Case Law: Serafin v Malkiewicz: Supreme Court orders retrial ‘with deep regret’ and ‘a degree of embarrassment’ – Mathilde Groppo

On 3 June 2020 the Supreme Court handed down judgment in Serafin v Malkiewicz & Ors [2020] UKSC 23. The decision upheld the Court of Appeal’s finding of unfair trial, but considered that by ordering a remittal limited to the assessment of damages, the appellate judges had failed to address the consequences that should flow from this finding.

Remarking on what it clearly saw as an illogical and incomprehensible course of action taken by the Court of Appeal, the Supreme Court consequently ordered a full retrial. In its decision, the Supreme Court also gave guidance on the section 4 public interest defence, systematically rejecting the analysis made by the Court of Appeal in this regard.

The case provides some Supreme Court guidance on section 4, largely endorsing the decision in Alexander Economou v David de Freitas [2018] EWCA Civ 2591, whilst adding some refinement on the legal analysis provided therein. It is also the first decision on unfair trial involving a litigant in person.

However, the really remarkable aspect of this case is not found on the legal principles it establishes, but rather in the way in which the Supreme Court judges have openly criticised both the first instance and the Court of Appeal’s decisions, ultimately concluding that this is a case where “the justice system has failed both sides” and ordering a full retrial “with deep regret” and “a degree of embarrassment in relation to respected colleagues” who sat in the Court of Appeal.

Background

The background to this claim has been set out in full in previous posts, and is summarised in the Supreme Court’s decision at [5-8]. Those readers who know the background to the litigation can skip this section, which is included to give the required context to the Supreme Court’s decision.

To summarise events that span more than four years, the Claimant sued the Defendants (a not for profit Polish newspaper published in London and its married publishers) for libel and misuse of private information in respect of an article published in October 2015. The Claimant alleged that the words of the article had 13 defamatory meanings. The Defendants responded that the words bore a “common sting”, which was that “the Claimant was a bankrupt and a serially untrustworthy man who, in order to satisfy his ambition and financially benefit himself and his family in Poland, took improper advantage of a number of people, including women.” The judge disagreed that the words bore this “common sting” and held that he was therefore required to address whether the Defendants were liable for each of the 13 meanings, set out in the Supreme Court’s judgment at [9-23].

First instance

Following pre-action correspondence, proceedings were issued in January 2016. After a 7-day trial where the Claimant appeared as a litigant in person, Mr Justice Jay gave judgment on 24 November 2017 ([2017] EWHC 2992 (QB)). He found that one meaning did not meet the serious harm threshold; that 8 out of the 13 meanings were substantially true; and that whilst it was not open to the Defendants to rely on section 2(3) of the Defamation Act 2013 (as he considered that the ‘statement’ referred to in section 2(2) was not the article as a whole, or even the aggregate of the various meanings relied on by the Claimant, but each individual meaning), they could avail themselves of a section 4 defence in respect of the article as a whole. The Judge also commented that even if the Defendants had not made out the section 4 defence, he would not have awarded the Claimant any damages in relation to the allegations that were not proven, because his reputation had been “shot to pieces” by the proven allegations.

Lastly, Mr Justice Jay held that the Defendants had successfully defended the misuse of private information claim in respect of the photograph of the Claimant featured in the article, and that they were entitled to rely on the defence of honest opinion in relation to the title of the article and its introduction.

Court of Appeal

The Claimant appealed this judgment. The Court of Appeal, giving judgment on 17 May 2019 ([2019] EWCA Civ 852), found that the trial had been unfair; disagreed that, on the basis of the evidence presented to Mr Justice Jay, a truth defence could be made out in relation to the more serious meaning, M4, which consequently questioned the Judge’s comment in relation to the award of damages; and, in the light of the principles in Economou, considered that the section 4 public interest defence had not been made out.

Following this, the parties were asked to make submissions in respect of an adequate form of order. Despite their (seemingly reluctant) agreement in principle to a retrial subject to a narrowing of certain issues, the Court in fact ordered a remittal limited to the assessment of damages.

Supreme Court

The Defendants appealed to the Supreme Court. Quite clearly, their objective was to overturn the analysis of the Court of Appeal on section 4 – arguing that Mr Justice Jay had properly applied Economou, and that section 4 was a more generous defence than the former Reynolds defence (contrary to the existing case law which had proceeded on the assumption that section 4 was largely a codification of Reynolds). Inevitably, the appeal would also need to consider the issue of the unfairness of the trial because – as Ms Page QC, leading Counsel for the Claimant, said in her opening submissions – the issue of unfair trial “percolate[d] into the findings of the judge”.

Unfair trial

Having reviewed the transcripts of the first instance hearing, the Supreme Court expressed the view at [39] that:

“A painstaking reading of the full transcripts of the evidence given over four and a half days strongly suggests that, insofar as the judge evinced prejudice against the claimant, it was the product of his almost immediate conclusion that the claim was hopeless and that the hearing of it represented a disgraceful waste of judicial resources.”

It concluded at [48]:

“[W]hen one considers the barrage of hostility towards the claimant’s case, and towards the claimant himself acting in person, fired by the judge in immoderate, ill-tempered and at times offensive language at many different points during the long hearing, one is driven, with profound regret, to uphold the Court of Appeal’s conclusion that he did not allow the claim to be properly presented; that therefore he could not fairly appraise it; and, that, in short, the trial was unfair. Instead of making allowance for the claimant’s appearance in person, the judge harassed and intimidated him in ways which surely would never have occurred if the claimant had been represented.”

The excerpts of the trial transcripts collated in the Schedule to the judgment make for an interesting reading. Practitioners with experience of dealing with a litigant in person are well aware that whilst their duty is to their client and to the Court, they must provide some degree of assistance to an opposing party who is a litigant in person. In the light of this, some of the remarks made by Mr Justice Jay (which the Supreme Court mentioned at [48] were “separated by long stretches of evidence in respect of which no criticism of the judge can be made”) are clearly striking. I cite, by way of example only, the following excerpt (at [A9]):

“But do you understand what this is about, Mr Serafin? That you are bringing proceedings in the High Court … taking ten days, and however long it takes for me to write the judgment. It will take some considerable time, seeking to uphold your reputation. But your reputation is already beginning to fall to pieces, because you are a liar, and you do treat women in a frankly disgraceful way, on your own admission.”

Yet, if there is anything that this litigation suggests it is that this was by no means a hopeless claim – clearly a complex one, but certainly not one without grounds. In the light of the excerpts of the transcript annexed to the judgment, it is unsurprising that the Supreme Court chose to uphold the finding of unfair trial.

As the Supreme Court noted, the consequence of a finding of unfair trial is to order a retrial. And indeed, both parties and the Court of Appeal appeared to agree on this ([34]), and both parties’ written submissions following the handing down of the appellate judgment proceeded on that basis (again [34]). That is why it is so surprising that the Court of Appeal ultimately ordered a remittal limited to the assessment of damages. The Supreme Court’s lack of comprehension of the Court of Appeal’s decision is clear from [36], in which it stated:

“At the hearing before us we asked counsel on both sides what each understood the court’s order to mean. Did it mean, particularly in the light of the order for judgment for the claimant, that the liability of the defendants was established in relation to all the meanings encompassed within his claim? If so, why should the defendants be deprived of a retrial in respect of liability for those meanings which neither the judge nor the Court of Appeal had held to be actionable? Or did the order mean that damages should be assessed only in respect of M8, M9, M10, M12, M13 and also of M4? If so, why should the claimant be deprived of a retrial in respect of liability for the other meanings held not to be actionable in the course of a trial which had been unfair to him? No counsel seemed able to answer our question with confidence but they seemed to be of the view that the order probably meant the latter.”

At [49], the Supreme Court summarised why a limited remittal was plainly the wrong course of action:

“[A] judgment which results from an unfair trial is written in water. An appellate court cannot seize even on parts of it and erect legal conclusions upon them. That is why, whatever its precise meaning, it is so hard to understand the Court of Appeal’s unexplained order that all issues of liability had, in one way or another, been concluded.”

And so the Supreme Court ordered a full retrial.

Section 4: the public interest defence

The issue of the correct interpretation of the new statutory defence of public interest found in section 4 of the Defamation Act 2013 was directly relevant to the first ground of appeal to the Supreme Court, which asked “[w]hether it was open to the Court of Appeal to reject the finding that the s.4 defence protected the statements complained of.”

At first instance, Mr Justice Jay had adopted a wide interpretation of section 4, considering that the defence applied to the article as a whole, and therefore that it was not necessary to find a public interest justification for each of the Claimant’s meanings. This was at odds with the approach taken in Economou, where Mr Justice Warby had considered (in a judgment followed by the Court of Appeal) that in order to determine whether the statement complained of was, or was part of, a publication on a matter of public interest, one would have to look at the words complained of rather than at the whole statement. The Court of Appeal instead adopted a narrow approach to the defence, which it considered did not materially differ from the former Reynolds defence.

Against the background of a careful analysis of the origin of the defence, its inception in the Defamation Bill, and the case law that interpreted the section 4 defence as enacted in the Defamation Act 2013 (at [52-69]), the Supreme Court proceeded to systematically criticise the Court of Appeal’s analysis of the defence over seven paragraphs citing excerpts of the Court of Appeal’s analysis and, “with respect”, rejecting each in the light of its own analysis of the defence (at [71-77]).

In doing so, it largely endorsed the approach of the Court of Appeal in Economou and added some further guidance. It stated, in particular:

• “[T]he rationale for each of the defences is indeed not materially different and the principles which underpinned the Reynolds defence are indeed relevant to the interpretation of the statutory defence” (at [68]).
• “The requirement at [section 4(1)(a)] is… not whether the statement “is published in the public interest” but whether it is “on a matter of public interest”; and… it is important to adhere to the statutory wording” (at [74]). Indeed, this has consequences on how this is assessed: the former being an objective assessment, determined without reference to the Reynolds The Supreme Court made an interesting comment, in passing, that the interpretation of the defence must ensure that operation of the section generates no violation either of the claimant’s right under article 8, or of the defendant’s right under article 10 of the European Convention on Human Rights. This is not something that had been previously stated, although (as the Supreme Court noted) it is unclear how the objective evaluation whether a statement is on a matter of public interest might be affected by consideration of rights under article 8.
• “Even if, at the time of the decision in the Reynolds case, it was appropriate to describe the factors identified by Lord Nicholls as a check list, it is clearly inappropriate so to regard them in the context of the statutory defence. But, as Sharp LJ proceeded to explain, that is not to deny that one or more of them may well be relevant to whether the defendant’s belief was reasonable within the meaning of [section 4(1)(b)]” (at [69]).

One specific point of note relates to the Supreme Court’s comment on the issue of the relevant of pre-publication enquiries to establishing a section 4 defence. In this case, the Defendants had not contacted the Claimant before the article was published, for reasons set out at [326] of the first instance judgment: “[the Claimant] had not complained about previous articles and letters published in Nowy Czas [the Second Defendant], [the First Defendant] did not believe that [the Claimant] would respond for comment, and… the Third Defendant ha[d] been warned that the Claimant was a violent and co-operative liar”. By relying on a large interpretation of section 4, the Defendants were suggesting that the defence could be relied on in the absence of pre-publication enquiries. In the light of the previous case law on section 4, where the defence failed because of some sort of failing in enquiries conducted at the pre-publication stage, this was a bold argument.

In this regard, the Supreme Court clarified that

“[a] failure to invite comment from the claimant prior to publication will no doubt always at least be the subject of consideration under subsection (1)(b) and may contribute to, perhaps even form the basis of, a conclusion that the defendant has not established that element of the defence. But it is, with respect, too strong to describe the prior invitation to comment as a “requirement”” (at [76]).

What next?

The case is now set to go back to the High Court for a full retrial, subject to any agreed narrowing of the issues between the parties. Two and half years on, the parties are therefore back to square one, with some further guidance on the interpretation of section 4 of the Defamation Act 2013, and a Claimant who may now be represented. One potentially interesting point, which was not a ground of appeal and therefore was not considered by either the Court of Appeal or the Supreme Court, is whether the new trial judge will follow Mr Justice Jay’s interpretation of section 2(2) of the Defamation Act 2013.

This is a sorry tale of litigation which has not yet reached its conclusion. It was perhaps ominous that in the concluding paragraphs of his judgment, Mr Justice Jay remarked (at [354]) that the Claimant himself said during the trial that “had he anticipated what was entailed, he would not have brought this claim in the first place”.

Mathilde Groppo is an Associate at Carter-Ruck