Serafin v Malkiewicz & Others

C was a builder who had previously been proprietor of a food business, Polfood. He worked as a handyman at the Kolbe House Society Care Home, a home for elderly Polish people. He had also been a longstanding member of the Polish Social and Cultural Association (“POSK”), based in West London. He had been joint manager of the POSK Jazz Club for a number of years and had also volunteered behind the bar.

C complained in libel about the publication of a defamatory article about him in a Polish-language magazine, Nowy Czas. It made allegations against C about his charitable work at Kolbe House and POSK, as well as about his conduct of the affairs of Polfood. D1 was the magazine’s editor. D2 and D3 were co-publishers. Ds relied on defences of truth and public interest under ss 2 and 4 respectively of the Defamation Act 2013.

At trial, C was unrepresented whereas Ds were represented by leading counsel instructed on direct access. Jay J upheld Ds’ s 4 defence. He also found the allegations in relation to POSK and Polfood true, but not those in relation to Kolbe House (save for one). He said that, if he had not upheld the public interest defence, he would not have awarded C any damages for the libels not proven by Ds. He entered judgment for Ds.

C appealed to the Court of Appeal against the upholding of the public interest defence and his finding of truth in respect of one of the allegations relating to POSK. He also complained of unfair treatment of him by the trial judge. C’s appeal was allowed by the CA on the grounds that the Judge had erred in upholding Ds’ public interest defence and the relevant part of their truth defence. The CA also held that the trial had been unfair to C, the Judge having “seriously transgressed” the core principle that a judge remains neutral during the evidence, and acted in a manner which was, at times, manifestly unfair and hostile to C. The nature, tenor and frequency of the Judge’s interventions rendered the trial unfair. Judgment was entered for C and the case remitted by the CA to the Media & Communications List for libel damages to be assessed.

Ds appealed to the Supreme Court seeking the setting aside of the CA’s order and the restoration of the order made by the judge.

1.  Whether the CA was wrong to substitute determinations of its own in favour of C for those of the trial judge in respect of: (a) whether Ds had established their defence of publication on matter of public interest under s 4; (b) whether Ds had proved as true their allegation of theft by C of takings from the Jazz Café; and (c) whether in respect of Ds’ allegations against C not proved true, C would have been awarded any damages in the absence of the s 4 defence.

2.  Whether the CA was wrong to hold that in modern civil law practice there is a bar on the judge “descending into the arena” and/or that judicial rudeness can render a trial unfair.

Lord Wilson, giving a judgment with which all members of the panel agreed:

Whether trial unfair and consequences if so

(a) Appeal dismissed.

(b) Lord Wilson first addressed issue 2, holding that the CA had been correct to conclude that the trial had been unfair towards C: “when one considers the barrage of hostility towards the claimant’s case, and towards the claimant himself acting in person, fired by the judge in immoderate, ill-tempered and at times offensive language at many different points during the  long hearing, one is driven, with profound regret, to uphold the Court of Appeal’s conclusion that he did not allow the claim to be properly presented; that therefore he could not fairly appraise it; and, that, in short the trial was unfair. Instead of making allowance for the claimant’s appearance in person, the judge harassed and intimidated him in ways which surely would never have occurred if the claimant had been represented.” He demonstrated this with an annex setting out 25 passages from the transcript of evidence at trial.

(c) As to issue 1, the order that should flow from a conclusion that a trial was unfair has to be for a complete retrial. The Court therefore passed no judgment on the merits as to whether or not the CA was right to substitute its own findings for those of the Judge on the s 4 defence and the s 2 truth defence.

Correct approach to s 4 defence on matter of public interest

Although making no findings on the CA’s conclusions as to the merits of the s 4 defence, the Supreme Court took the opportunity to address some criticisms of the abstract statements of principle by the CA in order “insofar as [the criticisms] are valid, [to] so declare since otherwise the Court of Appeal’s statements of principle would remain authorities both for the new judge and generally“.

(i) Lord Wilson reviewed the legislative history of s 4 against the background of the common law development of the Reynolds defence, noting, amongst other matters, that a list of factors similar to those set out by Lord Nicholls in Reynolds v Times Newspapers Ltd [2001] 2 AC 127 had been inserted into the draft bill as published, but removed by amendment prior to enactment, and that in place of the list a sub-clause was inserted (now sub-section (2)) to the effect that in determining whether the defendant had shown the matters mentioned in what is now s 4(1) the court should have regard to all the circumstances of the case.

He concluded at para 66, upon comparing the section with the common law prior to enactment, that it was  “unfortunate” that para 35 of the Explanatory Notes to the Act referred to the statutory defence as intended essentially to “codify” the common law defence. He observed at para 72 that the elements of the statutory defence cannot be equiparated with those of the Reynolds defence.

(ii) Lord Wilson then considered Ds’ criticisms of the approach to s 4 of Warby J and Sharp LJ in Economou v De Freitas,  the first s 4 trial and appeal respectively. At para 67, Lord Wilson said he could discern no basis for Ds’ criticism of Warby J’s statement at [2016] EWHC 1853 (QB), [2017] EMLR 4 at [241], cited with approval by Sharp LJ on appeal from Warby J at [2018] EWCA Civ 2591, [2019] EMLR 7 at [101]. He also referred with approval, at paras 68 – 69, to two passages at [86] and [110] of Sharp LJ’s judgment in Economou, but with what Lord Wilson referred to as a “quibble” as to Sharp LJ’s use of the term “checklist” when referring to Lord Nicholls’ ten factors in Reynolds. Lord Wilson observed, at para 75, that the term “checklist” was best avoided. However, at para 69 he confirmed that, as Sharp LJ had explained, one or more of the Reynolds factors may well be relevant to whether the defendant’s belief was reasonable within the meaning of section 4(1)(b).

(iii) As for the statements of principle on s 4 in the judgment of the CA in Serafin,  Lord Wilson took issue at paras 70 – 78 with aspects of [36], [41], [44], [47], [48], [57], [66] and [83] of the CA’s judgment by reason of the CA’s failure to adhere to the distinct two-stage formulation as well as the terminology of  section 4 and, at para 78, he suggested that the new judge on the retrial should determine the availability of the s 4 defence without reference to the CA’s reasoning in Serafin. 

The judgment (and indeed the CA’s on the same issue) constitutes an important supplement to the Bar Council’s campaign against judicial bullying, which was launched in 2019 with detailed guidance and support lines for barristers who feel they have been bullied or harassed by judges. Unrepresented litigants are in a different, unprotected position and will usually be ill-equipped to recognise when the treatment of them has crossed the line between robust case management and unfairness. Such instances may go undetected in the absence of some later involvement of legal professionals, such as occurred here. As the Equal Treatment Bench Book describes it, litigants “are operating in an alien environment in what is for them effectively a foreign language” (cited by Lord Wilson at para 46).

The judgment also makes clear that the inevitable consequence of a ruling that the trial was unfair is that the judgment ceases to have any effect; it is, as Lord Reed observed, “written in water”.  Logically there must be a re-trial on all issues.  On this point the Court differed from the CA, who had ordered only a limited trial on quantum, and from the parties, who had suggested at the CA stage that, following the CA’s ruling, the s.4 defence should be struck out.

As to section 4, the Supreme Court has rejected as baseless Ds’ criticism of Warby J’s statement in Economou at [241], approved at [101] of Sharp LJ’s judgment on appeal in Economou, that “I would consider a belief to be reasonable for the purposes of section 4 only if it is one arrived at after conducting such inquiries and checks as it is reasonable to expect of the particular defendant in all the circumstances of the case”.   The statement had been challenged by Ds as “incompatible” with the section for failing to give sufficient credit to the element of reasonable belief, contending that if the defence is to be conditional on D conducting such pre-publication inquiries as is reasonable, a formulation more consistent with s 4 than the statement of Warby J would be whether D reasonably believed that sufficient enquiries had been made, or whether D’s belief was “rational”.

Ds’ challenge to the analysis of s 4 in Economou was in part prompted by the significance attached by the CA in Serafin to Ds’ failure to approach C for comment prior to publication, which the CA had referred to at [66] and [73] as “a requirement” of the defence. Lord Wilson at para 76 observed that a failure to invite comment from C prior to publication will no doubt always at least be the subject of consideration under s (1)(b) and may contribute to, perhaps even form the basis of, a conclusion that the defendant has not established that element of the defence. But he said it was “too strong” to describe the prior invitation to comment as a “requirement” observing that it had never been a “requirement” of the common law.

The message that goes out from this judgment is the importance of adherence to the two-stage approach of s 4(1)(a) and (b), employing the language of the section and avoiding referring to and  treating the Reynolds factors as a “checklist” or as constituting ‘requirements’ of the defence under s 4.