The Supreme Court held that a High Court judge’s hostile and intimidatory interventions towards an unrepresented claimant had made a libel trial unfair, so that no findings from it could stand. The Court of Appeal had rightly identified the unfairness but had wrongly treated liability as concluded and limited the case to an assessment of damages. A full retrial was therefore required. The Court also corrected the Court of Appeal’s analysis of the public-interest defence, although that discussion formed no part of its decision.
The claim and the trial
Mr Serafin, acting in person, sued over an article about his activities in the Polish community in England. The defendants relied on substantial truth and publication on a matter of public interest. The Supreme Court appeal concerned how those issues had been tried.
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The trial judge dismissed the claim. During the hearing he frequently interrupted or rebuked the unrepresented claimant. The fairness of the trial depended on what those interventions did to the claimant’s ability to present his case.
The Court of Appeal
The Court of Appeal found the trial unfair but also reached conclusions of its own about truth, public interest and liability. It directed an assessment of damages. The question was whether any of those findings could stand once the trial itself had been held unfair.
The Court of Appeal did not, however, work out the consequences of that conclusion. Despite the parties’ expectation of a retrial, and without giving reasons, it entered judgment for the claimant, set aside the trial judge’s orders, and remitted the case only for assessment of damages by a different judge.
Why the trial was unfair
Lord Wilson, with whom the other Justices agreed, upheld the finding of unfairness. The question was not whether the judge had shown bias in the narrow sense of prejudice unconnected with the merits, but whether the trial had been fair. The governing principle, drawn from earlier authority, is that under the adversarial system the judge remains aloof and neutral while the evidence is being given. Interventions during evidence carry a particular risk of the judge entering the arena and preventing a party from developing his case. A carefully written reserved judgment cannot redeem a hearing in which interventions have prejudiced the exploration of the evidence.
A full reading of the transcripts, beyond the excerpts considered below, showed long passages that attracted no criticism, but also a barrage of hostility towards the claimant and his case. The language was immoderate, ill-tempered and at times offensive. The judge stifled explanations, took over cross-examination, demanded documents at very short notice, threatened adverse inferences, a reference to the Revenue and even a reference to the prosecuting authorities, used sarcasm, stopped relevant questions, and indicated during the evidence that the claimant would lose and that his behaviour was deplorable. Instead of making allowance for a litigant in person, who is unlikely to have a professional advocate’s ability to withstand judicial pressure, the judge harassed and intimidated him. He did not allow the claim to be properly presented and therefore could not fairly appraise it.
The consequence: a full retrial
A judgment produced by an unfair trial is, as Lord Reed observed, written in water. An appellate court cannot take parts of it and build legal conclusions upon them. Logically, the only proper order was a complete retrial. Had the Court of Appeal considered unfairness first, it would have been more likely to see that liability could not be treated as already decided. The new judge must decide the issues, including substantial truth and the section 4 defence, on the evidence given at the retrial. The parties may agree to narrow the issues, but that is for them.
Guidance on the public-interest defence
The Supreme Court’s analysis of section 4 formed no part of its decision. It was given because the Court of Appeal had made abstract statements of principle which were criticised, in places conceded to be unfortunate, and which would otherwise have remained authoritative for the new judge and more generally.
Section 4 requires the defendant to show that the statement was, or formed part of, a statement on a matter of public interest, and that the defendant reasonably believed that publishing it was in the public interest. The court must have regard to all the circumstances and must make such allowance for editorial judgement as it considers appropriate. The defence grew out of the common-law Reynolds defence, later described as a public-interest defence, but it is not a codification of that defence in every detail and it is not a form of qualified privilege. Parliament deliberately removed a proposed list of Reynolds-type factors and a reference to acting “responsibly”, preferring a flexible inquiry into reasonable belief. Those factors are not a checklist, although one or more of them may be relevant. Failure to invite the claimant’s comment before publication is not a requirement. It will always be considered and may be decisive, but to call it a requirement would gloss the statute. The statutory conditions are intended, and may generally be assumed, to operate compatibly with the rights to reputation and to freedom of expression.
Verdict: The Supreme Court unanimously dismissed the defendants’ appeal on unfairness. It substituted a full retrial for the Court of Appeal’s damages-only order. Liability and the defences remained open.
