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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