why an action should be tried without a jury.

Having analysed section 62, the court found that it must be applied to an action, rather than several actions. In this case, therefore, the court was not entitled to consider any link with another case as being a ‘special reason’. This interpretation followed the ordinary meaning of the words of the statute.

The judge therefore erred in aggregating the facts and issues in the two cases to deny the right to jury trial applied for in each case.

The judge was entitled to find that the presumption for jury trial was not displaced in either case, such that none of the exceptions in section 62(2)(a)–(d) were made out.

Conclusion

Ultimately, the court allowed the appeal on the basis that the judge erred in his interpretation of the special reasons provision under the statute. The court also dismissed the cross appeals, and the two orders made by the trial judge will be rescinded.