HomeInsightsCourt of Appeal overturns High Court decision that the public interest test had been satisfied

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The claimant, Jan Tomasz Serafin, is a Polish émigré. The defendants are the editor and co-publishers of a popular Polish-language monthly magazine called Nowy Czas (“New Time”). The magazine is widely read by the Polish community in London.

Mr Serafin claimed damages for libel in respect of an article published in Nowy Czas by the defendants in its October 2014 issue. The article was entitled, “Bankruptcy Need Not Be Painful”. The article included serious defamatory allegations against Mr Serafin concerning his various business interests and his involvement with two charitable organisations, the Polish Social and Cultural Association and the Kolbe House Society Care Home. No attempt was made by the defendants to contact Mr Serafin or seek his comments before publication of the article.

At first instance, the judge held that the defence of public interest succeeded in relation to the entirety of the words complained of, i.e. in relation to all of the allegations contained in the article. Mr Serafin appealed.

The appeal court found that the trial judge had allowed the public interest defence to succeed primarily because he found that the article related to Mr Serafin’s alleged misconduct in respect of two charities. Their Lordships found, however, that the judge’s approach was misconceived. The article was not about how the two charities were run, and could not be said materially to have contributed to any debate in the Polish community as to broader charitable management issues. Rather, the article was aimed at Mr Serafin’s personal life and conduct as a contractor, supplier and volunteer to the two organisations. Their Lordships said that it was “telling” that at no stage did the defendants contact anyone involved in the actual management of the charities to discuss the allegations and Mr Serafin’s role and activities in their organisations. This would have been a natural and obvious step to take if, indeed, the article had been about the management of these charities, rather than about Mr Serafin himself.

Further, the judge had given insufficient consideration to Mr Serafin’s Article 8 right to reputation and the irreparable reputational damage that would inevitably be caused by publication of the article, and whether the public needed to know the information at the time the article was published, so that it could be said to be necessary that Mr Serafin’s Article 8 rights should be breached without remedy.

The judge had therefore been wrong to hold that the first limb of the public interest test under s 4(1)(a) of the Defamation Act 2013 was made out.

The judge had also relied on a finding that Mr Serafin had “effectively conceded” that it was in the public interest for the defendants to publish an article about his “fitness or otherwise to be involved in a charitable institution …”.

Looking at a transcript of the proceedings, their Lordships found that all that Mr Serafin had conceded during cross-examination was that the care of old people and how old people’s homes are run were plainly matters of public interest. At no stage did Mr Serafin concede that it was in the public interest for the defendants to publish an article about his “fitness” to be involved with a charitable institution. The judge was therefore wrong to find that Mr Serafin had made such a concession. In any event, the article was not about the care of old people or how old people’s homes are run. The article was essentially directed towards Mr Serafin’s conduct in a personal capacity.

As for s 4(1)(b), which requires publishers of defamatory material to show that they “reasonably believed” the statements to be in the public interest, the judge had found that they did.

Their Lordships said that the question was whether the defendants had adhered to appropriate and reasonable journalistic standards and carried out such enquiries and checks as it was reasonable to expect of them as journalists to do so. The judge had found that the defendants had undertaken “reasonable inquiry” into all the factual matters on which their story was based and praised their “rigorous, objective journalistic standards”. He did so notwithstanding that the defendants had failed to approach Mr Serafin for comment before publication, or indeed anyone else who might gainsay the story.

The judge had accepted the defendants’ three reasons for not contacting Mr Serafin before publication, but their Lordships disagreed. As to the first reason, that Mr Serafin had not complained about previous articles written about him in Nowy Czas, their Lordships said that since none of the articles or letters could be said to be comparable in its tenor or content to the article in question, it was difficult to see why this was relevant. As to the second reason, that the defendants thought it was unlikely that Mr Serafin would respond, their Lordships said that the mere fact that a journalist thinks that the subject of a defamatory article might not respond to allegations is no reason to deprive that person of the opportunity of denying them so that such denial could be published within the article. As to the third reason, that Mr Serafin was, as the defendants described him, a “violent and co-operative liar [sic]”, there was no evidence to support this and, in any event, there was no reason why the defendants could not have contacted Mr Serafin by phone or in writing in advance of publication to ask for his comments.

The judge had also paid little attention to the fact that the defendants had failed to contact others in relation to publication of the article. Further, the judge had failed to take into account other unsatisfactory aspects of the article and the defendants’ lack of journalistic standards.

Their Lordships said that it was difficult to see how, in the light of all this, the judge could properly have concluded that the defendants had undertaken reasonable inquiries in relation to “all” the factual matters on which their story was based, let alone praised the defendants’ “rigorous, objective journalistic standards”. Their Lordships said that their standards of journalism “plainly left much to be desired”.

Their Lordships concluded that the judge’s finding that the defendants had shown a public interest defence under s 4 was “unsustainable and should be reversed”.

Their Lordships also found that the judge had not only seriously transgressed the core principle that a judge remains neutral during the evidence, but he also acted in a manner which was, at times, manifestly unfair and hostile to Mr Serafin. Their Lordships were, after careful examination, driven to the conclusion that the nature, tenor and frequency of the judge’s interventions were such as to render the libel trial unfair.

The appeal was allowed. (Jan Tomasz Serafin v Grzegorz Malkiewicz [2019] EWCA Civ 852 (17 May 2019) — to access the judgment in full, click here).

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