We update our books every year and in order to do this we have to keep track of change in statute law and important new cases. We have to decide what is relevant for inclusion and what is not, generally it’s not too difficult to call, but sometimes we can get sidetracked by something really interesting which just doesn’t quite fit into our guides.
Sarafin v Malkiewicz is just such a case and since we’ve decided not to include it in next year’s guides we thought we’d blog about it. Who knows, it might just be useful to you for an essay. The case was a defamation action brought against a London based Polish newspaper. The claimant was a litigant in person who worked with a McKenzie friend. The defence was one of justification and that the article was in the public interest and therefore covered by s.4 Defamation Act 2013. The High Court found for the defendants, and the matter was appealed to the Court of Appeal which found that the s.4 defence was not applicable and remitted the case back to the High Court for damages to be quantified. The matter was then appealed to the Supreme Court.
The Supreme Court found that the original trial was unfair and ordered a retrial. The Supreme Court did not hold back in its criticism of the trial judge. There had been a “barrage of hostility” towards the claimant and the judge had “harassed and intimidated him” using “immoderate, ill-tempered and at times offensive language at many different points”. The claimant had not been allowed to put his case and it had not been adjudicated. The judge had repeatedly interrupted, and it appears that he had made a quick decision that the claim was without merit and that the hearing was a waste of public money. Of course, this means that the trial judge had failed completely at his job of listening to evidence and making a decision.
It might be worth looking out for the retrial on the issue of any ruling on s.4. Would be litigators should also note that managing a case for a client with a litigant in person on the other side is tricky. It’s essential that justice is seen to be done and sometimes clients can get tetchy because their teams seem to be helping the other side. This case makes clear the need for courtesy and patience and this can apply as much to solicitors and barristers as to judges. Sometimes you might need to bend over backwards to explain things and to help get things ready for a trial. Better to do that than be stuck with a retrial!