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(SAID
MUSA |
PLAINTIFF |
BETWEEN |
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(AND
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(HARRY
LAWRENCE
(THE REPORTER PRESS |
DEFENDANTS |
Supreme
Court
Action No. 177 of 1983
20th December, 1983
Moe, C.J.
Mr. E.
Flowers, for the Plaintiff.
Mr. M. Young, for the Defendants.
Civil
procedure - Summons for Directions - Variation of order
for a trial with a jury - Application for variation to be
considered by court in exercise of its discretion to order
a trial by judge and jury.
JUDGMENT
The Plaintiff
in this Action on the 13th June, 1983 issued a Writ whereon
was endorsed his claim against the Defendants for damages
for libel. On 1st July, 1983 a Summons was taken out asking
all parties concerned to attend the Registrar and show cause
why an order for directions should not be made in terms inter
alia as to mode of trial judge without a jury. The order
was so made on the 12th July, 1983. Pleadings having been
closed, the Plaintiff set the cause down for hearing on the
26th September, 1983.
The Defendants
now apply for an order that the Court vary its order of 12th
July, 1983 and order that the mode of trial be by a judge
with a jury. They point out firstly that the Summons for directions
on the hearing of which the Order was made, was not served
on them. Secondly, they contend simply that libel trials are
eminently fit for trial by Jury and that in the circumstances
of this case the plaintiff will suffer no injury in ordering
trial by jury. Reference was made to an order for trial by
jury in such a case in George Price v. Myvett and Modern
Printers Action No. 271 of 1981.
The Plaintiff
takes the position that there is little purpose for a jury
in this case. That the Defence raises mainly questions of
law which is for the judge and the only question which the
jury will have to decide really is the matter of damages.
By Order
37 Rule 2 unless there is an order for trial with a jury,
the trial of every action is by a judge without a jury. By
the said rule, such an order may be (a) made under provisions
of Rule 4 or (b) at any time at the discretion of the judge.
Rule 4
provides for such an order to be made where the application
is made "not later than four days after the close of
the pleadings ---". This application does not meet that
requirement of the rule and no order may be made thereunder
on the application.
I am left
to exercise a judicial discretion as to whether or not the
application should be granted. I bore in mind the observations
of Wright L.J. in Hope v. Great Western Railway Co.
[1937] 2 K.B. 130 who in giving the judgment of the Court
of Appeal in that Action provided a guide as to matters for
consideration within the discretion given to the judge by
the law when determining whether trail by judge alone or with
jury. He said, "The matter is left to the discretion
of the Court or a judge, who, with their experience, and their
knowledge of procedure and of the nature of cases and the
questions which are likely to arise and the evidence which
is likely to be given and also in view of the background
of the whole of the history of the Courts in relation to trails
with or without a Jury, in common law actions are to apply
their completely untrammeled discretion to the circumstances
and the facts of a particular case." In Ward v James
[1965] 2 W.I.R. 455 which also set out considerations which
should be borne in mind by a judge when exercising his discretion,
Lord Denning amply demonstrated how important a consideration
is the history and practice as to mode of trial of a particular
kind of action in making present day decisions on the matter.
In that case he had this to say. "If a party asked for
a jury in an ordinary personal injury case, the Court naturally
asks: 'Why do you want a jury when nearly every one else is
content with judge alone?" I am afraid it is often because
he has a weak case or desires to appeal to sympathy. If no
good reason is given, then the Court orders trial by judge
alone. Hence, we find that nowadays the discretion in the
ordinary run of personal injury cases is in favour of judge
alone. It is not sufficient reason for departing from it simply
to provide a "guinea-pig" case.
In this
matter, having borne in mind the history of the mode of trials
of libel cases in Belize I ask the same question. I have further
considered the fact that in the one case referred to above
where order was made for trial by jury, 18 months have elapsed
since the order made on 12th May, 1982 and there still has
been no trial by jury.
I have
found no good reason given by the Applicant for departing
from the usual mode of trial of libel cases by judge alone
in Belize and the application is refused.
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