Chapter 11
Civil jury trials in the High Court

Commission’s view

11.11Although civil jury trials are rare, our consultation suggested the right to trial by a civil jury should not be abolished, but should be restricted to cases with particular characteristics, rather than claims that meet a particular damages threshold set out in statute. As a starting point, we consider civil claims should be heard by a judge alone unless there is something special about the case that renders it more suitable for trial before a jury than a judge alone. In our view, special cases are those where the loss relates to reputation, liberty, or sanctity of the person, where damages are “at large”. We consider that claims for defamation, false imprisonment and malicious prosecution share these characteristics.


11.12There are features of defamation claims that make them the most suitable civil claims for trial by jury in our view. Defamation is concerned with statements that may tend to lower the plaintiff in the estimation of right-thinking members of society generally.162  A jury may be said to be in a better position than a judge to determine this, and to gauge current societal views and the value of a loss of reputation.

False imprisonment

11.13False imprisonment is committed when a person is detained or imprisoned by another person acting without lawful justification.163  In a claim for false imprisonment the plaintiff is entitled to recover compensatory damages for the imprisonment and for distress, humiliation or fear. Damages are at large, and may depend on the value society places on freedom at a particular point in time. Members of society are therefore likely to be best placed to assess damages in these cases.

Malicious prosecution

11.14For a claim in malicious prosecution to succeed, it must be shown that criminal prosecution proceedings were instituted both maliciously and without reasonable and probable cause, and the plaintiff suffered damage as a consequence of the proceedings. Damage may include loss of reputation or liberty, so claims for malicious prosecution may share some of the characteristics of claims for defamation or false imprisonment.

11.15The tort was established before there was a police force responsible for enforcing the criminal law, and was designed to deter the bringing of unfounded criminal charges by private citizens against others in the community, and to provide a means for an accused to restore his or her reputation. Strict conditions must be satisfied before liability can be imposed. It has been noted that claims for malicious prosecution are not brought very often, and that they succeed even more infrequently.164
11.16A lack of reasonable and probable cause is an essential element in establishing liability for malicious prosecution. The burden of proving the absence of such cause lies with the plaintiff. In jury trials, it is for the jury to find the facts upon which the question of reasonable and probable cause depends, but it is for the judge to decide whether those facts in truth amount to an absence of reasonable and probable cause. This practice appears to have developed because this task is too difficult for a jury. In Stewart v Equitable Life Assurance Society of the United States, Richmond J expressed the view that:165

It is next to impossible, as all Judges know, to get a jury to understand their duty in cases of this kind – to get them really to look at the circumstances as they necessarily appeared to the defendants at the time, and see whether there was not reasonable ground for instituting a prosecution.

11.17The question of whether the defendant acted out of malice is for the jury, but the judge must decide as a preliminary matter whether there is any evidence of malice to go before it.166  If damage is proved, damages are at large, and would also be determined by the jury.

11.18If the right to a civil jury trial is restricted to claims relating to the torts discussed above, in the Commission’s view there is no need for the retention of a provision equivalent to section 19A(5) of the Judicature Act 1908, which enables a judge to hear a case alone if it is proven that the trial or any issue within it will involve mainly difficult questions of law, involve prolonged examination of documents or accounts, or investigation of difficult questions relating to scientific, technical, business or professional matters. Civil jury trials would therefore be available as of right for defamation, false imprisonment and malicious prosecution proceedings, upon the giving of notice by either of the parties to the proceeding, with no residual judicial discretion to determine that the matter should be heard by a judge sitting alone.

11.19Although defamation cases may be heard in the District Courts, there is no equivalent to section 19A of the Judicature Act 1908 in the District Courts Act 1947, and the Commission has seen no reason to recommend an extension of the availability of civil jury trials to the District Courts in new courts legislation.

R53Civil jury trials should only be available in the High Court for claims for defamation, false imprisonment or malicious prosecution.

R54In High Court claims for defamation, false imprisonment or malicious prosecution, trial by jury should be available as of right, upon the serving of notice by either party to the proceeding.

162Sim v Stretch [1936] 2 All ER 1237 (HL) at 1240 per Lord Atkin.
163Stephen Todd (ed) The Law of Torts in New Zealand (5th ed, Brookers, Wellington, 2009) at [4.5.01].
164At [18.2.01].
165Stewart v Equitable Life Assurance Society of the United States (1890) 8 NZLR 647 (SC) at 653.
166Banbury v Bank of Montreal [1918] AC 626 (HL) at 670.