A libel case overturned after an appeal found that a 'bullying' judge had 'descended into the arena' has been sent back for retrial by the Supreme Court. Giving judgment in Serafin v Malkiewicz and others, five justices led by Lord Wilson agreed 'with profound regret, to uphold the Court of Appeal’s conclusion that [Mr Justice Jay] did not allow the claim to be properly presented; that therefore he could not fairly appraise it; and, that, in short, the trial was unfair.'
Today's judgment also criticises the Court of Appeal over its interpretation of the 'public interest' defence to libel set out in the 2013 Defamation Act.
The case arose from a libel claim brought by Jan Serafin, a prominent member of the Polish community in London, against the editors and publishers of Nowy Czas, a Polish-language monthly magazine. Serafin claimed that an article headlined 'Bankruptcy need not be painful' portrayed him as a seriously untrustworthy man who, among other things, had conned women into investing their life savings in his food business. The defendants claimed the defences of truth and publication in the public interest, as set out by the Defamation Act.
After a seven-day trial in 2017 Mr Justice Jay dismissed the claim, saying that the public interest defence succeeded. He ruled that, even if it had not, he would not have awarded any damages because Serafin's reputation had been 'shot to pieces' by proven allegations.
Serafin appealed on the grounds that the judge had been wrong over the public interest and truth defence, and that during the trial had 'showed hostility and rudeness' to the claimant, who appeared as a litigant in person accompanied by a Mackenzie friend. Allowing the appeal, the court concluded that: 'On numerous occasions, the judge appears not only to have descended into 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 publishers in turn appealed. After what he describes as an appraisal with the 'utmost care', Wilson LJ found, 'with profound regret' that the original trial had been unfair. Accusing the judge of 'ill-tempered and at times offensive language' the judgment states that: 'Instead of making allowance for the claimant’s appearance in person, the judge harassed and intimidated him in ways which surely would never have occurred if the claimant had been represented.'
However the Court of Appeal also comes under criticism for failing to address the consequences of finding that the trial had been unfair without ordering a retrial.
Lord Wilson also found fault with the Court of Appeal's interpretation of the Defamation Act. Ordering a retrial, he said: 'I am driven, with a degree of embarrassment in relation to respected colleagues, to suggest that the new judge should determine the availability of the public interest defence without reference to the reasoning [by the Court of Appeal].'
David Price QC Anthony Metzer QC and Dr Anton van Dellen, instructed by David Price QC, appeared for the appellant; Adrienne Page QC and Alexandra Marzec, instructed by Simon Burn Solicitors, for the respondent.
Heather Rogers QC, Romana Canneti and Jonathan Price, instructed by Pia Sarma, editorial legal director, Times Newspapers Limited, intervened with submissions.