Supreme Court finds that a defamation trial at first instance was unfair, orders retrial and instructs new judge not to follow Court of Appeal’s reasoning on the public interest defence under s 4 of the Defamation Act 2013

The claimant, Jan Tomasz Serafin, is a Polish émigré. The defendants, Grzegorz Malkiewicz and Czas Publishers Ltd, 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 Court of Appeal found that the conduct of the trial by Mr Justice Jay in the High Court had been unfair towards Mr Serafin. The defendants appealed against that finding to the Supreme Court. They also challenged the Court of Appeal’s analysis of the effect of s 4 of the Defamation Act 2013, which sets out the “public interest defence” to a defamation claim.

The Supreme Court unanimously dismissed the appeal and ordered that the case be remitted for a full retrial. Lord Wilson gave the only judgment, with which the other Justices agreed.

Lord Wilson said that the Court of Appeal was correct to treat Mr Serafin’s allegation as being that the trial had been unfair, not that the judge had given the appearance of bias against him. It was far from clear that an informed and fair-minded observer would consider that the judge had given that appearance. The authorities on an inquiry into the unfairness of a trial establish the following principles: (i) a judge’s interventions should be as infrequent as possible during cross-examination of witnesses, and he must remain above the fray and neutral while evidence is being elicited; (ii) the quality of the written judgment cannot render a trial fair in circumstances where the judge’s interventions at the hearing prejudiced the exploration of evidence; and (iii) where a transcript exists, it is not the present practice of higher courts to invite the judge to comment on the allegations, but the fact that he is unable to comment requires those courts to analyse the evidence with great care. Unrepresented litigants (as Mr Serafin was) are unlikely to be equipped to withstand judicial pressure and so the judge must temper his conduct accordingly.

Analysing the conduct of the trial, Lord Wilson said that the transcripts showed that the judge had directed a “barrage of hostility” towards Mr Serafin’s case and towards Mr Serafin himself acting in person. In doing so the judge used “immoderate, ill-tempered and at times offensive language”. Lord Wilson said that the Supreme Court was therefore driven to uphold the Court of Appeal’s conclusion that the judge did not allow the claim to be properly presented; that therefore he could not fairly appraise it; and that the trial was unfair. Instead of making allowance for Mr Serafin’s being unrepresented, the judge had “harassed and intimidated him”.

Lord Wilson noted that the logical consequence of a conclusion that a trial was unfair is an order for a complete retrial. Therefore, he said, it was hard to understand the Court of Appeal’s order that all the issues relating to the determination of whether the defendants were liable to the claimant had been concluded. Conscious that the justice system had failed both sides, Lord Wilson said that the Supreme Court “with deep regret” must order a full retrial.

As for the public interest defence, Lord Wilson noted that Reynolds v Times Newspapers Ltd [2001] 2 AC 127 established the existence at common law of a public interest defence to a claim for defamation brought in relation to publication of a statement. Where the defamatory material concerned such a matter, the defendant had to show that it had met the standard of “responsible journalism”, measured by reference to a list of ten factors. Section 4 of the 2013 Act replaced the “Reynolds defence” with a new defence, which, on any view, draws on the principles in Reynolds and later cases. The s 4 defence is available where the defendant “reasonably believed that publishing the statement complained of was in the public interest” (s 4(1)(b)). In assessing reasonableness, the court must (among other things) “have regard to all the circumstances of the case” (s 4(2)). Reference to the Reynolds factors was deliberately omitted from the section.

Lord Wilson held that the Court of Appeal was wrong to state that the Reynolds defence and the s 4 defence were not materially different, since the elements of the two cannot be equated. It was also inappropriate for the Court of Appeal to regard the Reynolds factors as a “check list” in the context of s 4. For these and other reasons, the new judge should determine whether the public interest defence is available to the defendants without reference to the Court of Appeal’s reasoning on s 4. (Serafin v Malkiewicz [2020] UKSC 23 (3 June 2020) — to read the judgment in full, click here).