The Supreme Court’s judgment in Serafin v Malkiewicz and others  UKSC 23 is notable for two reasons:
- It upheld the trenchant criticism made by the Court of Appeal of the first instance judge, holding, as the Court of Appeal did, that the conduct of the judge rendered the first instance decision unfair.
- It provided further elaboration on the application of the ‘public interest’ defence in defamation (now found at section 4 of the Defamation Act 2013) and how this defence differs from its common law predecessor. On this, the Supreme Court took a different approach from the Court of Appeal.
The net result was that instead of definitively finding for the defendant, as the first instance judge had, or for the claimant, as had the Court of Appeal, the Supreme Court (explicitly with “a degree of embarrassment”) remitted the determination of liability back once again to a first instance judge.
Background of the case
The claimant sued the Defendants for libel in respect of an article which they published about him in Nowy Czas, a newspaper addressing issues of interest to the Polish community in the UK. This claim was dismissed at first instance in November 2017.
The claimant’s appeal to the Court of Appeal was allowed because it was decided that, amongst other reasons, the judge had been wrong to uphold the defence under section 4 of the 2013 Act, and that the judge’s conduct of the hearing had been unfair to the Claimant.
The Court of Appeal ordered a quantification of damages but did not order a retrial. The defendants appealed.
The Court of Appeal had strongly criticised the first instance judge, Jay J, holding that the trial was unfair. In the Supreme Court, Lord Wilson, giving the only judgment, said that he had no doubt that the Court of Appeal was correct to consider that the trial had been unfair. However, he questioned whether there was an appearance of bias (the most common basis on which adjudicatory processes are alleged to be unfair). The error here was that the trial judge had failed to “remain aloof from the fray”. Moreover, that failure was not redeemed by the lengthy written judgment, which the court apparently considered was itself without any defect (or one which would add to the underlying unfairness).
The question then arose as to what the consequence of this unfairness should be. The court of Appeal had simply reversed the outcome and found for the claimant. But Lord Reed had observed during the hearing before the Supreme Court that a judgment which results from an unfair trial is “written in water” - no legal conclusions can be based on an unfair trial. As such, the Court of Appeal’s decision to order quantification of damages, as if all issues of liability had been concluded, was wrong, and the only proper order was for a retrial on liability.
The public interest defence
Prominent in the defendant’s case was a public interest defence under section 4 of the 2013 Act. In 1999, the House of Lords in Reynolds v Times Newspapers Limited  2 AC 127 held that there could be a free-standing defence to a defamation claim that the material complained of was published on a matter of public interest. In that case, Lord Nicholls identified ten “non-exhaustive” factors to be taken into account when determining whether the defence applied, such as the seriousness of the allegations, the tone of the words complained of, and whether the allegations had been put to the victim.
Under section 4 of the 2013 Act, this defence was replaced by an express statutory defence. The question which has arisen ever since the coming into force of that Act was whether that wording substantively changed the defence. In this judgment, the Supreme Court decided that the Court of Appeal was wrong to state that the Reynolds defence and the section 4 defence are not materially different.
Section 4 of the 2013 Act made no mention of the Reynolds factors referred to above, and this judgment quoted the then-Minister responsible for the 2013 Act, Lord McNally, saying that this was a deliberate decision to allow “flexibility”. The section 4 defence is available where the defendant “reasonably believed that publishing the statement complained of was in the public interest”. While this does draw on Reynolds, and though the Reynolds factors may well be relevant to whether a defendant’s belief was reasonable within the meaning of subsection (1)(b), it does not require that any of the factors are applied in a ‘check list’ fashion.
Following this line of argument that no factor is of singular importance, this decision also dismissed the seventh factor – putting the allegation to the victim prior to publication - as not being a ‘requirement’ of a section 4 defence.
In keeping with this emphasis on the primacy of statute at (1)(b), this decision also ruled that the question to be determined at (a) of section 4(1) of the 2013 Act is not whether the statement “is published in the public interest”, as the Court of Appeal had considered, but whether the statement complained of was “on a matter of public interest” – as recorded by the 2013 Act.
Given the determination of an unfair trial and the remittance back to a first instance judge, this is a particularly unfortunate case. The Court of Appeal had sought to do without a further trial, but the Supreme Court could not allow this. The analysis of what constitutes an unfair trial will no doubt be read carefully by junior judges and those who feel they suffer under them.
As regards the section 4 defence, this is a highly technical judgment, but the Supreme Court has indicated clearly that the courts must adopt strictly the language of the statute. The courts must take in all the factors in the round in determining whether the public interest defence applies and not be gulled, either by the pre-existing common law position, or by what the courts consider makes good or practical sense. (In this the Supreme Court has rather adopted, in respect of section 4, the same approach as it did last year in respect of section 1 and the “serious harm” test.) The “flexible” approach required may be what Parliament had in mind and may have benefits - but one clear result is increased uncertainty.
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