“Hostile” judge harassed litigant in person, Supreme Court rules


Jay: Ruling overturned

A High Court judge “harassed and intimidated” a litigant in person in ways which “surely would never have occurred if the claimant had been represented”, the Supreme Court has ruled.

It recounted also the observation of court president Lord Reed during the hearing “that a judgment which results from an unfair trial is written in water”.

The decision in the libel case of Serafin v Malkiewicz & Ors [2020] UKSC 23 is likely to attract more press coverage than usual because the High Court judge involved, Mr Justice Jay, was counsel to the Leveson inquiry.

The Supreme Court upheld the decision of the Court of Appeal last year to overturn Jay J’s ruling.

The appeal court found that “on numerous occasions, the judge appears not only to have descended to the arena, cast off the mantle of impartiality and taken up the cudgels of cross-examination, but also to have used language which was threatening, overbearing and, frankly, bullying.

“One is left with the regrettable impression of a judge who, if not partisan, developed an animus towards the claimant.”

The Court of Appeal also found that the judge’s conclusion that the defendants had shown a public interest defence was unsustainable, as was his finding as to the truth of the meaning of one of the allegations.

The Supreme Court highlighted 25 instances of inappropriate behaviour from the judge over the five days of oral evidence – such as being offensive, making unreasonable demands, curtailing cross-examination, and at one point during the evidence revealing “in hostile terms” what his finding would be.

Giving the unanimous ruling of the court, Lord Wilson said: “Some of the excerpts, if taken alone, would not merit significant criticism. Nor should we forget that the transcripts enable us to read but neither to hear nor to see.

“But, 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, with profound regret, to uphold the Court of Appeal’s conclusion 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, Lord Wilson continued, “the judge harassed and intimidated him in ways which surely would never have occurred if the claimant had been represented”.

The Court of Appeal remitted the case back to the High Court but only to quantify the claimant’s damages.

Lord Wilson ruled it should have ordered a complete retrial: “Lord Reed observed during the hearing that a judgment which results from an unfair trial is written in water. An appellate court cannot seize even on parts of it and erect legal conclusions upon them.

“That is why, whatever its precise meaning, it is so hard to understand the Court of Appeal’s unexplained order that all issues of liability had, in one way or another, been concluded.

“Had the Court of Appeal first addressed the issue of whether the trial had been unfair, it would have been more likely to recognise that the only proper order was for a retrial.”

The Supreme Court went on to find that Court of Appeal had been wrong to equate the Reynolds defence – under which a defendant in a libel case could try and show it had met the standard of ‘responsible journalism’, measured by reference to 10 factors – with the statutory public interest defence that replaced it in section 4 of the Defamation Act 2013.

In assessing under section 4 that a defendant “reasonably believed that publishing the statement complained of was in the public interest”, the court must, among other things, “have regard to all the circumstances of the case”.

Lord Wilson said the Court of Appeal was wrong to regard the Reynolds factors as a “check list” for making this assessment – the Defamation Bill included reference to the Reynolds factors when introduced to Parliament, but it was removed during the legislative process.

Thus the Court of Appeal’s exercise in setting out the Reynolds factors and applying them to the Serafin case “is not what Parliament intended it to do”, Lord Wilson concluded.

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