The trial of the recent libel action between Marks and Spencer and Granada Television was expected to last several weeks.

In the event it was over in a few days.

This was brought about by the trial judge, Popplewell J, directing that the disputed issue of what were the defamatory meanings conveyed by the television programme the subject of the action should be decided by the jury at the beginning of the hearing before any evidence was called.

This was quite unprecedented.

The jury largely sided with Marks and Spencer as to the correct interpretation of the programme and the action promptly settled.Now this novel practice has received a wink of approval from the Court of Appeal in Shah v Standard Bank (April 2, 1998).

The appeal was interlocutory, about what words were capable of meaning and how they could be justified, but Hirst LJ remarked "by way of postscript" that careful consideration would have to be given at the pre-trial review as to whether the procedure pioneered by Popplewell J should be followed, for (said Hirst LJ) if the fundamental conflict on meaning was resolved in the plaintiffs' favour the trial would proceed on limited issues with a very great saving of time.With such tacit encouragement from the Court of Appeal it is possible that judges will regard preliminary verdicts on disputed meanings before any evidence is led as the favoured practice in libel actions.

It is perhaps a suitable moment to assess some the implications of such a radical procedural development.The apparent benefit s of a preliminary decision on meaning are twofold.

The jury's task is to assess what was the meaning conveyed to the hypothetical ordinary reasonable reader, not avid for scandal or unusually naive.

They will find it easier to do this if they come to the article or television programme fresh, free of the distractions of evidence (technically inadmissible on meaning) or the distortions sometimes resulting from endless scrutiny and minute analysis of words occurring during the course of the trial.

Juries are commonly encouraged to put themselves in the position of a reader scanning his morning newspaper over a cup of tea, or of a viewer slumped, not too inattentively, in a chair in front of the television set, feats of imagination perhaps more readily achieved by a juror at the beginning rather than at the end of the trial.Of no doubt greater importance, given the unavoidable slow pace and immense expense of jury trials, are the potential savings of time and costs that could be a consequence of an immediate decision on meaning.

In cases (like Marks & Spencer and Shah) where the defendant disputes, but does not otherwise seek to defend, the meaning contended for by the plaintiff and puts forward another meaning, which he alleges is true, a decision by the jury that the words bore the plaintiff's meaning, should rule out the defence of justification and thereby either substantially shorten and simplify the trial, or compel a settlement.Rarely, however, do procedural changes operate neutrally in terms of advantage as between the parties and in cases where there is a plea of justification limited to a particular meaning different from the plaintiff's meaning, a preliminary ruling on meaning in favour of the plaintiff will bring with it, as the law at present stands, other rewards to the plaintiff, principally the exclusion of evidence which might otherwise serve to diminish the damages.

The law is that the jury can take into account, when assessing damages, evidence which has been properly led in support of a plea of justification, even though, for whatever reason, the defence is unsuccessful.

Such evidence may reduce the damages "perhaps even to vanishing point" (per Neill LJ in Pamplin v Express Newspapers [1988] 1 WLR 116 at 120).

Thus where, for example, the subject matter of the action was an article critical of a firm of accountants (the plaintiffs), which they maintained accused them of dishonesty, and which was defended on the basis that the accusation in the article was not one of dishonesty, but of carelessness and incompetence, and that accusation was true, if the jury decided at the end of the trial that the article did convey dishonesty, they could nonetheless take into account, when assessing damages, such evidence as they accepted as true introduced by the defendants to support the contention that the plaintiffs had been negligent.

With a preliminary verdict on meaning in favour of the plaintiffs' meaning, such evidence would not be relevant or admissible, and the plaintiffs might recover damages on the false premise that their conduct had been blameless.If that arguably undesirable result is to be avoided, there would need to be some modification of the rules relating to admissibility of evidence in mitigation of damages to allow evidence to be led to sustain a meaning which it is conceded or the judge has ruled the words were capable of bearing, even though on the jury's verdict they did not in fact bear that meaning.

But if that happens, and the evidence is contested, the savings in time and costs resulting from t he preliminary finding would be largely if not totally lost.

However, if there are no changes to the rules concerning admissibility of mitigating evidence, defendants, even though they know they cannot justify the plaintiff's meaning, will be tempted to cast their pleas of justification in a form wide enough to cover that meaning to avoid the risk of the defence and potential mitigating evidence being completely excluded.Preliminary verdicts could give rise to other difficulties.

The jury's decision is not confined to pleaded meanings; they can find that the words complained of bear none of the meanings contended for by either of the parties but some other meaning defamatory of the plaintiffs.

(Such indeed was part of the verdict in the Marks & Spencer case.) If they do this the scope for uncertainty and confusion is almost limitless.

First of all the jury will have to express in words what is the meaning they find, a task which even an experienced pleader sometimes finds difficulty in accomplishing with clarity and coherence.

Ambiguities or lack of precision in the jury's formulation could lead to endless argument as to the effect or legitimacy of their verdict.

There can also be foreseen vigorous debate as to whether the plea of justification covers the jury's meaning.

(If it does not, the defendant might wish to amend).

It is suggested that one necessary reform must be, if preliminary decisions become common, to confine the jury's verdict to meanings set out in the statement of claim or defence.In cases where meaning is disputed, but there are other defences than justification, or the plea of justification also covers the meaning contended for by the plaintiff, there is surely little to be gained in terms of length of trial by an early determination of meaning.

The jury's retirement to deliberate on meaning must be preceded by counsel's speeches and a summing-up directed to this issue, so it is likely that a day or more will be added to the duration of the hearing, and that is without an appeal.

Furthermore, there must surely be a risk that, as the trial proceeds and the words are pored over in fine detail in the course of evidence as to their effect on the reputation and feelings of the plaintiff (relevant on damages), or as to the intention of the author when he wrote them (relevant on malice), the jury may be tempted or induced to reconsider or resile from their original interpretation of meaning or to introduce nuances and implications which had not been part of their preliminary findings.Diplock LJ (as he then was) has explained why meaning is so often a key issue in a defamation action: "Words are imprecise instruments for communicating the thoughts of one man to another.

The same words may be understood by one man in a different meaning from that in which they are understood by another and both meanings may be different from that which the author of the words intended to convey" (Slim v Daily Telegraph [1968] 2 QB 157, 171).

How this issue is resolved can determine the outcome of the case.The attractions of an early decision on meaning are thus alluring.

But it has to be recognised that this is a major procedural innovation which may add further complexities to an already sophisticated area of litigation as well as alter the existing delicate balance of advantage as between the defamer and defamed.

A thorough analysis of the ramifications, and whether it is necessary to make changes to substantive law or other procedural practices would be welcome.

At the very least one would hope that the Court of Appeal will soon find the opportunity to give rather fuller consideration to this new procedure than was appropriate or necessary in Shah v Standard Bank and be able to offer guidance as to what types of case are suitable for a preliminary decision on meaning, and as to how cases should proceed after the jury have given their decision.