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.
11.14For 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.
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.
11.18If 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.