Reputation Update: Supreme Court – Reynolds factors should not be seen as a checklist for the public interest defence under the Defamation Act 2013

Posted: June 11, 2020

The Supreme Court has ordered a full retrial of a libel claim brought by an individual, Mr Serafin, in relation to an article published in a newspaper addressing issues of interest to the Polish community in the UK.  The defendants relied on a number of defences, including the public interest defence under Section 4 of the Defamation Act 2013 (the Act). 

At trial, the judge dismissed Mr Serafin’s claim, holding, among other things, that the defendants had established the Section 4 defence in respect of each of the statements about which Mr Serafin had complained. Mr Serafin appealed.

The Court of Appeal allowed Mr Serafin’s appeal, holding, in particular, that the judge had been wrong to uphold the Section 4 defence and, having reviewed transcripts of the trial, that the “nature, tenor and frequency of the judge’s interventions were such as to render [the trial] unfair”.  It ordered that the quantification of damages be remitted to a judge other than the trial judge but did not order a full retrial. The defendants appealed to the Supreme Court.

In its judgment, the Supreme Court upheld the Court of Appeal’s conclusion that the trial had been unfair, but, in light of this conclusion, ordered that there must be a full retrial.  The Supreme Court was also critical of the Court of Appeal’s reasoning on the public interest defence. 

Prior to the Act, the House of Lords’ decision in Reynolds v Times Newspapers Ltd [2001] 2 AC 127 established that there was a common law defence to a claim for defamation for statements published on a matter of public interest. It was necessary for the defendant to show that it had met the standard of responsible journalism, measured by reference to a list of ten factors.  Section 4 of the Act replaced the “Reynolds defence”, and is available where: (1) the statement complained of is on a matter of public interest; and (2) the defendant reasonably believes the publication of the statement is in the public interest. In assessing reasonableness, the court must, among other things, “have regard to all the circumstances of the case”. 

In its decision, the Court of Appeal emphasised the importance of the Reynolds factors in determining the reasonableness of the belief that the statements were in the public interest for the purposes of the Section 4 defence.  However, the Supreme Court considered that the elements of the Section 4 defence could not be equated with those of the common law defence, noting that reference to the Reynolds factors had been deliberately omitted from Section 4.  The Supreme Court confirmed that, while some of the Reynolds factors might be relevant to an assessment as to whether a defendant’s belief that publication was in the public interest was reasonable, they should not be seen as a checklist.  Accordingly, the issue of whether the Section 4 defence is available to the defendants will fall to be determined by the new trial judge without reference to the Court of Appeal’s reasoning.   

Serafin v Malkiewicz and others [2020] UKSC 23

Dionne Clark, Trainee Solicitor, Simkins LLP

Eleanor Steyn, Partner, Simkins LLP