Judge “bullied” litigant in person, Court of Appeal rules


Jay: Ruling overturned

A High Court judge “seriously transgressed” the core principle that he remain neutral during the evidence and used bullying language against a litigant in person, the Court of Appeal has ruled.

Mr Justice Jay interventions during the claimant’s evidence were “highly unusual and troubling”, said the court.

“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.”

Serafin v Malkiewicz & Ors [2019] EWCA Civ 852 was a libel claim in respect of a an article in a Polish-language monthly magazine called Nowy Czas. Mr Justice Jay dismissed Jan Tomasz Serafin’s claim following a seven-day trial, at which the claimant represented himself, having had some legal assistance previously.

The court – Lords Justice Lewison, McCombe and Haddon-Cave – upheld the appeal on three grounds: the judge’s conclusion that the defendants had shown a public interest defence was “unsustainable”, his finding as to the truth of the meaning of one of the allegation was “unsustainable and not one which he was properly entitled to reach on the evidence before him”; and over the unfair judicial treatment.

Mr Serafin argued that during the trial, Jay J “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”.

In agreeing, the Court of Appeal said the judge’s conduct was “all the more surprising and troubling given that the claimant was acting as a litigant in person and English was not his first language (albeit he spoke it well)”.

It added: “We are also highly troubled by the repeated demands and criticisms by the judge regarding the claimant’s disclosure, in circumstances where pre-trial disclosure had been completed by both sides at a time when both the claimant and defendants had been represented by solicitors and counsel, and no application for further disclosure had been made by the defendants.

“Further, the judge’s demand that the claimant give disclosure of ‘all relevant documents’ went beyond what the defendants had ever required and reinforces the impression that he was favouring one side at the expense of the other.”

Giving a joint ruling, the appeal judges concluded: “In our view, the judge not only seriously transgressed the core principle that a judge remains neutral during the evidence, but he also acted in a manner which was, at times, manifestly unfair and hostile to the claimant….

“[We] are driven to the conclusion that the nature, tenor and frequency of the judge’s interventions were such as to render this libel trial unfair.”




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