On 17 May 2019, the Court of Appeal handed down its decision in Serafin v Malkiewicz & Ors ( EWCA Civ 852). The appeal concerned, amongst other things, the correct application of the ‘public interest’ defence under s.4 of the Defamation Act 2013.
The Court of Appeal allowed all five grounds of appeal. In doing so, it provided guidance regarding the ‘public interest’ defence. Unusually, the Court of Appeal troubled a finding of fact made by the judge at first instance and made a finding of unfairness against the judge at first instance.
Serafin was a Polish builder and, for a number of years, had been an active member of the Polish Social and Cultural Association (“POSK”). Between 2007 and 2012, he was joint manager of the POSK Jazz Club and volunteered behind the bar.
He had also previously started a food business, called Polfood, in 2011. A bankruptcy order and finding of misconduct were made against him in respect of the business.
Following the order, in 2012, Serafin became involved with Kolbe House, a care home for elderly Polish people, as a handyman.
In October 2014, an article appeared in a Polish language magazine. The article made allegations concerning Serafin’s charitable work at Kolbe House and POSK, as well as his conduct with Polfood. Serafin contended that the article amounted, in effect, to a character assassination. He brought an action against the co-publishers of the magazine, as well as the magazine’s editor.
At trial ( EWHC 2992 (QB)), Serafin appeared as a litigant in person, although he had received some legal advice prior to his appearance at the High Court.
Jay J found that 11 of the 14 statements complained of met the threshold for serious harm under s.1 of the Defamation Act 2013.
However, his Lordship found that all of the allegations relating to POSK and Polfood were true, as well as one of the statements relating to the work for Kolbe House. Therefore, Jay J held the defendants had a defence under s.2 of the 2013 Act in respect of those allegations.
Jay J also held that the defence of ‘honest opinion’ under s.3 of the Defamation Act 2013 was made out in respect of the headline and a caption to a photograph of Serafin.
Further, Jay J found that the defence of ‘public interest’ under s.4 of the 2013 Act was made out in respect of all of the allegations. As summarised by the Court of Appeal (at ):
The main thrust of the Judge’s reasoning that it was in the public interest for the Defendants to publish the article was that it related to the Claimant’s alleged misconduct in respect of two charities, POSK and Kolbe House; and given the similar allegations that he was “cheating” Kolbe House and had “profited” from POSK, it was in the public interest – and editorially justified – also to include the allegations as to his “brazenly unethical conduct” in relation to Polfood, notwithstanding it was a private company…
Finally, Jay J held that even if the s.4 defence had not been made out, he would not have awarded any damages in relation to the unproven allegations because Serafin’s reputation was “shot to pieces” (at ) by the proven allegations.
Therefore, he dismissed Serafin’s claim entirely.
Serafin appealed Jay J’s decision on five grounds: i) the existence of a ‘public interest’ defence; ii) the existence of the defence of ‘truth’ in respect of some of the most serious allegations; iii) the incorrect application of the burden of proof; iv) the failure to award any damages to Serafin; and v) unfair judicial treatment. The appeal was allowed on all five grounds.
The existence of a ‘public interest’ defence
The Court of Appeal set out the law as it stands following the case of Economou v De Freitas  EWCA 2591 (at  – ) as well as identifying the relevant principles for determining the meaning of “public interest” (at  – ). The Court then proceeded to apply the two-part test for the defence under s.4 of the Defamation Act 2013.
The first limb of the test requires publishers to show that the statement complained of was on a matter of public interest. In the Court’s view, Jay J had been wrong to find the first limb made out, given that the article was about Serafin’s work and conduct as a private individual. It did not contribute to any debate of public interest.
The second limb of the test requires the defendants to demonstrate that they reasonably believed the statements to be in public interest. The Court held that this limb had also not been satisfied. The Court applied the dicta of Warby J in Economou, that a belief will be reasonable “if it is arrived at after conducting such enquiries and checks as it is reasonable to expect of the particular defendant in all the circumstances of the case”. Particular attention was drawn to the conduct of the defendants, who had failed to contact Serafin before publication, or contact anyone else who could have given another side to the story.
The existence of the defence of ‘truth’
The Court of Appeal also concluded that Jay J had not been entitled to find that Serafin had stolen from the takings of the Jazz Club on the facts which were before him. In doing so, it also held that his Lordship at times appeared to suggest that Serafin had to prove his innocence to the charges made against him, contrary to the common law principle of libel that a defamatory imputation is presumed to be false and therefore it is for the defendant to prove its substantial truth.
The failure to award damages
As the Court of Appeal held that the defence of ‘public interest’ did not succeed, it consequently held that Serafin would be entitled to damages in respect of the unproven allegations, notwithstanding that other aspects of the article had been found to be true.
Unfair judicial treatment
Regarding the final ground of appeal, the Court of Appeal held that the nature, tenor and frequency of Jay J’s interventions were such as to render the libel trial unfair. Having regard to the transcript of the High Court trial, the Court of Appeal considered 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” (at ).
It considered Jay J’s conduct even more surprising given that Serafin was acting as a litigant in person and English was not his first language.
With the decision in Serafin, the Court of Appeal has given additional clarity regarding the ‘public interest’ defence under s.4 of the Defamation Act 2013. It is also of interest for the rare finding of unfair judicial treatment.
Regarding the first limb of the ‘public interest’ defence, the Court of Appeal stated that the court should have regard to the balance that must be struck between the public interest in publication and the individual’s Article 8 ECHR rights that will be breached if publication occurs. The s.4 defence must be confined to the circumstances necessary to protect Article 10 rights (at ).
In addition, Court of Appeal held that whether an article is in the public interest is not merely dependent on the bare subject-matter, but also the context, timing, tone, seriousness and all other relevant factors (at ).
When determining ‘reasonableness’ of belief, under the second limb of the ‘public interest’ defence, the Court adopted Reynolds checklist, reaffirming its relevance to the statutory defamation regime. In addition, the Court placed considerable emphasis on the defendants’ failure to obtain comment before publication, confining the failure to obtain comment in Economou on the particular facts of that case. It is therefore clear that professional publishers seeking to rely on a ‘public interest’ defence will have to demonstrate that they sought comment from the subject of the story.
On the matter of unfair judicial treatment, the Court of Appeal made clear that “judges and tribunals should be…especially conscious to ensure the dictates of fairness are observed – and seen to be observed – at all times” (at ). For posterity, excerpts from the transcript of the trial at first instance were provided in an annex to the judgment.
Samuel Rowe is a student at the University of Oxford.