All the following material is, to some extent, obsolete. Juries will be very unlikely to be used for defamation claimes, in line with almost all other civil claims. But the existence of juries until very recently has had its mark on the law of defamation, so I have included below my previous notes on judges and juries.
Fox’s Libel Act[26] reformed the criminal procedure for libel so that trial was always before a jury. That rule has been adapted to civil proceedings so that a defamation claim is almost always heard in a trial by jury. This is now unusual because in England and Wales we have largely dropped the use of juries for civil claims except for a small number of rather special causes of action (such as claims against the Police for false imprisonment). Because trial is usually by jury it is important to understand the different roles judges and juries have.
Judges - decide questions of law, which can set precedent
Juries - decide questions of fact, which cannot set precedent
Most lawyers understand the law/fact division but it is not at all plain to the lay person. For example whether a statement is defamatory is obviously a question of fact (which a jury would decide) but whether it is the kind of statement that could be defamatory is a legal question (which a judge would decide).
This has several consequences:
The judge can make decisions about what meanings a statement could have and whether they could be defamatory at any stage prior to the trial as well as at the trial. A common tactic to use at an early stage is to try to knock out meanings or indeed the whole case by an application for summary judgment or striking out.
The case law has to be read with care because the decisions are usually about what could be defamatory not what was defamatory. The decision of a jury is neither here nor there.
This means that in a defamation claim the following processes could occur.
C pleads that the S means M
The judge considers:
could S mean M? (is M a meaning S is capable of bearing)
is M capable of being defamatory?
The jury considers:
what does S mean?
is that meaning defamatory?