3 June 2020

Serafin (Respondent) v Malkiewicz and others (Appellants) [2020] UKSC 23 On appeal from [2019] EWCA Civ 852

Simon Burn Solicitors’ Partner David Magill recently acted for Jan Serafin in the Supreme Court in response to an appeal brought by Malkiewicz & Ors following Mr Serafin’s success in the Court of Appeal in 2019. Adrienne Page QC and Alexandra Marzec both of 5RB were instructed counsel for Mr Serafin.

Mr Serafin had in January 2016 sued Malkiewicz & Ors for libel following an article about him published in October 2015 in Nowy Czas, a newspaper addressing issues to the Polish community in the UK. Following the dismissal of his claim at trial before Mr Justice Jay in November 2017, Mr Serafin with assistance from Simon Burn Solicitors and Ms Marzec appealed to the Court of Appeal with a hearing on 5 March 2019.

Upon the successful appeal, the Court of Appeal held that the trial judge Mr Justice Jay had been wrong to uphold the Defendant’s s.4 (Defamation Act 2013) public interest defence, and further wrong to find that the most serious allegation against Mr Serafin had been substantially true. In addition, the Court of Appeal found that the “nature, tenor and frequency of the judge’s interventions were such to render [the trial] unfair”. The Court of Appeal ordered that judgment be entered for Mr Serafin, that the Defendant and that the case be remitted to a judge other than Mr Justice Jay for a hearing on the quantum of libel damages to be paid to Mr Serafin.

However, the Defendants appealed the Court of Appeal’s findings to the Supreme Court seeking that the Court of Appeal’s decision be dismissed.

In a judgment handed down 3 June 2020, the Supreme Court unanimously dismissed the Defendants’ appeal and remitted the case for a full retrial on the basis that the trial was unfair as Mr Justice Jay, rather than make allowance for Mr Serafin being unrepresented at trial, had “harassed and intimidated him”  used “immoderate, ill-tempered and at times offensive language”.

David commented that “Our client Mr Serafin was unrepresented at trial against a senior counsel for the Defendants. Both our client and we believed that he had been treated most unfairly. English is not his first language and he was totally unfamiliar with Court procedure. We are very pleased that both the Court of Appeal and now the Supreme Court have agreed that the trial was unfair.”

The Supreme Court also importantly made clear that in relation to s.4 the Court of Appeal was wrong to state that the common law “Reynolds”defence and the s.4 (DA Act 2013)defence are not materially different. The Supreme Court made clear the importance of the two-stage approach in s 4(1)(a) and (b), adhering to the language of the section (“defendant reasonably believed…publishing… in the public interest” (s.4(1)(b)) and “the court must have regard to all the circumstances of the case” (s.4(2)), and to avoid treating the “Reynolds” factors as a “checklist” or ‘requirements’.

The claim therefore now returns to the High Court for a new trial on liability before a different Judge of the Media and Communications List where the new judge is to make a decision on the s.4 defence in the case without reference to the Court of Appeal’s reasoning on s.4.

A link to the Supreme Court judgment 2020 is here: https://www.bailii.org/uk/cases/UKSC/2020/23.html

A link to the Court of Appeal judgment 2019 is here: https://www.bailii.org/ew/cases/EWCA/Civ/2019/852.html

A link to the High Court (trial) judgment 2017 is here: https://www.bailii.org/ew/cases/EWHC/QB/2017/2992.html