Defamation, The Jury and the Pursuit of Justice

Extract

In the law of defamation, the jury is “the constitutional tribunal” of fact (J.C.C. Gatley, Libel and Slander, 9th ed. (London 1998), pp. 889-890). The jury’s occupation of this position is usually traced back to Fox’s Libel Act 1792. While confined in terms to criminal trials, the 1792 Act is regarded as declaratory of the common law (see Sir Martin Nourse, “The English Law of Defamation-Is Trial by Jury Still the Best?”, in B.S. Markesinis (ed.), The Clifford Chance Lectures, vol. I, Bridging the Channel (Oxford 1996), ch. 4). One way in which to explain the jury’s role in defamation trials can be found in the ideal of institutional justice. This ideal specifies that institutions should, in order to be legitimate, adequately accommodate the views of those in the society where they operate (G. Cupit, Justice As Fittingness (Oxford 1996), ch. 5). There is, however, reason to regard defamation law’s commitment to institutional justice as qualified. Support for this view can be found in Grobbelaar v. News Group Newspapers Ltd. [2001] 2 All E.R. 437. In Grobbelaar, a unanimous Court of Appeal overturned a jury’s findings of fact on the ground that they were perverse and unreasonable. This decision appears ground-breaking since the Court was unable to point to domestic authorities in which the same step had been taken.