Jan Tomasz Serafin v Grzegorz Malkiewicz
| Jurisdiction | England & Wales |
| Judge | Lord Wilson,Lord Reed,Lord Briggs,Lady Arden,Lord Kitchin |
| Judgment Date | 03 June 2020 |
| Neutral Citation | [2020] UKSC 23 |
| Court | Supreme Court |
| Date | 03 June 2020 |
[2020] UKSC 23
Lord Reed, President
Lord Wilson
Lord Briggs
Lady Arden
Lord Kitchin
Appellants
David Price QC
Anthony Metzer QC
Dr Anton van Dellen
(Instructed by David Price QC, Solicitor Advocate)
Respondent
Adrienne Page QC
Alexandra Marzec
(Instructed by Simon Burn Solicitors (Cheltenham))
Intervener (Media Lawyers Association) (written submissions only)
Heather Rogers QC
Romana Canneti
Jonathan Price
(Instructed by Pia Sarma, Solicitor, Editorial Legal Director, Times Newspapers Limited)
Heard on 17 and 18 March 2020
( with whom Lord Reed, Lord Briggs, Lady Arden and Lord Kitchin agree)
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.
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.
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”), 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.
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.
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 café, together called The Jazz Café, were created. Between 2007 and 2012 the claimant was joint manager of The Jazz Café and often served behind the bar.
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.
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.
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.
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”.
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.
The first meaning (“M1”) was that the claimant
“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 M1 had been shown to be substantially true.
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.
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.
The fourth meaning (“M4”) was that 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.”
The judge found that the statement to this effect had been shown to be substantially true.
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.
The sixth meaning (“M6”) was...
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