Practice and Procedure


PUBLISHED March 20, 2003

The court should not exercise its discretion to order trial by jury where there would have been a prolonged examination of documents which could not have conveniently been made with a jury.Appeal by the claimant ('P') from a refusal of his application for trial by jury in a claim for malicious prosecution and false imprisonment. In 1996, P was arrested, charged with affray and later acquitted by a jury. P alleged that during and after the arrest he was seriously assaulted by the arresting officers and, as a result, suffered serious injuries. He brought a claim of false imprisonment and malicious prosecution. In 2002, Master Eyre refused P's application for a trial by jury pursuant to s.69 of the Supreme Court Act 1981 and the decision was upheld by Judge Chapman in the High Court. Judge Chapman held that although jury trials with expert evidence were managed well in the civil and criminal jurisdictions, aspects of P's further loss claim involved a significant scientific inquiry that could not have conveniently been made with a jury and, therefore, the whole case should be tried by judge alone. P appealed.HELD: (1) A claim of false imprisonment and malicious prosecution fell within s.69(1)(a), (b) or (c) of the 1981 Act and was to be tried with a jury unless the court considered that the trial required a prolonged examination of documents or accounts or any scientific or local investigation which could not have conveniently been made with a jury. (2) The trial was likely to have involved prolonged examination of documents and also scientific investigation on a number of medical and other issues and this could not have conveniently been done with a jury. There were 350 pages of medical records and 50 pages of general practitioner notes on which the defence would have wished to cross-examine. There would also have been extensive reference to both cross-examination and documents in the criminal trials. This was a compelling point on the question of convenience. Consideration of material of this kind could have been more conveniently conducted by a judge alone. He could have read the documents in advance, or during the trial both in and out of court time and would have been much more able than a jury to identify potentially material passages. (3) Although the judge came to the correct conclusion, his reasoning was flawed. His comparison with the criminal jurisdiction was irrelevant as was his examination of the possibility of splitting the issues of liability and quantum. (4) Had the judge applied the correct test as set out in Aitken v Preston (Unreported, 15/3/1997) he would have come to the correct conclusion. (5) It was preferable for both sides to have a reasoned judgment at the conclusion of the case.Appeal dismissed.

[2003] EWCA Civ 382