Serafin v Malkiewicz and others

The Defamation Act 2013 defence in section 4 requires the defendant to show (a) the statement is on a matter of public interest and (b) the defendant reasonably believed that publication was in the public interest; Reynolds-style factors may be relevant but do not form a statutory checklist, and courts must respect editorial judgment whilst assessing the defendant’s reasonable belief. Where a trial has been rendered unfair by judicial conduct, the only proper remedy is a retrial; appellate courts cannot build legal conclusions on a hearing shown to be unfair.

The claimant sued for libel after an article in a Polish-language newspaper. At first instance the judge dismissed the claim, finding a mix of imputations substantially true and that the defendants had a defence under section 4 of the Defamation Act 2013. The Court of Appeal allowed the claimant’s appeal, set aside some factual findings and concluded the trial had been unfair; it ordered judgment for the claimant and remitted only quantum. The defendants appealed to the Supreme Court. The central issues before the Supreme Court were (i) the consequences of the Court of Appeal’s finding of an unfair trial and the appropriate remediable order, and (ii) the correct approach to the statutory public interest defence in section 4, including the role of Reynolds-era factors and respect for editorial judgment.

Overall disposition

1. The appeal is allowed in part: the Supreme Court holds that the Court of Appeal was correct to conclude that the judge’s conduct had rendered the trial unfair and that the proper consequence of an unfair trial is ordinarily a full retrial. The Court therefore orders that the claim be retried unless the parties agree a narrowing of issues.
2. The Court explains the proper interpretation and application of section 4 of the Defamation Act 2013:

1. (1) Section 4(1) contains two distinct requirements: (a) the statement must be on a matter of public interest; and (b) the defendant must have reasonably believed that publishing the statement was in the public interest. Both elements must be established by the defendant. (See para 52.)
2. (2) The statutory defence derives from the common-law Reynolds/Jameel/Flood line but does not simply reproduce a pre-existing checklist. Reynolds-era factors can be relevant circumstances for assessing reasonable belief, but Parliament deliberately declined to transplant them into a mandatory statutory checklist. The courts must therefore assess section 4 by reference to all the circumstances, giving appropriate allowance for editorial judgment. (See paras 53, 58–66, 69–77.)
3. (3) The reasonable-belief limb of section 4(1)(b) contains both subjective and objective elements: the defendant’s belief at the time is relevant, but the court must ask whether it was reasonable in all the circumstances. Authorities such as Flood, Jameel and Economou illuminate this requirement, including the need to take into account the resources and role of the defendant (professional journalist or not) when judging what enquiries it was reasonable to expect. (See paras 60–69.)
4. (4) The statutory wording must be respected. It is inaccurate to equate the section mechanically with the Reynolds qualified-privilege framework or to treat the Reynolds factors as a rigid checklist. Where Parliament removed the checklist it intended flexibility; nevertheless particular Reynolds factors (for example, invitation to comment, verification steps, timing and tone) may be material to whether belief was reasonable in a given case. (See paras 69–77.)
5. (5) Where a trial has been shown on transcript to have been unfair by reason of judicial conduct, appellate courts should not attempt to divine or pick-apart parts of the trial judge’s reasoning to create fresh, binding conclusions of liability. A judgment resulting from an unfair trial is incapable of underpinning definitive legal conclusions; the normal and logical remedy is a retrial, subject to possible narrowing of issues by the parties. (See paras 48–51.)
6. (6) The Court reviewed the Court of Appeal’s reasoning on section 4 and found a number of conceptual and terminological inaccuracies in that court’s treatment (for example, misstatements about the statutory language, reference to a checklist and confusions between the limbs of section 4). Those passages are corrected and guidance is given to the new trial judge on the proper analytical approach. (See paras 70–78.)
7. (7) Practical outcome and order: because the trial was unfair, the Supreme Court directs that the proper course is a full retrial of the claim before another judge in the Media and Communications List, unless the parties agree to narrow the issues. The new judge will determine, afresh, the substantial-truth pleas (including M4) and the availability of the section 4 defence. The Court emphasises that any conclusions on liability reached at the prior trial cannot stand as authoritative. (See paras 49–51 and 49–50.)

• Court of Appeal: Appeal allowed; judgment for the appellant; orders of Jay J set aside; remitted for assessment of damages only ([2019] EWCA Civ 852).
• High Court (Queen's Bench Division): Claim dismissed by Jay J ([2017] EWHC 2992 (QB)).