The trial of a libel action brought against Channel 4 by a former bodyguard to the late Michael Jackson is to go ahead without a jury, the Court of Appeal decided today.
The court allowed the legal team for the claimant, martial arts expert Matthew Fiddes, to appeal against the decision of Mr Justice Tugendhat to dispense with a jury.
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But the judges – Lord Neuberger, Master of the Rolls, Lord Justice Maurice Kay, Vice President of The Court of Appeal Civil Division, and Lord Justice Sedley – rejected the appeal itself.
They reserved judgment, but ordered Fiddes to pay Channel 4’s costs of £14,000 within 28 days.
Today’s decision is the latest stage in a bitterly fought battle in which Fiddes claims that Channel 4 faked elements of a documentary, which purported to show members of Michael Jackson’s family – including older brother Tito Jackson – moving to Devon.
Fiddes, who acted as the local guide in Devon for the production, and is being represented by law firm M Law on a no-win, no-fee Conditional Fee Agreement (CFA), is suing Channel 4, Studio Lambert, the documentary’s production company, and freelance journalist Jane Preston, who was the narrator.
The defendants plead justification and fair comment, while Mr Fiddes alleges malice against Ms Preston and Studio Lambert in order to defeat the fair comment defence.
The trial – which is itself expected to last four weeks – will now go ahead from Monday next week.
Channel 4 confirmed today that Tito Jackson and his mother, Katherine Jackson, who is caring for the late Michael’s children, would be flying to London for the trial.
The trial – expected to last four weeks, possibly longer, and to feature some 40-plus witnesses – is scheduled to go ahead before Mr Justice Tugendhat from Monday next week.
The Court of Appeal held today that footage of rushes for the television documentary over which Mr Fiddes is suing constituted documentation for the purposes of deciding whether a trial should be held with a jury.
Mr Fiddes had appealed against Mr Justice Tugendhat’s decision that the trial could go ahead without a jury – which overturned a previous consent order that there would be a jury – on the grounds that the judge erred in law in his approach to section 69 of the Supreme Court Act 1981 and the right to jury trial in defamation actions, and that he was wrong in the exercise of his discretion.
Section 69 of the Act says a libel action “shall be tried with a jury unless the court is of the opinion that the trial requires any prolonged examination of documents” which could not be conveniently be made with a jury.
Even if the court if satisfied that the exception applies, it still has, by virtue of section 69 (3) a residual discretion to order a jury trial.
Mr Justice Tugendhat said in his decision on May 28 that one major factor for not having a jury was that the case would involve viewing various sections of television footage, as well as the detailed examination of documents.
Another factor was that the case raised issues about what was or was not acceptable editorial practice in a TV broadcast presented as factual, he said, adding: “It is a very important question and there is much to be said for it to be dealt with in a reasoned judgment and for public view and which can go to appeal.”
Costs were also now acknowledged to present a chilling effect on freedom of expression, which the defendants had argued had to be taken into account as the court exercised its discretion on the jury trial issue.
The case has raised the issue of costs – according to some estimates, costs for the case as a a whole will top GBP4 million.
Fiddes’ costs are now estimated at some £1.6 million, while those of Channel 4 and the other defendants are said to have reached £2.5 million.