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Serafin v Malkiewicz – Guidance on responsible journalism

  • United Kingdom
  • Litigation and dispute management
  • Media

16-10-2019

Abstract: This articles reviews the Court of Appeal decision in Serafin v Malkiewicz reversing the dismissal at first instance of a libel claim relating to an article which made serious allegations about the claimant.  The ruling makes clear the continued importance of the Reynolds checklist in determining whether the defendant reasonably believed that publishing the statement complained of was in the public interest.


In Serafin v Malkiewicz [2019] EWCA Civ 852 the Court of Appeal has reversed the dismissal at first instance of a libel claim relating to an article which made serious allegations about the claimant. In doing so, it made clear the continued importance of the Reynolds checklist in determining whether the defendant reasonably believed that publishing the statement complained of was in the public interest, in the so-called “Responsible Journalism” defence codified in s 4 of the Defamation Act 2013. The Court of Appeal has highlighted rather extraordinarily unfair conduct on the part of the trial judge who had taken an “animus” against the litigant in person claimant.

Background

The claimant, Mr Jan Serafin, a Polish émigré, arrived in the UK when aged 32 (now 67) and made his living through a number of diverse business interests. He started a building business, joined the Polish Social and Cultural Association (“POSK”), based in Hammersmith, worked as a handyman at the Kolbe House Society Care Home, a care home for elderly Polish people, had been joint manager of the POSK Jazz Club between 2007 and 2012 and had also volunteered behind the bar. He had also been proprietor of a food business, Polfood, a Polish food importation and wholesale company.

The claimant complained in libel about the publication of a defamatory article about him in Nowy Czas, a Polish-language monthly magazine. The article “Bankruptcy need not be painful” made allegations against the claimant about his voluntary work for POSK, his dealings with Polfood and his work for Kolbe House, including variously that the claimant had sold out-of-date food, siphoned money from the Jazz Café and had conned women into investing their life savings in his food business.

The First Defendant, described in the judgment of Mr Justice Jay at first instance, as a “Polish intellectual”, and an “honest and reliable witness” was the magazine’s editor. The Third Defendant, his wife, “also highly educated”, and the Second Defendant, the company, were co-publishers. Mr Justice Jay described Nowy Czas as a publication “which prides itself in its investigative reporting”. The claimant claimed that the article was a character assassination. He complained that no attempt was made by the Defendants to contact the claimant or seek his comments before publication of the article.

Mr Justice Jay at first instance, dismissed the claimant’s claim for libel following a seven-day trial, at which the claimant represented himself.

Mr Justice Jay found that while most of the allegations were seriously defamatory, the Defendants succeeded in their smorgasbord of defences. Critically, he found that the defence of “public interest” under s 4 of the Defamation Act 2013 succeeded in relation to all the allegations. He also found most of the allegations were true (in relation to POSK and the Polfood but not in relation to Kolbe House) and that the defence of “honest opinion” under s 3 of the Act was made out.

Even if the s 4 public interest defence had not succeeded, the judge would not have awarded the claimant any damages in relation to the allegations that were not proven because his reputation was “shot to pieces” by the proven allegations.

Mr Justice Jay devoted a considerable amount of his judgment to analysing the credibility of the claimant which he saw as the crucial issue in the case:

Reflecting on the Claimant’s evidence, both macroscopically and microscopically, I consider that I am presented with two competing, possible interpretations of him. The first is that the Claimant is, in the main, an honest and generous man, good-hearted, with genuine charitable and community-based instincts. On this interpretation, the Claimant has a quixotic streak, is overly optimistic, is chaotic and inexperienced in relation to financial affairs, and although may well be unreliable in many ways is not dishonest. The second interpretation is that the Claimant is a latter-day Don Juan figure who is only out for himself, and pursues his business and personal goals with a combination of tenacity and deceit. Furthermore, this interpretation would hold that the Claimant is boastful and self-promoting, has an element of the Walter Mitty about him, adapts what he tells people to the circumstances as he perceives them to be, is well aware of the hold he exercises over people because of his plausibility, charisma and personal charm, and – at root – is fundamentally untrustworthy. Ultimately, I have come to the conclusion that the second interpretation of the Claimant largely prevails over the first.”

As the Court of Appeal notes, he clearly formed an adverse view of the claimant’s evidence and character.

The claimant appealed on five grounds:

1.  Section 4 “public interest” defence: the judge was wrong to find that the Defendants had succeeded in a defence of public interest under s 4 of the Defamation Act 2013.
2.  Section 2 “truth” defence: the judge was wrong to find that the Defendants had established a truth defence pursuant to s 2 of the Act.
3.  Burden of proof: the judge’s finding as to truth was unjust, because he reversed the burden of proof, expecting the claimant to prove his innocence of the charge.
4.  Damages: the judge was wrong to refuse damages, even if he was wrong on the “public interest” defence, on the basis that the claimant’s reputation was already “shot to pieces”.
5.  Unfair judicial treatment: the judge showed hostility and rudeness to the claimant, an unrepresented party and put the claimant under enormous pressure. As a consequence, the trial process was unfair and the Judge’s findings were not safe or reliable.

Judgment

Allowing the appeal:

(1) The judge was wrong to find that the statements complained of were in the public interest

The requirements of s 4 of the Act are that the statements complained of were “on a matter of public interest” (s 4(1))(a)) and that the defendants “reasonably believed” them to be in the public interest (s 4(1)(b)). The Court of Appeal considered the relevant case law, including the most recent case of Economou v De Freitas [2018] EWCA 259 [2019] EMRL 7 in which Lord Nicholls had confirmed that the so-called Reynolds checklist for responsible journalism, including the requirement to seek comment from the claimant, was still relevant.

The Court of Appeal noted that Mr Justice Jay held that the statements complained of were on matters of public interest because the article related to the claimant’s misconduct in respect of two charities, POSK and Kolbe House.

The Court of Appeal considered that the judge’s approach on this issue was misconceived. The article was not about how POSK and Kolbe House were run as charities. Rather, the article was aimed at the narrower target of the claimant’s work and conduct as a private individual. As such, the article could not be said to contribute to any debate of public interest. Accordingly, s 4(1)(a) of the Defamation Act 2013 was not fulfilled.

The judge was also wrong to find that the claimant had effectively conceded that it was in the public interest to publish an article about his “fitness or otherwise to be involved in a charitable institution, Kolbe House”. On a fair reading, the claimant had not made that concession. All he had conceded in cross-examination was that the care of old people and how old people’s homes are run are matters of public interest. Such a general and unexceptional proposition was clearly correct and the claimant was right to accept it. It was never put to him that the article itself or the allegations were in the public interest.

Finally, applying Warby J’s dicta in Economou, a belief  that statements were in the public interest was only reasonable “if it is arrived at after conducting such enquiries and checks as it is reasonable to expect of the particular defendant in all the circumstances of the case”.

The judge was wrong to find that the defendants had reasonably believed it was in the public interest to publish the article – they had not undertaken a “reasonable inquiry”. It is a basic requirement of fairness and responsible journalism that a person who is going to publish a story without being required to show that it is true should give the person who is the subject of the story the opportunity to put his side of the story. The Defendants did not contact the claimant before publishing the article, nor did they contact anyone else who might have given another side of the story or first-hand knowledge of the truth or otherwise of the allegations. Following Economou, the circumstances in which a journalist or publisher will be able to demonstrate that it was reasonable not to have approached the subject of a potentially defamatory article for comment, will necessarily be rare. The Nowy Czas article did not raise issues of public importance, it was all about the claimant and targeted directly solely at him and included a photograph of him; the defendants could not have relied on anyone else to verify the allegations; there was no urgency about publication; the tone of the article was gratuitously offensives; and, in the premises, reporting the claimant’s side of the story was of primary importance. Applying the Reynolds factors, the Court of Appeal found that that the standards of journalism left much to be desired, and that a public interest defence was unsustainable.

(2) and (3) The judge was wrong to find that the allegation that the claimant had stolen from the POSK Jazz Club bar takings was true and erroneously reversed the burden of proof

It was axiomatic that an appellate court will rarely interfere with findings of fact of the trial judge. However this was one of those rare cases where the judge’s finding was unsustainable on the evidence and outside the ambit of reasonable decisions.

There were a number of matters which seriously undermined the reliability of the first and third defendants. Their statements bore a remarkable similarity: they were not independent witnesses, they were in a relationship. They also had an axe to grind with the claimant with whom they had been in a major business dispute. There was also strong evidence militating against the truth of the Defendants’ allegation that the claimant had stolen from the Jazz Club. The claimant himself gave evidence strenuously denying dishonesty. The Jazz Club’s de facto accountant did not say that there had been any discrepancies in the accounts or takings from the Jazz Club. There was no evidence that any money had gone missing. The finding that the allegation was true was one the judge was not properly entitled to reach.

As to burden of proof, it was a fundamental tenet of libel at common law that a defamatory imputation is presumed to be false, and accordingly, the burden is upon the defendant to show that the imputation is substantially true. Whilst it was not possible to make a definitive finding that the judge reversed the burden of proof at any particular juncture or in relation to any particular issue, his remarks suggested he may not have brought an entirely consistent approach to the question of the burden of proof.

(4) The judge was wrong to award no damages to the claimant

The judge held that even had the defence under s 4 defence of “public interest” not succeeded, he would nevertheless still not have awarded damages in relation to the unproven Kolbe House allegations, because the claimant’s reputation was already “shot to pieces” by the proven allegations. However, as the judge was wrong to find that the claimant had stolen from the Jazz Club (as held in relation to the second ground of appeal above), the position was markedly different. It was not open to the judge to say that the claimant’s reputation was “shot to pieces” absent the most serious allegation in relation to theft from the Jazz Club being proven. Accordingly, the claimant would be entitled to proper vindication and compensatory damages in respect of the unproven allegations, notwithstanding that other aspects of the article had been found to be true.

(5) The trial was unfair

It was immediately apparent from reading extracts prepared for the Court of Appeal by Counsel for the claimant that the judge’s interventions during the claimant’s evidence were highly unusual and troubling. On numerous occasions, the judge appears not only to have descended to 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, the Court of Appeal said, “frankly bullying”. The Court of Appeal considered the judge “seriously transgressed” the core principle that a judge remains neutral during the evidence, and acted at times in a manner that was unfair and hostile to the claimant. The nature, tenor and frequency of the judge’s interventions rendered the trial unfair.

Comment

It is rare for a trial judge to be so excoriated by the Court of Appeal and this judgment of the superior court is quite extraordinary in that regard.

If there was any doubt that the Reynolds checklist for responsible journalism is still alive and well, post codification of the defence in s 4 of the Defamation Act 2013, this case, building on Economou, serves to dispel that doubt.

It is interesting to see the court focus on the tenacity of the requirement to seek prior comment from the subject of a story. This is a claim for libel but it will be recalled that the European Court of Human Rights rejected a claim by Max Mosley (the formula one racing mogul subject to a tabloid sting in 2008) that the lack of any legal obligation on the media in the UK to give the subject of a story prior-warning infringed his right to privacy (Mosley v United Kingdom, Application no. 48009/08, 10 May 2011.).

First published in the Entertainment Law Review.

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