The UK’s highest court has ordered a retrial in a libel case where a judge “harassed and intimidated” a claimant who represented himself.
Following a week-long trial in London in 2017, Mr Justice Jay dismissed a claim for damages brought by businessman Jan Tomasz Serafin, 68, who complained about an article in Polish-language newspaper Nowy Czas.
The ruling was overturned by the Court of Appeal in May last year, following a challenge by Serafin when three leading judges said Mr Justice Jay’s interventions in the case were “highly unusual and troubling”.
Nowy Czas is a free newspaper targeting the Polish community in the UK, particularly in London, and publishes weekly.
Following a challenge by the newspaper’s publishers and two of its editors, heard in March, a panel of five Supreme Court justices upheld the Court of Appeal’s ruling.
However, the judges said the whole case must now be heard again, as a result of the original trial being unfair to Serafin.
In a ruling today, Lord Wilson said it was important to remember there were “long stretches of evidence” in respect of which no criticism could be made of Mr Justice Jay.
However, he said: “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, the judge harassed and intimidated him in ways which surely would never have occurred if the claimant had been represented.
“It was ridiculous for the defendants to submit to us that, when placed in context, the judge’s interventions were ‘wholly justifiable’.”
Lord Wilson added: “Conscious of how the justice system has failed both sides, this court, with deep regret, must order a full retrial.”
Lords Justice Lewison, McCombe and Haddon-Cave said in the Court of Appeal’s ruling that Mr Justice Jay had acted in a “manifestly unfair and hostile” way towards the claimant, who was not represented by lawyers.
Mr Justice Jay was leading counsel to the Leveson Inquiry into the culture, practices and ethics of the press from 2011 to 2012, and was appointed a High Court judge in June 2013.
Serafin’s case had been due to test the public interest defence under section four of the Defamation Act 2013, which replaced the common law Reynolds Defence established in Reynolds vs Times Newspapers .
In his summary, Lord Wilson said: “The Court of Appeal made various comments about it, which, with respect, we regard as misleading.”
In particular, he takes issue with using the ten factors that underpinned the Reynolds Defence as a “checklist” for the statutory defence.
He said: “Even if, at the time of the decision in the Reynolds case, it was appropriate to describe the factors identified by Lord Nicholls as a checklist, it is clearly inappropriate so to regard them in the context of the statutory defence.”
In his judgment Lord Wilson goes on to highlight the difference between the statutory and common law defences and their origins.
Picture: UK Supreme Court