Escape clause

The right to a jury trial in civil claims is preserved by s 69 of the Supreme Court Act 1981 (the 1981 Act) and s 66 of the County Courts Act 1984 (the 1984 Act). It remains a qualified right, and only applies to specified proceedings. The court has to be satisfied there is an issue of fraud against the party making the application for a jury trial or there is a claim in respect of libel, slander, malicious prosecution or false imprisonment. There is a discretion to order a jury trial in other proceedings but not a right to require it.
The party desiring a jury trial has to make an application for one. The application in respect of the specified proceedings in the High Court 'must be made no later than such time before trial as may be prescribed' (s 69(2) 1981 Act). The application for any jury trial in the county court must be made 'within such time before the trial as may be prescribed' (s 66(2) 1984 Act) (see below).
If the action relates to the specified proceedings and the application is in order, a jury trial is mandatory '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' s 69(1) 1981 Act, s 66(3) 1984 Act). The effect of this 'escape clause' was considered by the Court of Appeal in Phillips v Commissioner of Police of the Metropolis [2003] EWCA Civ 382; (2003) 147 SJ 389, a claim for false imprisonment and malicious prosecution. The Court of Appeal was adjudicating on a second tier appeal. The application for a jury trial was refused by the master. That decision was supported by the judge who dismissed the appeal. The Court of Appeal agreed, but for different reasons. The judgment was delivered by Scott Baker LJ.

Court's approach in Phillips
There were a number of factors in Phillips which counted against jury trial. The court considered it was 'entirely apt' to approach the case on the basis of the following questions:

Would there be a prolonged examination of documents or any scientific investigation?

If so could it be conveniently made with a jury?

If not should the court nevertheless exercise its discretion to order trial with a jury?

The questions were derived (after one addition) from the questions endorsed by the Court of Appeal in Aitken v Preston [1997] EWCA Civ 1710.
The three point analysis assumes a difference between questions two and three. This follows from s 69(3) of the 1981 Act '“ an action in which a jury trial is not mandatory 'shall be tried without a jury unless the court in its discretion orders it to be tried with a jury'. It may also assume there could be circumstances where the answer to question two is 'no', but the answer to question three is 'yes'. You would then end up with an 'inconvenient' jury trial. It is difficult to envisage such a case. The Court of Appeal in Goldsmith v Pressdram [1987] 3 All ER 485 (a defamation case) considered that only 'in rare cases of public importance' should the judge exercise his discretion to order trial by jury even though prolonged and inconvenient examination of documents would be required.

Convenience
The critical question is more likely to be question two. This reflects the wording of the statute. The statute does not specify a balance of convenience as the test, as indeed most cases (particularly those involving prolonged examination or a scientific investigation) would be more conveniently tried by a judge rather than a jury. The judge is able to pre-read documents and to isolate the material passages and issues, and, generally, a trial by judge alone would be shorter and less expensive. However a comparison of the degree of inconvenience is appropriate: ''Conveniently' means without substantial difficulty in comparison with carrying out the same process with a judge alone' (Aitken).
In Beta Construction Ltd v Channel Four Television Co Ltd [1990] 2 All ER 1012, Stuart-Smith LJ in the Court of Appeal identified 'four main areas in which the efficient administration of justice may be rendered less than convenient if the trial takes place with a jury'. They were the physical problem of handling large bundles and bulky documents; the question of prolongation of the trial; the question of expense; and the risk that the jury may not sufficiently understand the issues on the documents or accounts to resolve them correctly.
The Court of Appeal in Aitken endorsed the principles extracted by Popplewell J at first instance: 'The basic criterion, viz that the trial requires a prolonged examination of documents, must be strictly satisfied, and it is not enough to show that the trial will be long and complicated.' Factors to be considered included additional length of trial, additional cost, practical difficulties, and any special difficulties or complexities in the documents themselves.
There may be scope for argument as to whether the vast number of documents that may be put in evidence will be subject to prolonged examination by the jury. Lord Denning in Rothermere v Times Newspapers Ltd [1973] 1 All ER 1013 said it was likely the imputations and allegations made by the respective parties would be resolved on a broad picture rather than on small details. However, other reported cases present different views. In Taylor v Anderton [1995] 2 All ER 420 the plaintiff argued the case was essentially simple and much of the detail pleaded had little or nothing to do with the case. The Court of Appeal held that where a plaintiff had based his claim on wide-ranging allegations which the defendant sought to meet with a detailed and heavily documented defence, that claim would be tried by a judge alone.

Factors against jury trial
Several factors in Phillips pointed against a jury trial:

Number of orthopaedic reports '“ two or possibly three orthopaedic surgeons giving evidence;

Number of psychiatric documents '“ psychiatric evidence from two psychiatrists;

Size of bundles '“ 350 pages of medical records and 50 pages of general practitioner notes on which the defence would wish to cross-examine;

Analysis of the evidence in the two criminal trials;

The issues of liability, damage and credibility were intertwined.

The judge dealing with the first tier appeal concentrated on the difficulties a jury would have experienced in connection with the loss of earnings and Smith v Manchester claims, but the Court of Appeal identified more extensive reasons for refusing a jury trial.
The Court of Appeal also felt it preferable for both sides to have a reasoned judgment at the end of the case. This counted against its being 'convenient'.

Relationship with CPR
There is express provision in s 69 of the 1981 Act that the provisions as to jury trial do not affect 'the power of the court to order, in accordance with rules of court, that different questions of fact arising in any action be tried by different modes of trial'.
Part 3 of the CPR contains powers to direct a separate trial of any issue and to make any order for the purpose of managing the case and furthering the overriding objective. In Phillips the court concluded:
'The court is able in appropriate circumstances to fillet out part of a case to be tried by judge alone leaving the remainder to be tried with a jury. The split does not necessarily have to be between liability and quantum'¦ [S]uch an order should only be made in appropriate circumstances. There will no doubt be many cases where once it is clear that some issues cannot conveniently be tried with a jury, the whole case will more appropriately be tried by a judge alone. An obvious example is where questions of credibility are relevant across the board.'
It is not a matter of saving some portion of the issues for jury trial at any cost. If powers are to be exercised under the CPR these are to be exercised in accordance with the overriding objective.
Consideration of whether it is convenient to have a jury try an issue (in the context of the 'escape clause') involves a value judgment. It does not involve applying the overriding objective. There are policy issues which have lead to the (limited) right to require a jury trial. There are potential conflicts between that right and the overriding objective. If a court is called upon to exercise powers under the CPR which may lead to a jury trial when the right to demand one has been lost, this opens up consideration of the overriding objective. One example is the direction for a spit trial mentioned above.
CPR 26.11 provides that an application for a claim to be tried with a jury must be made within 28 days of service of the defence. If the application is not made in time, the applicant needs an extension of time.
CPR 2.11 states: 'Unless these rules or a practice direction provides otherwise or the court orders otherwise, the time specified by a rule or by the court for a person to do any act may be varied by the written agreement of the parties.' This requires a positive act '“ not merely acquiescence or the absence of objection.
CPR 3.1 (2)(a) stipulates that 'except where these rules provide otherwise, the court may extend'¦the time for compliance with any rule '¦ (even if an application for extension is made after the time for compliance has expired)'.
This latter rule was considered by the Court of Appeal in Robert v Momentum Services Ltd [2003] EWCA Civ 299; [2003] 2 All ER 74 in the context of an application for an extension of time for service of particulars of claim, the application being made before the time for compliance had expired. The court referred to the earlier judgment in Sayers v Clarke Walker [2002] 3 All ER 490 where the Court of Appeal (in the context of an application for an extension of time for appealing made after the time for compliance had expired) considered it was appropriate to have regard to the relief from sanction checklist in CPR 3.9 (see box). The court in Robert determined this was inappropriate where the application had been made before the time for compliance had expired. Dyson LJ said:
'By not spelling out a check list in CPR 3.1(2)(a), it seems to me that the draftsman was intending that the discretion should be exercised by simply having regard to the overriding objective of enabling the court to deal with cases justly including, so far as practicable, the matters set out in Rule 1.1(2).'
If the claimant has to ask the court to exercise its discretion to extend time, the overriding objective comes into play. Saving expense, proportionality, ensuring it is dealt with expeditiously, and allocating an appropriate share of the court's resources may all weigh in the balance against jury trial '“ rather more extensive considerations than 'convenience'. A claimant who fails to apply for a jury trial in time risks losing that right.
The prudent applicant will apply in time. If it is too early to form a view as to whether a prolonged examination of documents will be required s/he could seek an adjournment of the application. An applicant who waits until the time for applying has expired without securing an extension of time has even more hurdles to overcome '“ probably, on the authority of Sayers, a journey through the checklist in CPR 3.9. It pays to know exactly what lurks within the CPR.