Jan Tomasz Serafin v Grzegorz Malkiewicz
| Jurisdiction | England & Wales |
| Judge | Lord Justice Lewison,Lord Justice McCombe,Lord Justice Haddon-Cave |
| Judgment Date | 17 May 2019 |
| Neutral Citation | [2019] EWCA Civ 852 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: A2/2018/0794 |
| Date | 17 May 2019 |
[2019] EWCA Civ 852
Lord Justice Lewison
Lord Justice McCombe
and
Lord Justice Haddon-Cave
Case No: A2/2018/0794
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MR JUSTICE JAY [2017] EWHC 2992 (QB)
Royal Courts of Justice
Strand, London, WC2A 2LL
Ms Alexandra Marzec (instructed by Simon Burn Solicitors) for the Appellant/Claimant
Mr Anthony Metzer QC and Dr Anton van Dellen (instructed via Direct Access) for the Respondents/Defendants
Hearing date: 5 th March 2019
Judgment Approved by the court for handing down
(subject to editorial corrections)
JUDGMENT OF THE COURT:
Introduction
The Appellant claimed damages for libel in respect of a double-page article in a popular Polish-language monthly magazine called “Nowy Czas” (“New Time”) published in its October 2014 issue. The article was entitled “Bankruptcy Need Not Be Painful”. The magazine “Nowy Czas” was started in 2006 by the First and Third Respondents who had previously worked as journalists on The Polish Daily. The First Respondent is the editor of “Nowy Czas” and the Second and Third Respondent are co-publishers. The magazine is widely read by the Polish community in London.
Mr Justice Jay dismissed the Appellant's claim for libel following a 7-day trial, at which the Appellant represented himself (having had some legal assistance previously) and both sides gave evidence. The Appellant appeals against Jay J's judgment dated 24 th November 2017 and order dated 18 th December 2017.
At this appeal, the Appellant was represented by Ms Alexandra Marzec. The Respondents were represented by Mr Anthony Metzer QC and Dr Anton van Dellen (Mr Metzer QC also appeared below). We are grateful to them for their written and oral submissions. For convenience, in the judgment the Appellant will hereafter be referred to as “the Claimant” and the Respondents will be referred to as “the Defendants”.
Background facts
The Claimant, a Polish émigré, was born in Poland in 1952 and is now aged 67. He arrived in the UK when aged 32. He separated from his wife who remained in Poland and they subsequently divorced. He started a building business called ‘JTS Building Services’. In 1989, he joined the Polish Social and Cultural Association (“POSK”) based in Hammersmith, London, and served as a member of the General Council of POSK for 15 years until 2007. Between 2005 and 2007, he was involved in the major refurbishment of a basement area at POSK known as the Jazz Club. Between 2007 and 2012, he was joint manager of the Jazz Club and served behind the bar as a volunteer.
In 2008, he started a food business called ‘Polfood (UK) Ltd’ (“Polfood”). In the course of doing so, he acquired the premises, assets and stock-in-trade of CCW Foods Ltd, a company owned by Mr Waldermar Wegrzynowski and Ms Renata Cyparska. He also obtained a series of loans and investments from various individuals, including Ms Elizabeth Howard, the company secretary of Polfood with whom he had an intimate relationship. In August 2011, a bankruptcy order was made against the Claimant in respect of Polfood. The Official Receiver found misconduct by the Claimant on the basis that he had disposed of £123,743 whilst insolvent and in August 2012 he was made subject to a five-year Bankruptcy Restrictions Undertaking (“BRU”).
In 2012, the Claimant became involved in Kolbe House Society Care Home (“Kolbe House”), a care home for elderly Polish people situated in the Ealing Common area of London. He had previously, in 2006, started bringing bread to Kolbe House free of charge and subsequently organised for Polfood to supply foodstuffs to Kolbe House. He resumed delivering bread to the residents in 2012. In 2013 he took over as maintenance man and subsequently commenced a relationship with the deputy manager, Ms Beata Parylak, which continued until the trial.
In October 2014, the article “Bankruptcy Need Not Be Painful” appeared in “Nowy Czas”. The Appellant contended that the article contained numerous serious defamatory allegations about him and amounted, in effect, to a character assassination. No attempt was made by the Defendants to contact the Claimant or seek his comments before publication of the article. An agreed translation of the article is annexed to this judgment at ANNEX A.
Complaints
The Claimant complained in respect of 14 different defamatory allegations in the “Nowy Czas” article which fell broadly into three categories:
(1) allegations concerning the Claimant's voluntary work for POSK (“the POSK allegations”);
(2) allegations concerning the Claimant's dealings with Polfood (“the Polfood allegations”); and
(3) allegations concerning the Claimant's work for Kolbe House (“the Kolbe House allegations”).
The Judgment
The Judge heard evidence from the Claimant, the First and Third Defendants and numerous witnesses called by both sides. The Judge determined the meanings of the 14 allegations, most of which he held were seriously defamatory. He found the POSK allegations and the Polfood allegations to be true, but the Kolbe House allegations (save for one) to be untrue. He held that the defence of ‘honest opinion’ under s.3 of the 2013 Act was made out in respect of some of the allegations. He found that the defence of ‘public interest’ under s.4 of the Defamation Act 2013 succeeded in relation to all the allegations. In addition, the Judge found that, even if the s.4 public interest defence had not succeeded, he 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 [353]. The Judge found that the headline and the caption to the photographs satisfied the ‘honest opinion’ defence pursuant to s.3. Accordingly, he dismissed the Claimant's claim in its entirety.
Jay J's judgment in this case (reported at [2017] EWHC 2992 (QB)) is detailed and lengthy, comprising 355 paragraphs. References in this judgment in square brackets are to references to paragraph numbers in his judgment. We set out below the key findings of the Judge which are pertinent to this appeal.
The Judge dealt with four main issues arising under the Defamation Act 2013:
(1) First, s.1 ‘serious harm’: the meaning of the words complained of (including whether there was a ‘common sting’) and whether the words complained of met the threshold of ‘serious harm’ within s.1 of the 2013 Act.
(2) Second, s.2 defence of ‘truth’: whether the Defendants' s.2 defence that the words complained of were ‘substantially true’ was made out.
(3) Third, s.3 defence of ‘honest belief’: whether the Defendants' s.3 defence of ‘honest belief’ in respect of two of the allegations was made out.
(4) Fourth, s.4 defence of ‘public interest’: whether the Defendants' s.4 ‘public interest’ defence in respect of the whole article was made out.
For convenience, we attach as ANNEX B to this judgment, ss.1–4 of the Defamation Act 1993.
( 1) s. 1 ‘serious harm’
The Judge found the 14 allegations complained of in the article bore the following meanings:
POSK allegations:
(1) The Claimant had 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 [62];
(2) The Claimant had purchased memberships of POSK for those whom he could rely upon to support his electoral aspirations [64];
(3) 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 close to women, over whom he exercised his charm [66];
(4) The Claimant in the course of supplying alcohol for retail sale in POSK's Jazz Café, dishonestly ensured that money taken from sales would by-pass the cash register, in order to obtain unlawful and fraudulent profit from those sales [210]–[220];
Polfood allegations:
(5) 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 [69];
(6) 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 use it to support a family construction project in Poland and to support his family there [70];
(7) 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, which should have been made available to satisfy the claims of his creditors [71];
Kolbe House allegations:
(8) The Claimant had sold out-of-date, and therefore unfit, food to Kolbe House, a residential care home for elderly and vulnerable people [73] ( Note: this meaning is based on the Judge's comments and findings in [73]; he does not formulate it in these precise terms);
(9) 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, including accessing at will the highly confidential records of the vulnerable residents despite having no legitimate reason to do so [74];
(10) The Claimant had or may have concealed his bankruptcy from Kolbe House [76];
(11) The Claimant acted unethically in respect of a charity by replacing bathroom equipment that was in good condition [77];
(12) The...
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