BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £5, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | ||
England and Wales Court of Appeal (Civil Division) Decisions |
||
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Serafin v Malkiewicz & Ors [2019] EWCA Civ 852 (17 May 2019) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2019/852.html Cite as: [2019] EMLR 21, [2019] EWCA Civ 852 |
[New search] [Printable PDF version] [Help]
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL |
||
B e f o r e :
LORD JUSTICE McCOMBE
and
LORD JUSTICE HADDON-CAVE
____________________
JAN TOMASZ SERAFIN |
Appellant/ Claimant |
|
- and - |
||
(1) GRZEGORZ MALKIEWICZ (2)CZAS PUBLISHERS LIMITED (3)TERESA BAZARNIK-MALKIEWICZ |
Respondent/Defendant |
____________________
Mr Anthony Metzer QC and Dr Anton van Dellen (instructed via Direct Access) for the Respondents/Defendants
Hearing date : 5th March 2019
____________________
Crown Copyright ©
JUDGMENT OF THE COURT:
Introduction
Background facts
Complaints
(1) allegations concerning the Claimant's voluntary work for POSK ("the POSK allegations");
(2) allegations concerning the Claimant's dealings with Polfood ("the Polfood allegations"); and
(3) allegations concerning the Claimant's work for Kolbe House ("the Kolbe House allegations").
The Judgment
(1) First, s.1 'serious harm': the meaning of the words complained of (including whether there was a 'common sting') and whether the words complained of met the threshold of 'serious harm' within s.1 of the 2013 Act.
(2) Second, s.2 defence of 'truth': whether the Defendants' s.2 defence that the words complained of were 'substantially true' was made out.
(3) Third, s.3 defence of 'honest belief': whether the Defendants' s.3 defence of 'honest belief' in respect of two of the allegations was made out.
(4) Fourth, s.4 defence of 'public interest': whether the Defendants' s.4 'public interest' defence in respect of the whole article was made out.
(1) s. 1 'serious harm'
POSK allegations:
(1) The Claimant had 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 [62];
(2) The Claimant had purchased memberships of POSK for those whom he could rely upon to support his electoral aspirations [64];
(3) 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 close to women, over whom he exercised his charm [66];
(4) 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 [210]-[220];
Polfood allegations:
(5) 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 [69];
(6) The Claimant, having dishonestly persuaded investors in his food business to part with their life savings, stole their money for himself and transferred it to Poland to use it to support a family construction project in Poland and to support his family there [70];
(7) The Claimant defrauded his creditors and dishonestly circumvented the normal consequences of bankruptcy in order to retain for himself personal wealth, in the form of a BMW X5 car and real property that he pretended to sell, which should have been made available to satisfy the claims of his creditors [71];
Kolbe House allegations:
(8) The Claimant had sold out-of-date, and therefore unfit, food to Kolbe House, a residential care home for elderly and vulnerable people [73] (Note: this meaning is based on the Judge's comments and findings in [73]; he does not formulate it in these precise terms);
(9) The Claimant, by means of exploiting his charm and sway over the female manager of Kolbe House, inveigled himself into the highest levels of management at the home to the extent that he treated it as if it were his own personal property, including accessing at will the highly confidential records of the vulnerable residents despite having no legitimate reason to do so [74];
(10) The Claimant had or may have concealed his bankruptcy from Kolbe House [76];
(11) The Claimant acted unethically in respect of a charity by replacing bathroom equipment that was in good condition [77];
(12) The Claimant supplied milk and food past their "sell-by" date to Kolbe House [77];
(13) The Claimant had dishonestly concealed from the manager and trustees of Kolbe House his current status as an undischarged bankrupt in order to win their trust and also to obtain a building contract for the extension of the manager's personal house [81]-[82];
(14) The Claimant also concealed his status as an undischarged bankrupt from Ealing Council in circumstances where he was obliged to reveal it [84].
(2) s. 2 Defence of 'truth'
Credibility of the Claimant
"[91] Reflecting on the Claimant's evidence, both macroscopically and microscopically, I consider that I am presented with two competing, possible interpretations of him. The first is that the Claimant is, in the main, an honest and generous man, good-hearted, with genuine charitable and community-based instincts. On this interpretation, the Claimant has a quixotic streak, is overly optimistic, is chaotic and inexperienced in relation to financial affairs, and although may well be unreliable in many ways is not dishonest. The second interpretation is that the Claimant is a latter-day Don Juan figure who is only out for himself, and pursues his business and personal goals with a combination of tenacity and deceit. Furthermore, this interpretation would hold that the Claimant is boastful and self-promoting, has an element of the Walter Mitty about him, adapts what he tells people to the circumstances as he perceives them to be, is well aware of the hold he exercises over people because of his plausibility, charisma and personal charm, and – at root – is fundamentally untrustworthy.
[92] Ultimately, I have come to the conclusion that the second interpretation of the Claimant largely prevails over the first. There are some refinements I should make which relate to aspects of his charitable work. This is my global assessment after hearing and reflecting upon all the evidence in the case, drawing adverse inferences on a limited basis where appropriate."
(3) s.3 Defence of 'honest opinion'
(4) s.4 Defence of 'public interest'
"[315] The First Defendant was born in 1956 and is a highly educated man, both in his homeland and the UK. He came to this country in 1981 when heavily involved in the activities of Solidarity, and did not return to Poland after martial law was declared. He studied for his doctorate in philosophy at Balliol College Oxford, and after obtaining his PhD has worked in the world of journalism in a number of capacities. In 2006 he and his wife set up Nowy Czas with some of their former colleagues.
[316] I hope that he will not mind me saying so, but I would describe the First Defendant as a Polish intellectual in the old school. He should not read that as other than a compliment. I do not think that his health is particularly good, and fear that it is possible that some of the spark and fire has deserted him, at least for the time being. Most importantly, I have concluded that the First Defendant was an honest and reliable witness whose evidence I could safely accept."
"[328] The Third Defendant was born in Poland in 1957 and she is also highly educated. …. In my judgment, the Third Defendant was an honest and reliable witness."
"[332]. I am completely satisfied that it was in the public interest for the Defendants to publish an article about the Claimant's fitness or otherwise to be involved in a charitable institution, Kolbe House, and the Claimant effectively conceded as much. The Defendants had evidence from apparently credible sources that the Claimant had secured an entrée to Kolbe House through the current manager, and that he was exploiting that relationship and his position as maintenance man to his personal advantage. In relation to the Kolbe House allegations, it is supererogatory for the Defendants to add that the Claimant had an established reputation within the Polish community and that he had "form" for similar behaviour. However, these matters add considerable weight to the already cogent force of the Defendants' arguments in relation to public interest in that context.
[333]. The Claimant submits that it was unnecessary for the Defendants to go further than the Kolbe House matters. The POSK matters were stale, and the Polfood matters went to his private life, and were not therefore in the public interest. I disagree. POSK was also a charitable organisation. It, as I have said, was somewhat secretive in the management of its affairs, and it was entirely within the scope of good investigative journalism for this secrecy to be penetrated. Moreover, there was a direct contextual link between the allegation that the Claimant was cheating Kolbe House – another fairly secretive organisation, in my view – and the allegation that the Claimant had profited from his involvement in POSK in two specific ways. To my mind, the link is obvious, because they are both charities; it follows that the editorial judgments that were made cannot be gainsaid. The fact that the refurbishment of the Jazz Café had been completed about a decade previously is nothing to the point.
[334]. The Defendants accept that there was no public interest in publishing a limited story about the Claimant's simultaneous entanglement with Ms Wozniczka and Ms Howard. I would go slightly further. Polfood was a private company and the fact that respected members of the community lost out through the Claimant's brazenly unethical activities would not have justified a limited or narrow story. However, I agree with the First Defendant that these matters acquired direct saliency, and real public interest, once a proper basis for publishing a story about Kolbe House and POSK was established. The connection between the earlier cheating of women, in both the personal and financial domains, and the Claimant's exploitation of his relationship with Ms Parylak was clear. Once the Polfood tale could properly be told, because it was now in the public interest to narrate it, the length, breadth and depth of that narration became a matter of editorial judgment.
"[337] I am satisfied that these Defendants did undertake reasonable inquiry in relation to all the factual matters upon which their story was based. Indeed, I would go further. I think that they applied rigorous, objective journalist standards in the context of a piece which cried out to be published. They were not precipitate; on the contrary, they were cautious and measured. Furthermore, for the reasons that the First and Third Defendants have given, and which I accept, this case falls into the unusual category of case where it was not incumbent on the First and Third Defendants to approach the Claimant for comment before publication."
Grounds of appeal
(1) Ground 1: Section 4 'public interest' defence: The Judge was wrong to find that the Defendants had succeeded in a defence of public interest under s.4 of the Defamation Act 2013 for three reasons:
(a) The Judge was wrong to find that the statements complained of were on a matter of public interest, pursuant to s.4(1)(a);
(b) The Judge based his conclusion on the s.4(1)(a) test on an alleged concession made by the Claimant. In fact the Claimant made no such concession, and therefore the Judge was wrong to rely upon it;
(c) The Judge was also wrong to hold that the Defendants reasonably believed that the statements complained of were in the public interest, pursuant to s.4(1)(a). In particular, he took no or no sufficient account of the fact that the Defendants had not contacted or attempted to contact the Claimant before publication, a matter that is central to any assessment of whether the belief of the Defendants was objectively reasonable. This is especially important where, as in this case, the allegations are of exceptional gravity, and included allegations of criminal conduct. He also failed to have any, or any sufficient, regard to the Defendants' other journalistic failures, including publishing allegations for which there was no evidential basis.
(2) Ground 2: Section 2 'truth' defence: The Judge was wrong to find that the Defendants had established a truth defence pursuant to s.2 of the Defamation Act 2013 in respect of the defamatory allegation 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. There was no evidence on which the Judge could have come to the conclusion that the Defendants had proven this serious allegation of criminal behaviour to be substantially true.
(3) Ground 3: Burden of proof: Further or alternatively, the Judge's finding on the truth of this allegation was unjust, because he reversed the burden of truth, expecting the Claimant to prove his innocence of the charge.
(4) Ground 4: Damages: Had the Judge concluded, as he should have done, that this very serious allegation was not proven, he could not possibly have dismissed the claim for damages on the basis that the Claimant's reputation was already 'shot to pieces'. The Judge was wrong in refusing to award any damages to the Claimant in respect of the unproven defamatory allegations.
(5) Ground 5: Unfair judicial treatment: During the trial, the Judge showed hostility and rudeness to the Claimant, an unrepresented party. He made frequent gratuitous interjections during the trial, hostile to the Claimant, putting the Claimant under enormous pressure and making it extremely difficult for him to conduct the litigation. He also prejudged matters against the Claimant (for example making it clear early in the trial that he regarded him as a "liar" who had behaved "deplorably" and threatened that he would say so in his judgment). He made repeated demands that the Claimant prove matters to him by reference to documents which were not before the Court. In consequent of the above, the trial process was either unfair and/or conducted with the appearance of unfairness, and the Judge's findings are not safe or reliable.
Grounds 1(a), (b) and (c): s.4 'public interest' defence
"4. Publication on matter of public interest
(1) It is a defence to an action for defamation for the defendant to show that—
(a) the statement complained of was, or formed part of, a statement on a matter of public interest; and
(b) the defendant reasonably believed that publishing the statement complained of was in the public interest.
(2) Subject to subsections (3) and (4), in determining whether the defendant has shown the matters mentioned in subsection (1), the court must have regard to all the circumstances of the case.
(3) If the statement complained of was, or formed part of, an accurate and impartial account of a dispute to which the claimant was a party, the court must in determining whether it was reasonable for the defendant to believe that publishing the statement was in the public interest disregard any omission of the defendant to take steps to verify the truth of the imputation conveyed by it.
(4) In determining whether it was reasonable for the defendant to believe that publishing the statement complained of was in the public interest, the court must make such allowance for editorial judgement as it considers appropriate.
(5) For the avoidance of doubt, the defence under this section may be relied upon irrespective of whether the statement complained of is a statement of fact or a statement of opinion.
(6) The common law defence known as the Reynolds defence is abolished."
"29. This section creates a new defence to an action for defamation of publication on a matter of public interest. It is based on the existing common law defence established in Reynolds v Times Newspapers [[2001] 2 AC 127] and is intended to reflect the principles established in that case and in subsequent case law. Subsection (1) provides for the defence to be available in circumstances where the defendant can show that the statement complained of was, or formed part of, a statement on a matter of public interest and that he reasonably believed that publishing the statement complained of was in the public interest. The intention in this provision is to reflect the existing common law as most recently set out in Flood v Times Newspapers [[2012] 2 AC 273]. It reflects the fact that the common law test contained both a subjective element — what the defendant believed was in the public interest at the time of publication — and an objective element — whether the belief was a reasonable one for the defendant to hold in all the circumstances."
What is 'public interest'?
"By ["public interest"] we mean matters relating to the public life of the community and those who take part in it, including within the expression public life activities such as the conduct of government and political life, elections … and public administration, but we use the expression more widely than that, to embrace matters such as (for instance) the governance of public bodies, institutions and companies which give rise to a public interest in disclosure, but excluding matters which are personal and private, such that there is no public interest in their disclosure."
"[T]he business of government and political conduct; the promotion of animal welfare, the protection of health and safety, the dealings of an MP with a foreign regime hostile to this country, the fair and proper administration of justice, the conduct of religious groups; discipline in schools; the conduct of the police; cheating, corruption and the pressure on elite athletes from an early age in sport; breach of charitable fiduciary rules; involvement in serious crimes, corporate malpractice; and the correction of prior misrepresentations by others".
Reynolds privilege
"The elasticity of the common law principle enables interference with freedom of speech to be confined to what is necessary in the circumstances of the case. This elasticity enables the court to give appropriate weight, in today's conditions, to the importance of freedom of expression by the media on all matters of public concern. Depending on the circumstances, the matters to be taken into account include the following. The comments are illustrative only.
1. The seriousness of the allegation. The more serious the charge, the more the public is misinformed and the individual harmed, if the allegation is not true.
2. The nature of the information, and the extent to which the subject matter is a matter of public concern.
3. The source of the information. Some informants have no direct knowledge of the events. Some have their own axes to grind, or are being paid for their stories.
4. The steps taken to verify the information.
5. The status of the information. The allegation may have already been the subject of an investigation which commands respect.
6. The urgency of the matter. News is often a perishable commodity.
7. Whether comment was sought from the plaintiff. He may have information others do not possess or have not disclosed. An approach to the plaintiff will not always be necessary.
8. Whether the article contained the gist of the plaintiff's side of the story.
9. The tone of the article. A newspaper can raise queries or call for an investigation. It need not adopt allegations as statements of fact.
10. The circumstances of the publication, including the timing."
"This list is not exhaustive. The weight to be given to these and any other relevant factors will vary from case to case. …
… [I]t should always be remembered that journalists act without the benefit of the clear light of hindsight. Matters which are obvious in retrospect may have been far from clear in the heat of the moment. Above all, the court should have particular regard to the importance of freedom of expression. The press discharges vital functions as a bloodhound as well as a watchdog. The court should be slow to conclude that a publication was not in the public interest and, therefore, the public had no right to know, especially when the information is in the field of political discussion. Any lingering doubts should be resolved in favour of publication."
"Stated shortly, the Reynolds privilege is concerned to provide a proper degree of protection for responsible journalism when reporting matters of public concern. Responsible journalism is the point at which a fair balance is held between freedom of expression on matters of public concern and the reputations of individuals. Maintenance of this standard is in the public interest and in the interests of those whose reputations are involved. It can be regarded as the price journalists pay in return for the privilege."
He also emphasised that the standard of conduct required of the publisher must be applied in a practical and flexible manner [56].
Economou v De Freitas [2018] EWCA 259, [2019] EMLR 7
"The statutory formulation in section 4(1) obviously directs attention to the publisher's belief that publishing the statement complained of is in the public interest, whereas the Reynolds defence focussed on the responsibility of the publisher's conduct. Nonetheless, it seems to me it could not sensibly be suggested that the rationale for the Reynolds defence and for the public interest defence are materially different, or that the principles that underpinned the Reynolds defence, which sought to hold a fair balance between freedom of expression on matters of public interest and the reputation of individuals, are not also relevant when interpreting the public interest defence. Reynolds was decided when the Human Rights Act 1998 had been enacted but not yet brought into force. However, the decision was clearly informed by the right to freedom of expression and to the protection of reputation, protected under the Convention; and the observations about the importance of those respective rights and how to mediate between them, in Reynolds and the subsequent cases, including most recently, in Flood, are as true now as they were when those cases were decided."
"Looking at the matter from the other perspective however, it is not necessary to expatiate on the importance of freedom of expression to a functioning democracy, and to the individuals within it, which concerns the freedom to receive information as well as to impart it, in particular, as the judge noted, on matters of public concern. The importance of the right in this arena is what led to the recognition of the Reynolds defence, and to the subsequent enactment of the public interest defence in section 4 of the 2013 Act. This defence is not confined to the media, which has resources and other support structures others do not have. Section 4 requires the court to have regard to all the circumstances of the case when determining the all-important question arising under section 4(1)(b): it says the court must have regard to all the circumstances of the case in determining whether the defendant has shown that he or she reasonably believed that publishing the statement complained of was in the public interest. In my judgment, all the circumstances of the case must include the sort of factors carefully identified by the judge, including, importantly, the particular role of the defendant in question. The statute could have made reference to the Reynolds factors in this connection, but it did not do so. That is not to say however, that the matters identified in the non-exhaustive checklist may not be relevant to the outcome of a public interest defence, or that, on the facts of the individual case, the failure to comply with one or some of the factors, may not tell decisively against a defendant. However, even under the Reynolds regime, as Lord Nicholls made clear, the weight to be given to those factors, and any other relevant factors, would vary from case to case. As with Reynolds therefore, with its emphasis on practicality and flexibility, all will depend on the facts."
The Judge's reasoning
Analysis of grounds
Appeal Ground 1(a): Judge wrong to find that the statements complained of were in the public interest
Appeal Ground 1(b): Judge wrong to rely on Claimant's alleged concession
"(1) Day 2, paragraph 57G:
Mr Metzer QC: 'Issues relating to the care of old people, and how such homes are run, are plainly matters of public interest, particularly within the close-knit Polish community in London.' That's true, isn't it?
Claimant: Yes.
Q: You agree, plainly a matter of public interest to know that the thing is being run properly?
Claimant: Yes.
(2) Day 2, paragraph 89B:
Mr Metzer QC: And I think you did agree in your evidence, certainly issue about how Kolbe House is run is certainly in the public interest. I think you agreed that this morning?
Claimant: Yes, it's of public interest for Kolbe House, certainly, yes.
Q: Thank you, and how old people are looked after, their resources and so on?
Claimant: Yes.
Q: Yes.
Claimant: Yes.
(3) Day 4, paragraph 5D:
Mr Justice Jay: You agree there is a public interest in relation to Kolbe House?
Claimant: I'm saying that was claimed by the Defendants that that is a fact.
Q: You do not dispute that then?
Claimant: Sorry?
Q: You do not dispute that there is public...
Claimant: No, I don't, as such, as a house. But there's only 23% of wording about the Kolbe House in the whole article."
Appeal Ground 1(c): Judge wrong to hold that the Defendant's reasonably believed the statements complained of were in the public interest
"[101] … [T]he judge said that, it would be hard to describe a belief as reasonable if it has been arrived at without care, in the absence of any examination of relevant factors, and without engaging in appropriate enquiries. He also said that a belief for the purposes of s.4(1)(b) would be reasonable, only if it is arrived at after conducting such enquiries and checks as it is reasonable to expect of the particular defendant in all the circumstances of the case."
"[326]. The First Defendant's reasons for not contacting the Claimant before the article was published were that he had not complained about previous articles and letters published in Nowy Czas, he did not believe that he would respond for comment, and that the Third Defendant has been warned that the Claimant was a violent and co-operative liar." [sic]
Economou case
Other cases
"Stepping back, this was a very serious allegation presented in a wholly one-sided way in circumstances where the Defendant had failed to contact the Claimant and had failed to represent, from material he had, what could fairly have been said on the Claimant's behalf in answer to the allegations".
Defendants' failure to contact others
"Claimant: Why did you not speak to bookkeeper or treasurer to corroborate your story and particularly regarding to the cash register?
First Defendant: I spoke to several people. I said I cannot, well, it's very easy to point out, there is, particular person. That's a way of manipulating [inaudible] which is very harsh to publishers, and we did everything possible to justify what I was going to publish. We spoke to numbers of people, of people regarding research.
Claimant: Why you didn't approach the bookkeeper or treasurer to clarify that? You were talking to wider people who may or may not [inaudible]. This is a government of POSK [inaudible].
First Defendant: I spoke to, I spoke to people who are very important in POSK. I verified all that information and just, tell me, show me one sentence about POSK which is not true in my article.
Claimant: All of them are not true and I will prove it to you…"
"Because if we asked, you just go with this answer which we got today and that article would never, never appear and you would still be there." (Day 3 p.97A-B).
On the face of it, this answer suggests a lack of journalistic objectivity and a troubling reluctance to contact anyone who might gainsay the story. Indeed, it suggests that publication of the article was dependent on the fact that no one contradicted the allegations.
Other journalistic failures by the Defendants
Reynolds factors
(1) The seriousness of the allegation(s). As the Judge held, most of the numerous allegations made in the article were self-evidently serious and reputationally damaging to the Claimant, in particular, the allegation of stealing from the Jazz Club bar.
(2) The nature of the information, and the extent to which it is a matter of public concern. As explained above, the information in the article was of no, or limited, public interest.
(3) The source of the information. The sources of the published allegations included (a) people who had axes to grind (who had lost money as a result of their business dealings with the Claimant, e.g. Mr Wegrzynowski and Ms Cyparska, or who had lent the Claimant money or who had split up with the Claimant on bad terms, e.g. Ms Wozniczka); (b) people who wanted to remain anonymous (employees of Kolbe House); and (c) people who were not in management positions in the organisations concerned (and therefore had limited direct knowledge of the facts).
(4) The steps taken to verify the information. As explained above, the journalistic standards and the steps taken to verify the information were inadequate. Notably, at no stage prior to publication did the Defendants contact the Claimant for his comment about the allegations.
(5) The status of the information. See (3) above.
(6) The urgency of the matter. It is common ground that there was no urgency in publication. Many of the allegations related to conduct years in the past. This is not a case in which news could be said to be a perishable commodity.
(7) Whether comment was sought from the claimant. It was not.
(8) Whether the article contained the claimant's side of the story. It did not.
(9) The tone of the article. The tone of the article was snide and disparaging of the Claimant. It portrayed the Claimant as a despicable and reprehensible character. It included a photograph of the Claimant which, as the Judge found, was "an effective and cogent means of portraying the Claimant as not giving two hoots for his creditors" [343]. The article presented the allegations as hard fact.
(10) The circumstances of the publication, including the timing. See above.
Summary
Grounds 2 and 3: Judge was wrong to find the allegation that the Claimant had stolen from the Jazz Club bar takings was true and erroneously reversed the burden of proof
The Judge's findings
"Mr Serafin 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".
"[220] The article does not specify particular amounts. I remain conscious that this is a serious matter. I am driven to conclude that the Claimant did not properly account to the Jazz Café and POSK for all payments received, and that the fourth meaning is substantially true."
Analysis
Burden of proof
"A bunch of assertions is not going to cut any ice. I need proof. Strictly speaking, the burden of proof is on the defendant to prove that under the Defamation Act, but it is not going to work like that in the sense that I will draw inferences…. You can prove to me where these monies [belonging to Polfood] went" (emphasis added).
Summary
Appeal Ground 4: Judge was wrong to award no damages to the Claimant
Appeal Ground 5: Unfair judicial treatment
"Ground 5: unfair judicial treatment
During the trial, the Judge showed hostility and rudeness to the Claimant, an unrepresented party. He made frequent gratuitous interjections during the trial, hostile to the Claimant, putting the Claimant under enormous pressure and making it extremely difficult for him to conduct the litigation. He also prejudged matters against the Claimant (for example making it clear early in the trial that he regarded him as a "liar" who had behaved "deplorably" and threatened that he would say so in his judgment). He made repeated demands that the Claimant prove matters to him by reference to documents which were not before the Court. In consequence of the above, the trial process was either unfair and/or conducted with the appearance of unfairness, and the Judge's findings are not safe or reliable."
Claimant's submissions
Defendants' submissions
The principle of fairness
"27. There is, however, a wider principle in play in these cases merely than the safety, in terms of the correctness, of the conviction. Put shortly, there comes a point when, however obviously guilty an accused person may appear to be, the appeal court reviewing his conviction cannot escape the conclusion that he has simply not been fairly tried: so far from the judge having umpired the contest, rather he has acted effectively as a second prosecutor. ...
28. Lord Bingham was, of course, right to recognise that by no means all departures from good practice render a trial unfair.... Ultimately the question is one of degree. …
31. …[N]ot merely is the accused in such a case deprived of "the opportunity of having his evidence considered by the jury in the way that he was entitled". He is denied too the basic right underlying the adversarial system of trial, whether by jury or jurats: that of having an impartial judge to see fair play in the conduct of the case against him. Under the common law system one lawyer makes the case against the accused, another his case in response, and a third holds the balance between them, ensuring that the case against the accused is properly and fairly advanced in accordance with the rules of evidence and procedure. All this is elementary and all of it, unsurprisingly, has been stated repeatedly down the years. The core principle, that under the adversarial system the judge remains aloof from the fray and neutral during the elicitation of the evidence, applies no less to civil litigation than to criminal trials." (emphasis added)
Analysis
"Mr Justice Jay: He is either being obtuse, or he is playing for time, and I cannot decide which."
"Mr Justice Jay: You do not understand what counsel is saying. To put it bluntly, he is saying there were two versions of this email. … That is what is being put, that you have deliberately put words in her mouth –
Claimant: I think I –
Mr Justice Jay: - and therefore, have lied. Well, did you or did you not?
Claimant: I didn't. I –
Mr Justice Jay: Well, how can you explain what is in the bundle, which does not seem to be the version which was sent? I mean, presumably, Mr Metzer, we can see the electronic version, if required?
Mr Metzer: Yes, and I wanted to just give Mr Serafin this opportunity because he's not represented, and despite my Lord being, if I may say so, very fair in terms of ensuring that he understands everything very carefully …"
(We detect more than a note of concern in the fact that Mr Metzer QC felt that he had to make the last observation).
Summary
Conclusion
"Bankruptcy need not be painful
When in the 80s Janek came to London, he applied a quick eye to his situation. He soon realised that one could make good money out of one's compatriots who have been here for years. He left his wife and children in Poland and went to England for seasonal labour. He managed. He took care of his family but presented himself as divorced, for simplicity.
Like most Poles in a similar situation, he started by doing minor renovations. Sometimes he cleaned up somebody's yard. He did not complain about lack of work, rather his clients had to wait for him, and the queue grew longer year by year. He owed his success not only to the reliability of his services, but mostly to personal charm, openness, resourcefulness, and a willingness to have long conversations and bow low. He easily won the hearts of women, especially those living alone, who were afraid of hiring professional companies to carry out the repair works. They worked faster but not better, and they turned one's life upside down. Janek was cheaper and very communicative, and he spent much time chatting in Polish.
The circle of satisfied customers grew wider, and he gained their ever growing trust. Later, when his social status had grown enough, he started to meet with them only to socialize. Money was no longer his sole aim. He devoted more and more time to community work. At least that was what his new friends believed. But for him, dancing in a folk group, working in committees in the Polish centre, and engaging in other similar activities were part of building his position and starting anew — this time making pretty decent money.
[A] The turning point in Janek's career was a hard-earned success in the biggest Polish centre in Hammersmith. He became the house manager, the person responsible for all ongoing repairs and renovations, without the necessity of getting approval for such activities from a wider body. Reports and coherent accounts were sufficient, and Janek didn't have any problem with them.
Photograph of Claimant (flicking a 'V'-sign)
[B] [CAPTION] JANEK IS PENNILESS AND CHEERFUL. MONEY? WHAT MONEY? YOU HAVE GOLDFISH IN YOUR MIND— HE COULD PARAPHRASE THE FAMOUS QUOTE FROM "THE PROMISED LAND" BY REYMONT.
Photograph of "Workshop"
[Caption] In the utility rooms of Kolbe House he has created himself a private workshop – in the end, in London he would pay dearly for such a spot. And after all, he is a bankrupt…
[C] Even more so as he saw more and reached further. Handsome and eloquent, with a sense of humour, he did not have to try hard to obtain the approval of the centre's officers for his decisions. He gained recognition and his appetite for increasing his wealth and prestige within the community continued to increase. He even dreamed of being the centre's chairman. To increase his chances, he purchased memberships for kith and kin, mainly for builders who worked for him.
[D] But the real gains, and not just of a social nature, came from his "single" status, which he decided on at the outset of his London career. He was a respected public figure and the reputation of the centre he did his "community" work for was a guarantee of his honesty and selflessness. Although it was an open secret that the renovations were done by his company - and he even managed to employ his wife (non-wife?) from Poland — no-one from his closest circle had a problem with that. The job was done, so nobody saw any problem. And the women ever more frequently regarded Janek with admiration.
And in this blissful state Janek could have waited for a well-deserved retirement, medals for community work and the splendour that goes with it. Unfortunately, the laws of business propel the man, who has once tasted success, ever further; the stakes increase and there is no resting on one's laurels. There are ever more challenges. Poland joined the EU, and hundreds of thousands of Poles came to London. In this situation passivity could have meant failure.
Poles took over the construction market. Janek gradually withdrew from this sector. In a sense, he gave this market away: it was a dirty job, so why bother. He had already worked and earned enough in this market. But if an interesting opportunity arose, then one could, using one's own experience and contacts, hire subcontractors and easily reap the profits.
Poles not only overran the labour market, but also formed a large consumer group. They had their own culinary preferences. Polish shops sprang up.
[E] Everything indicated that it would be an easy way to make money, with great profits and loyal, reliable customers — Poles will not drink English beer. Janek knew that. There were two options: wholesale or retail, but he didn't hesitate. He went for wholesale, leaving retail for his supposed community activities, in the jazz cellar bar, where he supervised the supply of alcohol and ensured that goods would not be registered on the cash register. Cash register? What for?
In the community centre, where everyone did community work?
[F] Who would bother? At the same time, the jazz cellar club offered the opportunity to establish new contacts, also with women - after all Janek was a declared divorcé and a handsome, successful entrepreneur. And women, like women, blinded by his charm, believed his every word. There was no reason not to believe, since Janek was respected by chairmen and clergymen. And the fact that he still wanted more? These are the laws of economics… One doesn't need to be a graduate in science to give credence to a simple principle — the only guarantee of success is growth, further investments, expansion and overtaking competitors.
[G] Janek expanded his investor base, both male and female, the females in ignorance of one another. They invested their life savings in the profits of the business and their joint dolce vitae [sic], tens of thousands of pounds in each case.
There was no sign of impending disaster. It probably would not have occurred if Janek had focused on one business… and one woman. But he was far too ambitious for that.
[H] Did he think that his new business interests would bring such profits as to enable him to repay his (female) creditors? Or perhaps he knew from the beginning that someone has to lose, so he could earn money not requiring continual reckoning and balancing the books? It is difficult to say. The fact is that Janek transferred the borrowed money to Poland and allocated it to a family construction project, which was supposed to be financially supported by EU funds. He didn't forget about his wife and children — family is sacrosanct.
[I] Meanwhile in London, the only rational course was to declare bankruptcy and surrender to the official procedures. But before that happened, Janek sold his second home, which he still however sporadically uses (the victims say the sale was fictitious; the only person to have visited the house in the last few years is its former owner).
[J] Did he leave London in disgrace? No, it's not his style. With the official papers of a bankrupt, he continues to shine, and how. He sits behind the wheel of a BMW X5 and with unshakable confidence gets out of the car. He has returned to Kolbe House in Ealing — the house for people in need of care, created by the Polish independence emigration. Returned – because his cooperation with the former manager was not successful – she questioned the out of date food he supplied. The current manager is a different story. Friendly, susceptible to his charm and, most importantly, impervious to the whispers circulating in West London about the famous bankrupt. Kolbe House soon became his second home.
[K] He is everywhere, has full access to confidential documents concerning residents (often people with dementia), and enters the centre at all hours, even at night. He takes a seat in the office, at the computer, even though he is not an official employee in the Home's administration. Kolbe House nurtures him — in both a literal and figurative sense. He parks his off-road BMW in a parking space designated for long-serving staff. In the utility rooms, he has created himself a private workshop – in the end, in London he would pay dearly for such a spot. And after all, he is a bankrupt…
[L] Recently, he has done some major renovations in Kolbe House. Even the bathroom equipment, which was in good condition, was replaced, although Kolbe House needs to economise on everything — not only on night staff, but also on fabric softeners, needed to launder the rough towels used to dry the frequently aching bodies of the patients. Also on frozen milk and bread, almost past its use-by date, which Janek delivers from a source known only to himself.
[M] Being a bankrupt he can't operate an independent business, but apparently, somehow he does, or maybe someone officially does it for him. With major renovations comes serious money. Janek has already got into the Inland Revenue's black books. Will it happen again? But maybe he works charitably? Do the trustees of Kolbe House (which, over the years, has been supported and meticulously run by the institutions of Polish immigrant communities) inspect everything now, on behalf of the sick, lonely and disabled who were entrusted to them? They won't check this themselves. Let's hope that their families, who pay a lot for their care, will do it on their behalf.
[N] Or perhaps the trustees think they don't need to control everything because Janek is doing so well in Kolbe House that even its manager has commissioned him to extend her house. Officially, in the plans submitted to the local office (which is Ealing Council) he is the head of the construction's supervision but — as we can assume — his bankrupt status is concealed.
Janek is not a fictional character. In case anyone has not recognised the protagonist of the story, I hereby confirm: it is Jan Serafin, well known among Polish society in London.
Grzegorz Malkiewicz"
1.— Serious harm
(1) A statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant.
(2) For the purposes of this section, harm to the reputation of a body that trades for profit is not "serious harm" unless it has caused or is likely to cause the body serious financial loss.
2.— Truth
(1) 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.
(2) Subsection (3) applies in an action for defamation if the statement complained of conveys two or more distinct imputations.
(3) If one or more of the imputations is not shown to be substantially true, the defence under this section does not fail if, having regard to the imputations which are shown to be substantially true, the imputations which are not shown to be substantially true do not seriously harm the claimant's reputation.
(4) The common law defence of justification is abolished and, accordingly, section 5 of the Defamation Act 1952 (justification) is repealed.
3.— Honest opinion
(1) It is a defence to an action for defamation for the defendant to show that the following conditions are met.
(2) The first condition is that the statement complained of was a statement of opinion.
(3) The second condition is that the statement complained of indicated, whether in general or specific terms, the basis of the opinion.
(4) The third condition is that an honest person could have held the opinion on the basis of—
(a) any fact which existed at the time the statement complained of was published;
(b) anything asserted to be a fact in a privileged statement published before the statement complained of.
(5) The defence is defeated if the claimant shows that the defendant did not hold the opinion.
(6) Subsection (5) does not apply in a case where the statement complained of was published by the defendant but made by another person ("the author"); and in such a case the defence is defeated if the claimant shows that the defendant knew or ought to have known that the author did not hold the opinion.
(7) For the purposes of subsection (4)(b) a statement is a "privileged statement" if the person responsible for its publication would have one or more of the following defences if an action for defamation were brought in respect of it—
(a) a defence under section 4 (publication on matter of public interest);
(b) a defence under section 6 (peer-reviewed statement in scientific or academic journal);
(c) a defence under section 14 of the Defamation Act 1996 (reports of court proceedings protected by absolute privilege);
(d) a defence under section 15 of that Act (other reports protected by qualified privilege).
(8) The common law defence of fair comment is abolished and, accordingly, section 6 of the Defamation Act 1952 (fair comment) is repealed.
4.— Publication on matter of public interest
(1) It is a defence to an action for defamation for the defendant to show that—
(a) the statement complained of was, or formed part of, a statement on a matter of public interest; and
(b) the defendant reasonably believed that publishing the statement complained of was in the public interest.
(2) Subject to subsections (3) and (4), in determining whether the defendant has shown the matters mentioned in subsection (1), the court must have regard to all the circumstances of the case.
(3) If the statement complained of was, or formed part of, an accurate and impartial account of a dispute to which the claimant was a party, the court must in determining whether it was reasonable for the defendant to believe that publishing the statement was in the public interest disregard any omission of the defendant to take steps to verify the truth of the imputation conveyed by it.
(4) In determining whether it was reasonable for the defendant to believe that publishing the statement complained of was in the public interest, the court must make such allowance for editorial judgement as it considers appropriate.
(5) For the avoidance of doubt, the defence under this section may be relied upon irrespective of whether the statement complained of is a statement of fact or a statement of opinion.
(6) The common law defence known as the Reynolds defence is abolished.
J: I am not sure I understand this at all, but you owed Rofood around £100,000?
C: No, that was slightly before when I have £100,000 in debt with him, he didn't allow us anything without paying. ….
J: There is always a lack of clarity with your evidence which I am finding irritating.
J: It is not very ethical business behaviour this, but we will see where the weight of the evidence is leading. Because if I concluded that you are acting unethically as a businessman, I am not sure of the precise terms of the defamations are going to matter to you much. Do you understand? You will lose, but there is a lot more evidence yet.
See Day 2 p.11; Day 2 p.6: the Judge demands more documents; when the Claimant says he has "five boxes, 14,000 receipts" and he has no idea how to do it, the Judge retorts that he can "do that by tomorrow morning"; also Day 4, p.22; and Day 2 p.16:
J: Yes, well it is very simple. Where are the documents to show your investment of £365,000?
C: I'll try to find that in a second, but-
J: Well, it should not take you a second. It should take you a nanosecond, because it is obvious that this point would be raised. Where are the documents? In the bundle?
C: In the bundle, yes.
J: It should be at your fingertips [Pause] Well, you can deal with in re-examination I suppose, otherwise we will be here all day….
J: I am warning you, you find that after lunch-
C: Yes.
J. – during lunch, and I want to see them at one minute past two, the page. If you do not show them to me, I will draw inferences. Do you understand what that means?
C: Yes, I do.
J: You see, you knew these questions would be asked of you, because one thing you are not is stupid, okay? So, why are you not here today with all of this on your fingertips, saying, 'There is £31,500 which is not accounted for through the Sami Swoi facility. It was paid to X, Y and Z, and here is proof of it'? Why have you not got that for me, or do I just have to take your word for it every single time?
C: [No audible reply].
J: Are you going to be able to find it for me, in the documents?
C: If they are taken from money to Poland, I'd have had to sign something which is sending it to Poland, but definitely is going to suppliers.
J: Well, you say that, but what is being suggested is not that you are funnelling money out of the company, probably to go to your family in Poland.
C: No, that's not true. [Inaudible].
J: Well, I need it – I am not going to take your word for it, okay? I need you to prove it to me. A bunch of assertions is not going to cut any ice. I need proof. Strictly speaking, the burden of proof is on the defendant to prove that under the Defamation Act, but it is not going to work like that in the sense that I will draw inferences. So, you can get it over lunch. You can prove to me where these monies went.
J: Is this going to be more work over lunch, finding these accounts?
C: No.
J: But why do you not have them at your fingertips?
C: [inaudible]
J: Also, I want proof that they were filed at Companies House, documented proof.
C: I'll try to find out. I'm not quite sure that there's anything about it in the documents that they were filed.
J: Well, it is up to you. If you fail to provide it, I can draw an inference again.
J: This does not look great, frankly, because either you were lying to the investors, or you are lying to me. If you are lying to me, the consequences can be really awful, because you understand, I do not like being lied to. Which is it? Who were lying to? Were you telling the truth to the investors and therefore lying to me, or were you lying to investors and telling the truth to me?
C: That's accurate. I was lying to the investors. Because the documents that she lended the company, I don't – I can't dispute that. …..
J: But do you understand what this is about, Mr Serafin? That you are bringing proceedings in the High Court-
C:Yes.
J: -taking 10 days, and however long it takes for me to write the judgment. It will take some considerable time, seeking to uphold your reputation. But your reputation is already beginning to fall to pieces, because you are a liar, and you do treat women in a frankly disgraceful way, on your own admission. Have you thought through this carefully what you are trying to protect?
C:[No audible reply].
J: It is up to you. We will carry on. You carry on asking questions, Mr Metzer.
(The "frankly disgraceful way" of treating women referred to the fact that the Claimant had carried on relationships with two women at one time.)
J: You are under an obligation to – You have not given proper disclosure in this case. You are under an obligation under the rules to give disclosure of all relevant documents. There are many documents which are relevant that I have not seen. Your failure to disclose them will give rise to an adverse inference. Do you know what that means?
C: No.
J: I will hold things against you. You should have disclosed things. It is only fair. The same would apply the other way round, if the defendants did not give proper disclosure.
C: I am missing what I can say, only that evidence was exchanged by my previous-
J: I am not accepting you blaming them.
C: No. Just was missing a few things, not that many.
J: It is more than a few things. …
Mr Metzer QC: -and you, on oath, have said that you have not changed the document, you realise you could be liable for perjury?
C: Yes, I realise that, but I never changed any document. This is an email between her and me, and I'm not quite sure I've still got it. I had special file for those documents.
J: Well, I think this is so important that we should make available the electronic copy, because you understand what the consequences are. If I think that you are lying, I will send the papers to the Director of Public Prosecutions, and if you are found guilty by a jury, of perjury, you will go to prison. Do you understand?
C: Yes, I do.
Mr Metzer QC: So, do you want to just-
J: Has the penny dropped? You understand?
C: I do.
J: Yes. What is the point of her suing you if you are bankrupt? …. Complete waste of time suing you. You have not made any proposals, by the way, to repay this money, have you?
C: Serafin: No.
J: You seem pretty craven about that. I think you need to get on with this because you are just making it worse, okay?
C: Serafin: Yes.
J: Just speed up and come to a conclusion. It is not the best part of your case.
C: I know.
J: You know? Well then why aggravate it even more?
C: I know that this is my worst bundle. [sic]
J: [inaudible] you have acted completely in the wrong and you were with at least one other woman at the time, when the money was lent to you?
C: Yes, I accept it.
J: It was deplorable behaviour and I am going to say so in my judgment.
C: Yes, I know.
J: Well, are you going to stop asking questions or not?