The catalyst of libel reform: The risks of puncture repair at speed

International Journal for the Semiotics of Law

Volumn 10, Issue 1, 1997, Pages 79-104

  Robertshaw, Paul ^a  

^a School of Law   (United Kingdom)

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EID: 0038075175     PISSN: 09528059     EISSN: 15728722     Source Type: Journal    
DOI: 10.1007/BF01099261     Document Type: Article

References (16)

1. This change did in fact originate in the Court of Appeal in Rantzen v. Mirror Group Newspapers (1986) [1993] 4 All E.R. 975, building on Sutcliffe v. Pressdram Ltd. [1990] 1 All E.R. 269 and culminated in the Court of Appeal decision in the Elton John case about to be discussed. (See D. Tench and J. McDermott, "The Radical Change in Assessment in Libel Awards by Juries: Elton John v MGN Ltd", Communications Law 1 (1996), 17-18). There had been reform discussion without legislative action over the same period (Lord Chancellor's Department Consultation paper; The Defence of Innocent Dissemination 1990; Report of Working Party (Chair, Neill LJ) on Rules and Practice for Pleadings in Defamation, 1991). In the wake of the latest Court of Appeal decision John v. MGN Ltd [1996] 2 All E.R. 35 the Defamation Act 1996 has been passed, which inter alia introduces a summary procedure without a jury and maximum damages of £10,000 (ss.8-11).
2. Paul Robertshaw, Summary Justice - Judges Address Juries (Cassells Academic 1997), forthcoming. I will refer to those concepts below; the main ones are Mythos, Nomos and die traditional non-structural category of Pathos. These concepts are genre specific in that they were developed and are used in analysing judicial summing up to juries at the conclusion of the trial immediately before the jury retires to deliberate its verdict. My contention is that neutrality is extremely difficult to achieve in the Anglo-Welsh version of the Summing-up, and that analysis by such structuralist rhetoric discloses a "directionality" - not to be confused with bias - which the jury may not be aware of. Such directionality is case specific in that one should not assume any general tendency in any judge.
3. Paul Robertshaw, "Excessive Damages for Libel", The Independent, 3rd October 1989.
4. See [1996] 2 All E.R. 35.
5. B.S. Jackson, Making Sense in Law - Linguistic, Psychological and Semiotic Perspectives (Liverpool: Deborah Charles Publications, 1995), ch.12.
6. See Paul Robertshaw, Summary Justice, supra n.2, at Pt. III.
7. On other Pathos aspects, see Paul Robertshaw, "Das richterliche »Summing Up« im Fall Jeffrey Archer. Eine rhetorische Analyse", Jahrbuch Rhetorik 15 (1996), 96-114. Here the ranking is given in the left-hand column 5-1 (Mr. Elton John - Elton). The number of uses of each rank are indicated in the right-hand column (Mr. Elton John 5; Elton 1). One then multiplies each rank by its uses so Mr. Elton John (5 × 5) gives a score of 25; Elton (1 × 1) gives a score of 1. The total score for all five ranks is 67 which is divided by the total usages: 17. This produces an average rank score of 4 (3.94), which is very high, approximately equivalent to references to Queen's Counsel during a Summing up.
8. Contrast the Archer case as discussed by Robertshaw, supra n.7.
9. See also Jackson, supra n.5, at 429-439.
10. On the pragmatics of making an intervention during trial process, see B.S. Jackson, Law, Fact and Narrative Coherence (Liverpool: Deborah Charles Publications, 1988), 112-129.
11. [1996] 2 All E.R. 35.
12. [1957] 1 Q.B. 195 (CA.).
13. 70 DLR (2d) 337 (1968).
14. 59 Cr.App.R. 196 (1974).
15. 77 CrApp.R. 151 (1983).
16. See H. ApSimon, "In the Jury Room", New Law Journal, 12th Aug. 1994, p. 1150.