Serafin v Malkiewicz and others

A judge conducting an adversarial civil trial must remain neutral during the evidence. Judicial interventions render a trial unfair where, viewed objectively and as a whole, they prevent a party from properly presenting the case and prevent the judge from fairly appraising it. Particular restraint is required when an unrepresented litigant faces experienced counsel.

A judgment resulting from an unfair trial cannot support findings on selected issues. The proper order is a complete retrial, subject only to any narrowing of the issues agreed by the parties.

By way of non-binding guidance, the public-interest defence in section 4 of the Defamation Act 2013 must be determined from its statutory wording and all the circumstances. The Reynolds factors are not a checklist, and seeking the claimant’s comment before publication is relevant but not invariably required.

The claimant brought libel proceedings against the publishers and editors of a Polish-language newspaper concerning an article which made numerous allegations about his personal and business conduct. He represented himself at a seven-day trial. The High Court dismissed the claim in [2017] EWHC 2992 (QB), relying on findings concerning serious harm, substantial truth and the public-interest defence under section 4 of the Defamation Act 2013.

The Court of Appeal allowed the claimant’s appeal in [2019] EWCA Civ 852. It rejected the section 4 defence, reversed one finding of substantial truth and concluded that the trial judge’s interventions had rendered the trial unfair. Nevertheless, it entered judgment for the claimant and remitted the proceedings only for an assessment of damages.

The defendants appealed. The principal questions were whether the trial had been unfair, what order should follow if it had, and whether the Court of Appeal’s statements about section 4 should remain authoritative for the retrial and future cases.

1. Appeal allowed unanimously; complete retrial ordered. Lord Wilson delivered the judgment, with which Lord Reed, Lord Briggs, Lady Arden and Lord Kitchin agreed. The Court of Appeal was right to conclude that the trial had been unfair, but wrong to remit the proceedings only for an assessment of damages.

2. Under the adversarial system, the judge must remain neutral while evidence is elicited. The fairness inquiry is an objective judicial assessment and is distinct from the question whether a fair-minded and informed observer would apprehend bias. Interventions during oral evidence carry a particular risk because they may disrupt cross-examination or amount to the judge descending into the arena. A carefully reasoned reserved judgment cannot cure a hearing in which the evidence was not fairly explored.

   The transcripts disclosed a sustained barrage of hostile, intemperate and sometimes offensive interventions. The judge prematurely indicated adverse conclusions, took over parts of the cross-examination, demanded documents which had not been sought in disclosure, threatened serious consequences and obstructed legitimate questioning. These interventions prevented the unrepresented claimant from properly presenting his case and prevented the judge from fairly appraising it. The imbalance between a litigant in person and leading counsel required the judge to temper, rather than intensify, the pressure placed upon the claimant.

3. Following Jones v National Coal Board [1957] 2 QB 55, a judgment produced by an unfair trial cannot be affirmed in whole or in part. An appellate court cannot preserve selected factual findings or erect legal conclusions upon them. Subject to any consensual narrowing, all questions of liability and defence therefore had to be determined afresh, including substantial truth in relation to M4 and the section 4 defence.

4. The court’s discussion of section 4 of the Defamation Act 2013 was expressly non-dispositive guidance. The statutory defence is not a form of qualified privilege, and its elements cannot be equated with the former Reynolds defence. Section 4 requires a statement on a matter of public interest and a reasonable belief that publishing it was in the public interest. Reasonableness contains subjective and objective elements and must be determined from all the circumstances, with appropriate allowance for editorial judgment.

   The Reynolds factors may be relevant in a particular case, but Parliament deliberately declined to make them a statutory checklist. Prior consultation with the claimant may be important and can be decisive, but it is not an invariable requirement. The new judge was directed to determine the defence without relying on the Court of Appeal’s erroneous statements of principle.

1. United Kingdom Supreme Court: In [2020] UKSC 23, the defendants’ appeal was allowed unanimously. The finding that the original trial was unfair was upheld, but the damages-only remittal was displaced and a complete retrial was ordered.

2. Court of Appeal: In [2019] EWCA Civ 852, the claimant’s appeal was allowed. The court rejected the public-interest defence, reversed the finding of substantial truth concerning M4 and held that the trial was unfair. It entered judgment for the claimant and remitted the case only for assessment of damages.

3. High Court, Queen’s Bench Division: In [2017] EWHC 2992 (QB), the claim was dismissed following findings concerning serious harm, substantial truth and the public-interest defence under section 4 of the Defamation Act 2013.