MARTNOK THANRADEE v. COMMISSIONER OF POLICE AND ANOTHER

HCA 789/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 789 OF 2011

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BETWEEN

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I.  INTRODUCTION

1.  The plaintiff, who was/is a Thai national and a Hong Kong permanent resident, claimed to be the proprietor of a karaoke pub business known as Grow Karaoke (which later changed its name to Royal Pub) at G/F, 69 Tak Ku Ling Road, Kowloon City, Hong Kong (“Premises”).  She was the liquor licensee of Grow Karaoke and Royal Pub from 18 August 2006 to 17 June 2009.

2.  The plaintiff claimed that she operated Grow Karaoke jointly with her husband.  The 1^st and 2^nd defendants did not admit the precise role of the plaintiff’s husband in the business being carried on at the Premises, but agreed he had on several occasions represented himself to be the person-in- charge of Grow Karaoke and/or Royal Pub when the plaintiff was absent from the Premises.

3.  There was no dispute that:

(a) on 19 December 2006 information was laid by the police before a magistrate that (i) the plaintiff had contravened sections 4(1) and (3) of the Noise Control Ordinance Cap 400 in inter alia making music which was a source of annoyance on 9 November 2006, and (ii) the plaintiff had failed to personally supervise the Premises on 15 November 2006 in contravention of item no 4 of her liquor licence conditions contrary to sections 46(1) and (3) of the Dutiable Commodities Ordinance Cap 109, which secured the issuance by a magistrate of two summonses directing the plaintiff to appear at a magistrates’ court;

(b) on 18 January and 26 April 2007, the plaintiff appeared before a magistrates’ court, and after summary trial of the said information the summonses were dismissed whereupon the prosecution was determined.

4.  The plaintiff summarised her claim (which the 1^st and 2^nd defendants denied) in her affirmation filed on 27 November 2013 (“Plf Aff”) as follows:

(a) In 1995, the plaintiff married a Hong Kong resident who was then a senior fire officer of the Hong Kong government. In 2006, the plaintiff’s husband reached at the age of 55 years and retired as a senior fire officer. By then the plaintiff had lived in Hong Kong for over ten years, established a network of friends, and became familiar with a lot of people of the Thai ethnic group.

(b) As the plaintiff and her husband were still relatively young and energetic, they discussed and decided to take over a karaoke business in the Kowloon City area. In/about March 2006, they took over a karaoke business known as “Aqua Snack Bar” from the liquor licensee Mr Joe Chan. In April 2006, she applied to the Liquor Licensing Board to change the liquor licensee and name of the business. In/about July 2006, such application was approved.

(c) Grow Karaoke was a very small business with a self-service bar and no waiter service, which meant the customers had to go to the wet bar to take their drinks and pay for them on the spot.

(d) After the plaintiff became the liquor licensee of the karaoke/bar, the police wanted her and her husband to appoint a “watcher” to their liking for accepting secret money. A police officer once told her if she were not cooperative they could play her to death, and police officers also told her and her husband that they had better close down the business otherwise the police would keep prosecuting her until she would go bankrupt. The plaintiff’s husband refused to yield, so the police took action to cause harm to her and her business.

(e) On the night of 27 September 2006, two women police constables went inside the karaoke disguised as customers for an operation against anti-erotic activities, but did not find any such activities. However they framed a false case against a Thai customer by saying he worked as a waiter serving customers and cleaning up tables after the customers asked for the bill. But there was in fact no waiter service and the customers did not ask for their bills. Due to such false allegations, the plaintiff was arrested that night for employing an unemployable person, detained in a police station for several hours, and was subsequently released on bail with a condition for regular reporting to the police station. The Thai customer was subsequently charged, tried, convicted and sentenced to 12 weeks’ imprisonment. But his conviction was quashed on appeal. After the Thai customer’s case was completed, the plaintiff did not have to report to the police station anymore.

(f) In the meantime, on 19 December 2006, the police laid information for the issuance of the two summonses referred to in paragraph 3 above.

(g) After dismissal of the summons for failure to personally supervise the karaoke/bar for no case to answer, the police was called upon by the magistrate to explain why the police commenced prosecution without proper investigation, and the magistrate reiterated that the police ought to conduct thorough investigation before commencing any prosecution.

(h) Despite such observations by the magistrate, the police continued to prosecute the plaintiff on the other summons for making music that was a source of annoyance. Such summons was also dismissed with no case to answer. Thereafter, the police informed the magistrate via the prosecutor that the plaintiff’s husband took a photograph of the prosecution witness inside a lift in the court building, which was untrue. The conduct of the police was nothing more than revenge against the plaintiff for successfully resisting the summons, but the plaintiff’s husband was arrested and detained for a few hours by the police before being released on bail. Subsequently, he was unconditionally discharged.

(i) The police afterwards caused nuisance to the customers of the karaoke/bar and damage to the plaintiff’s business which rapidly deteriorated. In/about August 2008, the plaintiff and her husband were going to close down the business, but they wanted to test whether they would be fine if they appointed a “watcher” to the police’s liking. So the plaintiff asked around and eventually approached “Ah B” and paid him $3,000 per month as “watcher” Since then, the police did not cause any more nuisance to the plaintiff’s business, which made the plaintiff and her husband realise it was the payment to “Ah B” that made the police treat them differently. They lost confidence in the police and did not want to continue the karaoke/bar business, but no one was interested when they put up the business for sale. The plaintiff and her husband became very depressed. In April 2009, they gave up and closed down the business.

(j) The depression suffered by the plaintiff’s husband gradually developed into cancer and he died of it in March 2011. After her husband died, the plaintiff became sadder still. When she commenced the present action against the police in May 2011, she was afraid the relevant police officers would cause her harm, so she went into hiding and she did not work when she was in Hong Kong. When she was in Thailand, she stayed at home most of the time to look after her sick mother who had a traffic accident resulting in a broken leg.

(k) Before her husband’s death, the plaintiff lived on his pension. After he died, his family members supported her living when she was in Hong Kong.

5.  The plaintiff further claimed (and the 1^st and 2^nd defendants denied) inter alia that:

(a) the aforesaid prosecution by police officers under the direction/control of the 1^st defendant were malicious and without reasonable/probable cause;

(b) as a result, the police (who knew or ought to have known they had no power to act in such manner) were in breach of their duty not to abuse their power and to cause injury to the plaintiff and/or to commit misfeasance in public office;

(c) the arrest of the plaintiff on/about 27 September 2006 was wrongful, and as a result she was locked in a cell and falsely imprisoned for several hours in Kowloon City Police Station before being released on police bail.

6.  The plaintiff claimed damages in the total sum of $20,470,000 as follows:

(a) general damages for the alleged malicious prosecution ($1,000,000), misfeasance in public office ($1,000,000) and false imprisonment ($200,000);

(b) special damages for losses to her business when she had to attend court hearings for the aforesaid summonses ($20,000);

(c) damages for scrapping facilities/equipment and writing off other capital investments following closure of her business at the Premises due to repeated nuisance caused by the police and loss of confidence by reason of the alleged malicious prosecution and/or misfeasance in public office ($200,000);

(d) pre-trial aggravated damages for not being able to carry on with her business as a result of the alleged malicious prosecution and/or misfeasance in public office ($4,050,000);

(e) alternatively, pre-trial special damages for losses caused to her business since April 2007 as a result of the alleged misfeasance in public office ($4,050,000);

(f) future aggravated damages for not being able to carry on with her business as a result of the alleged malicious prosecution and/or misfeasance in public office ($12,000,000);

(g) exemplary damages ($2,000,000).

II. PROCEDURAL HISTORY

7.  Since the commencement of the present action, the plaintiff was legally represented by PansyLeung, Tang & Chua (“Former Solicitors”).

8.  On 19 December 2012 (ie more than a year ago), Mr Registrar K W Lung granted leave for the plaintiff to set the present action down for an eight-day trial before a judge alone in the fixture list within 42 days.

9.  According to the Plf Aff, the plaintiff was in Thailand most of the time since she commenced the present action. She claimed she did not have funds to continue with the present action, so in/about January 2013 she was advised to apply for legal aid, and she did so on 29 January 2013.  On 30 January 2013, the Director of Legal Aid (“DLA”) filed a Memorandum of Notification of an Application for Legal Aid to give notice that the plaintiff had applied for legal aid.

10.  On 31 January 2013, Mr Registrar K W Lung ordered that the time for the plaintiff to set the case down for trial be extended to a date on or before 12 March 2013.

11.  On 11 March 2013, the plaintiff filed the Application to Set a Case Down for Trial and the Notice to Set Down.  By the former document, the plaintiff confirmed that the estimated length of trial of eight days still held good, and there were no unusual features that would likely prolong the trial hearing of the present action.  There are altogether two factual witnesses for the plaintiff (ie the plaintiff herself and a customer of Grow Karaoke) and eight factual witnesses for the 1^st and 2^nd defendants (ie the involved police officers including a former police officer).  By the latter document, the present action was set down for trial before a judge without a jury in the fixture list.  The trial was due to commence in March 2014 with eight days reserved.

12.  By a Memorandum of Notification that a Party Has Been Refused Legal Aid filed on 26 July 2013, the DLA notified that he had refused the plaintiff legal aid.

13.  On 20 November 2013, the plaintiff was granted legal aid. She nominated Li, Kwok & Law (“Assigned Solicitors”) to act for her as they had represented her in respect of the two summonses referred to in paragraph 3 above.  On 22 November 2013, the DLA assigned the Assigned Solicitors to act for her in the present action.  On 29 November 2013, Mr Leung, counsel for the plaintiff, was assigned to act for her. He also previously represented her in respect of the two summonses referred to in paragraph 3 above.

III. SUMMONS

14.  On 27 November 2013, the plaintiff issued a summons to vary the mode of trial by seeking an order that the present action be tried with a jury (“Summons”), and on the same day she filed the Plf Aff in support.

15.  According to the Plf Aff, the plaintiff claimed she had been advised by the Assigned Solicitors that as her claim in the present action was based on inter alia malicious prosecution and false imprisonment, she had a right to apply to court for the present action to be tried by jury, but such application must be made before the mode of trial was fixed.  Further, if a jury trial were ordered, she would have to deposit into court within a certain period a sum of money sufficient to cover the expenses of the jury, failing which the trial would be conducted without a jury.[1] The plaintiff claimed she did not receive such advice before, but even if she had received such advice at an earlier stage, she would have difficulty in making the jury deposit since she did not have any income for along time.  Therefore, it would have been meaningless for her to make any application for the present action to be tried by jury.  She was advised by the Assigned Solicitors that even though the time to apply for jury trial had lapsed, the court still had a discretion to order that the present action be tried by jury, so the plaintiff urged the court to exercise such discretion to order trial by jury.

16.  The Summons was made returnable before me at the Pre-Trial Review (“PTR”) on 9 December 2013.  Mr Shum, counsel for the 1^st and 2^nd defendants, opposed the Summons.

IV. LEGAL PRINCIPLES

17.  Mr Leung essentially relied on the principles in Cropper v Chief Constable of South Yorkshire Police & anor [2] whilst Mr Shum relied on a few more English cases referred to in his written submissions as well as the local case of George Y C Mok & Co (a firm) v Trade Advisers Company Ltd & ors. [3]  As I pointed out at the hearing on 9 December 2013, there is a wealth of English and local authorities on the subject.  Significantly, there is a local authority (ie Chau Hoi Shuen, Solina Holly v SEEC Media Group Limited [4]) that raised a jurisdictional issue that neither counsel cited. Such further authorities will be discussed below.

(a) Statutory provisions

18.  Order 33A of the High Court Ordinance Cap 4 (“HCO”) (similar to section 69 of the Senior Courts Act 1981 (“Section 69”) and section 66 of the County Court Act 1984 (“Section 66”)) provides as follows:

“(1) Where, on the application of any party to an action the Court of First Instance is satisfied that there is in issue-

(a) a claim in respect of libel, slander, malicious prosecution, false imprisonment or seduction; or ……

the action shall be tried with a jury, unless the Court is of the opinion that the trial requires any prolonged examination of documents or accounts or any scientific or local investigation which cannot conveniently be made with a jury.

(2) An application under subsection (1) must be made not later than such time before the trial as may be prescribed by rules of court.

(3) An action to be tried in the Court of First Instance which does not by virtue of subsection (1) fall to be tried with a jury shall be tried without a jury unless the Court in its discretion orders it to be tried with a jury.

……”

19.  Order 33 rule 5(1) of the Rules of the High Court (“RHC”) provides as follows:

“The provisions of rule 4(2) are, as respects any action and as respects any question of fact arising in such an action, subject to the provisions of section 33A of the Ordinance, but an application for trial with a jury under that section (the time for making which is, under that section, to be limited by rules of court) must be made before the place and mode of trial is fixed under rule 4.”

Order 33 rule 5(1) of the English Rules of the Supreme Court (“RSC”) that was replaced by Part 26.11 of the Civil Procedure Rules (“CPR”) provides that “[an] application for a claim to be tried with a jury must be made within 28 days of service of the defence”.

20.  While trial by jury requires an application by any party to the action, the court is obliged to order the proceedings be tried by jury (assuming it is satisfied that it is a claim in respect of, say, malicious prosecution or false imprisonment) “unless the court is of the opinion that the trial requires any prolonged examination of documents or accounts or any scientific or local investigation which cannot conveniently be made with a jury”.

(b)  Threshold question under section 33A(1) of the RHC

21.  Under section 33A(1) of the HCO, the threshold question as to whether the claim is in respect of malicious prosecution or false imprisonment confers no discretion on the court.[5] However, the qualifying words (as set out in paragraph 20 above) confer a discretion on the court to disallow a jury trial.

22.  There is no need for me to consider the threshold question under section 33A(1) of the HCO even though the present action involved claims other than malicious prosecution and false imprisonment (eg misfeasance in public office).  In Armstrong v Times Newspapers Ltd & ors (No 2),[6] it was said that “[Section 69(1)] may apply to require trial with a jury though the action has other issues than those in subsection (1)(a) or (b).  This might be, for instance, …… if there was a claim for both false imprisonment and personal injury sustained in the course of a wrongful arrest”.

(c)  Qualifying words under section 33A(1) of the RHC

23.  As regards the second question under section 33A(1) of the HCO, Oliver v Calderdale Metropolitan Borough Council,[7] a case on Section 66, explained that there is no automatic right to trial by jury in a malicious prosecution case.  There is a presumption in such cases that the issue will be tried by a jury but that will be displaced if any of the circumstances set out in the statute applies.  Likewise, in Fiddes v Channel Four Television Corporation & ors (Practice Note), the English Court of Appeal accepted although it has been said that jury trial under Section 69 is a constitutional right, such right is no longer an absolute right but is qualified in nature.[8]

24.  I shall focus my discussion on the exercise of such reasonable discretion for deciding against jury trial where “the trial requires any prolonged examination of documents …… which cannot conveniently be made with a jury”.

25.  On this question, the court must first consider whether the trial will involve prolonged examination of documents, secondly whether the examination can conveniently be done with a jury, and thirdly whether in the exercise of the court’s discretion there should nonetheless be trial by jury even though the proviso to section 33A(1) of the HCO is satisfied.[9]

26.  The above three questions that a judge has to decide requires a value judgment based on the material available to him, what he is told by counsel, and his experience at the Bar and on the Bench.[10]  There is a right to a jury trial unless the first two questions (which do not involve any issue of discretion) are both satisfied, but even if those two questions are satisfied, the judge can in his reasonable discretion decide otherwise,[11] and in the exercise of such reasonable discretion, “…… the emphasis now is against trial with juries, and the court should take this emphasis into account when exercising its discretion”.[12]

27.  When considering the above three questions, Lord Bingham of Cornhill CJ in Aitken v Preston & ors said that the basic criterion, viz that the trial requires a prolonged examination of documents, must be strictly satisfied, and it is not enough merely to show that the trial will be long and complicated.[13] Gatley on Libel and Slander says that:[14]

“…… Such documents include written directions on points of law prepared by the judge. The question of whether the trial will involve prolonged examination of documents will depend on such factors as the extent to which counsel will be able to simplify the issues for the jury, and whether or not the real issues involve broad-brush questions or close analysis of detail. “Examination”[15] is not limited to documents which contain the actual evidence in the case and includes documents which are likely to be introduced in cross-examination.[16] The question of convenience concerns the efficient administration of justice rather than the probable difficulty of any issue involved, and the word “conveniently” means without substantial difficulty in comparison with carrying out the same process with a judge alone.[17] The inconvenience to be considered is exclusively that arising from “the prolonged examination of documents”. It is not enough that the trial will be long and complicated.[18] ……” (footnotes added by this court)

Nonetheless, the number of documents is not of itself the issue.[19] The fact that juries in criminal trials sometimes have to consider complex documentation is irrelevant to the questions posed under section 33A of the HCO.[20]

28.  In Beta Construction Limited & anor v Channel Four Television Co Ltd & anor,[21] Stuart-Smith LJ identified four main areas in which the efficient administration of justice may be made less than convenient if trial takes place with jury:

“In my judgment, there are four main areas in which the efficient administration of justice may be rendered less convenient if the trial takes place with a jury. The first is the physical problem of handling, in the confines of the jury box, large bundles of documents or documents that are so bulky that they cannot conveniently be looked at. In the former category would come cases where the jury will need to cross-refer to documents in different bundles, perhaps considering two or more at the same time. In the later would come cases involving prolonged consideration of plans, which from their sheer size are difficult to manage. Although in some cases special arrangements can be made for juries to have greater space, this will not generally be the case.

Secondly, there is the question of prolongation of the trial. As Lawton L.J. pointed out, trial by jury inevitably takes longer that trial by judge alone.[22] This is an acceptable price for the advantage of having juries decide the issues that arise in cases to which [Section 69] applies. But where the prolongation is likely to become substantial because of the number and complexity of the documents the administration of justice is affected. If a judge does not understand a document or follow a point made upon it, he can say so and the matter is clarified. Furthermore, he will often study the documents out of control. The jury are unable to do this. Counsel have no means of knowing whether the documents or points made on they must therefore go at what they believe, perhaps quite mistakenly, to be the pace of the slowest jurors. And until they retire to consider their verdict jurors have no chance to study abroad jurors have no chance to study the papers out of court hours. By no means all jurors can be expected to understand accounts and complex commercial documents. Substantial prolongation of the trial not only uses scarce resources in court and judge time, so that they are not available for other litigants, but it adds significantly to the burden of costs to be borne by the parties.

The third element of convenience is the question of expense. The cost of litigation is already a matter of great concern; if it is to be significantly increased because of trial by jury as opposed to judge alone, justice may be denied to one or both of the parties. Costs may be increased not only by the added length of the trial but also by the costs of copying documents. Six extra sets, so that jurors may have one between two, may, depending upon the quantity, add significantly to the cost of the trial.

Finally, there is the risk that the jury may not sufficiently understand the issues on the documents or accounts to resolve them correctly. The judge may also misunderstand them; but he has to give a reasoned judgment and if he is in error, it can be correct by this court. Not so with a jury; no one can ever know upon what grounds they reached their verdict. Where the documents which require prolonged examination are such that the average juryman cannot be expected to be familiar with them, such as accounts and commercial documents, this risk is enhanced.

Applying these considerations to the present case, the judge said that the reports and appendices, quite apart from the underlying documents, were extremely detailed and complex. I agree with him. It is the complexity and complication that is material here. It is likely to add significantly to the length of the trial and give rise to a greater risk of misunderstanding. I have no doubt that the proviso to [Section 69(1)] is satisfied.”

29.  Similar observations have been made by Neill LJ in Beta Construction Ltd & anor as follows:[23]

“…… I would venture to formulate the test to be applied as follows: (1) The primary question to be decided is whether trial with a jury would be consistent with the efficient administration of justice. (2) In deciding this question all the circumstances can be taken into consideration and in particular the following:
(a) The additional length of a jury trial as compared with a trial by judge alone. (b) The additional cost of a jury trial; this will take account not only of the length of the trial but also the cost of, for example, additional copies of documents. (c) Any practical difficulties which a trial by jury would entail. Thus there may be cases where the documents are particularly bulky or inconvenient to handle or …… the examination of the documents may require to be detailed and minute. (d) Any special complexities in the documents or the accounts. This is a subsidiary point because, as was pointed out in the earlier cases, juries in criminal cases may often have to try to understand complex material with which they may not deal in their daily lives. Nevertheless I agree with Stuart-Smith L.J. that the fact that the jury do not give any grounds for their verdict whereas a judge gives a reasoned judgment is a matter that cannot be overlooked.”

30.  The ultimate exercise of discretion will in each case depend substantially on the circumstances of each individual case, and it would be idle to attempt to enumerate all the factors which might arise.[24]  As an illustration, in Stephen James Phillips v The Commissioner of Police of the Metropolis,[25] the claimant was acquitted after criminal trial for affray, and he sued the state for alleged false imprisonment and malicious prosecution.  There were substantial disputes of fact and two to three orthopedic experts were required to give evidence.  It was held that the trial was likely to involve prolonged examination of documents and also scientific investigation on a number of medical and other issues that could not conveniently be done with a jury.  Scott Baker LJ citing Aitken and giving the judgment of the court said as follows:

“13. …… Trial by jury will inevitably take longer and cost more than trial by judge alone. ……

20. …… We note that the trial is fixed with an estimated length of 12 days. With a jury trial it is bound to take longer. How much longer is an open question. The Respondent says twice as long; the Claimant says perhaps one and a half time as long. So trial by jury would add another six to twelve days. In our view this is a very material matter on the issue of convenience. In any trial the court tries to protect a jury from being flooded with documents and it seems to us abundantly clear that it would be more convenient for a judge alone to try the whole of this case.

24. …… There would be extensive reference to both cross-examination and documents in the criminal trials. In our judgment this is a compelling point on the question of convenience. Inevitably, so it seems to us, consideration of material of this kind can be more conveniently conducted by a judge alone. He can read the documents in advance, or during the trial both in and out of court time and is much more able than a jury to identify those passages that are potentially material.

There is a further point namely that it is preferable for both sides to have a reasoned judgment at the conclusion of the case.”

31.  I have referred counsel to Wong Tsz Yuk v 香港警務處長鄧竟成先生及律政司司長 [26] in which the plaintiff sought damages against the defendants for inter alia trespass to the person, false imprisonment, misfeasance in public office, defamation, malicious prosecution and contravention of the Hong Kong Bill of Rights Ordinance Cap 383 and the Hong Kong Basic Law.  He claimed he was wrongfully assaulted, handcuffed and arrested for “disorderly conduct”, and he was later detained in the police station for about seven hours before being released. He was subsequently charged for the offence of assaulting police officers in their execution of duty, but was acquitted after trial.  The plaintiff applied out of time by notice of appeal for inter alia trial of the action by judge and jury, but Chung J refused to enlarge time for such appeal and made the following observations:

“12. No doubt there are advantages for such legal claims to be tried by jury. There are, however, also disadvantages: increased trial time and costs are two of the more common ones. Since the introduction of the Civil Procedure Rules, the trend in the UK is now against trial by jury:-

“There is a shift of emphasis … [The] emphasis now is against trial with jury. The overriding objective under the CPR is relevant to the exercise of that discretion. In exercising it, an important consideration in favour of a jury arises where the case involves prominent figures in public life and questions of national interest … The difficulties of demarcation between the roles of judge and jury in a case of Reynolds privilege are a reason for exercising the discretion in favour of trial by judge alone, as is the desirability of a reasoned judgment” (emphasis supplied) (Gatley on Libel and Slander (2008) 11^th Ed., para 33.65, text to nn 258 to 263).

13. The reasons for the preference for trial by judge alone have been amplified in Gatley:-

“… in recent years the trial of defamation actions before a judge and jury have become, if not a rarity, markedly less common than in the past … There are a variety of reasons for this: Reynolds privilege cases … are peculiarly unsuited to trial by jury, by reason of the confused division of functions of judge and jury, and by the jury having to find specific facts, sometimes necessitating an ‘exam paper’ of questions for the jury to answer, jury trials take longer, particularly as witnesses give their evidence in chief orally … ; and judges are becoming increasingly concerned about the inconvenience and practical difficulties of managing trials with juries … ”(emphasis supplied) (para 36.1).

The same consideration applies where the trial is likely to involve matters of mixed law and fact: Ratiu v. Conway [2005] EWCA Civ. 1302 at [185] (a libel case brought by a solicitor against his clients who in a letter accused him of breach of fiduciary duty and breach of confidence).  See also Richards v. Naum (No 1) [1967] 1 QB 620, 626E and 627 referred to by the defence.”

In Wong Tsz Yuk, Chung J considered that complicated issues of constitutional law concerning the ambit of police powers which issues were in the nature of matters of mixed  law and fact, and difficulties for   the self-represented plaintiff to distinguish what matters were to be dealt with by the judge and which by the jury all leaned towards trial by judge alone.

(d)  Time limit

32.  The above considerations under section 33A(1) of the HCO are subject to section 33A(2) of the HCO, which requires an application for trial by jury to be made “not later than such time before the trial as may be prescribed by the rules”.  As explained in Hong Kong Civil Procedure 2014, Order 33 rule 5 of the RHC prescribes that such application for trial by jury must be made before the place and mode of trial have been fixed, so it “should be made prior to or as part of any directions sought by way of questionnaire, case management summons or case management conferences under O 25”.[27]

33.  The English position is that if the application for trial by jury is not made within the prescribed time, the right to trial by jury is lost and the issue becomes a matter of the court’s discretion, which should be considered broadly. [28]

34.  In Cropper,[29] which concerned claims for assault, wrongful arrest, false imprisonment and malicious prosecution, and for exemplary damages, it was held that the time limit prescribed in Order 33 rule 5(1) of the RSC [30] cannot be extended under Order 3 rule 5 of such rules,[31] but the court is nevertheless empowered to make an order for trial by jury outside the time limit in the exercise of its discretion under Section 69(3).

35.  Both Mr Leung and Mr Shum did not dispute the applicability of the aforesaid proposition in Cropper.  However, notwithstanding Cropper, DHCJ Lok in Chau Hoi Shuen, Solina Holly held that the Hong Kong courts should not have power to vary the previous order about the mode of trial for trial by judge alone by ordering a jury trial.[32]

36.  The learned judge held that the English Court of Appeal in Cropper founded jurisdiction on Order 33 rule 4(1) of the RSC which was identical to the pre-CJR version of Order 33 rule 4(1) of the RHC which reads as follows:

“In every action begun by writ, an order made on the summons for directions shall determine the place and mode of trial; and any such order may be varied by a subsequent order of the Court at or before the trial.” (my emphasis)

Such provision was amended post-CJR by deleting the express provision relating to variation of order about the place and mode of trial to read as follows:

“In every action begun by writ, the Court shall by order determine the place and mode of the trial.”

37.  DHCJ Lok explained the rationale for concluding there is no jurisdiction to vary the place and mode of trial as follows:

“10. …… It is clear that the object of such amendment is to require the litigants to address their mind to the issue of mode of trial at the early stage of the proceedings and to avoid any late application for variation of the mode of trial. Despite such amendment, I am of the view that the court still retains the residual power to make an order regulating the conduct of the trial before it. For example, the court can make an order to vary the place of the trial because of practical convenience.

11. But in my judgment, such power should not extend to the circumstances of the present case. Any residual or inherent power of the court must be subject to the express provisions in statutes. S 33A of the [HCO] and O 33 r 5(1) of the RHC clearly prescribe the conditions under which litigants can obtain an order for jury trial for defamation cases in the Court of First Instance, and it is also clear that the defendant has failed to comply with the mechanism in applying for a jury trial. In such circumstances, and in the absence of any express statutory provision authorizing the variation of the mode of trial, the court should not have the power to vary the previous order about the mode of trial by ordering a jury trial at this stage. I therefore rule the jurisdiction issue in favour of the plaintiff.”

38.  With great respect and not without some trepidation, I find myself unable to agree with the learned judge. In Cropper, Ralph Gibson LJ (with whom Russell LJ concurred) did not rest his conclusion as to the existence of a discretion to vary a previous order about the mode of trial in favour of a jury trial on Order 33 rule 4(1) of the RSC.  He accepted that Section 69(2) and Order 33 rule 5(1) of the RSC (which provisions appeared to be circular) specified that the application for jury trial must be made before the happening of the event specified, ie the fixing of the place and mode of trial, and was not capable of being extended under Order 3 rule 5 of the RSC.  He went on to say that: [33]

“…… in my judgment, the construction of [Section 69] as a whole, which for the reasons following, and in agreement with Owen J., I regard as correct, is such that the effect of being out of time to apply under section 69(1) is not in this, or in any similar case, to deprive the court of the power to direct trial by jury in its discretion under [Section 69(3)]. The intention of the rule [ie Order 33 rule 5 of the RSC], made under the section [ie Section 69], was, I think, to require an application for the statutory right to trial by jury, in the stated types of case, to be made by the stated time, and thereafter to subject any application for variation of an order previously made in all types of case to the discretion of the court, in the exercise of which regard could be had to all relevant facts including the fact that the prior order fixing the mode of trial had been made and the circumstances in which it was made.

……

…… It seems to me, therefore, that the words “An action … which does not by virtue of subsection (1) fall to be tried with a jury” refer to an action which, when the court is called upon to consider the matter, is not one which falls, i.e. is required, by virtue of subsection (1) to be tried by a jury …… The condition is …… satisfied if, when the court is called upon to consider the matter, the action is one which does not fall, i.e. is not required, to be tried by a jury because an order for trial by judge alone has been made and, thereby the capacity to invoke subsection (1) has expired. It follows that the judge was right to hold that he had discretion to vary the previous order and to direct trial by judge with jury if he thought it is right to do so.” (my emphasis)

In my view, the above reasoning clearly shows that the discretion to vary a previous order about the mode of trial by ordering a jury trial rests on Section 69(3) or section 33A(3) of the RHC and not on Order 33 rule 4(1) of the RSC or either the past or current version of Order 33 rule 4(1) of the RHC.

39.  Currently, the only English rule of court specifically relevant to section 69 is Part 26.11 of the CPR, and the CPR “do not otherwise reproduce the provisions of rules 4 and 5 of Order 33 of the former [RSC]”.[34]  Yet even without the proviso for variation of order about the place and mode of trial in Order 33 rule 4(1) of the former RSC (which is identical to Order 33 rule 4(1) of the pre-CJR version of the RHC), the English courts accept there is discretion to direct variation of the mode of trial where appropriate. In Telegraph Media Group Limited v Thornton, Carnworth LJ said as follows:[35]

“15. We have not been asked to review the reasoning in Cook and we must proceed on the basis that it is correct. The practical effect is that, where a party seeking jury trial in circumstances where that is permitted by [Section 69(1)(b)], which includes libel, fails to make the application within the period prescribed ……, then the right which it could be said that [Section 69(1)] confers goes and matter becomes in the discretion of the judge.

16. This may either be because it falls under [Section 69(3)], where it comes within the general provision for the judge trial unless the court in its discretion orders a jury trial, or alternatively, on an application to extend time under Part 3.1(2)(a), where the matter would be at large in the judge’s discretion.”

I am therefore persuaded that on the basis of section 33A(3) of the HCO the local courts have jurisdiction to vary a previous order for trial by judge alone by ordering trial by jury.

40.  But as explained by Lawton LJ in Goldsmith & anor, although it has been traditionally accepted that the exercise of the court’s discretion under Section 69(3) depends substantially on the circumstances of each individual case, “the emphasis now is against trial with juries, and the court should take this emphasis into account when exercising its discretion”.[36] Hence, the effect of section 33A(3) of the HCO is that the scales are (and the general trend of the modern era is) tilted against trial by jury.[37]

41.  In Armstrong, May LJ said that “…… [archaeology] shows generally that statute, rule and practice have gradually moved away from trial of civil actions with a jury …… an action which does not come within [Section 69(1)] has to be tried without a jury, unless the court in its discretion orders it is to be tried with a jury. The discretion is now every rarely exercised, reflecting contemporary practice.  Contemporary practice has an eye, amongst other things, to proportionality; the greater predictability of the decision of a professional judge; and the fact that a judge gives reasons”.[38]

42.  In Cook v Telegraph Media Group Limited,[39] Tugendhat J held that:

“83. The implications of [the overriding objectives] for the exercise of the court’s discretion under [Section 69(3)] may not hitherto have been fully appreciated. The implication is that, once [the prescribed deadline to apply for trial by jury] have expired, it is for the court to decide the mode of trial, and the court must do so starting with the predisposition in favour of a trial without a jury. And this is so whatever the parties may have agreed or may wish. The wishes of the parties are of course a factor. But the court should not abstain from addressing its mind to all the relevant factors, including in particular those of case management, simply because the parties agree between themselves.”

As evident from paragraph 39 above, Carnworth LJ in Thornton gave tacit approval of Cook.

43.  Gatley on Libel and Slander [40] citing W v Westminster City Council & ors [41] states that “[the] overriding objective under the CPR is relevant to the exercise of that discretion”, and that “[it] may be thought unlikely that the overriding objective (which is concerned inter alia with saving expense, dealing with the case in ways proportionate to such factors as the amount of money involved, ensuring it is dealt with expeditiously, and allotting to it an appropriate share of the court’s resources) will often lead the judge to exercise his discretion in favour of trial by jury”.

44.  Factors relevant to the exercise of the court’s discretion (other than the overriding objectives under the CPR or, in the local context, the underlying objectives in the RHC) have been identified before the CPR and/or CJR came into force.  Considerations in favour of a jury arises where the case involves prominent figures in public life and questions of great national interest;[42] and another relevant but not overriding factor in favour of a jury is the fact that the case involves issues of credibility and that a party’s honour and integrity are under attack.[43]  The advantage of a reasoned judgment is a factor properly to be taken into account against a jury trial.[44]

45.  Mr Leung cited Asia Television Limited v Oriental Daily Publisher Limited & ors in which the trial of the libel action was due to commence in a month’s time.  Sakhrani J varied the order for trial by judge alone to one by a judge sitting with a jury on the basis that (a) the trial did not require any prolonged examination of documents or accounts or any scientific or local investigation which could not conveniently be made with a jury, (b) the question whether the Chinese newspaper article was defamatory of the plaintiff and what the article meant in its natural and ordinary meaning would be best judged by a local jury, and (c) even though the late application (if granted) would inevitably lead to the three-days trial being vacated and new dates being fixed for a seven-days trial, the plaintiff did not suffer any real prejudice by the adjournment of the trial upon compensation by an appropriate costs order.[45]

46.  But this must now be viewed through the prism of the underlying objectives of the RHC (being the equivalent of the overriding objectives under the CPR) as discussed above and the milestone nature of trial dates.  I respectfully adopt DHCJ Lok’s observations in Chau Hoi Shuen, Solina Holly as follows:

“18. With respect, I do not accept that the defendant did provide a good reason for the exercise of the discretion in favour of the variation in the Asia Television case. At the very least, this should not be a good reason after the implementation of the CJR in 2009, otherwise it would just encourage litigants to adopt a lax attitude in the preparation of their cases which is contrary to the underlying objectives stated in O 1A of the RHC.”

47.  In George Y C Mok & Co (a firm) v Trade Advisers Company Ltd & ors,[46] the plaintiff sued the defendants for damages and injunctive relief for libel and/or malicious falsehood.  The claim arose out of a complaint by the defendants against the legal fees charged by the plaintiff when acting as their legal representatives in a High Court action.  The defendants applied for trial by jury after the prescribed time on the basis that elements of public interest were involved in the case, ie the public’s desire to see allegations of overcharging by solicitors to be dealt with by the jury, but had no explanation for the position taken before the Listing Master previously and the subsequent change of position.  Chu J (as she then was) said as follows:

“13. Accordingly, notwithstanding that the present application was made after the mode of trial had been determined and therefore contrary to the stipulation under section 33A(2) of the [HCO], the court still retains a discretion to order a trial with jury. Being a discretion, however, it will have to exercised judicially and on good grounds. It is therefore for the defendants to explain and to set forth circumstances which merit the court exercising the discretion to vary the previous order made under Order 33, rule 4(1) and to order a trial with a jury.

……

17. …… but in my view, that consideration [ie the involvement of public interest] has to be weighed against another consideration, namely, the action concerns also the reputation of a professional firm and the reputation and the honour of the plaintiff is at stake. The importance of the question of public interest, in my view, cannot be elevated to too high a level.

18. To conclude, this is a matter that appeals to the discretion of the court and good reasons have to be put forward in order that a court can exercise its discretion. For the reasons given, I am driven to the conclusion that the application has to be dismissed. The summons is accordingly dismissed.” (my emphasis)

48.  Turning to the exercise of discretion in malicious prosecution and/or false imprisonment cases, Mr Leung strongly relied on the pre-CPR case of Cropper.  In that case, the court did not consider the fact that the previous order for trial by judge alone was made by consent to be of real significance either way since it was not unjust for the plaintiff to resile from his consent to the making of the original order, and any prejudice could be covered by a direction as to costs.  The fact that the plaintiff, who was legally aided and had no money to meet an order for costs, was not entirely irrelevant, but in a case of such nature which was ordinary of its type and was expected to last no more than two days even with a jury, such factor was of little weight.  The court also attached very little weight to the consideration of the reputation of a party being at stake.

49.  However, the first instance judge considered that allegations of misconduct on the part of a police officer is a matter of public concern (and it was for such reason that Section 69(1) prescribed the case shall be tried by jury unless taken out of the mandatory provisions by a requirement for prolonged examination of documents etc or by a failure to make application in due time).  The judge saw this as a case which was suitable for jury trial by reference to its nature and the probable course of the trial, and there was nothing of great significance that the defendant could point to which made trial by judge alone more suitable, so even though Section 69(1) did not apply and the primary mode of trial was by judge alone, this was a case in which he thought it right to order trial with a jury.  The English Court of Appeal held it had not been shown the judge had gone wrong in his approach to the matter.

50.  It has been argued that where one party to the action (almost inevitably the defendant) is the state or a public authority it renders the case suitable for a trial by a jury.  In Rothermere & ors v Times Newspapers Ltd & ors, [47] Lord Denning recited the history of trial by jury, and what emerged was “the strong association which has in the past been held to exist between trial by jury and freedom of speech”.[48]  Lord Denning also referred to passages from Blackstone’s Commentaries, and said the right to trial by a jury in libel proceedings was of the highest importance, “especially when the defendant has ventured to criticise the government of the day, or those who hold authority or power in the state”.[49]  Blackstone explained that the impartial administration of justice should not be “entirely entrusted to the magistracy, a select body of men, and those generally selected by the prince or such as enjoy the highest office in the state” since “their decisions, in spite of their own natural integrity, will have frequently an involuntary bias towards those of their own rank and dignity ….. the most powerful individual in the state will be cautious of committing any flagrant invasion of another’s right, when he knows that the fact of his oppression must be examined and decided by twelve indifferent [ie impartial] men not appointed till the hour of trial”.[50]

51.  However, things have evolved and changed in modern times. In Cook, Tugendhat J said as follows:

“104. …… Judges are not now “selected by the prince or such as enjoy the highest office in the state”. They are selected through the independent procedures of the Judicial Appointments Commission, which makes recommendations on merit. And the existence of a right of appeal to the Court of Appeal, the passing of the Human Rights Act 1998 and other measures introduced since the eighteenth century, provide guarantees of judicial impartiality which did not exist in the time of Blackstone. In addition the CPR has introduced the overriding objective and related case management powers.

105. Moreover, as Blackstone warned (at p 383):

“A jury … is often liable to strong objections … where a cry has been raised, and the passions of the multitude have been inflamed; or where one of the parties is popular, and the other a stranger or obnoxious … In all these cases, to summon a jury, labouring under … prejudices, is laying a snare for their consciences…”

……

107. Excessive jury awards which interfered with freedom of expression have occurred in England too, and have been held to be an interference with freedom of expression: Tolstoy Miloslavsky v United Kingdom (1995) 20 EHRR 442. In England Parliament provided a remedy by putting the matter in the hands of judges. It gave judges in the Court of Appeal power to substitute a proper award for an excessive jury award: CPR r 52.10(3).

108. It follows that even in cases in which the state is opposed to the individual it may not always be appropriate to order trial by jury. But there may also be some cases where a judge might not appear to be as impartial as a jury. By this I am not referring to any apparent bias arising from a matter personal to a particular judge. Apparent bias of that kind is dealt with by recusal of the judge in question. I am referring to apparent bias of the kind referred to by Blackstone that would arise in the case of any judge: “involuntary bias towards those of their own rank and dignity”. The case of Mr Levin in Rothermere is an example, albeit that that was a reason that found favour only with Lord Denning. Whether those words can in fact have any application in any other circumstances is not for me to decide now. But if they can, then a case in which they might apply might be one where the court should exercise its discretion to order trial with a jury.”

52.  In Mark Lewis v Commissioner of Police of the Metropolis & ors, [51] an order for trial by judge alone was made in the libel claim brought by a solicitor against the police arising out of an email which, it was alleged, accused him of lying to the Select Committee.  The application for an order for trial by jury was not made within the prescribed time limit, so the claimant had to apply under Section 69(3).  The application was initially adjourned and later renewed before Tugendhat J who rejected such request.  The learned judge accepted that it was a matter of discretion whether to order trial by jury even where the state or public authority was a defendant. He cited May LJ’s observations in Armstrong [52] and the factors identified as relevant to the exercise of the court’s discretion under Section 69(1) in Aitken that were reiterated in Fiddes and Cook.  He also had regard to the arguments that found favour with the House of Lords in Racz v Home Office:[53]“the gravity of harm alleged, the risks of a lengthening of the trial and the jury disagreeing, and the inconvenience of trial by jury where there is uncertainty as to the law”.[54] The learned judge accepted that the claimant was a prominent figure in public life, and the honour and integrity of both the claimant and the relevant police officer were in issue.  He further accepted that the case was an exceptional one and there were strong arguments in support of trial with a jury.[55] But in the end, Tugendhat J found all these arguments were not sufficient to displace the statutory presumption under Section 69(3) in favour of trial by judge alone since (a) the issue of meaning was an issue that would be better decided by a judge alone, (b) any direction as to meaning to a jury might well be novel and difficult, and (c) the significant national interest in the case made it important that there should be a reasoned judgment.[56] He also noted that trial by judge alone would bring significant case management advantages.[57]

53.  Mr Leung in his submissions suggested that the authorities on libel and slander should be ignored. Insofar that they establish broad principles in respect of Section 69 and/or Section 66 or even section 33A of the HCO, I see no reason to reject them simply because they are libel cases. But that said, any exercise of discretion must turn on the particular circumstances of each case.

V.  DISCUSSION

54.  In the present action, since the case had been set down in the fixture list for trial by judge alone, the Summons called upon the exercise of the court’s discretion under section 33A(3) of the HCO.  As discussed above, the emphasis is against trial by jury, and it is for the plaintiff to establish good reasons to vary the order previously made.

55.  The plaintiff sought to provide an explanation for the change of stance in the Plf Aff.  In a nutshell, she claimed that she had not been advised that she had a right to apply to court for trial by jury, and that she would in any event have difficulty to pay the jury deposit even if she received such advice at an earlier stage.

56.  There is no dispute that before the present action was set down for trial the plaintiff’s legal representatives never intimated any wish for trial by jury despite Mr Registrar K W Lung’s order dated 18 July 2012 that all interlocutory applications as might be advised should be taken out within 14 days.  The present action has been set down for trial more than ten months ago in March 2013, and the trial is due to start on 18 March 2014.  The delay is substantial.

57.  Although the plaintiff’s present legal team only represented her after she was granted legal aid, she had been legally represented by the Former Solicitors ever since the commencement of the present action.  Indeed, she was at times represented by counsel at case management hearing(s).  The right to apply for jury trial is a distinctive feature of claims for malicious prosecution and false imprisonment, so I find it surprising that the plaintiff’s former legal team had not considered such particular issue before and when the present action was set down for trial.  Given the underlying objectives and the need for expeditious and efficient progress of litigation after the CJR, legal representatives have a duty to raise all relevant issues for consideration by the court.  Indeed, at the time when the court is about to set the case down for trial, it is incumbent on the parties’ respective legal representatives to raise with court all matters that may impact on the readiness for trial, including intended future application for a particular mode of trial.  I am not persuaded that this is a good reason that favours trial by jury.

58.  As for the plaintiff’s suggestion that she could not have afforded to pay the jury deposit, apart from mere assertion and the fact that she is presently legally aided there is no supporting documents to evidence her financially ability ever since the commencement of the present action.  Nor has she explained in the Plf Aff how she could have afforded legal representation (both solicitors and counsel) in the present action on private basis since 2011.  Further, there is no dispute that the plaintiff engaged her present team of solicitors and counsel to appear on her behalf on private basis for the two magistracy trials of the summonses referred to in paragraph 3 above.  Again, the plaintiff in the Plf Aff has not explained how she could have afforded such legal representation. The fact that she is presently on legal aid is not a sufficient answer when she could and should have applied for a jury trial at an earlier time.  In any event, on the plaintiff’s own case, she claimed to be unaware of the right to apply for jury trial until she was advised by the Assigned Solicitors, so the matter of the jury deposit would not have exercised her mind, and for her this was an irrelevant consideration.

59.  Mr Leung did not suggest that the plaintiff was a prominent public figure, and the present action did not involve any national interest or raise any constitutional importance.  Even though the present case can be said to be a claim by an individual against allegedly arbitrary or oppressive actions by the state and exemplary damages were sought, it is not a case that involved very senior officials.  I bear in mind that the historical rationale for favouring jury trial[58] must be viewed through modern developments as explained in Cook,[59] and it may not always be appropriate to order trial by jury whenever the state is opposed to the individual.

60.  I agree with Mr Shum that the trial in the present action would involve complex issues of law and evidence. Under Order 38 rule 2A(7) of the RHC, in a jury trial witness statements cannot stand as evidence-in-chief, so witnesses have to give lengthy evidence-in-chief.  I am unconvinced by Mr Leung’s optimistic suggestion that evidence-in-chief of the plaintiff can be completed in 20 minutes given that her witness statement comprised 15 pages and further given the litany of events to be covered as set out in paragraphs 3-4 above.  Bearing in mind that there are ten witnesses in the present case and time is required to empanel the jury, there is a real likelihood that eight days of trial scheduled in March 2014 would be insufficient and the trial would have to be re-fixed with a longer time estimate.  This is certainly undesirable, especially when trial dates are milestone dates after the CJR and cannot be varied unless there are exceptional circumstances.  For the reasons discussed herein, I am not persuaded there are any exceptional circumstances for an order for trial by jury to be made at this late stage.

61.  In my view, the plaintiff’s causes of action on malicious prosecution and false imprisonment raise mixed questions of law and fact. As explained in Clayton and Tomlinson, Civil Actions Against the Police,[60] there are real difficulties over taking the jury’s verdict.  Nowadays, the jury in a civil case is generally asked to return a special verdict consisting of answers to a series of questions, and complication arises because as a matter of law certain issues in malicious prosecution and false imprisonment cannot be decided by the jury.[61]  The procedure is for the jury to make findings of fact, and such findings provide the judge with material so that he can give a ruling.  Given the lateness of the plaintiff’s application, there is little time to prepare the “exam paper” of questions for the jury to answer, and efforts to be spent in working out the confused division of functions of judge and jury will only serve to derail parties’ efforts which by now should be concentrated on preparation for the trial by judge alone.  The observations by Chung J in Wong Tsz Yuk in paragraph 31 above are particularly pertinent.  Further, the House of Lords in considering the mode of trial in Racz v Home Office said: “I would only add that the apparent uncertainty as to the precise ambit of the tort of misfeasance in public office, with the consequent likelihood of prolonged legal argument in the absence of the jury, would have been a further factor militating against trial by jury”.[62]

62.  Further, in the present case, it is to be expected there would be extensive reference to the criminal trials, and the transcript of those proceedings exceeds 100 pages.  There are also police records, statements given to the police by various persons, magistracy court records and solicitors’ correspondence.  Indeed, three folders of documents have been placed before me. In my view, consideration of such material is more conveniently done by a judge who can read the documents in advance out of court time, and who is much more able than the jury to identify potentially material passages.  There is also a real risk that such materials will add to the length and cost of the trial.

63.  Further, the nature and gravity of allegations made by the plaintiff cry out for a reasoned judgment which hopefully would settle once and for all whether or not the police officers concerned had misconducted themselves in each of the ways alleged.  It is in the interest of justice and in the interest of the public that the case should culminate in findings for or against the plaintiff on the main issues.  Whilst a jury may arguably be the appropriate tribunal for determining questions of credibility, honour and integrity, this cannot be regarded as a necessarily determinative factor in every case.

64.  The underlying objectives (which are concerned with saving expense, dealing with cases expeditiously, and allotting to the case appropriate court resources) also lead to the conclusion that the discretion should be exercised to decline trial by jury in the present action.  Mr Leung was unable to say what practical prejudice or detriment would be caused to the plaintiff (or indeed any of the parties) if the trial were to be tried by a judge instead of by a jury.  Taking all matters into account, especially the length of the delay, the reason for the delay and other matters referred to above, I consider that in the efficient and effective administration of justice my discretion should be exercised in refusing this application.

VI.  CONCLUSION

65.  I therefore dismiss the Summons. There is no reason why costs should not follow event.  I grant a costs order nisi that the plaintiff do pay the defendants costs of the Summons to be taxed if not agreed.

66.  The PTR on 9 December 2013 (originally scheduled for half an hour) has been hijacked by the hearing of Summons, and inevitably it has to be adjourned. I therefore direct that the adjourned PTR be restored for hearing before me on 28 February 2014 at 9:30am with half hour reserved. Since the efforts for the PTR on 9 December 2013 have been wasted, I see no reason why the plaintiff should not bear costs of the same. I grant a further costs order nisi that the plaintiff do pay the defendants costs and occasioned by the PTR on 9 December 2013 to be taxed if not agreed.

67.  There shall be legal aid taxation of the plaintiff’s own costs.

VII. POSTSCRIPT

68.  I note in passing a recent development in England.  By the Defamation Act 2013, libel and slander cases are removed from Section 69(1) altogether, so there is no further presumption of trial by jury.  The English courts still have the power to order a jury trial in a defamation case, just as it can theoretically order one for the trial of any type of civil claim, but the reality is that the Act would mean the end of jury trials in defamation cases.  As discussed above, the sands of time are running out for jury trial in civil matters.