Serafin v Malkiewicz & Ors

For the public-interest defence under the Defamation Act 2013, the article must be examined as published, including its context, timing, tone and seriousness. Allegations about an individual’s personal conduct do not become matters of public interest merely because they concern charitable organisations. A publisher’s reasonable belief requires appropriate enquiries and responsible journalistic standards. Giving the subject an opportunity to comment is a basic safeguard; failure to do so will be excusable only in rare and exceptional circumstances.

A judge must remain impartial during evidence and must not descend into the arena. Serious, hostile and overbearing interventions may render a civil trial unfair, particularly where a party is unrepresented.

The claimant brought libel proceedings over a Polish-language magazine article concerning his conduct in connection with POSK, Polfood and Kolbe House. After a seven-day trial, Jay J found some allegations true, others untrue, upheld honest opinion and public-interest defences, and dismissed the claim: [2017] EWHC 2992 (QB).

The claimant appealed on the public-interest defence, the truth of an allegation that he diverted Jazz Café takings, the burden of proof, damages and the fairness of the trial. The central issues were whether the statutory defence was established, whether the factual finding was sustainable, and whether the judge’s conduct deprived the claimant of a fair trial.

Appeal allowed.

1. Public interest. The article was directed principally at the claimant’s personal conduct as a contractor, supplier and volunteer. It was not materially about the management of POSK or Kolbe House, nor did it contribute to a wider debate about charitable administration. The fact that the organisations were charities did not convert personal allegations into statements on a matter of public interest. The first limb of section 4(1)(a) therefore failed.
2. Reasonable belief. Section 4(1)(b) required assessment of whether these publishers had followed appropriate journalistic standards and made reasonable enquiries. The claimant was not contacted before publication, no urgency existed, the article was one-sided and disparaging, and the publishers failed to check important allegations with obvious sources. The exceptional circumstances in Economou v De Freitas were distinguishable. The Reynolds factors remained relevant, and the failure to seek comment was fatal in the circumstances.
3. Truth and burden of proof. The defamatory imputation was presumed false and the defendants bore the burden of proving substantial truth. The evidence supporting the allegation that the claimant diverted Jazz Café takings came principally from witnesses with substantial reasons to be hostile, was insufficiently tested, and was contradicted by witnesses with direct operational knowledge. The finding of truth was unsustainable and the judge may have approached the evidential burden inconsistently.
4. Damages. Once the most serious allegation was unproven, it was not open to treat the claimant’s reputation as already destroyed. He remained entitled to vindication and compensatory damages for the unproven allegations, notwithstanding that other allegations had been proved.
5. Fairness. A judge may intervene to clarify evidence or identify an unclear defence, but must remain neutral and must not descend into the arena. Fairness is a question of degree and applies equally in civil proceedings. The frequency, hostility and tenor of the interventions, together with repeated demands for disclosure and proof, rendered the trial unfair. The court allowed the appeal.

1. Court of Appeal (Civil Division) — Allowed the claimant’s appeal.
2. High Court of Justice, Queen’s Bench Division — Jay J dismissed the libel claim after trial: [2017] EWHC 2992 (QB).