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Defamation and Malicious Publication (Scotland) Act 2021

Removal of presumption that proceedings are to be tried by jury

Section 20: Removal of presumption that proceedings are to be tried by jury

113.Section 20 removes the presumption that proceedings in defamation are to be tried by jury. The effect is that defamation cases are to be tried without a jury unless a court orders otherwise.

114.Subsection (1) provides for the repeal of paragraph (b) of section 11 of the Court of Session Act 1988. The effect of this is not to prevent a defamation action being dealt with by means of a trial by jury. Rather, it gives the courts a power to order the form of factual inquiry which they consider to be most appropriate to the circumstances of any given case. As an alternative to a trial by jury there may be a proof or (more usually) a proof before answer. Given the operation of section 63 of the Courts Reform (Scotland) Act 2014, the removal of a presumption of trial by jury would apply also to defamation actions in the sheriff court, if an order were to be made under section 41(1) of the 2014 Act to allow defamation trials by jury in the sheriff court.

115.Subsection (2) is a transitional provision that makes clear that the removal of the presumption does not have effect in relation to defamation proceedings that have begun before section 20 comes into force.

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