This dispute in defamation has two judgments (so far) and is to be heard by the UK Supreme Court.
The claimant, Mr Jan Serafin, is a businessmen of Polish origin, active in the Polish community in London. The defendants are Grzegorz Malkiewicz and Teresa Bazarnik-Malkiewicz also of Polish origin, and publish Nowy Czas, a Polish language newspaper serving the Polish community living in the UK.
In October 2015 the defendants published a disparaging article in Nowy Czas the title of which can be translated as ‘Bankrupcy Need Not Be Painful.’ They alleged that the claimant had, in the past, conned people out of money through investment in a doomed food-import business, and embezzled money from a Polish community centre where he ran the bar. The article further alleged that he had ingratiated himself with the manager of a Polish care home, and was abusing that relationship to wring money from the establishment, which is a charity.
The claimant brought a case for defamation, claiming damage to reputation.
At the trial, Jay J ruled in favour of the defendants, whom he found to be far more credible witnesses than the claimant. As such, he found that the historical allegations could rely on a defence of truth (s.2 Defamation Act 2013). He found that the more recent allegations regarding the care home did not meet the requirements of a s.2 defence (i.e. they could not be proven as true) but he nevertheless found that a s.4 defence (public interest) succeeded for these allegations. He was satisfied that the subject of the article was on a matter of public interest, therefore meeting the s.4(1)(a) requirement; and that the defendants had a ‘reasonable belief’ that publishing when they did was in the public interest, thus meeting the s.4(1)(b) requirement. On the second point, he arrived at this conclusion because he was persuaded that the defendants had acted appropriately and proportionately, as editors/publishers of a small newspaper.
The court of appeal reversed the trial judge’s decision. It upheld the claimants submission that the judge had been unduly hostile towards him, which had impacted on the findings of truth of the ‘historic’ allegations.
The Court of Appeal also took issue with the judge’s s.4 rulings. Citing the Reynolds check list with regards to responsible journalism, the Court held that the defendants should have done more to verify the new allegations before publication; in particular, putting them to the claimant. Moreover, there was no urgency to publishing immediately, without further verification. Their failures in this regard mean that their belief could not be said to be ‘reasonable’ and the s.4 defence fails on the second requirement, sub-section (1)(b). The judges further questioned whether the subject of the article could be described as a matter of public interest.
Issues and analysis
Its odd that the Court of Appeal over-ruled the trial judge on facts. This appears to be because of the way the judge conducted himself towards the claimant, who was a litigant in person.
It is also strange (and in my view, wrong) for the Court to suggest that the subject matter is not on a matter of ‘public interest.’ If a care home, a registered charity, is being mismanaged and exploited, that is clearly on a matter of public interest. Expressing concern about this potential mismanagement was the motivation for the article, and the central point to which it built.
This case has the potential to clarify and develop the section 4 defence. Does ‘reasonable belief’ mean, essentially, performing something close to the Reynolds checklist? Or can it be something far more subjective and wide-ranging. Parliament clearly intended that the public interest defence be simpler and easier to meet than the old Reynolds case law.