No well-tuned cymbal: fairness in judges

4 June 2020 by

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Serafin v. Malkiewicz [2020] UKSC 23

This is, to say the least, a rather unfortunate saga. The Claimant, Mr Serafin, brought a defamation claim against a Polish newspaper run by the Defendants. An article had alleged various things including that he was financially untrustworthy and was dishonest in his dealings with women. At trial before Jay J, he represented himself. He was comprehensively disbelieved by the judge. His claim was dismissed, in most cases because the judge found that the article was accurate, but in some instances because the defendants had a public interest defence under s. 4 Defamation Act 2013.

The Supreme Court, via a single judgment from Lord Wilson, thought that the judge’s judgment was “remarkable”, “intricately constructed and beautifully written”. So what, if anything, had gone wrong, and why did the SC order a retrial?

Unfairness

The SC, agreeing with the Court of Appeal, thought that the judge’s conduct of the trial had been unfair towards the Claimant. There is a 10 page schedule to the judgment setting this out, including stifling things the claimant wanted to say, saying that he (the judge) found the claimant’s evidence irritating, saying (early in the trial) that the claimant will lose, culminating in a tirade (whilst the claimant was trying to cross-examine) thus “But 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.”

Lord Wilson summarised: a

barrage of hostility towards the claimant’s case…fired by the judge in immoderate, ill-tempered and at times offensive language.

All this led to the conclusion at [48] that the judge “did not allow the claim to be properly presented; that therefore he could not fairly appraise it; and, in short, the trial was unfair.

Lord Wilson added

instead of making allowance for the claimant’s appearance in person, the judge harassed and intimidated in ways which surely would never have occurred if the claimant had been represented.

Standing back, therefore, the judge had reached a view in his judgment for which there may well have been good justification. But he had conducted the trial (rather than his judgment-writing process) in a way which was unfair to the claimant and his presentation of his case.

Remedy

One might have thought (as the SC did) that the only possible remedy was to order a re-trial in front of a different judge. But the CA, when finding unfairness, and after an exchange of submissions on consequences, proceeded to give judgment in favour of the Claimant, with an assessment of the quantum of his claim to be determined by a fresh judge. The CA had reversed, in favour of the Claimant, some issues on the merits, but left others untouched. All counsel and the SC found it difficult to explain how the CA’s findings could lead to an apparently unconstrained victory for the Claimant, and, if not, on what basis was the new judge to assess damages.

Unsurprisingly, the defendants were aggrieved by this order, and successfully appealed to the SC on remedy. A retrial was ordered.

With commendable frankness, Lord Wilson observed at [49]

Conscious of how the justice system has failed both sides, this court, with deep regret, must order a full re-trial.

s.4 Defamation Act 2013

This gives a defence to a claim in defamation that the statement complained about was “on a matter of public interest”: s.4(1)(a); it also requires that D “reasonably believed” that publication of the statement was in the public interest: s.4(1)(b).

The CA gave its views on the section and, reversing the judge again, had held it inapplicable to the case. The SC said that all of this was a matter for the new trial judge, and further disagreed with some of the CA’s general statements as to the criteria to be looked at under s.4.

Though technically obiter (not necessary for the SC’s decision) [52]-[78] of Lord Wilson’s judgment will be first port of call when analysing a s.4 defence. He stressed that, whilst the origin of the defence was to be found in the common law, it was important not to construe the statutory wording in the light of the common law tests. The parliamentary history helped demonstrate that this was not the legislature’s intent.

The common law defence was known as the Reynolds defence, first established in 1999, in which an article had said that Reynolds, when Taoiseach, had misled the Irish parliament. The House of Lords in Reynolds thought that a defence of “responsible journalism” would strike a fair balance between freedom of expression on matters of public concern and the reputation of individuals. The leading speech by Lord Nicholls set out ten factors which might go to deciding whether the journalism was responsible.

As Lord Wilson elegantly put it at [53],

“Any study of how in the common law one principle emerges, stage by stage, from another until it achieves independence of it, like a butterfly shedding a chrysalis and taking wing, would do well” to address a trilogy of appellate cases starting with Reynolds and ending with Flood v. Times Newspapers. But that formed the context of the 2013 Act, not its definition.

As I have said, Lord Wilson was anxious to get away from any common law defined check-list of factors. At [74], he helpfully summarised the key elements within s.4(1)(a) and (b) of the 2013 Act:

 …just as the common law defence was developed under the influence of Convention principles…., so was the statutory defence. Its three requirements that the statement should have been on a matter of public interest, that the defendant should have believed that publication of it was in the public interest and that the belief should have been reasonable, all of which have to be established by the defendant, are intended, and may generally be assumed, to ensure that operation of the section generates no violation either of the claimant’s right under article 8, or of the defendant’s right under article 10. To the extent that a court is persuaded to consult Convention jurisprudence in the course of a determination under section 4, it is likely to find that the word “reasonably” in subsection (1)(b) is sufficiently elastic to enable the section to be given effect in a way which is compatible with Convention rights.

Paras [70]-[77] contain a detailed critique of the CA’s approach to the section. Upshot: Lord Wilson’s view at [78] “I am driven…to suggest that the new judge should determine the availability of the public interest defence without reference to the reasoning which led the Court of Appeal to conclude that the defendants had met the requirements neither of section 4(1)(a) nor of section 4(1)(b) of Act”.

So a truly blank slate for the new judge, both on the facts and the law.

Conclusion

So the Claimant can start again. He was able to get representation in the CA and SC, but whether he will be able to maintain that representation throughout the re-trial process, remains to be seen. Lord Wilson gave some hints at [49]-[51) as to how the process might be streamlined, with one side or another limiting their claims or defences, but he could hardly do more than that without potentially falling into the trap of pre-judgment of the issues.

Not a happy story all round. Judge unfair, CA gets the law wrong, and then makes an essentially unreasoned order upholding unspecified elements (if not all) of the Claimant’s case.

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