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(1) Allen (2) Wood v (1) Panorama Limited (2) Olivero - 5RB Barristers

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Court: Supreme Court of Gibraltar

Judge: Restano J

Date of judgment: 17 May 2021 Summary: Defamation claims in Gibraltar – right to trial by jury – application of Defamation Act 2013 to Gibraltar - jurisdiction

Download: Download this judgment

Facts The Cs brought libel proceedings in respect of two articles published in The Panorama daily newspaper. The Ds applied for a trial by jury. They contended that there is a common law right to trial by jury in defamation proceedings in Gibraltar, as the suite of reforms in England and Wales brought about by the Defamation Act 2013 (including the abolition of the presumption in favour of jury trials) did not apply in Gibraltar.

The Cs opposed the application. They argued that mode of trial was a procedural issue, and therefore covered by s15 of the Supreme Court Act 1960 (Gibraltar) which extended English practice and procedure to proceedings in the Supreme Court of Gibraltar. Accordingly, they argued that s69 of the Senior Courts Act 1981, as amended by the Defamation Act 2013, applied in Gibraltar. The Cs conceded that the other provisions of the Defamation Act 2013, which concerned substantive law such as the ‘serious harm test’, did not apply in Gibraltar.

Issue (1) Does a party to a defamation claim in Gibraltar have a common law right to a trial by jury?

(2) If yes, was this right altered by the Supreme Court Act 1960 (Gibraltar)?

(3) Further or alternatively, was this right altered or abolished by the reforms in the Defamation Act 2013?

Held (1) Yes. This is not a constitutional right, in the sense that it is not a fundamental freedom contained in the Gibraltar Constitution Order 2006 or its 1969 predecessor. However, that does not detract from its historical importance. The right to a jury trial in defamation proceedings has existed under English common law since at least 1882: Capital and Counties Bank Ltd v Henty (1882) 7 App. Cas. 741. The right was incorporated into the law of Gibraltar under the 1884 Order of Council, which applied English law in Gibraltar as it existed on 31 December 1883 if and insofar as it was applicable to the circumstances of Gibraltar. The common law position continues to apply in Gibraltar by virtue of the English Law (Application) Act 1962 (‘ELAA’). Section 2(1) ELAA relevantly provides that the common law in England shall be in force in Gibraltar, save to the extent to which it is modified or excluded by any act of the Parliament at Westminster which applies to Gibraltar.

There was no force in C’s submission that jury trials in defamation proceedings are governed by statute rather than common law, as the relevant provisions have “long been consigned to history”. Namely:

(a) The Supreme Court Consolidation Order 1888 allowed a party to any civil suit in Gibraltar to apply for trial by jury, but gave the Chief Justice a wide discretion as to whether to allow a jury trial to proceed.

(b) The Supreme Court Amendment Ordinance 1902 amended the 1888 Order by restoring a party’s right to require a trial by jury in various types of civil proceedings including libel and slander. This brought the position in Gibraltar back in line with English common law, although it was still regulated by statute.

However, at some point prior to 1935, the provisions relating to civil jury trials “vanished” from the Supreme Court Order. Accordingly, after 1935 the position was governed by English common law.

(2) No. Section 15 of the Supreme Court Act 1960 provides that the Supreme Court of Gibraltar’s jurisdiction shall be exercised (as far as regards practice and procedure) in the manner provided for by the Act or rules under the Act, and in default thereof “in substantial conformity with the law and practice for the time being observed in England in the High Court of Justice”. Mode of trial is not concerned with the legal norms which apply to a libel claim, so in that sense cannot be classed as substantive law. However, it is nevertheless “an important right imbued with a substantive quality which was woven into the fabric of the law of Gibraltar”. Accordingly, the intention behind the Supreme Court Act 1960 was not to alter the position in relation to this important right.

Even if the right did fall within s15 as “procedural” law, there is no need to apply the English procedural law by default. Section 15 provides a hierarchy of practice and procedure: compliance with Gibraltar Acts, compliance with rules made under Gibraltar Acts, and English procedural law in default. There was a Gibraltar Act which governs the position: the ELAA.

(3) No. While some sections of the Senior Courts Act 1981 have been extended to Gibraltar, s69 has not. The English Civil Procedure Rules were amended to reflect the reforms made by the Defamation Act 2013, including CPR r26.11(2) which provides that a claim for libel and slander must be tried by judge alone unless an order is made at the first CMC for a trial by jury. This rule does not apply in Gibraltar, as there have been no similar underlying legislative reforms.

Comment This judgment provides a careful historical analysis of the right to jury trials in Gibraltar, its alteration over time through legislative developments, and its interaction with recent English reforms. It can be read alongside Yeo v Times Newspapers [2014] EWHC 2853; [2015] 1 WLR 971, in which Warby J undertook an equivalent analysis of the English position.

Restano J’s finding that the law on mode of trial has a “substantive quality” is noteworthy. Although acknowledging that the right is not recognised in the Gibraltar Constitution Order, the judgment recognises its inherent importance and expresses it highly: the right is “woven into the fabric of the law of Gibraltar”.

From a practical perspective, the judgment also provides essential clarification for practitioners in Gibraltar and English advocates who appear there. It is likely to have significant implications for the conduct of defamation trials moving forward, especially by removing the scope for a preliminary issue trial on meaning if a party elects for jury trial. Preliminary issue trials are now a central feature of English defamation proceedings, with significant benefits for costs and efficiency. As a result, there is potential for this judgment to spur local legislation to bring the position back in line with England & Wales – particularly if litigants start to elect jury trials more frequently.

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