Jan Tomasz Serafin v Grzegorz Malkiewicz and Others
| Jurisdiction | England & Wales |
| Judge | Mr Justice Jay |
| Judgment Date | 24 November 2017 |
| Neutral Citation | [2017] EWHC 2992 (QB) |
| Docket Number | Case No: HQ16D00200 |
| Court | Queen's Bench Division |
| Date | 24 November 2017 |
[2017] EWHC 2992 (QB)
Mr Justice Jay
Case No: HQ16D00200
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
The Claimant in person
Anthony Metzer QC (instructed by Direct Access) for the Defendants
Hearing dates: 30 th, 31 st October, 1 st – 3 rd, 6 th and 8 th November 2017
Judgment Approved
A. Introduction
Mr Jan Serafin ("the Claimant") claims damages and injunctive relief in the torts of libel and misuse of private information in connection with an article published in October 2015 in the Second Defendant's newspaper, Nowy Czas (meaning "new time"), a Polish language newspaper distributed in London. Nowy Czas is a serious, reflective publication covering issues of interest to the substantial Polish community living in the UK.
There are 8 issues of Nowy Czas each year and the print run is some 5,000 copies. According to the Amended Defence, in October 2015 there were 1,528 viewings of the article, 589 of these being unique.
Mr Grzegorz Malkiewicz ("the First Defendant") is the editor-in-chief of the newspaper and the author of the article. Mrs Teresa Bazarnik-Malkiewicz ("the Third Defendant") is a director of the Second Defendant, an editor of the newspaper and also the wife of the First Defendant. There is no dispute that all three Defendants were responsible for publishing the article.
The article has been described by the First Defendant as "a modern morality tale about how the Claimant, a well-known and prominent person within the Polish émigré community in London, had behaved since his arrival in this country and how he is likely to behave in future". Annexed to this judgment is a translation of the entire article albeit not all of it is subject to complaint. I have removed the photograph of the Claimant in relation to which he claims privacy rights, but I have retained the caption. I have added lettering in order more easily to identify specific paragraphs. The parties accept, indeed aver, that the English language version is imperfect because subtleties of style, tone and inflection are inevitably lost in translation. My initial observation is that the article is satirical, witty, allusive and intellectually sophisticated in style and tone. However, these approbative epithets should not be understood as veiling a number of serious imputations of the ethics of the Claimant, capable of significantly damaging his reputation.
The Defendants do not seek to defend the article by relying on the truth of matters beyond the words complained of or not specifically mentioned within it. I heard evidence which went beyond the four corners of the publication. This evidence was clearly relevant to the Claimant's credibility and no objection was taken by either side. Even so, I have to remind myself that the true focus of this trial has been the meaning of the words complained of, whether they are defamatory within the meaning of the Defamation Act 2013, and (if so) whether any or all of the pleaded defences are made out.
This has been a difficult trial to conduct, and the resolution of some of the issues has been far from straightforward. This has been so for a number of reasons. The Claimant has conducted his case in person with the assistance of a McKenzie Friend. The credibility and reliability of a large number of witnesses has been assailed, and – contrary to the suggestion in the Defendant's Skeleton Argument filed by predecessor counsel to Mr Anthony Metzer QC some weeks before the hearing – this is not a case where contemporaneous documentation provides clear answers. Much has turned on my assessment of the oral evidence and the inferences to be drawn from some of that evidence, as well as from the absence of documentation and relevant witnesses.
The Claimant did not always challenge witnesses on matters he disputed, and it was not always possible for me to remedy that omission. I make some allowance for the fact that he is unrepresented, but I must continue to bear in mind that it would be wrong and unfair for me to reject evidence of Defendants' witnesses on significant matters where the basis of challenge was not put by the Claimant. In the circumstances, it seems to me that I should resolve matters of witness credibility only where it is essential to do so, that I should pay particular attention to the evidence of the Claimant himself, and that I should seek to focus primarily on matters directly germane to the contents of the article and their truth or otherwise.
B. Essential Factual Background
I need to provide a brief narrative in order to set the scene.
The Claimant was born in Poland in 1952. He came to the UK in 1984, he says as a political refugee, although it emerged in cross-examination that he was not in Poland when Solidarity first became active in 1981 and when martial law was declared later that year; and he came here in September 1984 pursuant to a private invitation and did not claim asylum on arrival. At some stage he must have been given indefinite leave to remain, but it is unclear on what basis, and there is no documentary evidence to assist.
In 1984 the Claimant left his wife, Mrs Anna Serafin, in Poland. She is an architect. The Claimant did not visit Poland until 1989 when he obtained a passport. On 31 st January 1989 he and his wife were divorced. She has not remarried and does not have a partner.
Since 1984 (his evidence in cross-examination) or 1987 (his chronology annexed to his opening Skeleton Argument) the Claimant has worked as a builder using the style "JTS Building Services". He is Corgi registered and also holds himself out as a surveyor. In 1989 or thereabouts he joined the Polish Social and Cultural Association ("POSK") based in Hammersmith. POSK was established in 1974 as a charitable organisation for Polish émigrés. The Claimant was a member of the General Council of POSK for 15 years (exactly when is unclear but it may have been between 1997–2012); between May 2003 and June 2007 he was director or chairman of the House Committee, a sub-committee of either the General Council (a 51 member entity) or the Executive Committee (a 12 member entity) with responsibility for all building, structural, renovation and housekeeping work at POSK. The extent of its responsibilities, and the nature of any oversight or approval of the House Committee's activities, is in dispute. In 2007 or 2008 the Claimant stood for election to the Executive Committee but was unsuccessful. In 2012 he was removed from the General Council, either owing to his bankruptcy or to complaints received by POSK in relation to some of the matters which have occupied this trial (in my view, I do not have to decide the reason).
Between 2005 and 2007 two major pieces of refurbishment work were carried out by POSK: the first to the entrance hall; the second to the basement, entailing the installation of what became known as the Jazz Café. The article does not differentiate between these two items. Issues arise in these proceedings as to the nature and extent of the Claimant's and Mrs Serafin's personal involvement, direct or indirect, in these works.
Between 2007 and 2012 the Claimant was joint manager of the Jazz Café. This comprises a bar where drink and food is provided. The article claims either that there was no cash register in the Jazz Café until 2012, or that it was by-passed, and that the Claimant made a secret profit out of this. Issues arise as to whether this was so.
In 2008 the Claimant's business interests diversified. He became convinced that large profits could be made from the importation of Polish foods and their onward sale to niche suppliers in this market. The Claimant's lack of experience in this line of business was patent, but it is equally clear that potentially lucrative possibilities presented themselves to an astute entrepreneur. On 26 th September 2008 Polfood (UK) Ltd ("Polfood") was incorporated with the Claimant as sole director. Between that date and her resignation on 7 th February 2011 the company secretary was Ms Elizabeth Howard, a woman with whom the Claimant had an intimate relationship for about 10 years. It is unclear when that relationship ended but it was not before the summer of 2009, and probably not until the end of 2010 (there is a question-mark in my mind as to whether it continued, perhaps more off than on, until early 2011, but it matters not).
Polfood acquired the premises, assets and stock-in-trade of CCW Foods Ltd ("CCW"), a company owned by Mr Waldemar Wegrzynowski and Ms Renata Cyparska, who are long-term partners. They claim that the Claimant offered them a form of partnership with Ms Cyparska becoming a second director of Polfood. This did not happen and the Claimant retained control of the company.
The Claimant accepts that he told Mr Wegrzynowski that he would invest £200,000 into Polfood from the sale of his house in Lynmouth Road (the Claimant and Ms Cyparska were next door neighbours). It is the Claimant's case that he in fact invested some £279,000 although in his Further Information given in answer to the Defendant's Part 18 Request the figure given was £200,000 – half coming from the sale of his home, the other half from a re-mortgage entered into the following year. I will have to examine the detail, but at this stage I note that 25 Lynmouth Road was sold for £164,397.64 on 27 th October 2008, and 25A Lynmouth Road (being a house built on the adjoining plot by the Claimant himself) was re-mortgaged for £89,209.15 on 26 th November 2009.
It is clear from the available evidence that shareholdings were acquired in Polfood as a result of three separate investments. Specifically:
(1) by dint...
To continue reading
Request your trial
-
Mr William Hay v Ms Nina Cresswell
...the new statutory defence: Bokova v Associated Newspapers Ltd [2019] QB 861, Nicklin J, para 28, citing Jay J in Serafin v Malkiewicz [2017] EWHC 2992 (QB), para 21 The pertinent principles are: i) In order to satisfy the statutory test of showing that the defamatory imputation is “substan......
-
Jan Tomasz Serafin v Grzegorz Malkiewicz
...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, McC......
-
Jan Tomasz Serafin v Grzegorz Malkiewicz
...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 Mr Anthony Metzer QC a......