Serafin v Malkiewicz

Reference: [2019] EWCA Civ 852

Court: Court of Appeal

Judge: Lewison, McCombe and Haddon-Cave LJJ

Date of judgment: 17 May 2019

Summary: Libel – public interest – truth – damages – unfair judicial treatment

Download: Download this judgment

Appearances: Alexandra Marzec (Appellant) 

Instructing Solicitors: Simon Burn Solicitors for the Appellant/Claimant; the Respondent/Defendant instructed counsel via Direct Access.


C was builder who had previously been proprietor of a food business, Polfood.  He worked as a handyman at the Kolbe House Society Care Home, a care home for elderly Polish people.  He was also a longstanding member of the Polish Social and Cultural Association (“POSK”), based in Hammersmith. He had been joint manager of the POSK Jazz Club between 2007 and 2012 and had also volunteered behind the bar.

C complained in libel about the publication of a defamatory article about him in a Polish-language monthly magazine. The article made allegations against C about his charitable work at Kolbe House and POSK, as well as about his dealings with Polfood. D1 was the magazine’s editor. D2 and D3 were co-publishers.

At trial, Jay J found that the Ds succeeded in a public interest defence under section 4 of the Defamation Act 2013. He also found the allegations in relation to POSK and the Polfood true, but not those in relation to Kolbe House (save for one).

C appealed on five grounds.


  1. Was the Judge wrong to find that the Ds had succeeded in a defence of public interest under section 4 of the Defamation Act 2013?
  2. Was the Judge wrong to find that the Ds had established a truth defence under section 2 of the Defamation Act 2013 in respect of an allegation C had stolen from the POSK Jazz Club bar takings?
  3. Further or alternatively, was the Judge’s finding on the truth of the allegation unjust, as he reversed the burden of truth?
  4. Was the Judge wrong to refuse damages in respect of the unproven defamatory allegations?
  5. Had the Judge behaved in a way during the trial that rendered the trial process unfair?


Allowing the appeal:

(1) The Judge was wrong to find a defence of public interest.

The statements complained of were not in the public interest, and the Judge’s reasoning misconceived.

Section 4(1)(a) requires publishers wishing to maintain a public interest defence to show that the statement complained of was “on a matter of public interest”. The article was not about how POSK and Kolbe House were run as charities, but aimed at the narrower target of C personally. These parts of the article failed to contribute to any debate of public interest. Accordingly, section 4(1)(a) of the Defamation Act 2013 was not fulfilled. The Judge was also wrong to find that C had effectively conceded that it was in the public interest to publish an article about C’s “fitness or otherwise to be involved in a charitable institution, Kolbe House”. All C conceded in cross-examination was that the care of old people and how old people’s homes are run are matters of public interest. It was never put to him that the article itself or the allegations were in the public interest.

Section 4(1)(b), the second limb of the public interest defence, requires the Ds to show they “reasonably believed” the statements to be in the public interest. Applying Warby J’s dicta in Economou, a belief is only reasonable “if it is arrived at after conducting such enquiries and checks as it is reasonable to expect of the particular defendant in all the circumstances of the case”. The Judge was wrong to find that the Ds had reasonably believed it was in the public interest to publish the article and that they had not undertaken a “reasonable inquiry”. The Ds did not contact C before publishing the article, nor did they contact anyone else who might have given another side of the story or first-hand knowledge of the truth or otherwise of the allegations. Applying the Reynolds factors, the Court of Appeal found that that the standards of journalism left much to be desired, and that a public interest defence was unsustainable.


(2) The Judge was wrong to find that the allegation C had stolen from the POSK Jazz Club bar takings was true.

There was strong evidence militating against the truth of D’s allegation that C had stolen from the Jazz Club. There was no evidence that any money had gone missing. Conversely, the evidence of two witnesses, on whose testimony the Judge relied, had their reliability seriously undermined by other matters and had not been properly tested in cross-examination.

The finding that the allegation was true was one he was not properly entitled to reach.


(3) It is not possible to make a definitive finding that the Judge reversed the burden of proof.

The Judge was aware that, as a matter of law, the burden of proof lay on the Ds. However, he suggested at times that C had to prove his innocence of the charges made against him, and that if C did not provide evidence rebutting allegations against him he would face adverse findings. It was, however, not clear that the Judge made these comments suggesting the evidential burden had shifted or on what basis.


(4) The Judge was wrong to award C no damages.

The Judge held that even had the defence under section 4 of the Defamation Act 2013 not succeeded, he would not have awarded damages in relation to the unproven allegations because C’s reputation was ‘shot to pieces’. However, as the Judge was wrong to find the C had stolen from the Jazz Club (as held in relation to the second ground of appeal above), the position is markedly different. While the Judge’s findings in relation to the truth of other allegations remained undisturbed, it would not have been open to the Judge to say C’s reputation was ‘shot to pieces’. Accordingly, C would be entitled to proper vindication and compensatory damages in respect of the unproven allegations.


(5) The trial was unfair.

It is a fundamental tenet of the administration of justice that judges act, and are seen to act, fairly and impartially throughout trial. The Judge “seriously transgressed” the core principle that a judge remains neutral during the evidence, and acted at times in a manner that was unfair and hostile to C. The nature, tenor and frequency of the Judge’s interventions rendered the trial unfair.


This is the second Court of Appeal case after Economou to consider the Public Interest defence under section 4 of the Defamation Act 2013. The case is also notable for the findings of unfairness against a judge at first instance, which were of such a degree that the trial itself was rendered unfair.

The Court of Appeal held that  whether an article is in the public interest depends not merely on subject-matter, but also the context, timing, tone, seriousness and other relevant factors [48].  In relation to subject-matter, the Court emphasised the distinction between activities in private and public spheres and held that allegations as to the Claimant’s conduct in the private capacity could not be said to contribute to any debate of public interest [53].

The Court also noted that the Judge should have given adequate consideration to C’s Article 8 ‘right to reputation’. The s.4 defence should be confined to what is necessary to protect the Article 10 right to freedom of expression, while allowing a claimant’s Article 8 rights to be vindicated by having a remedy to the publication allegations that are unproven.

The Court also highlighted requests for comment from a subject of a story as being the ‘core’ factor in determining whether a belief is reasonable under section 4(1)(b). It adopted the Reynolds checklist, which retains its relevance in determining the statutory defence (despite the abolition of the eponymous common law defence by virtue of section 4(6) Defamation Act 2013).