Serafin v Malkiewicz & Ors

Trinity Term

[2020] UKSC 23

On appeal from: [2019] EWCA Civ 852

JUDGMENT

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…