Appeal judges have strongly criticised the ‘surprising and troubling’ conduct of a High Court judge towards a litigant in person during a defamation hearing, saying he ‘cast off the mantle of impartiality’. Ruling in Serafin v Malkiewicz and Others, Lord Justice Lewison, Lord Justice McCombe and Lord Justice Haddon-Cave allowed an appeal against Mr Justice Jay’s dismissal of a libel claim against a London Polish-language newspaper.
In unusually outspoken criticism of a judge’s behaviour during a hearing, the appeal judgment states that: ‘On numerous occasions, the judge appears not only to have descended to the arena, cast off the mantle of impartiality and taken up the cudgels of cross-examination, but also to have used language which was threatening, overbearing and, frankly, bullying.’
The court was hearing a claim brought by a Polish businessman, Jan Serafin, for libel over an article in a Polish-language monthly ‘Nowy Czas’ (‘New Time’). The publication in 2014 was one of the first to be sued under the the 2013 Defamation Act, which introduced a ‘serous harm’ test for libel actions as well as a defence for ‘public interest’ journalism.
Serafin claimed that the article, headlined ‘Bankruptcy need not be painful’ contained 14 defamatory allegations about him, including that he had abused his position in a charity to award himself contracts, that he had conned women into investing their life savings into his business and that he concealed his status as an undischarged bankrupt.
Mr Justice Jay found that all but three of the allegations met the serious harm test. However he found some allegations to be true others protected as ‘honest opinion’. He found the entirety of the article could benefit from the public interest defence, even though one allegation turned out to be untrue.
Serafin appealed on five grounds, including that the judge was wrong to back the public interest defence as the defendants had not attempted to contact him before publication. He also argued that the judge had no evidence on which to conclude that an allegation of criminal behaviour - misappropriating bar takings - was true and that he had been subject to unfair judicial treatment.
The appeal found Mr Justice Jay’s ruling on public interest to be ‘misconceived’: the article was aimed at Serafin’s ’personal life, mores and conduct’. The judge had also ‘erroneously reversed the burden of proof’ on the allegation of dishonesty. The judge’\s finding of truth ‘is unsustainable and not one which he was properly entitled to reachy on the evidence before him’. The appeal judgment notes that it is rare for an appellate court to interfere with findings of fact by the trial judge.
Overall, the appeal found that the judge ‘not only seriously transgressed the core principle that a judge remains neutral during the evidence, but he also acted in a manner which was, at times, manifestly unfair and hostile to the claimant’. It quotes the judge saying at one stage in the hearing: ‘Your reputation is already beginning to fall to pieces, because you are a liar, and you do treat women in a frankly disgraceful way, on your own admission.’
The appeal judges found that the ‘nature, tenor and frequency of the judge’s interventions were such as to render this libel trial unfair.’
Alexandra Marzec, instructed by Simon Burn Solicitors, appeared for the appellant; Anthony Metzer QC and Dr Anton van Dellen, instructed via direct access, for the respondents.