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You are here: BAILII >> Databases >> United Kingdom Supreme Court >> Serafin v Malkiewicz & Ors [2020] UKSC 23 (3 June 2020)
URL: http://www.bailii.org/uk/cases/UKSC/2020/23.html
Cite as: [2020] 1 WLR 2455, [2020] 4 All ER 711, [2020] EMLR 24, [2020] UKSC 23, [2020] WLR 2455
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Press Summary
Issues & Facts[2020] UKSC 23
On appeal from: [2019] EWCA Civ 852
JUDGMENT
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Serafin (Respondent) v Malkiewicz and others (Appellants)
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before
Lord Reed, President Lord Wilson Lord Briggs Lady Arden Lord Kitchin
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JUDGMENT GIVEN ON |
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3 June 2020 |
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Heard on 17 and 18 March 2020 |
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Appellants |
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Respondent |
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David Price QC |
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Adrienne Page QC |
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Anthony Metzer QC |
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Alexandra Marzec |
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Dr Anton van Dellen |
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(Instructed by David Price QC, Solicitor Advocate) |
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(Instructed by Simon Burn Solicitors (Cheltenham)) |
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Intervener (Media Lawyers Association) (written submissions only) |
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Heather Rogers QC |
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Romana Canneti |
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Jonathan Price |
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(Instructed by Pia Sarma, Solicitor, Editorial Legal Director, Times Newspapers Limited) |
LORD WILSON: (with whom Lord Reed, Lord Briggs, Lady Arden and Lord Kitchin agree)
A. Introduction
1. This appeal is sensitive and important. I regret that I have failed to contain this judgment within fewer than 78 paragraphs, plus 25 paragraphs of a Schedule to it. The Court of Appeal has made a rare finding that the judge’s conduct of the trial was unfair towards one of the parties. When made in respect of the conduct of any judge, however senior or junior, such a finding carries profound sensitivity. Our duty is to appraise it with the utmost care; and, were we to uphold it, we would need to address the order made by the Court of Appeal in consequence of it. But there is a second dimension to the appeal to this court. For the Court of Appeal also based its decision upon its understanding of the effect of section 4 of the Defamation Act 2013 (“the Act”), entitled “Publication on matter of public interest”; and energetic criticisms are made to us in relation to its exposition of the effect of the section. For reasons which will become apparent, our own analysis of the section will not form part of our decision; but it is intended to be helpful nevertheless.
4. By a reserved judgment dated 24 November 2017, the judge explained why he had decided to dismiss the claim: [2017] EWHC 2992 (QB). On 8 December 2017 he made an order to that effect. The claimant appealed against it to the Court of Appeal. On 5 March 2019 Lewison, McCombe and Haddon-Cave LJJ heard the appeal. By a judgment of the whole court dated 17 May 2019, they explained why they had decided to allow the appeal: [2019] EWCA Civ 852. On 21 June 2019 they made an order to that effect. They remitted the task of quantifying the claimant’s damages in respect of part or all of his claim to a judge of the Media and Communications List other than the judge. The defendants now appeal to this court against that order.
B. The Background
C. The Meanings of the Article
“the claimant was a bankrupt and a serially untrustworthy man who, in order to satisfy his ambition and financially benefit himself and his family in Poland, took improper advantage of a number of people, including women.”
The judge disagreed that the words bore this “common sting” and held that he was therefore required to address whether the defendants were liable for each of the 13 meanings which, insofar as they admitted them, were as alleged by the claimant and which, insofar as they disputed those alleged by the claimant, were those which he found the article to have carried.
11. The first meaning (“M1”) was that the claimant
“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.”
The defendants appear to have contended that, if the article bore this meaning, it was not defamatory by reason of section 1(1) of the Act, which provides as follows:
“A statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant.”
The judge rejected the defendants’ contention. He proceeded, however, to consider an alternative contention of the defendants, namely that they had a defence under section 2(1) of the Act, which provides as follows:
“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.”
The judge found that M1 had been shown to be substantially true.
12. The second meaning (“M2”) was that the claimant
“purchased memberships of POSK for those whom he could rely upon to support his electoral aspirations.”
The judge found that, even if, which he doubted, the publication of a statement to this effect crossed the threshold of serious harm to reputation set by section 1 of the Act, M2 had been shown to be substantially true.
13. The third meaning (“M3”) was that 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 closer to women, over whom he exercised his charm.”
As in relation to the second meaning, the judge found that even if, which he doubted, the publication of a statement to this effect crossed the threshold of serious harm set by section 1 of the Act, M3 had been shown to be substantially true.
14. The fourth meaning (“M4”) was 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.”
The judge found that the statement to this effect had been shown to be substantially true.
15. The fifth meaning (“M5”) was that 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.”
The judge found that the statement to this effect had been shown to be substantially true.
16. The sixth meaning (“M6”) was that 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 support a family construction project in Poland and to support his family there.”
The judge found that the statement to this effect had been shown to be substantially true.
17. The seventh meaning (“M7”) was that 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, that should have been made available to satisfy the claims of his creditors.”
The judge found that the statement to this effect had been shown to be substantially true.
18. The eighth meaning (“M8”) was that the claimant
“had profited or attempted to profit by selling out-of-date food to Kolbe House, a residential care home for elderly and vulnerable people, including those suffering from dementia.”
The judge found that the defendants had failed to show that the statement to this effect was substantially true.
19. The ninth meaning (“M9”) was that 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.”
The judge found that the defendants had failed to show that the statement to this effect was substantially true.
20. The tenth meaning (“M10”) was that the claimant
“abused his position of trust at Kolbe House and callously diverted to himself funds that were needed for the care of the home’s elderly and sick residents by securing for himself a contract for the major renovation of the bathrooms at the home, even though these renovations were completely unnecessary.”
The judge found that the defendants had failed to show that the statement to this effect was substantially true.
“supplied to Kolbe House frozen milk and bread which was close to its sell-by date from a source which he did not disclose.”
The judge found that the statement to this effect failed to cross the threshold of serious harm to reputation set by section 1 of the Act.
22. The 12th meaning (“M12”) was that the claimant
“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 home.”
The judge rejected the assertion of the defendants that the statement to this effect failed to cross the threshold of serious harm to reputation set by section 1 of the Act and he proceeded to find that they had also failed to show that it was substantially true.
23. The 13th meaning (“M13”) was that the claimant
“concealed his bankrupt status from Ealing Council [in relation to a planning application] in circumstances where he was obliged to reveal it.”
The judge found that the defendants had failed to show that the statement to this effect was substantially true.
D. Public Interest
27. Much of the argument before the judge in relation to section 4 surrounded subsection (1)(b), namely whether the defendants could show, particularly in circumstances in which they had not invited the claimant to comment prior to publication on their intended allegations against him, that it was reasonable for them to have believed that publishing the statements was in the public interest. In the event the judge found that the defendants had indeed established a defence under section 4 in relation to all the allegations and thus, relevantly, to the five meanings of them which had until that stage survived as actionable. The judge added, however, that, even if the defence under section 4 had not been established, he would not have awarded damages (other, presumably, than nominal damages) in respect of those five meanings. For, so he explained, the claimant’s reputation had been sufficiently “shot to pieces” by the other statements in the article which had been shown to be substantially true.
28. So the judge dismissed the claim.
E. The Appeal to the Court of Appeal
(a) that the judge had been wrong to uphold the defence under section 4;
(b) that there was no evidence on which he could have found that M4 was substantially true and that, without reference to that finding, he could not have found that the claimant’s reputation had been shot to pieces by reference only to the other imputations shown to have been substantially true; and
(c) that the judge’s conduct of the hearing had been unfair to the claimant.
“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 … [W]e … 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. We, therefore, uphold [this] ground of appeal.”
F. The Court of Appeal’s Order
35. In the event, however, the Court of Appeal, without giving reasons, issued the following order:
“1. There be judgment for the appellant.
2. The orders of Mr Justice Jay ... be set aside.
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5. The matter shall be remitted for an assessment of the quantum of the claimant’s damages only, by a Judge of the Media and Communications List [other than Jay J].”
G. Unfair Trial: The Principles
“One is left with the regrettable impression of a judge who, if not partisan, developed an animus toward the claimant.”
Its observation may come close to a suggestion of apparent bias on the judge’s part towards the claimant. But the clear focus of the court was on whether the trial had been unfair.
38. In M & P Enterprises (London) Ltd v Norfolk Square (Northern Section) Ltd [2018] EWHC 2665 (Ch) the ultimately unsuccessful appellant company alleged both that the trial had been unfair and that the judge had given the appearance of bias against it. In para 31 of his judgment Hildyard J quoted the definition of bias given by Leggatt LJ in Bubbles & Wine Ltd v Lusha [2018] EWCA Civ 468, para 17, as follows:
“Bias means a prejudice against one party or its case for reasons unconnected with the legal or factual merits of the case …”
In paras 32 to 42 Hildyard J proceeded to analyse the interplay between the two allegations before him. He observed that, although they overlapped, they were distinct. He added that they required appraisal from different perspectives for, while the fairness of a trial required objective judicial assessment, the appearance of bias fell to be judged through the eyes of the fair-minded and informed observer; and, in the protracted analysis of the trial judge’s questionable performance which Hildyard J proceeded to undertake, he studiously paused at every point to ask (and, at the end, he considered in the round) whether it either rendered the trial unfair or would generate an appearance of bias in the eyes of that observer.
40. The leading authority on inquiry into the unfairness of a trial remains the judgment of the Court of Appeal, delivered on its behalf by Denning LJ, in Jones v National Coal Board [1957] 2 QB 55. There, unusually, both sides complained that the extent of the judge’s interventions had prevented them from properly putting their cases. The court upheld their complaints. At p 65 it stressed in particular that “interventions should be as infrequent as possible when the witness is under cross-examination” because “the very gist of cross-examination lies in the unbroken sequence of question and answer” and because the cross-examiner is “at a grave disadvantage if he is prevented from following a preconceived line of inquiry”.
41. In London Borough of Southwark v Kofi-Adu [2006] EWCA Civ 281, Jonathan Parker LJ, giving the judgment of the Court of Appeal, suggested at paras 145 and 146 that trial judges nowadays tended to be much more proactive and interventionist than when the Jones case was decided and that the observations of Denning LJ should be read in that context; but that their interventions during oral evidence (as opposed to during final submissions) continued to generate a risk of their descent into the arena, which should be assessed not by whether it gave rise to an appearance of bias in the eyes of the fair-minded observer but by whether it rendered the trial unfair.
42. In Michel v The Queen [2009] UKPC 41, [2010] 1 WLR 879, it was a criminal conviction which had to be set aside because, by his numerous interventions, a commissioner in Jersey had himself cross-examined the witnesses and made obvious his profound disbelief in the validity of the defence case. Lord Brown of Eaton-under-Heywood, delivering the judgment of the Privy Council, observed at para 31:
“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.”
44. In In re G (Child) [2015] EWCA Civ 834 counsel for the father, who was responding to the mother’s contention that the conduct of the trial had been unfair, sought to rely on the judge’s reserved judgment, which he suggested was balanced and had in no way represented a wholesale acceptance of his case. So too, before us, the defendants commend the quality of the judge’s reserved judgment. It is on any view a remarkable document. The judge distributed it to the parties only 16 days after the end of the hearing. It runs to 355 paragraphs spread over 70 pages. It is intricately constructed and beautifully written. In it, as will already be clear, the judge in no way accepted all the defendants’ arguments although his acceptance of their defence of public interest ultimately swept the claim into overall dismissal. Following a reading of this judgment, but of nothing else, many might ask “how could that trial have been unfair?” As it happens, Miss Page QC on behalf of the claimant does question whether the judgment, even on its face, is fair. In particular she criticises the alleged poverty of the reasoning in support of the judge’s conclusion, pursuant to section 4(1)(b) of the Act, that the defendants reasonably believed that publication of the article was in the public interest. But this part of the inquiry does not relate to the judge’s judgment and it is not affected by its ostensible quality. For, as Black LJ said in the G case, at para 52:
“the careful and cogently written judgment cannot redeem a hearing in which the judge had intervened to the extent … of prejudicing the exploration of the evidence.”
45. In the G case Black LJ also observed, at para 53:
“the one person from whom this court has not heard is the judge, who would no doubt have had much that she could valuably have contributed to the evaluation of the process.”
The observation precipitated a discussion at the hearing before us about the merits or otherwise of an invitation by an appellate court to the trial judge to comment on an allegation such as the present. In relation to a hearing which has not been recorded and so cannot be made the subject of a transcript, such as a hearing before the Immigration and Asylum Chamber of the First-tier Tribunal, it may well be appropriate to invite the judge to comment in writing and perhaps to provide his or her own note of the hearing: Sarabjeet Singh v Secretary of State for the Home Department [2016] EWCA Civ 492, [2016] 4 WLR 183, para 53. But where, as in the present case, there is a full transcript of the relevant part of the proceedings, it is less likely to be appropriate to invite the judge to comment. On the one hand, as I know from personal experience, the anxiety of a trial judge may be profound if he considers that what he perceives to be the baselessness of criticisms of him in a forthcoming appeal is likely to go unexposed. On the other hand, unlike a disciplinary inquiry into his conduct, the focus of the appeal is not - directly - upon him. It is upon the alleged breach of the appellant’s right to a fair trial both at common law and under article 6 of the European Convention. Most appeals involve criticism of trial judges in one way or another and no doubt most judges would welcome an opportunity to respond to it. Where would the line be drawn and, if the appellant were to take issue with the judge’s responses, would resolution of the appeal be even more problematical? The observation of Black LJ in the G case therefore raises a difficult issue. All that need here be said is that, where a transcript exists, it is not the present practice of appellate courts to invite the judge to comment; but that the absence of his ability to comment places upon them a requirement to analyse the evidence punctiliously. In the present case we should draw confidence from the fact that it was Mr Metzer, counsel for the defendants at the trial and therefore intimately acquainted with the course that it took, who was able to place before us a detailed and energetic response to the contention that the trial had been unfair.
“8. Litigants in person may be stressed and worried: they are operating in an alien environment in what is for them effectively a foreign language. They are trying to grasp concepts of law and procedure about which they may have no knowledge. They may well be experiencing feelings of fear, ignorance, frustration, anger, bewilderment and disadvantage, especially if appearing against a represented party.
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59. The judge is a facilitator of justice and may need to assist the litigant in person in ways that would not be appropriate for a party who has employed skilled legal advisers and an experienced advocate. This may include:
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· Not interrupting, engaging in dialogue, indicating a preliminary view or cutting short an argument in the same way that might be done with a qualified lawyer.”
Training and experience will generally have equipped the professional advocate to withstand a degree of judicial pressure and, undaunted, to continue within reason to put the case. The judge must not forget that the litigant in person is likely to have no such equipment and that, if the trial is to be fair, he must temper his conduct accordingly.
H. Unfair Trial: The Facts
47. Any inclusion within the body of this judgment of the requisite factual analysis of the conduct of the trial would have unbalanced it. The analysis is better set out in the Schedule to this judgment, to which the reader should now turn. This court, unlike the Court of Appeal, has been provided with full transcripts of the first four and half days of the hearing, during which almost all the oral evidence was given. I have read all of them and, also deriving some assistance from a Schedule provided on behalf of the claimant, I have chosen to place 25 excerpts from them into the Schedule.
48. In order to keep the Schedule within manageable bounds it has been necessary for the 25 excerpts to be set out together. But it is important to remember that those passages were separated by long stretches of evidence in respect of which no criticism of the judge can be made. Ellipses within the excerpts also indicate the omission from them of words which add nothing either to the claimant’s complaint about the trial or to the defendants’ response to it. 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, 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”.
“No cause is lost until the judge has found it so; and he cannot find it without a fair trial, nor can we affirm it.”
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. It is no doubt highly desirable that, prior to any retrial, the parties should seek to limit the issues. It is possible that, in the light of what has transpired in the litigation to date, the claimant will agree to narrow the ambit of his claim and/or that the defendants will agree to narrow the ambit of their defences. But that is a matter for them. Conscious of how the justice system has failed both sides, this court, with deep regret, must order a full retrial.
I The Public Interest Defence
52. The Act provides as follows:
“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.”
53. The origin of the defence lies in the common law. Any study of how in the common law one principle emerges, stage by stage, from another until it achieves independence of it, like a butterfly shedding a chrysalis and taking wing, would do well to address first the decision in Reynolds v Times Newspapers Ltd [2001] 2 AC 127, then the decision in Jameel (Mohammed) v Wall Street Journal Sprl [2006] UKHL 44, [2007] 1 AC 359, and finally the decision in Flood v Times Newspapers Ltd [2012] UKSC 11, [2012] 2 AC 273.
55. I interpolate a reference to Bonnick v Morris [2002] UKPC 31, [2003] 1 AC 300, because there, in delivering the advice of the Privy Council upon an appeal from Jamaica, Lord Nicholls offered a useful epitome of the decision in relation to which he had played the leading role three years earlier. On the board’s behalf he said:
“23. 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. If they are to have the benefit of the privilege journalists must exercise due professional skill and care.”
“It is a defence to an action for defamation for the defendant to show that -
(a) the statement complained of is, or forms part of, a statement on a matter of public interest; and
(b) the defendant acted responsibly in publishing the statement complained of.”
Subclause (2) listed eight matters to which, among others, the court might have regard in determining whether a defendant acted responsibly in publishing the statement. In substance the eight listed matters were, in the words of the consultation paper, broadly based on the ten factors identified by Lord Nicholls in the Reynolds case. In the paper the government explained that concerns had been expressed about the complexity of the Reynolds defence and about its application outside the context of mainstream journalism; that on balance it considered that there should be a statutory defence aimed at meeting these concerns; and that the drafting of subclause (2) was intended to make clear that the listed matters “should not be interpreted as a checklist or set of hurdles for defendants to overcome”.
“29. [Clause 4] creates a new defence to an action for defamation of responsible publication on a matter of public interest. It is based on the existing common law defence established in Reynolds v Times Newspapers and is intended to reflect the principles established in that case and in subsequent case law.
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37. Subsection (6) abolishes the common law defence known as the Reynolds defence. This is because the statutory defence is intended essentially to codify the common law defence. While abolishing the common law defence means that the courts would be required to apply the words used in the statute, the current case law would constitute a helpful (albeit not binding) guide to interpreting how the new statutory defence should be applied.”
“Consideration of whether a publication was ‘responsible’ involved both subjective and objective elements. ‘Reasonable belief’ also does this, but we believe that it brings out more clearly the subjective element in the test - what the defendant believed at the time rather than what a judge believes some weeks or months later - while retaining the objective element of whether the belief was a reasonable one for the defendant to hold.”
“Although we do not believe that the courts would apply the list of factors, based on those in Reynolds, as a checklist, we have responded to strongly expressed concerns that the use of a list may be likely to lead in practice to litigants and practitioners adopting a risk-averse approach and gathering detailed evidence on all the factors listed, in case the court were ultimately to consider them relevant … on balance, we consider that it is preferable for there to be greater flexibility than a statutory list might provide.”
67. Since the enactment of section 4, the primary authority in relation to its interpretation has been, so we are told, the case of Economou v De Freitas decided by Warby J at [2016] EWHC 1853 (QB), [2017] EMLR 4, and by the Court of Appeal (in a judgment of Sharp LJ with which Lewison and Ryder LJJ agreed) at [2018] EWCA Civ 2591, [2019] EMLR 7. The claimant had a relationship with the defendant’s daughter. Following its breakdown the daughter accused the claimant of rape. He was arrested but not charged. He launched a private prosecution against her, later continued by the Crown Prosecution Service, on the ground that she had falsely accused him of rape with intent to pervert the course of justice. Days before her trial she committed suicide. The defendant made statements in writing and in interviews which were published by the press and by the BBC. In summary their meaning was that there were reasonable grounds to suspect that the claimant had raped his daughter and thus that the basis of his prosecution of her had been false. A central issue in both courts was whether the defendant’s defence under section 4 of the Act should be upheld. Warby J upheld it and dismissed the claim; and the Court of Appeal dismissed the claimant’s appeal. Section 4(1)(b) requires that the defendant’s belief that publication was in the public interest should have been reasonable; and a major part of the discussion in both courts addressed the effect of that requirement in relation to a defendant who, not being a professional journalist, had been a contributor, albeit the central one, to the publication. Warby J introduced his discussion with the following statement:
“241. I would consider a belief to be reasonable for the purposes of section 4 only if it is one 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.”
Sharp LJ at para 101 quoted the judge’s statement with approval. Before us, however, the defendants criticise it as incompatible with the section. I can discern no basis for that criticism. It is almost impossible to expand in the abstract on the meaning of the word “reasonable” but, so far as it goes, the judge’s statement is no doubt helpful.
“86. 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. Nevertheless ... 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.”
It could be said that the contrast drawn in the first sentence of the passage is misconceived. For, in addressing the subsection, Sharp LJ has there omitted reference to its requirement that the publisher’s belief should be reasonable; and it is that requirement which falls to be compared with the focus in the Reynolds defence on the responsibility of his conduct. But the second sentence, if carefully read, is clearly correct: the rationale for each of the defences is indeed not materially different and the principles which underpinned the Reynolds defence are indeed relevant to the interpretation of the statutory defence.
69. The second passage in the judgment of Sharp LJ in the Economou case is as follows:
“110. … 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) … 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 … the weight to be given to those factors, and any other relevant factors, would vary from case to case.”
In the light of the analysis of the passage of the Bill through Parliament in paras 58 to 65 above, it is possible to add to what Sharp LJ there said. For the Bill, as introduced, did in effect make reference to the Reynolds factors but later they were deliberately omitted. Subject to what some may regard as only a quibble, the observations of Sharp LJ are valid. The quibble, if such it be, relates to her use of the word “checklist”. I suggest that a check list is a list of factors to which reference ought to be made, in particular in order to check whether a preliminary conclusion should be confirmed. Even in its pre-legislative consultation the government had expressed concern that the matters then proposed to be listed in the Bill “should not be interpreted as a checklist”: see para 57 above. But, in removing the listed matters from the Bill and in proceeding to substitute a reference to all the circumstances, Parliament made clear its intention that the Reynolds factors, upon which the list had been based, were not to be used as a check list. 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 check list, it is clearly inappropriate so to regard them in the context of the statutory defence. But, as Sharp LJ proceeded to explain, that is not to deny that one or more of them may well be relevant to whether the defendant’s belief was reasonable within the meaning of subsection (1)(b).
J The Court of Appeal’s Analysis of the Defence
71. In para 36 of its judgment the Court of Appeal said:
“In Reynolds, Lord Nicholls set out a well-known check list for use when determining whether the defendant reasonably believed that publishing the statement complained of was in the public interest.”
But the inquiry which the Court of Appeal there described is the inquiry mandated by section 4(1)(b) rather than that suggested in the Reynolds case.
72. In para 41 of its judgment the Court of Appeal said:
“The Reynolds ‘public interest’ defence has been replaced by the section 4 ‘public interest’ defence. The recent Court of Appeal decision in Economou has confirmed that the two tests are not materially different.”
But what the Court of Appeal said in the Economou case was that the rationale for each of the tests was not materially different: see para 68 above. It is wrong to consider that the elements of the statutory defence can be equiparated with those of the Reynolds defence.
73. In para 44 of its judgment the Court of Appeal said:
“The defence is a form of qualified privilege.”
The origins of the statutory defence lie in the Reynolds defence which, at birth, arose out of the concept of qualified privilege. But even in 2006, long before the enactment of section 4, Lord Hoffmann in the Jameel case explained that it was unhelpful to regard the defence as a form of privilege: see para 56 above. Indeed in the Flood case Lord Phillips said likewise: see para 60 above. The concept of qualified privilege is laden with baggage which, on any view, does not burden the statutory defence.
74. In para 47 of its judgment the Court of Appeal said:
“When determining the issue whether defamatory material is published in the ‘public interest’ under section 4, the public interest in publication is to be balanced with the fact that an individual’s article 8 right to reputation will be breached by the publication of unproven allegations without a remedy. (The CJEU has long recognised that a person’s reputation is encompassed by the article 8 right: see eg Einarsson v Iceland, App no 24703/15, at para 33.) The section 4 defence needs to be confined to the circumstances necessary to protect article 10 rights.”
The first question is to ask whether the court was there addressing (a) or (b) of section 4(1). The answer, agreed by counsel, is that, had it been addressing (b), it would have referred to reasonable belief so that it must have been addressing (a). The requirement at (a) is, however, not whether the statement “is published in the public interest” but whether it is “on a matter of public interest”; and, with respect, it is important to adhere to the statutory wording. The court then proceeded to refer to human rights under the European Convention: its reference to the CJEU, like an earlier reference in para 34 of its judgment, is a slip of its pen and should be to the ECtHR. At present I cannot envisage how, as the Court of Appeal reiterated in para 57, the objective evaluation whether a statement is on a matter of public interest might be affected by consideration of rights under article 8. But there is a wider point: for just as the common law defence was developed under the influence of Convention principles (see para 60 above), so was the statutory defence. Its three requirements that the statement should have been on a matter of public interest, that the defendant should have believed that publication of it was in the public interest and that the belief should have been reasonable, all of which have to be established by the defendant, are intended, and may generally be assumed, to ensure that operation of the section generates no violation either of the claimant’s right under article 8, or of the defendant’s right under article 10. To the extent that a court is persuaded to consult Convention jurisprudence in the course of a determination under section 4, it is likely to find that the word “reasonably” in subsection (1)(b) is sufficiently elastic to enable the section to be given effect in a way which is compatible with Convention rights.
75. In para 48 of its judgment the Court of Appeal said:
“When considering whether or not an article is in the public interest, the court needs to consider not merely the bare subject-matter, but also the context, timing, tone, seriousness and all other relevant factors. In this respect Lord Nicholls’ check-list in the Reynolds case remains relevant not only to the issue of whether the journalist acted responsibly, but also the issue of the existence of public interest in the article.”
But, with respect, the question is not whether the article is “in the public interest” but whether it is “on a matter of public interest”. I suggest that reference to a check list is now inappropriate for the reasons given in para 69 above and that reference to acting “responsibly” is now also best avoided. For, acting upon the reasons given by Lord McNally to the Grand Committee on 19 December 2012, Parliament deliberately removed the reference to acting “responsibly” from the Bill and substituted the words in section 4(1)(b): see para 62 above.
76. In para 66 of its judgment the Court of Appeal said:
“It is a basic requirement of fairness and responsible journalism that a person who is going to publish a story without being required to show that it is true should give the person who is the subject of the story the opportunity to put his side of the story. Gatley [Gatley on Libel and Slander, 12th ed (2013)] refers to this as the ‘core’ Reynolds factor …”
A failure to invite comment from the claimant prior to publication will no doubt always at least be the subject of consideration under subsection (1)(b) and may contribute to, perhaps even form the basis of, a conclusion that the defendant has not established that element of the defence. But it is, with respect, too strong to describe the prior invitation to comment as a “requirement”. It was never a “requirement” of the common law defence: see the Jameel case, cited at para 53 above; and so to describe it would be to put a gloss on subsections (1)(b) and (2) of the section.
77. In para 83 of its judgment the Court of Appeal said:
“Finally, by way of a checklist, it is useful to consider the Reynolds factors seriatim: …”
The Court of Appeal’s exercise in then proceeding to set out Lord Nicholls’ ten factors and to apply them to the present case is not what Parliament intended it to do: see para 69 above.