Case Comment: Serafin v. Malkiewicz, “Unbounded self confidence and lack of judgment” results in failed libel action – Persephone Bridgman Baker

5 12 2017

The case of Serafin v. Malkiewicz & Ors [2017] EWHC 2992 (QB) is a libel claim relating to an article which made serious imputations of the ethics of the Claimant, alleging variously that he was dishonest and fraudulent, wormed his way into charitable institutions under the guise of altruism and carried out work for his own gain, and behaved questionably in his conduct with women.

The Defendants were successful on section 4 (public interest) and on the majority of the meanings complained about, on section 2 (truth) and section 3 (honest opinion). The Defendants also successfully defended a claim for misuse of private information.

The matrix of this case is a bundle of interwoven storylines and witnesses, which makes Jay J’s untangling of the facts in a judgment which took a mere two weeks a considerable  accomplishment.

This is an important case for Defendants on the truth defence. As is explained below, Jay J has interpreted the section 2(3) ‘modernised’ truth defence more narrowly (due to its construction) than the previous iteration of that defence in the 1952 Act.

For prospective claimants, this judgment is a self-proclaimed “cautionary tale”. For prospective defendants, this is an all too familiar example of being “caught on Morton’s Fork”: to defend a spurious claim in a technical area of law which will be time consuming and costly, or to publish an apology and pay an amount by way of compensation, allowing the claimant to claim victory in an otherwise doomed case?

Background

Grzegorz and Teresa Malkiewicz are the married publishers of the Second Defendant, Nowy Czas, a not for profit Polish newspaper published in London and intended for the Polish community, with a publication of approximately 5,000. Mr Malkiewicz was a founding member of the student movement associated with Solidarity, and came to England in 1981.  Having obtained a doctorate in philosophy from Balliol College, University of Oxford, he is described in the judgment as a “Polish intellectual”, and an “honest and reliable witness”. Nowy Czas is a publication “which prides itself in its investigative reporting”, and in this instance was led to the subject of the Article by a number of different sources within the Polish community.

Mr Jan Serafin is a builder, whose business interests diversified to include running the Jazz Café at POSK (a Polish charity in London) and being the sole Director of Polfood, a Polish food importation and wholesale company. For the latter project, Mr Serafin persuaded members of the local community to part with around £400,000, some of which was invested in the company at a time when it was already trading insolvently. Over £100,000 of those investments came from two women with whom he maintained “simultaneous intimate relationships”.

An initial approach from employees at Kolbe House, a care home in Ealing Common, led the First and Third Defendants to look further at Mr Serafin’s dealings with the Polish Community, including his involvement with POSK and his 2011 bankruptcy, which was followed by a Bankruptcy Restriction Undertaking pursuant to his preferential transfer of two Polish properties to the detriment of his creditors.

The Article, which features at the end of the judgment, is described by the Defendants as “a modern morality tale about how the Claimant, a well-known and prominent person within the Polish émigré community in London, had behaved since his arrival in this country and how he is likely to behave in future” and by the judge as “satirical, witty, allusive and intellectually sophisticated in style”.

It was accompanied by a photograph of the Claimant, taken by one of his partners on a public beach when the couple were on holiday. The Claimant is shown bare-chested, holding a V-sign to the camera: “the photograph has particular potency for the purposes of this article because it is an effective and cogent means of portraying the Claimant as not caring two hoots for his creditors. This is a paradigm example, I suppose, of one picture being worth a thousand words.”

The Defendants, represented by Carter-Ruck and 5RB’s Adam Speker until the trial, sought to defend the words complained of as substantially true, with a “common sting” generic imputation, alternatively by defending each of meanings complained of, also advanced a public interest defence in relation to the whole of the Article, and an honest opinion defence in relation to the Article title and introduction.

Judgment

Fourty five paragraphs of the judgment were dedicated to the Claimant’s credibility, encapsulated as follows:

I consider that I am presented with two competing, possible interpretations of him. The first is that the Claimant is, in the main, an honest and generous man, good-hearted, with genuine charitable and community-based instincts. On this interpretation, the Claimant has a quixotic streak, is overly optimistic, is chaotic and inexperienced in relation to financial affairs, and although may well be unreliable in many ways is not dishonest. The second interpretation is that the Claimant is a latter-day Don Juan figure who is only out for himself, and pursues his business and personal goals with a combination of tenacity and deceit. Furthermore, this interpretation would hold that the Claimant is boastful and self-promoting, has an element of the Walter Mitty about him, adapts what he tells people to the circumstances as he perceives them to be, is well aware of the hold he exercises over people because of his plausibility, charisma and personal charm, and – at root – is fundamentally untrustworthy. Ultimately, I have come to the conclusion that the second interpretation of the Claimant largely prevails over the first.”

The Claimant’s case turned on thirteen separate meanings. The Defendants’ defence of truth succeeded in relation to the first to seventh meanings (including the most serious), but failed in relation to the eighth to thirteenth meanings (excepting the eleventh meaning, where the serious harm test was not met, but if it had been, the defence of truth would have succeeded).

The “common sting” argument was rejected. However, the judge conceded that if this had been a “common sting” case, he would have “unhesitatingly” concluded that the defence of truth had been made out.

Where the truth defence failed in relation to the eighth to thirteenth meanings, the public interest defence succeeded “tout court” and the judgment cited Warby J in Economou v de Frietas [2016] EWHC 1853 (QB), Jameel v Wall Street Journal [2007] 1 AC 359 and Flood v Times Newspapers [2012] 2 AC 273 on the requirement only that the article as a whole is evaluated, rather than a public interest justification for each item of the article.

The judgment also found there to be no expectation of privacy in the photograph which accompanied the Article, and concluded by noting that had the defence of public interest not succeeded, the Claimant would not have been awarded damages in relation to the remaining allegations.

Comment

The judge ruled that there was no “common sting” in this case, a concept taken from Polly Peck (Holdings) Plc v Trelford [1986] QB 1000 CA and explained in Gatley in the following way:[where] apparently separate allegations in the publication are no more than variants on a generalised theme.’

His view was that the complex fact pattern belies a single theme, instead pointing to “two or three “common stings”, overlapping and intersecting at various places.

The Judge then considered each meaning in turn and found for the Defendants’ on eight of the thirteen meanings, including the most serious ones.

However, Jay J did not allow the Defendants to avail themselves of Defamation Act 2013 section 2(3):

“If, as I have found, this is not a “common sting” case, then the “statement” referred to under sub-section (2) is not the article as a whole, or even the aggregate of the 13 or 14 meanings relied on by the Claimant, but each individual meaning. Sub-section 3 applies only if any individual statement, thus defined, has more than one imputation: see Polly Peck (Holdings) Plc v Trelford [1986] QB 1000 CA”

The Defendants’ submissions were that ‘statement’ in sub-section 2 of the 2013 Act is meant to be the article as a whole. As Gatley explains at 11.2, the effect of repealing section 5 of the Defamation Act 1952 and replacing it with sections 2(2) and 2(3) of the 2013 Act was meant to ‘make it easier for a defendant to prove truth in cases where he cannot prove the truth of all the allegations made.

Section 2 of the Defamation Act 2013 provides:

(1)  It is a defence to an action for defamation for the defendant to show that the imputation conveyed by the statement complained of is substantially true.

 (2) Subsection (3) applies in an action for defamation if the statement complained of conveys two or more distinct imputations.

 (3)  If one or more of the imputations is not shown to be substantially true, the defence under this section does not fail if, having regard to the imputations which are shown to be substantially true, the imputations which are not shown to be substantially true do not seriously harm the claimant’s reputation.

Section 5 of the Defamation Act 1952 provided: 

In an action for libel or slander in respect of words containing two or more distinct charges against the plaintiff, a defence of justification shall not fail by reason only that the truth of every charge is not proved if the words not proved to be true do not materially injure the plaintiff’s reputation having regard to the truth of the remaining charges.

It is true that the wording of section 5 of the 1952 Act was clearer than its replacement. Section 2(3) does not refer to an action but starts, ‘if one or more of the imputations is not shown to be substantially true…’ Section 5 of the 1952 Act case law suggests that must mean one or more of the imputations contained in the article, regardless of whether those imputations are distinct.

Whilst the finding made no practical difference here because the Judge said he would award no damages for the imputations he said failed, this interpretation denied the Defendants a successful truth defence on all thirteen of the Claimant’s meanings or the Article as a whole. If Jay J’s interpretation is correct, the new section 2(3) as drafted does not achieve what was intended to modernise the previous section 5.

The judge’s interpretation of section 4 counterbalanced this, although the circumstances where a publisher is not expected to contact a subject of an article prior to publication are very limited and fact specific, and should not be taken to establish a general rule in that regard. The Claimant in this case even in court was “persistently evasive and prevaricating” and “quite argumentative and combative”, and this in conjunction with historical interaction between the parties, led the judge to hold that in this instance, the public interest defence could succeed regardless.

These Defendants were left in an invidious position after proceedings were issued either to succumb to the Claimant’s demands and publish an apology and pay compensation, or fight a technical and fact heavyweight case through to trial, instructing specialist lawyers and with the associated cost and stress on their health, their relationship, and their publication.

Matters are only exacerbated where a claimant is self-represented, would be unable to afford an adverse costs award and consequently adopts a reckless ‘nothing to lose’ attitude. With a security for costs application likely doomed by an individual’s right of access to court under Article 6, protection is limited for a defendant. A judgment such as this in favour of the Defendants bears this out. A claim that began as a means of vindication for the claimant, transforms along its journey to a means of vindication for the defendant.

The closing paragraph from Jay J provides an insight into the perils of proceeding to trial in defamation action:

The Claimant observed somewhat wistfully towards the conclusion of the trial that had he anticipated what was entailed, he would not have brought this claim in the first place… It is, in a different way perhaps from the article itself, a modern morality tale: a cautionary warning that litigation of this sort, having regard to the nature of the issues at stake, should not be initiated out of almost unbounded self-confidence and lack of judgment, coupled with a misplaced belief that the court will surely succumb to the same charm and eloquence that has worked so effectively in the world outside”.

Persephone Bridgman Baker is a Senior Associate at Carter-Ruck


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5 12 2017
daveyone1

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