Case Preview: Serafin v Malkiewicz,”Public Interest” defence back in the Supreme Court with fair trial appeal – Persephone Bridgman Baker

12 03 2020

The Supreme Court will hear the libel appeal in Serafin v. Malkiewicz & Ors on 17 and 18 March 2020.  The panel will be Lord Reed, Lord Wilson, Lord Briggs, Lady Arden and Lord Kitchin.  The Appellant’s Case can be found here. [pdf]

The first instance trial of ([2017] EWHC 2992 (QB)) was 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 carrying out work for his own gain, and behaved questionably in his conduct with women.

At first instance the Defendants were successful on section 4 (public interest), despite not putting the allegations to the Claimant before publication, and on the majority of the meanings complained about on section 2 (truth) and section 3 (honest opinion). They also successfully defended a claim for misuse of private information. Inforrm reported on the trial in a case comment found here.

The case was appealed, with the Court of Appeal allowing all five grounds of appeal, including rejecting the public interest defence and disturbing a finding of fact made by Jay J, and making a finding of unfairness against the judge ([2019] EWCA Civ 852). The Court of Appeal judgment was considered by Inforrm here.

The case is unusual given the views of the Court of Appeal and the trial Judge are so diametrically opposed, and the savaging given by the Appellate Court to the Judge below.

Appeal to the Supreme Court

Now the matter is in the Supreme Court, with the Appellant publishers appealing on the following points:

  1. Whether it was open to the Court of Appeal to reject the finding that the s.4 defence protected the statements complained of.
  2. Alternatively, whether it was open to the Court of Appeal to disturb the Judge’s finding that the Claimant’s reputation had been shot to pieces, thereby depriving him of any damages other than nominal, on the basis of what it had been open to the Judge to find had been proved.
  3. Was the Court of Appeal correct to find that the trial was unfair?

The first and second points of appeal are defamation specific, whilst the third raises a more general issue that could arise in any civil litigation. These points raise fundamental questions on responsible journalism and public interest, truth and reputation, and whether Jay J’s conduct of the first instance trial was such as to render it unfair, thereby vitiating his findings.

Section 4: Public Interest

Jay J found that the defence of ‘public interest’ under section 4 of the 2013 Act was made out in respect of all of the allegations.  As summarised by the Court of Appeal (at [50]):

“The main thrust of the Judge’s reasoning that it was in the public interest for the [Appellants] to publish the article was that it related to the [Respondent’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…”

The Court of Appeal undoubtedly applied a very narrow interpretation of what constitutes ‘public interest’ for the purposes of the s.4 defence: despite POSK being “a large and well-known charitable organisation that is highly regarded within the Polish community” and Kolbe House a charitable “care home for elderly Polish people”, the allegations made in the Czas article related to Mr Serafin’s “conduct in his personal capacity” and therefore “could not be said to contribute to any debate of public interest”.

The Appellants’ case is that Jay J applied the law on section 4 as stated by Warby J in Economou v de Frietas [2017] EMLR 4 (a judgment upheld by the Court of Appeal) and reached a non-perverse conclusion that the defence should succeed, and therefore the Court of Appeal was not entitled to substitute its preferred outcome. However, this simplistic approach belies a wider point raised in the Grounds of Appeal: that the judicial interpretation on s.4 to date is incorrect.

Five section 4 cases that have reached trial have failed, in whole or in part due to some failing in the defendant’s pre-publication enquiries. These cases have proceeded on the basis that the section 4 public interest defence is essentially a codification of Reynolds, whereas (Czas submit) section 4 is in fact a more generous defence for defendants. The question posed by section 4(1)(b) is whether there was a reasonable belief that publication was in the public interest: whilst it is clearly desirable for defendants to conduct reasonable pre-publication enquiries, the defence is a public interest test and not a responsible journalism test, looked at from the defendant’s perspective and accounting for the circumstances of the specific publication. The Appellants’ grounds state as follows:

“a publication can serve a valuable public interest function – for example, by exposing a “bad” person – even if it could be said that further enquiries should have been made”.

Czas are publishers of a Polish language publication which seems to fit the example provided: “this may arise with a community publication, which does not have the resources and support structure of a national newspaper, but has inside knowledge about the claimant and an important community role.”  

However, the Czas case goes significantly further than this, making some imposing policy statements about the s.4 defence which will irk or inspire, depending on whether you are a Claimant or Defendant lawyer:

“The key free speech policy factor…is the chilling effect of the requirement to prove truth. The costs and risks of investigative journalism become too prohibitive. The free speech benefits of a more generous public interest defence and the chilling effect of its absence are often not visible in the trial process.

In common with the serious harm requirement in s.1 of the 2013 Act, it falls to the Supreme Court to ensure that Parliament’s stated desire to rebalance defamation law in favour of freedom of expression is respected in relation to s.4. If not, the decisions on s.4 will continue in their current trajectory – of which the Court of Appeal’s decision in the present case is the most extreme – and the defence will be of limited practical benefit.”

If the Supreme Court agree with the Appellants, that would be a marked shift in the operation of the section 4 public interest defence, potentially enabling major publishers to justify avoiding pre-publication enquiries. One way around this would be a more nuanced interpretation of the defence, such that the circumstances and resources of individual publishers are accounted for as part of the Reynolds type checklist.

Reputation “shot to pieces

The Court of Appeal overturned Jay J’s finding of fact in respect of imputation 13(4) (the “Fourth Meaning”), namely that “in the course of supplying alcohol for retail sale in POSK’s Jazz Café, [Mr Serafin] dishonestly ensured that money taken from sales would by-pass the cash register in order to obtain unlawful and fraudulent profit from those sales”. An appellate court will not interfere with a finding of fact by a first instance judge merely because it takes a different view of the matter: it will only do so if the trial judge’s findings were plainly wrong or where serious procedural errors were made. In this case, it would require a finding that the witnesses for Czas found to be truthful by the judge were incapable of belief.

In focussing on the effect of proving the Fourth Meaning on Mr Serafin’s reputation, the Court of Appeal have left a lacuna on the question of ‘substantial’ truth i.e. if an article is substantially true, but aspects of it are not true, can a defendant successfully rely on the defence of truth, and if yes, where does the boundary lie? Would a finding that the Defendants had failed to prove the Fourth Meaning have denied them their substantial truth defence? This matter is not addressed in the Court of Appeal judgment, which instead considers that because the Fourth Meaning was not proved, the Judge could not say that “[Mr Serafin]’s reputation was “shot to pieces” absent the most serious allegation in relation to theft from the [POSK] Jazz Club being proven”.

The Court of Appeal suggested that the Judge’s finding on imputation may have been explained by an improper reversal of the burden of proof on truth.  The Court of Appeal’s conclusion was therefore that if the Fourth Meaning was not proved, Mr Serafin’s reputation was not “shot to pieces” and therefore he could not be deprived of any damages other than nominal.

An analysis of the first instance judgment makes clear that Jay J held that the burden of proof on truth was on the Defendants (he referred to it on four occasions, specifically relying on it to find against the Defendants on four of the twelve meanings).  However, Jay J also noted that where a claimant provides a credible rebuttal to a defendant’s prima facie case, they should be required to support that with evidence.  At the trial, Mr Serafin made various assertions to seek to undermine the publication, on which he failed to provide any supporting documents (symptomatic of his approach towards providing documents to the Official Receiver in respect of his bankruptcy and Bankruptcy Restrictions Undertaking):

“[Mr Serafin] has not fully discharged his disclosure obligations and he has failed to call highly relevant witnesses…The absence of relevant evidence in this case without adequate explanation provides the springboard for my drawing adverse inferences where appropriate. However, I remind myself that very considerable caution is needed… driven me to reach unfavourable conclusions as to [Mr Serafin’s] credibility” [93-96]

However, this point seems moot: surely other proven imputations were sufficient to justify a finding that Mr Serafin’s reputation had been “shot to pieces”?  Not only did Jay J find that Mr Serafin had manipulated the voting process to try to become Chairman of The Polish Social and Cultural Association (“POSK”), and abused his position there to award himself profitable contracts, and that he, but also that he “conned a number of women into investing their life savings into his food business by leading each woman to believe she was the only one and with promises of a good life together with him” before stealing their money for himself, defrauding his creditors and dishonestly circumventing the consequences of bankruptcy (the latter meanings even admitted by Mr Serafin at trial).

This seems a powerful argument available to Czas: what more could possibly be required to establish that Mr Serafin had no valuable reputation to defend?

Fairness of the trial

Fittingly, this limb of the appeal is to be dealt with by Anthony Metzer QC, the only advocate to appear at the first instance hearing and witness Jay J’s interventions first hand.

A civil trial can be rendered unfair by judicial conduct only if: (1) the judge has prejudged the case; and/or (2) a litigant is deprived of an adequate and proper opportunity to advance their case and challenge their opponent’s.

The Czas case is that Jay J’s interventions were wholly justifiable, and that the passages relied upon by the Respondent in the Court of Appeal were not placed in their full context:

The manner and approach adopted was appropriate towards a litigant who was seeking to vindicate his reputation in a defamation trial, after being accused of dishonest conduct, but who freely admitted that he had lied to his investors with the inevitable inference to his reputation for honesty.”

At the first instance trial, where Mr Serafin was a litigant in person, he admitted lying to investors in the very defamation trial where his reputation was at stake: Jay J intervened to ensure that Mr Serafin was aware of the legal implications of his evidence. The Court of Appeal found actual (not apparent) bias on the part of Jay J, holding that had an animus towards Mr Serafin rendering the trial process unfair. Anthony Metzer QC’s position in the Appellants’ case is as follows:

“Exceptionally, excessive judicial rudeness and aggression may so intimidate a litigant (or his or her advocate) that they become unable to pursue their case properly. Judges are used to tempering their manner to the apparent fragility of those appearing before them and backing down if it appears to be having an adverse impact. [Mr Serafin] is a robust and confident individual. Nothing happened at the trial to suggest that anything said or done by the Judge prevented him from advancing his case to the best of his ability and his case on appeal did not allege that he had been deprived of that opportunity.”

Hearing

The case has important ramifications for the interpretation of the s.4 defence, as well as when an individual’s reputation is so flawed that it essentially becomes impossible to libel. Any reader of the first instance judgment will have been struck by Jay J’s robust dealings with Mr Serafin, but it will be illuminating to see if and how the Supreme Court chooses to tackle a renowned High Court Judge’s manner of approaching an ill-prepared litigant in person who failed to provide proper disclosure or call relevant witnesses, and whose evidence was (at times) self-incriminating. Can appellate courts that don’t hear from the parties or key witnesses really be in a position to make such a far-reaching ruling of actual unfairness? Regardless, the case sees an important re-examination of the public interest defence, which either way will have a striking effect on investigative journalism and press responsibility moving forward.

David Price QC, Anthony Metzer QC and Dr Anton van Dellen represent the Appellants/Defendants.  It is understood that Adrienne Page QC and Alexandra Marzec represent the Respondent/Claimant.

Persephone Bridgman Baker is a Senior Associate at Carter-Ruck


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