The complaint stems from an interview given on the BBC Andrew Marr Show, when Corbyn was still the leader of the party. A video had surfaced of a meeting from 2013, in which Corbyn had described people who had attended a meeting as “not understanding English irony.” There was a public row about whether this statement was a form of antisemitism, and Andrew Marr asked Corbyn about this. In his response, Corbyn said that he was responding to people who has been “disruptive” and “abusive” in the meeting.

There were four issues to be determined. The first was whether Mr Millett could amend his pleading to include additional articles in support of his arguments. The judge denied this, saying Mr Millett could and should have made the application to include new evidence much earlier.

The second issue concerned the fact that Mr Corbyn did not name Mr Millett in the Marr interview. The court was therefore required to determine. whether Corbyn’s comments were a ‘reference innuendo’ i.e. whether a reasonable reader with knowledge of other facts, would infer that the defendant was talking about the claimant. Saini J noted the framework set out by Warby J in Lachaux v Independent Print Ltd [2016] QB 402, which itself cites earlier authorities, for determining whether a reference innuendo is made out. The test is not whether there exist people who did make the connection, but rather if a reasonable reader would have done so.

Saini J considered five articles that identified Mr Millett as having been present at the 2013 meeting. He ruled that, for people who had read any one of them, Mr Millett would be easily recognisable as one of the people Corbyn was speaking about in the Marr interview.

The third issue was whether the statements that the Claimant was abusive and disruptive were statements of fact, or opinion. Saini J noted that even if they were Corbyn’s opinions, they were presented without further information to support the opinion. Such statements are treated as a ‘bare comment’ akin to fact.

The final issue was whether Mr Corbyn’s comments were indeed defamatory. His counsel had argued that they were part of the hustle-and-bustle of politics. However, Saini J ruled that the imputation that Millett was abusive and disruptive at a political meeting suggested that his behaviour was “contrary to shared values in our society”—a phrasing that, Saini J suggested, was a better standard than considering whether the imputation described “immoral” behaviour.

Full judgment on BAILII: Millett v Corbyn [2020] EWHC 1848 (QB)

Comment

For Mr Corbyn to prevail at trial therefore, it is likely that he will have to show that Mr Millett was indeed abusive and disruptive at the 2013 meeting.

1. The Clapham omnibus has many passengers. The most venerable is the reasonable man, who was born during the reign of Victoria but remains in vigorous health. Amongst the other passengers are the right-thinking member of society, familiar from the law of defamation, the officious bystander, the reasonable parent, the reasonable landlord, and the fair-minded and informed observer, all of whom have had season tickets for many years.

2. The horse-drawn bus between Knightsbridge and Clapham, which Lord Bowen is thought to have had in mind, was real enough. But its most famous passenger, and the others I have mentioned, are legal fictions. They belong to an intellectual tradition of defining a legal standard by reference to a hypothetical person, which stretches back to the creation by Roman jurists of the figure of the bonus paterfamilias. As Lord Radcliffe observed in Davis Contractors Ltd v Fareham Urban District Council [1956] AC 696, 728:

“The spokesman of the fair and reasonable man, who represents after all no more than the anthropomorphic conception of justice, is and must be the court itself.”

3. It follows from the nature of the reasonable man, as a means of describing a standard applied by the court, that it would misconceived for a party to seek to lead evidence from actual passengers on the Clapham omnibus as to how they would have acted in a given situation or what they would have foreseen, in order to establish how the reasonable man would have acted or what he would have foreseen. Even if the party offered to prove that his witnesses were reasonable men, the evidence would be beside the point. The behaviour of the reasonable man is not established by the evidence of witnesses, but by the application of a legal standard by the court. The court may require to be informed by evidence of circumstances which bear on its application of the standard of the reasonable man in any particular case; but it is then for the court to determine the outcome, in those circumstances, of applying that impersonal standard.

4. In recent times, some additional passengers from the European Union have boarded the Clapham omnibus. This appeal is concerned with one of them: the reasonably well-informed and normally diligent tenderer.

• • Serafin v Malkiewicz & Ors [2017] EWHC 2992 (QB) (24 November 2017) – Trial
  • Serafin v Malkiewicz & Ors [2019] EWCA Civ 852 (17 May 2019) – Appeal

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.