LORD WILSON: (with whom Lord Reed, Lord Briggs, Lady Arden and
Lord Kitchin agree)

A. Introduction
1. This appeal is sensitive and important. I regret that I have failed to contain this judgment within fewer than 78 paragraphs, plus 25 paragraphs of a schedule to it. The Court of Appeal has made a rare finding that the judge’s conduct of the trial was unfair towards one of the parties. When made in respect of the conduct of any judge, however senior or junior, such a finding carries profound sensitivity. Our duty is to appraise it with the utmost care; and, were we to uphold it, we would need to address the order made by the Court of Appeal in consequence of it. But there is a second dimension to the appeal to this court. For the Court of Appeal also based its decision upon its understanding of the effect of section 4 of the Defamation Act 2013 (“the Act”), entitled “Publication on matter of public interest”; and energetic criticisms are made to us in relation to its exposition of the effect of the section. For reasons which will become apparent, our own analysis of the section will not form part of our decision; but it is intended to be helpful nevertheless.
2. It will be convenient to describe the appellants as the defendants; and the respondent as the claimant. The first defendant, Mr Malkiewicz, is the editor-in- chief of a Polish newspaper, entitled Nowy Czas (which means New Time) and owned by the second defendant, Czas Publishers Ltd. The third defendant, Mrs Bazarnik-Malkiewicz, is an editor of the paper, a director of the second defendant and the wife of the first defendant. At the relevant time the paper was published eight times a year, both in hard copy and online, and it addresses issues of interest to the substantial Polish community in the UK, particularly in London. The claimant, Mr Serafin, now aged about 68, was born in Poland but has lived in England since 1984.
3. The claimant sued the defendants for libel in respect of an article which they published about him in the newspaper in October 2015. Over seven days in October and November 2017 Mr Justice Jay (“the judge”), sitting in the Queen’s Bench Division of the High Court, heard the claim. The claimant appeared in person before him, supported by a McKenzie friend. Simon Burn…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Serafin v Malkiewicz

Details

AGLC: Serafin v Malkiewicz [2020] UKSC 23
Case: [2020] UKSC 23
Decision Date

CaseChat Overview and Summary

This case involved an appeal against a decision of the Court of Appeal in relation to a libel claim. The claimant sued the defendants for libel in respect of an article which they published about him in a Polish newspaper. The claimant's case was heard by Mr Justice Jay in the Queen's Bench Division of the High Court. The claimant appeared in person before the judge, supported by a McKenzie friend. The defendants were represented by leading counsel. The claimant alleged that the words of the article had 13 defamatory meanings. The judge found that the claimant's cause of action had been rejected in relation to all the meanings apart from five of them. The judge then turned to address a further defence raised by the defendants in relation to all 13 meanings. This was the defence under section 4 of the Defamation Act 2013. The judge found that the defence had been established in relation to all the allegations and thus, relevantly, to the five meanings of them which had until that stage survived as actionable. The claimant appealed against the judge's decision to the Court of Appeal. The Court of Appeal held, first, that the judge had been wrong to uphold the defence under section 4. It held, second, that on the evidence before him he had not been entitled to find that one of the meanings was substantially true and so it set that finding aside. It proceeded to uphold the claimant's contention that it would not have been open to the judge to find that his reputation had been sufficiently "shot to pieces" by reference only to the other imputations shown to have been substantially true. It then concluded that the claimant was entitled to damages in respect of all the meanings encompassed within his claim. The Court of Appeal then addressed the claimant's third ground of appeal, namely that the judge's conduct of the hearing had been unfair to him. It concluded that the judge 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 the claimant. The Court of Appeal concluded that the nature, tenor and frequency of the judge's interventions were such as to render the trial unfair. The Court of Appeal's order was to allow the appeal, to set aside the judge's orders and to remit the matter for an assessment of the quantum of the claimant's damages only, by a judge of the Media and Communications List other than the judge. The defendants appealed to the Supreme Court against that order. The Supreme Court concluded that, in light of the unfair trial, the only proper order was for a retrial. The Supreme Court noted that there may be advantages to the parties in narrowing the issues prior to any retrial but that was for the parties to decide. The Supreme Court also observed that the Court of Appeal's analysis of the defence of public interest under section 4 of the Defamation Act 2013 had contained some unfortunate statements of principle and that, insofar as they were valid, the Supreme Court would declare them.

Orders