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  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  EWHC 1853 (QB),  EMLR 4 at , cited with approval by Sharp LJ on appeal from Warby J at  EWCA Civ 2591,  EMLR 7 at . He also referred with approval, at paras 68 – 69, to two passages at  and  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 , , , , , ,  and  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.