Serafin v Malkiewicz & Ors [2020] UKSC 23

Mr Serafin sued a Polish-language newspaper for libel over an article alleging dishonesty and misconduct. The Supreme Court held the trial judge's hostile conduct rendered the trial unfair, ordered a full retrial, and clarified the public interest defence under section 4 of the Defamation Act 2013.

Facts

The claimant, Mr Serafin, a Polish-born builder living in England, sued the appellants, the editors and publisher of the Polish-language newspaper Nowy Czas, for libel in respect of an article published in October 2015 entitled ‘Bankruptcy need not be painful’. The article contained 13 defamatory imputations concerning the claimant’s conduct at POSK (a Polish social and cultural association), his food importing company Polfood, his bankruptcy, his relationships with women who had invested in his business, and his role at Kolbe House (a Polish care home).

At trial before Jay J, the claimant appeared in person (with a McKenzie friend), while the defendants were represented by leading counsel. The judge dismissed the claim, finding many imputations substantially true, that the claimant’s reputation had been ‘shot to pieces’, and that in any event the defendants had established the public interest defence under section 4 of the Defamation Act 2013.

The Court of Appeal allowed the claimant’s appeal, holding that (i) the public interest defence should not have succeeded; (ii) the finding that imputation M4 was substantially true could not stand; and (iii) the judge’s conduct of the trial had been unfair. It ordered remittal limited to the assessment of damages.

Issues

The Supreme Court had to determine:

• Whether the Court of Appeal was correct to conclude that the trial had been unfair to the claimant.
• If so, what order should follow from that conclusion.
• Whether the Court of Appeal’s statements of principle concerning the public interest defence under section 4 of the Defamation Act 2013 were correct.

Arguments

The defendants/appellants argued that the judge’s interventions were ‘wholly justifiable’ when placed in context, commended the quality of the judge’s reserved written judgment, and criticised the Court of Appeal’s analysis of section 4 as erroneous. The Media Lawyers Association, intervening, also criticised the Court of Appeal’s exposition of section 4.

The claimant/respondent, through Miss Page QC, maintained the trial had been unfair, questioned the adequacy of reasoning in the judge’s judgment on section 4(1)(b), and conceded that parts of the Court of Appeal’s analysis of section 4 were at least unfortunate.

Judgment

Unfair Trial

Lord Wilson, with whom the other Justices agreed, reviewed the authorities on judicial interventions, including Jones v National Coal Board [1957] 2 QB 55, London Borough of Southwark v Kofi-Adu [2006] EWCA Civ 281, and Michel v The Queen [2009] UKPC 41, in which Lord Brown stated:

The core principle, that under the adversarial system the judge remains aloof from the fray and neutral during the elicitation of the evidence, applies no less to civil litigation than to criminal trials.

Lord Wilson emphasised the particular difficulties presented when a litigant in person faces represented opponents, citing the Judicial College’s Equal Treatment Bench Book. After a detailed examination of the transcripts (set out in a 25-excerpt Schedule), the Court concluded:

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.

The judge had harassed and intimidated the claimant, threatened him with referrals to the DPP and HMRC, demanded immediate document production, pre-judged issues during evidence, and failed to make allowance for the claimant’s position as a litigant in person with English as a second language.

Consequences

The Court of Appeal had erred in ordering only remittal for assessment of damages. Lord Wilson held that a finding of unfair trial logically required a full retrial, quoting Denning LJ in Jones:

No cause is lost until the judge has found it so; and he cannot find it without a fair trial, nor can we affirm it.

Lord Reed observed during the hearing that a judgment resulting from an unfair trial is ‘written in water’. An appellate court could not seize on parts of such a judgment to erect legal conclusions. A full retrial was ordered.

Section 4 Defamation Act 2013

Though not determinative, the Court addressed the Court of Appeal’s exposition of section 4 to prevent erroneous statements of principle remaining authoritative. Lord Wilson traced the development from the common law Reynolds defence through Jameel and Flood, and analysed Parliament’s deliberate choices in drafting section 4, including removal of the list of factors and substitution of ‘reasonably believed that publishing the statement complained of was in the public interest’ for ‘acted responsibly’.

The Court of Appeal had erred in several respects: (i) describing Lord Nicholls’ Reynolds factors as a ‘checklist’ to be applied; (ii) treating the statutory and common law tests as materially the same rather than sharing a rationale; (iii) describing the defence as ‘a form of qualified privilege’; (iv) conflating ‘on a matter of public interest’ with ‘in the public interest’; (v) characterising prior invitation to comment as a ‘requirement’; and (vi) applying the Reynolds factors seriatim as a checklist contrary to Parliament’s intention.

Implications

The decision reaffirms the fundamental principle that an adversarial trial requires judicial neutrality during the elicitation of evidence, and that this principle applies with particular force where one party is a litigant in person facing represented opponents. Judges must temper their conduct to account for the disadvantages faced by unrepresented litigants, consistent with the guidance in the Equal Treatment Bench Book.

The judgment confirms that where a trial is found to have been unfair, the appropriate remedy is normally a full retrial; an appellate court cannot cherry-pick findings from a vitiated judgment to limit the scope of remittal.

In relation to section 4 of the Defamation Act 2013, the judgment provides important clarification: the statutory defence is not a mere codification of the Reynolds defence; the Reynolds factors are not to be used as a checklist; the statutory language must be adhered to, distinguishing between a statement being ‘on a matter of public interest’ (section 4(1)(a)) and reasonable belief that publication was ‘in the public interest’ (section 4(1)(b)); and it is inappropriate to describe the defence as a form of qualified privilege. Prior invitation to comment is a relevant consideration but not a requirement.

The decision matters significantly to media defendants, defamation practitioners, and to the broader principle of procedural fairness. It serves as a cautionary reminder to the judiciary about the conduct required at trial, particularly when litigants in person appear, and corrects the trajectory of section 4 jurisprudence to reflect Parliament’s statutory scheme rather than a continuation of Reynolds.

Verdict: Appeal dismissed in part; the Supreme Court upheld the Court of Appeal’s finding that the trial was unfair, but set aside its order limiting remittal to assessment of damages and instead ordered a full retrial before a different judge of the Media and Communications List.

Source: Serafin v Malkiewicz & Ors [2020] UKSC 23