Five Justices held unanimously that Mr Justice Jay’s conduct of the trial was unfair and meant the claimant was unable to present his case, in Serafin v Malkiewicz & Ors [2020] UKSC 23.
Giving the lead judgment in the Supreme Court this week, Lord Wilson said: ‘When 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.’ He said the judge ‘harassed and intimidated him in ways which surely would never have occurred if the claimant had been represented’.
Lord Wilson also held the Court of Appeal was wrong to state the Reynolds defence, which has a list of ten factors, and the s 4, Defamation Act 2013 defence are not materially different―the elements of the two could not be equated.
Businessman Jan Serafin first sued the editor of the Polish newspaper Nowy Czas (New Times) in 2015, for 13 alleged defamatory statements in a Nowy Czas article about him. Jay J held there was a public interest defence for each of the statements.
Serafin appealed. The Court of Appeal noted in its judgment that ‘on numerous occasions the judge had appeared to descend into the arena, to cast off the mantle of impartiality, to take up the cudgels of cross-examination and to use language which was threatening and bullying; and that its impression was of a judge who, if not partisan, had developed an animus towards the claimant’. However, it did not order a retrial.
Romana Canneti, 4KBW, who was co-instructed with Heather Rogers QC and Jonathan Price of Doughty Street Chambers, by the Media Lawyers Association, which intervened in the case, said the ruling was ‘a great result for anyone concerned with freedom of expression: Lord Wilson has given much-needed guidance on the workings of the “public interest” defence provided by s 4 of the Defamation Act; guidance that firmly rejects the Court of Appeal’s restrictive take on its scope, and makes it crystal clear that editorial discretion should be respected when deciding whether a journalist reasonably believed it was in the public interest to publish a defamatory allegation about a matter of public interest.
‘The old tick-box exercise in Reynolds and its development into the “responsible journalism” test (endorsed in Jameel v Wall Street Journal and Flood v Times Newspapers) are consigned to history. It is a flexible defence: the reasonableness of a publisher’s belief, taking into account all the circumstances, is the issue.’
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