Alex Grigg reports on a recent UK Supreme Court decision with important commentary on the public interest defence's applicability to journalists, and a rare finding of judicial bias against a litigant in person.

In an extraordinary judgment, Serafin v Malkiewicz, the Supreme Court has ordered a retrial of a Defamation case concerning a Polish businessman. Due to a judge at first instance who ‘harassed and intimidated’ the Claimant, followed by an Appeal Court that ‘deprived’ both parties of a retrial, the Supreme Court discussed in some detail what makes a case unfair. The Supreme Court also considered the Court of Appeal’s treatment of the ‘public interest’ defence to defamation and provided guidance on the relationship between S.4 of the Defamation Act and the Reynolds defence.

Background

The Claimant is a Polish businessman and builder who was a part of a substantial Polish social and cultural association, setting up a company with the help of some friends and other members in 2008. That company went bust a year afterwards and the Claimant was declared bankrupt. Shortly after that, the Claimant became involved with a care home for which he supplied food and carried out construction work.

The three defendants, the editor-in-chief of a Polish newspaper, the owner of that newspaper and another editor who was married to the editor-in-chief, published a news article about the Claimant discussing his time at the association, the company he had set up and the care home.

This article included statements that the Claimant had: charmed and exploited women for his personal gain; stolen from his friends under the pretence of setting up a company and sending it back to Poland; and supplied bread and milk to the care home that was nearly out of date.

The Proceedings

The judge at first instance considered 13 statements with allegedly defamatory meanings and found that 8 could be shown to be substantially true. When considering the other 5 statements, the judge considered the ‘public interest’ defence under Section 4 of the Defamation Act 2013, concluding that it applied to all 13 statements. The judge also mentioned that had the public interest defence not applied, the Claimant’s reputation had been sufficiently damaged by the 8 statements shown to be substantially true, that the other five would not have caused appreciable further damage. He therefore would not have awarded damages for the remaining five statements.

The Claimant appealed on the grounds that: the public interest defence should not have applied; there was no evidence for one of the statements the judge had deemed to be substantially true; and the judge’s conduct of the hearing had been unfair to the Claimant.

The Court of Appeal upheld the appeal in its entirety, but did not order a retrial, instead ordering a remittal limited to the assessment of damages. The Supreme Court expressed its confusion at this decision.

Unfair trial

The Supreme Court firstly ruled on whether there had been an unfair trial at first instance. It was discussed in great detail what kind of behaviour would constitute ‘unfairness’ or ‘bias’. The judgment focussed specifically on the fact that the judge had interjected so as to disrupt cross-examination despite the Claimant being a litigant in person up against the Defendants’ QC. The Supreme Court therefore discarded the superficially well-balanced judgment in light of the fact that the judge ‘harassed and intimidated’ the Claimant in the trial itself.

To give some flavour of the judge’s behaviour, below are some excerpts of the judge speaking to the Claimant during the trial:

• “Just read it out before I lose my temper”;
• “You are wasting my time”;
• “You are completely wasting my time”; and
• “That wasn’t a brilliant question was it?”.

Then when speaking to the Defendant’s counsel:

• “I think we have got to assume every point [that the Claimant makes] is lies”

Due to the ‘immoderate, ill-tempered and at times offensive language’ used by the judge in a ‘barrage of hostility’ directed at the Claimant, the Supreme Court decided that the trial was unfair. A complete retrial was therefore ordered, with the Supreme Court commenting that this was the only order that could logically follow from a finding of an unfair trial.

Public Interest Defence

The Supreme Court then considered whether the Court of Appeal’s blanket decision that the public interest defence under Section 4 of the Defamation Act would not apply should remain at retrial.

Prior to the Defamation Act, the public interest defence originated from seminal cases such as Reynolds v Times Newspapers Ltd and Jameel (Mohammed) v Wall Street Journal Sprl. Reynolds, in particular, set out ten factors to be taken into account when deciding whether a publisher had acted responsibly in relation to a publication on a matter in the public interest. These factors included the seriousness of the allegation, urgency of the matter and whether comment had been sought from the Claimant before publication. Subsequent to this case, the judge in Jameel decided that these factors were not intended to be a checklist or test that the publication had to pass.

When the Reynolds defence was codified into Section 4 of the Defamation Act, the common law defence was abolished. The Supreme Court drew particular attention to the fact that nine of the ten factors were initially included in the legislation, but were subsequently deleted to provide flexibility when a Court considered the circumstances of a case.

However, when considering the public interest defence, the Court of Appeal considered each of the factors in the Reynolds criteria as a ‘check list’ and in particular focussed on the fact that the Defendants did not invite the Claimant to comment prior to publication. In doing so, the Court of Appeal also said that the defence set out in Reynolds is not materially different to Section 4 of the Defamation Act. The judges explained that the ‘Reynolds checklist’ remains relevant as all the circumstances of the case need to be considered when discussing whether or not ‘an article is in the public interest’.

The Supreme Court had several issues with this approach. Firstly, the judges reinforced the notion that the Reynolds factors should not be seen as a ‘check list’ and that simply not seeking comment from the Claimant was not enough to preclude the defence. Secondly, on the question of whether the elements of the Reynolds case were sufficiently similar to those in the S.4 defence, the Supreme Court explained that despite the underlying rationale being the same, that should not be a reason to use the Reynolds factors as conclusively as the Court of Appeal did in this case. Finally, the Supreme Court explained that the Court of Appeal had been imprecise in their analysis of the two limbs of the statutory test, referring incorrectly to the question of whether “the publication was in the public interest”, and suggesting that the Reynolds factors were relevant to this question. In fact the first question (s4(1)(a)), is whether the statement was “on a matter of public interest”. The Reynolds factos are only relevant to the second question (S4(1)(b)) i.e. whether “the defendant reasonably believed that publishing the statement… was in the public interest”.

The Supreme Court therefore decided ‘with a degree of embarrassment’ that the Court of Appeal’s ruling on the public interest defence should be disregarded at the retrial.

How will this affect publishers and individuals?

Although Serafin does not set out any new elements to the public interest defence, it demonstrates that the Reynolds factors should only be contemplated when judges consider the circumstances of the case as a whole. In future it will be more difficult for claimants to rely on the publisher having not fulfilled one or two of the Reynolds factors. In particular, though an important factor, the fact that a claimant was not given a right of reply in advance of publication will not be enough in itself to defeat a public interest defence.

You can read the full judgment here.