08:32, June 03 178 0 theguardian.com

2020-06-03 08:32:04
Supreme court orders libel case retrial over judge's 'barrage of hostility'

The supreme court has ordered the re-trial of a long-running libel case after finding that a high court judge, Mr Justice Jay, subjected the unrepresented claimant to a “barrage of hostility” and offensive language.

The unanimous ruling by five justices in the claim, which involved an article in a Polish community newspaper, also potentially expands the public interest defence for journalists in defamation cases.

Jan Serafin, now 68, who ran a cafe in a Polish community centre in Hammersmith, west London, originally sued the Polish-language monthly Nowy Czas (New Time) for libel over an article published about him in October 2015.

He claimed the story had 13 separate defamatory meanings, including that he had abused his position to award himself or his company contracts for maintenance work and had diverted to himself funds needed for a care home.

Jay found that in relation to all 13 meanings the defendants had established a defence to the claim under the 2013 Defamation Act on the grounds that each of them was on a matter of public interest and it was reasonable for the newspaper to have believed that publishing them was in the public interest. The court of appeal subsequently overturned that ruling in relation to one of the more serious complaints.

Jay rose to prominence as counsel to the televised Leveson inquiry into phone-hacking where his rich vocabulary included such rarely used words as “bailiwick”, “condign”, “propinquity” and “occlude”.

In its decision on Wednesday, the supreme court found that Jay did not allow the claim to be properly presented. Delivering judgment, Lord Wilson said: “When one considers the barrage of hostility towards the claimant’s case, and towards the claimant himself acting in person, fired by the judge in immoderate, ill-tempered and at times offensive language at many different points during the long hearing, one is driven [to conclude] … that he did not allow the claim to be properly presented; that therefore he could not fairly appraise it; and, that, in short, the trial was unfair.”

“Instead of making allowance for the claimant’s appearance in person, the judge harassed and intimidated him in ways which surely would never have occurred if the claimant had been represented.

“… Conscious of how the justice system has failed both sides, this court, with deep regret, must order a full retrial.”

In relation to the scope of the public interest defence, the justices re-examined the defence established in the controversial Reynolds v Times Newspapers case, which was understood to have set standards for what was deemed “responsible journalism”.

The justices said that the checklist in the Reynolds case used in libel defences should not be regarded as absolutely binding. For example, Wilson said, “a failure to invite comment from the claimant prior to publication will no doubt always at least be the subject of consideration … but it is, with respect, too strong to describe the prior invitation to comment as a ‘requirement’”.

David Price QC, who acted for the Polish newspaper, said afterwards he hoped that the judgment would “rebalance the law in favour of freedom of expression”.

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