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Petitioner: Malkiewicz and others VS Respondent: Serafin
Court Name: Supreme Court of United Kingdom Judge(s): Lord Reed, Lord Briggs, Lord Kitchin, Lord Wilson, Lady Arden Title: Malkiewicz and others vs Serafin Case No.: On appeal from: [2019] EWCA Civ 852 Date of Judgment:2020-03-18 Reported As: 2020 SCMR 1073 Result: Appeal dismissed
JUDGMENT
JUDGMENT LORD WILSON: (with whom Lord Reed, Lord Briggs, Lady Arden and Lord Kitchin agree) A. Introduction 1. This appeal is sensitive and important. I regret that I have failed to contain this judgment within fewer than 78 paragraphs, plus 25 paragraphs of a schedule to it. The Court of Appeal has made a rare finding that the judge's conduct of the trial was unfair towards one of the parties. When made in respect of the conduct of any judge, however senior or junior, such a finding carries profound sensitivity. Our duty is to appraise it with the utmost care; and, were we to uphold it, we would need to address the order made by the Court of Appeal in consequence of it. But there is a second dimension to the appeal to this court. For the Court of Appeal also based its decision upon its understanding of the effect of section 4 of the Defamation Act 2013 ("the Act"), entitled "Publication on matter of public interest"; and energetic criticisms are made to us in relation to its exposition of the effect of the section. For reasons which will become apparent, our own analysis of the section will not form part of our decision; but it is intended to be helpful nevertheless. 2. It will be convenient to describe the appellants as the defendants; and the respondent as the claimant. The first defendant, Mr Malkiewicz, is the editor-in-chief of a Polish newspaper, entitled Nowy Czas (which means New Time) and owned by the second defendant, Czas Publishers Ltd. The third defendant, Mrs Bazarnik- Malkiewicz, is an editor of the paper, a director of the second defendant and the wife of the first defendant. At the relevant time the paper was published eight times a year, both in hard copy and online, and it addresses issues of interest to the substantial Polish community in the UK, particularly in London. The claimant, Mr Serafin, now aged about 68, was born in Poland but has lived in England since 1984. 3. The claimant sued the defendants for libel in respect of an article which they published about him in the newspaper in October 2015. Over seven days in October and November 2017 Mr Justice Jay ("the judge"),
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sitting in the Queen's Bench Division of the High Court, heard the claim. The claimant appeared in person before him, supported by a McKenzie friend. Simon Burn Solicitors had been acting for him but came off the record shortly before the hearing. It appears, however, that, outside court, a degree of legal assistance was continuing to be provided to the claimant during the hearing, in particular in relation to the compilation of his closing submissions. But ranged against the claimant in court was Mr Metzer QC, by then instructed directly by the defendants rather than by the solicitors who had acted for them until shortly before the hearing. 4. By a reserved judgment dated 24 November 2017, the judge explained why he had decided to dismiss the claim: [2017] EWHC 2992 (QB). On 8 December 2017 he made an order to that effect. The claimant appealed against it to the Court of Appeal. On 5 March 2019 Lewison, McCombe and Haddon-Cave LJJ heard the appeal. By a judgment of the whole court dated 17 May 2019, they explained why they had decided to allow the appeal: [2019] EWCA Civ 852. On 21 June 2019 they made an order to that effect. They remitted the task of quantifying the claimant's damages in respect of part or all of his claim to a judge of the Media and Communications List other than the judge. The defendants now appeal to this court against that order. B. The Background 5. Following, his arrival in England, the claimant set up business as a builder. In about 1989 he joined POSK, a substantial Polish social and cultural association, established as a charity, with premises in Hammersmith. For about 15 years until 2012 he sat on the General Council of POSK and between about 2003 and 2007 he was a senior member of its House Committee, which was responsible for all building work done at the premises. During his membership of it there was refurbishment both of the entrance hall and of the basement, where a bar and caf, together called The Jazz Caf, were created. Between 2007 and 2012 the claimant was joint manager of The Jazz Caf and often served behind the bar. 6. In 2008 the claimant set up a company, Polfood (UK) Ltd, with a view to its importing Polish foodstuffs and selling them wholesale to Polish groceries in England. The company needed working capital and the claimant persuaded Polish friends and acquaintances to buy shares in it or to lend money either to it or to him for transmission to it. But Polfood soon became insolvent. 7. In 2011 the claimant was declared bankrupt. In 2012 he was discharged but only in consideration of his entry into a Bankruptcy Restrictions Undertaking, which was to endure for five years. He thereby apparently undertook not to be a director of a company without the court's permission, not to borrow more than 500 without disclosing the restriction and not to be a trustee of a charity. 8. Kolbe House is the name of a charity which runs a substantial care home in Ealing. It provides care for elderly Polish people. While it was trading, Polfood supplied bread and other foodstuffs to Kolbe House. In 2012 the claimant began again to supply it with bread. In 2013 he became the maintenance man and general factotum at Kolbe House; and he invoiced it for works of renovation done by him there. C. The Meanings of the Article 9. The article, written of course in the Polish language, is entitled "Bankruptcy need not be painful". At its foot is the name of the first defendant, whom the judge described as "a Polish intellectual in the old school". The judge described the article as "satirical, witty, allusive and intellectually sophisticated in style and tone". 10. The claimant alleged that the words of the article had in effect 13 defamatory meanings (or, to use the word in the Act, imputations). The defendants responded that the words bore a "common sting", which was that "the claimant was a bankrupt and a serially untrustworthy man who, in order to satisfy his ambition and financially benefit himself and his family in Poland, took improper advantage of a number of people, including women." The judge disagreed that the words bore this "common sting" and held that he was therefore required to address whether the defendants were liable for each of the 13 meanings which, insofar as they admitted them, were as alleged by the claimant and which, insofar as they disputed those alleged by the claimant, were those which he found the article to have carried. 11 The first meaning ("M1") was that the claimant
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"abused his position as house manager of POSK in order to award himself or his company profitable contracts for maintenance work at POSK, avoiding the proper procedure for obtaining approval for tenders for such contracts." The defendants appear to have contended that, if the article bore this meaning, it was not defamatory by reason of section 1(1) of the Act, which provides as follows: "A statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant." The judge rejected the defendants' contention. He proceeded, however, to consider an alternative contention of the defendants,.namely that they had a defence under section 2(1) of the Act, which provides as follows: "It is a defence to an action for defamation for the defendant to show that the imputation conveyed by the statement complained of is substantially true." The judge found that M.1 had been shown to be substantially true. 12. The second meaning ("M2") was that the claimant "purchased memberships of POSK for those whom he could rely upon to support his electoral aspirations." The judge found that, even if, which he doubted, the publication of a statement to this effect crossed the threshold of serious harm to reputation set by section 1 of the Act, M2 had been shown to be substantially true. 13. The third meaning ("M3") was that the claimant "was not really single at all, or at the very least his personal circumstances in Poland were mysterious ... and that he exploited his supposed availability as a means of bringing him closer to women, over whom he exercised his charm." As in relation to the second meaning, the judge found that even if, which he doubted, the publication of a statement to this effect crossed the threshold of serious harm set by section 1 of the Act, M3 had been shown to be substantially true. 14. The fourth meaning ("M4") was that the claimant "in the course of supplying alcohol for retail sale in POSK's Jazz Caf, dishonestly ensured that money taken from sales would by-pass the cash register, in order to obtain unlawful and fraudulent profit from those sales." The judge found that the statement to this effect had been shown to be substantially true. 15. The fifth meaning ("M5") was that the claimant "conned a number of women into investing their life savings into his food business by leading each woman to believe she was the only one and with promises of a good life together with him." The judge found that the statement to this effect had been shown to be substantially true. 16. The sixth meaning ("M6") was that the claimant "having dishonestly persuaded investors in his food business to part with their life savings, stole their money for himself and transferred it to Poland to support a family construction project in Poland and to support his family there." The judge found that the statement to this effect had been shown to be substantially true. 17. The seventh meaning ("M7") was that the claimant "defrauded his creditors and dishonestly circumvented the normal consequences of bankruptcy in order to retain for himself personal wealth, in the form of a BMW X5 car and real property that he pretended to sell, that should have been made available to satisfy the claims of his creditors." The judge found that the statement to this effect had been shown to be substantially true. 18. The eighth meaning ("M8") was that the claimant "had profited or attempted to profit by selling out-of-date food to Kolbe House, a residential care home for elderly and vulnerable people, including those suffering from dementia." The judge found that the defendants had failed to show that the statement to this effect was substantially true. 19. The nineth meaning ("M9") was that the claimant "by means of exploiting his charm and sway over the female manager of Kolbe House, inveigled himself into the highest levels of management at the home to the extent that he treated it as if it were his own personal property,
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including accessing at will the highly confidential records of the vulnerable residents despite having no legitimate reason to do so." The judge found that the defendants had failed to show that the statement to this effect was substantially true. 20. The tenth meaning ("M10") was that the claimant "abused his position of trust at Kolbe House and callously diverted to himself funds that were needed for the care of the home's elderly and sick residents by securing for himself a contract for the major renovation of the bathrooms at the home, even though these renovations were completely unnecessary." The judge found that the defendants had failed to show that the statement to this effect was substantially true. 21. There is inconsistency in the judge's judgment about what he found to be the 11th meaning ("M11"). But it appears to have been that the claimant "supplied to Kolbe House frozen milk and bread which was close to its sell-by date from a source which he did not disclose." The judge found that the statement to this effect failed to cross the threshold of serious harm to reputation set by section 1 of the Act. 22. The 12th meaning ("M12") was that the claimant "dishonestly concealed from the manager and trustees of Kolbe House his current status as an undischarged bankrupt in order to win their trust and also to obtain a building contract for the extension of the manager's home." The judge rejected the assertion of the defendants' that the statement to this effect failed to cross the threshold of serious harm to reputation set by section 1 of the Act and he proceeded to find that they had also failed to show that it was substantially true. 23. The 13th meaning ("M13") was that the claimant "concealed his bankrupt status from Ealing Council [in relation to a planning application] in circumstances where he was obliged to reveal it." The judge found that the defendants had failed to show that the statement to this effect was substantially true. 24. It follows that, by this stage of the judge's judgment, the claimant's cause of action had been rejected in relation to all the meanings apart from M8, M9, M10, M12 and M13. These five meanings all related, directly or indirectly, to Kolbe House. 25. Then, however, the judge turned to address a further defence raised by the defendants in relation to all 13 meanings thus relevantly including the five meanings which had until that stage of his judgment survived as actions: le. This was the defence under section 4 of the Act. D. Public. Interest 26. Section 4, entitled "Publication on matter of public interest", is more conveniently set out in para 52 below. 27. Much of the argument before the judge in relation to section 4 surrounded subsection (1)(b), namely whether the defendants could show, particularly in circumstances in which they had not invited the claimant to comment prior to publication on their intended allegations against him, that it was reasonable for them to have believed that publishing the statements was in the public interest. In the event the judge found that the defendants had indeed established a defence under section 4 in relation to all the allegations and thus, relevantly, to the five meanings of them which had until that stage survived as actionable. The judge added, however, that, even if the defence under section 4 had not been established, he would not have awarded damages (other, presumably, than nominal damages) in respect of those five meanings. For, so he explained, the claimant's reputation had been sufficiently "shot to pieces" by the other statements in the article which had been shown to be substantially true. 28. So the judge dismissed the claim. E. The Appeal to the Court of Appeal 29. For his appeal the claimant re-instructed Simon Burn Solicitors. The claimant's grounds of appeal were (a) that the judge had been wrong to uphold the defence under section 4;.
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(b) that there was no evidence on which he could have found that M4 was substantially true and that, without reference to that finding, he could net have found that the claimant's reputation had been shot to pieces by reference only to the other imputations shown to have been substantially true; and (c) that the judge's conduct of the hearing had been unfair to the claimant. 30. Before the Court of Appeal Ms Marne appeared for the claimant and, as before, Mr Metzer appeared for the defendants. The court chose to address the grounds of appeal in the order set out by the claimant. It held, first, at para 84 that the judge had been wrong to uphold the defence under section 4. It held, second, at para 99 that on the evidence before him he had not been entitled to find that M4 was substantially true and so it set that finding aside. Then, suggesting that M4 had been the "most serious" imputation made against him, it proceeded at para 101 to uphold the claimant's contention that it would not have been open to the judge to find that his reputation had been shot to pieces by reference only to the other imputations shown to have been substantially true. 31. At that stage of the judgment and (as it said) "on this basis", the Court of Appeal explained at para 102 that the claimant was entitled to damages in respect not only of M8, M9, M10, M12 and M13 but therefore also of M4. 32. The Court of Appeal then addressed the claimant's third ground of appeal, namely that the judge's conduct of the hearing had been unfair to him. The court was furnished with substantial parts of the transcripts of the first four days of the hearing and with 16 short excerpts from them on which Ms Marzec particularly relied. The court concluded at para 114 that on numerous occasions the judge had appeared to descend into the arena, to cast off the mantle of impartiality, to take up the cudgels of cross-examination and to use language which was threatening and bullying; and that its impression was of a judge who, if not partisan, had developed an animus towards the claimant. It observed at para 117 that it found his conduct all the more surprising in light of the fact that the claimant was appearing in person and that, although he spoke it well, English was not his first language. It added at para 118 that it was highly troubled by the judge's criticisms of the claimant's disclosure of particular documents in circumstances in which the defendants had at no time sought an order for their disclosure. The court concluded as follows at para 119: "In our view, 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 ... [W]e ... are driven to the conclusion that the nature, tenor and frequency of the judge's interventions were such as to render this libel trial unfair. We, therefore, uphold [this] ground of appeal." F. The Court of Appeal's Order 33. The problem is that the Court of Appeal did not in its judgment proceed to address the consequences that should flow from its conclusion that the trial had been unfair. In particular it did not consider whether that conclusion should in any way displace its earlier conclusion, set out in para 31 above, about the relief to which the claimant was entitled. At the end of its judgment the court said only that the appeal should be allowed; and, apparently by email, it invited the parties to file written submissions in respect of the appropriate order to be made in the light of its judgment. 34. The transcript of the heating before the Court of Appeal shows that both parties had then reluctantly accepted, as apparently had the court, that, were it to conclude that the trial had been unfair, it would have no option but to order a retrial of the claim. The written submissions of the parties to the court following distribution of its judgment show only limited departure from that position. Thus the claimant's basic contention was that "the judgment no longer stands because the trial was unfair" and that the claim should be remitted for determination by another judge. But the claimant qualified his contention by reference, to two points: he argued that, in the light of the court's judgment, the pleas in the Defence under section 4 of the Act and, in relation to M4, that it was substantially true should both be struck out of it. The defendants agreed with the claimant's basic contention that there should be a retrial; they argued that all issues that were alive on the statements of case at the trial- should remain alive at the retrial save to the extent that the judgment of the Court of Appeal had finally determined them. In this latter regard they conceded, no doubt subject to their proposed appeal to our court,
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that the judgment had finally rejected their defence in relation to public interest and that it should be struck out of their Defence; but they disputed that the judgment had finally rejected their contention that M4 was substantially true. 35. In the event, however, the Court of Appeal, without giving reasons, issued the following order: "1. There be judgment for the appellant. 2. The orders of Mr Justice Jay ... be set aside. 5. The matter shall be remitted for an assessment of the quantum of the claimant's damages only, by a Judge of the Media and Communications List [other than Jay J]," 36. It follows that the Court of Appeal did not order a retrial. It ordered a remittal limited to the assessment of damages. At the hearing before us we asked counsel on both sides what each understood the court's order to mean. Did it mean, particularly in the light of the order for judgment for the claimant, that the liability of the defendants was established in relation to all the meanings encompassed within his claim? If so, why should the defendants be deprived of a retrial in respect of liability for those meanings which neither the judge nor the Court of Appeal had held to be actionable? Or did the order mean that damages should be assessed only in respect of M8, M9, M10, M12, M13 and also of M4? If so, why should the claimant be deprived of a retrial in respect of liability for the other meanings held not to be actionable in the course of a trial which had been unfair to him? No counsel seemed able to answer our question with confidence but they seemed to be of the view that the order probably meant the latter. G. Unfair Trial: The Principles 37. There was no express reference to "bias" in the judgment of the Court of Appeal. It did observe, at para 114: "One is left with the regrettable impression of a judge who, if not partisan, developed an animus toward the claimant." Its observation may come close to a suggestion of apparent bias on the judge's part towards the claimant. But the clear focus of the court was on whether the trial had been unfair. 37. In M & P Enterprises (London) Ltd v Norfolk Square (Northern Section) Ltd [2018] EWHC 2665 (Ch) the ultimately unsuccessful appellant company alleged both that the trial had been unfair and that the judge had given the appearance of bias against it. In para 31 of his judgment Hildyard J quoted the definition of bias given by Leggatt LJ in Bubbles 4 Wine Ltd v Lusha [2018] EWCA Civ 468, para 17, as follows: "Bias means a prejudice against one party or its case for reasons unconnected with the legal or factual merits of the case ..." In paras 32 to 42 Hildyard J proceeded to analyse the interplay between the two allegations before him. He observed that, although they overlapped, they were distinct. He added that they required appraisal from different perspectives for, while the fairness of a trial required objective judicial assessment, the appearance of bias fell to be judged through the eyes of the fair-minded and informed observer; and, in the protracted analysis of the trial judge's questionable performance which Hildyard J proceeded to undertake, he studiously paused at every point to ask (and, at the end, he considered in the round) whether it either rendered the trial unfair or would generate an appearance of bias in the eyes of that observer. 39. I have no doubt that the Court of Appeal in the present case was correct to treat the claimant's allegation as being that the trial had been unfair. We have not been addressed on the meaning of bias so it would be wise here only to assume, rather than to decide, that the quite narrow definition of it offered by Leggatt Li and quoted by Hildyard J is correct. On that assumption it is far from clear that the observer would consider that the judge had given an appearance of bias. A painstaking reading of the full transcripts of the evidence given over four and a half days strongly suggests that, insofar as the judge evinced prejudice against the claimant, it was the product of his almost immediate conclusion that the claim was hopeless and that the hearing of it represented a disgraceful waste of judicial resources. 40. The leading authority on inquiry into the unfairness of a trial remains the judgment of the Court of Appeal, delivered on its behalf by Denning U, in Jones v. National Coal Board [1957] 2 QB 55. There, unusually, both sides complained that the extent of the judge's interventions had prevented them from properly putting their
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cases. The court upheld their complaints. At p 65 it stressed in particular that "interventions should be as infrequent as possible when the witness is under cross-examination" because "the very gist of cross- examination lies in the unbroken sequence of question and answer" and because the cross-examiner is "at a grave disadvantage if he is prevented from following a preconceived line of inquiry". 41. In London Borough of Southwark v. Kofi-Adu [2006] EWCA Civ 281, Jonathan Parker U, giving the judgment of the Court of Appeal, suggested at paras 145 and 146 that trial judges nowadays tended to be much more proactive and interventionist than when the Jones case was decided and that the…
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