Serafin v Malkiewicz & Ors

The appellant sued for libel after a double-page article in a Polish-language magazine made multiple allegations about his past commercial and voluntary activities. At first instance Mr Justice Jay found most of the meanings complained of defamatory, upheld the defendants’ defences of truth in respect of many allegations and held that the defendants succeeded under the public-interest defence in s.4 of the Defamation Act 2013, dismissing the claim; the appellant appealed. The Court of Appeal analysed: (a) the scope of “public interest” under s.4 and the continuing relevance of the Reynolds checklist; (b) the objective and subjective limbs of s.4(1); (c) the evidential foundations required to establish a defence of truth under s.2; and (d) procedural fairness at trial. The central questions were whether the article concerned matters of public interest, whether the defendants reasonably believed publication was in the public interest given their journalistic inquiries (including whether they sought the claimant’s comment), and whether the trial had been conducted fairly.

1. Disposition: the appeal was allowed (see paras [119]–[120]). The Court of Appeal held that Jay J was wrong to conclude that the article was on matters of public interest and that the defendants had a reasonable belief that publication was in the public interest; the s.4 defence therefore failed on the facts.
2. Public interest and the Reynolds factors: the statutory two-limb test in s.4(1) requires (i) that the statement be on a matter of public interest and (ii) that the defendant reasonably believed publishing it was in the public interest. The Reynolds non-exhaustive checklist remains a highly relevant tool for assessing both limbs (see paras [33]–[48], [36]–[39], [41]–[47]).
3. Application to facts: the article was primarily aimed at the claimant’s private conduct as a contractor, supplier and volunteer and did not materially contribute to any broader debate about the governance of the charitable bodies mentioned; accordingly s.4(1)(a) was not made out (paras [51]–[55]). Even if a link to charitable administration could be hypothesised, the defendants’ investigative steps were insufficient: they did not approach the claimant for comment and failed to contact available management or other obvious witnesses; their sources included those with axes to grind. In these circumstances the defendants could not show that it was objectively reasonable to believe publication was in the public interest (paras [64]–[84]).
4. Truth and burden of proof: the burden remains on the defendant to prove substantial truth under s.2. The Court found Jay J’s finding that the claimant had siphoned funds from the Jazz Café was unsustainable on the evidence; the judge had overreached in accepting two hostile witnesses while discounting reliable in-house witnesses and may have applied inconsistent approaches to the burden of proof (paras [85]–[99]).
5. Remedy and costs: because the finding of theft could not be sustained, the appellate court held the trial judge was wrong to refuse any compensatory damages for the unproven allegations on the ground that the claimant’s reputation was already “shot to pieces”; the matter required reconsideration (paras [100]–[102]).
6. Fair trial: the judge’s interventions and tone during the trial were at times hostile, interventionist and overbearing toward the unrepresented claimant; taken together they amounted to unfairness and the trial was therefore unsafe (paras [111]–[119]).
7. Practical guidance: where serious allegations are made about a private individual, especially in relation to alleged criminality or where the subject is readily identifiable, publishers should normally seek and fairly present the subject’s comment; the failure to do so will ordinarily undermine any objective reasonableness under s.4(1)(b) (paras [66]–[76], [82]–[84]).

• High Court (Queen's Bench Division): Mr Justice Jay, judgment and orders dated 24 November and 18 December 2017 reported at [2017] EWHC 2992 (QB); claim dismissed.
• Court of Appeal (Civil Division): judgment allowed the appeal and remitted issues for further consideration as necessary; judgment dated 17 May 2019 reported at [2019] EWCA Civ 852.