DECISION OVERTURNED BECAUSE OF UNFAIR JUDICIAL TREATMENT: “TAKING UP THE CUDGELS OF CROSS-EXAMINATION”

There are few cases that are overturned on the grounds of unfair judicial treatment. However this was one of grounds the appeal was allowed today in Serafin v Malkiewicz & Ors [2019] EWCA Civ 852

“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.”

THE CASE

The claimant brought an action for libel. He acted as a litigant in person at trial. He was (largely) unsuccessful and appealed. One of the grounds of appeal was unfair judicial treatment.  The Court of Appeal allowed the appeal on this ground (amongst others).

THE JUDGMENT OF THE COURT OF APPEAL ON THIS ISSUE
Appeal Ground 5: Unfair judicial treatment
    1. The fifth ground of appeal was as follows:
Ground 5: unfair judicial treatment
During the trial, the Judge showed hostility and rudeness to the Claimant, an unrepresented party.  He 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.  He also prejudged matters against the Claimant (for example making it clear early in the trial that he regarded him as a “liar” who had behaved “deplorably” and threatened that he would say so in his judgment).  He made repeated demands that the Claimant prove matters to him by reference to documents which were not before the Court.  In consequence of the above, the trial process was either unfair and/or conducted with the appearance of unfairness, and the Judge’s findings are not safe or reliable.”
Claimant’s submissions
    1. Ms Marzec submitted that, from almost the beginning of the trial, the Judge made clear to the Claimant that he believed him to be an undeserving claimant, a liar, and that he was going to lose. She submitted in particular as follows: (i) The Judge’s interventions were not simply inquisitorial and neutral, but accusatory and challenging: in effect, the Judge acted as another advocate of the Defendants’ case, not as a neutral umpire. (ii) It ought to have been clear to the Judge that there was an inherent risk of unfairness given that (a) the Claimant was an unrepresented litigant in person, who was not legally qualified and did not have English as a first language; (b) his claim was legally and factually complex; (c) he was not familiar with the relevant law or legal procedure; and (d) his opponent was a very experienced silk. Accordingly, (iii) in these circumstances, although the Claimant was not entitled to any better treatment than a represented party, he ought to have been treated at least with courtesy and given appropriate assistance by the Judge in the conduct of his case. However, (iv) he received no such assistance and his attempts to present his case were undermined and derailed by the Judge.
    2. Ms Marzec further submitted that the Claimant was entitled to the benefit of the presumption of falsity that attaches to defamatory allegations in English law. However, this was not accorded to the Claimant by the Judge during the hearing.
Defendants’ submissions
    1. Mr Metzer QC submitted that it would be wrong to view the Judge’s findings in the Judgment as all one way and adverse to the Claimant. He listed a series of matters which the Judge had found in the Claimant’s favour, including e.g. there was no ‘common sting’ [57], the Claimant’s closing address was “in many ways a forensic tour de force” [89], the Claimant did not forge a disputed email [149]-[150], and the Defendants had failed to prove the truth of all but one of the Kolbe House allegations ([251] ff).
    2. However, as Mr Metzer QC would accept, it is right to observe that the major findings and the overwhelming result of the Judge’s conclusions were adverse to the Claimant.
The principle of fairness
    1. It is a fundamental tenet of the administration of law that all those who appear before our courts are treated fairly and that judges act – and are seen to act – fairly and impartially throughout a trial.
    2. It is perfectly proper – indeed a duty – for a judge to intervene in the course of witness evidence for the purposes described by Rose LJ in R v Tuegel [2002] Cr App R 361, namely “to ask questions which clarify ambiguities in answers previously given or which identify the nature of the defence, if this is unclear“.
    3. It is wrong, however, for a judge “to descend into the arena and give the impression of acting as advocate” (per Lord Parker CJ in R v Hamilton(unreported, 9 June 1969) cited by the Court of Appeal in R v Hulusi (1973) 58 Cr. App. R 378, 382).
    4. In Michel v The Queen [2009] UKPC 41, Lord Brown JSC, giving the judgment of the Court, made it clear that the issue whether a trial has been fair was not to be judged merely by the correctness of the result:
“27. There is, however, a wider principle in play in these cases merely than the safety, in terms of the correctness, of the conviction. Put shortly, there comes a point when, however obviously guilty an accused person may appear to be, the appeal court reviewing his conviction cannot escape the conclusion that he has simply not been fairly tried: so far from the judge having umpired the contest, rather he has acted effectively as a second prosecutor. …
28. Lord Bingham was, of course, right to recognise that by no means all departures from good practice render a trial unfair…. Ultimately the question is one of degree. …
31. …[N]ot merely is the accused in such a case deprived of “the opportunity of having his evidence considered by the jury in the way that he was entitled”. He is denied too the basic right underlying the adversarial system of trial, whether by jury or jurats: that of having an impartial judge to see fair play in the conduct of the case against him. Under the common law system one lawyer makes the case against the accused, another his case in response, and a third holds the balance between them, ensuring that the case against the accused is properly and fairly advanced in accordance with the rules of evidence and procedure. All this is elementary and all of it, unsurprisingly, has been stated repeatedly down the years. 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.” (emphasis added)
    1. These principles, of course, apply with equal rigour whether or not litigants are legally represented. Indeed, so far as litigants in person are concerned, judges and tribunals should be (and generally are) especially conscious to ensure the dictates of fairness are observed – and seen to be observed – at all times and that due allowance is always made for language and other difficulties.
Analysis
    1. In her helpful skeleton argument, Ms Marzec cited a series of extracts from the transcript of Days 1 to 4 of the hearing upon which she particularly relied as “indicators of the Judge’s conduct towards the Claimant”. We attach to this judgment at ANNEX C these extracts as set out in paragraphs 56-69 of her skeleton.
    2. It will be immediately apparent from reading these extracts (in particular the passages which we have underlined) that the Judge’s interventions during the Claimant’s evidence were highly unusual and troubling. 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.
    3. We have read all the sections of the transcripts in the bundle from Days 1 to 4 of the hearing carefully. There were other interventions by the Judge which were of a similarly troubling nature to those in ANNEX C. We mention two in particular. First, during the cross-examination of the Claimant by Mr Metzer QC on Day 2 (p.85A) the Judge remarked by way of an aside to Mr Metzer QC about the Claimant (in the Claimant’s presence):
Mr Justice Jay: He is either being obtuse, or he is playing for time, and I cannot decide which.”
    1. In a later part of the cross-examination regarding two discrepant emails (immediately before the passage cited at paragraph 65 of Ms Marzec’s skeleton from Day 2, p.88D) the Judge intervened again and there was the following telling exchange:
Mr Justice Jay: You do not understand what counsel is saying. To put it bluntly, he is saying there were two versions of this email. … That is what is being put, that you have deliberately put words in her mouth –
Claimant: I think I –
Mr Justice Jay: – and therefore, have lied. Well, did you or did you not?
Claimant: I didn’t. I –
Mr Justice Jay: Well, how can you explain what is in the bundle, which does not seem to be the version which was sent? I mean, presumably, Mr Metzer, we can see the electronic version, if required?
Mr Metzer: Yes, and I wanted to just give Mr Serafin this opportunity because he’s not represented, and despite my Lord being, if I may say so, very fair in terms of ensuring that he understands everything very carefully …”
(We detect more than a note of concern in the fact that Mr Metzer QC felt that he had to make the last observation).
    1. The Judge’s conduct is 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).
    2. 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” (on Day 4, p.44E) went beyond what the Defendants had ever required and reinforces the impression that he was favouring one side at the expense of the other.
Summary
  1. 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. As emphasised in Michel, not all departures from good practice render a trial unfair – ultimately the question is one of degree. Nevertheless, we have carefully considered and reflected upon this matter and 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 the Claimant’s fifth Ground of Appeal.

 

ANNEX C

EXTRACTS FROM THE TRANSCRIPT OF THE TRIAL
(taken from the Claimant’s Skeleton Argument (para. 56ff.) (underlining added)
[Mr Justice Jay (“J); the Claimant (“C”)]
    1. Day 1, p.95G (the afternoon of Day 1):
J: I am not sure I understand this at all, but you owed Rofood around £100,000?
C: No, that was slightly before when I have £100,000 in debt with him, he didn’t allow us anything without paying. ….
J: There is always a lack of clarity with your evidence which I am finding irritating.
    1. By the end of the first day [Day 1 p.99C], when the Claimant was mid-way through being cross-examined, the Judge indicated his hostility to the Claimant and Claimant’s case, remarking:
J: It is not very ethical business behaviour this, but we will see where the weight of the evidence is leading. Because if I concluded that you are acting unethically as a businessman, I am not sure of the precise terms of the defamations are going to matter to you much. Do you understand? You will lose, but there is a lot more evidence yet.
    1. The Judge made repeated peremptory demands that he (the Claimant) produce documents the Judge wanted to see, supported by threats. He admonished the Claimant for not having all the documents and information the Judge needed in order to prove the Claimant’s innocence:
See Day 2 p.11; Day 2 p.6: the Judge demands more documents; when the Claimant says he has “five boxes, 14,000 receipts” and he has no idea how to do it, the Judge retorts that he can “do that by tomorrow morning“; also Day 4, p.22; and Day 2 p.16:
J: Yes, well it is very simple. Where are the documents to show your investment of £365,000?
C: I’ll try to find that in a second, but-
J: Well, it should not take you a second. It should take you a nanosecond, because it is obvious that this point would be raised. Where are the documents? In the bundle?
C: In the bundle, yes.
J: It should be at your fingertips [Pause] Well, you can deal with in re-examination I suppose, otherwise we will be here all day….
J: I am warning you, you find that after lunch-
C: Yes.
J. – during lunch, and I want to see them at one minute past two, the page. If you do not show them to me, I will draw inferences. Do you understand what that means?
C: Yes, I do.
    1. Day 2, pp.26-27; a portion of which is reproduced here:
J: You see, you knew these questions would be asked of you, because one thing you are not is stupid, okay? So, why are you not here today with all of this on your fingertips, saying, ‘There is £31,500 which is not accounted for through the Sami Swoi facility. It was paid to X, Y and Z, and here is proof of it’? Why have you not got that for me, or do I just have to take your word for it every single time?
C: [No audible reply].
J: Are you going to be able to find it for me, in the documents?
C: If they are taken from money to Poland, I’d have had to sign something which is sending it to Poland, but definitely is going to suppliers.
J: Well, you say that, but what is being suggested is not that you are funnelling money out of the company, probably to go to your family in Poland.
C: No, that’s not true. [Inaudible].
J: Well, I need it – I am not going to take your word for it, okay? I need you to prove it to me. A bunch of assertions is not going to cut any ice. I need proof. Strictly speaking, the burden of proof is on the defendant to prove that under the Defamation Act, but it is not going to work like that in the sense that I will draw inferences. So, you can get it over lunch. You can prove to me where these monies went.
    1. Day 2, p.36: When the Claimant was being cross-examined by the Defendants’ Counsel (Mr Metzer QC) to the effect that the Claimant was dishonest, the Judge asked the Claimant:
J: Is this going to be more work over lunch, finding these accounts?
C: No.
J: But why do you not have them at your fingertips?
C: [inaudible]
J: Also, I want proof that they were filed at Companies House, documented proof.
C: I’ll try to find out. I’m not quite sure that there’s anything about it in the documents that they were filed.
J: Well, it is up to you. If you fail to provide it, I can draw an inference again.
    1. The Judge joined in with cross-examination, not questioning the Claimant in a neutral way in order to understand his case, but with hostility, as an adversary. See e.g. Day 2 p.45, when the Claimant was cross-examined by Ds’ counsel about what he had told investors at a meeting. The Judge intervened as follows:
J: This does not look great, frankly, because either you were lying to the investors, or you are lying to me. If you are lying to me, the consequences can be really awful, because you understand, I do not like being lied to. Which is it? Who were lying to? Were you telling the truth to the investors and therefore lying to me, or were you lying to investors and telling the truth to me?
C: That’s accurate. I was lying to the investors. Because the documents that she lended the company, I don’t – I can’t dispute that. …..
J: But do you understand what this is about, Mr Serafin? That you are bringing proceedings in the High Court-
C:Yes.
J: -taking 10 days, and however long it takes for me to write the judgment. It will take some considerable time, seeking to uphold your reputation. But your reputation is already beginning to fall to pieces, because you are a liar, and you do treat women in a frankly disgraceful way, on your own admission. Have you thought through this carefully what you are trying to protect?
C:[No audible reply].
J: It is up to you. We will carry on. You carry on asking questions, Mr Metzer.
(The “frankly disgraceful way” of treating women referred to the fact that the Claimant had carried on relationships with two women at one time.)
    1. Day 4 p.14: the Claimant wanted to cross-examine D1 as to the fact that he (the Claimant) had paid back all the money he owed Mrs Howard. The Judge stopped him, implying it was irrelevant, when in fact the loans to Mrs Howard were part of Ds’ case (Amended Defence 14.21) and the fact that the Claimant had repaid her in full was part of C’s case pleaded in the Amended Reply at paragraph 18.18.3.
    2. When it came to light during Day 4 that an annex of a Bankruptcy Restrictions order was missing, the Judge asked Ct why they did not have it. When the Claimant said that he did not know where it was, the Judge’s retort was accusatory, unjustified and wrong in law (in informing the Claimant that he should have disclosed “all relevant documents”) [Day 4 p21E]
J: You are under an obligation to – You have not given proper disclosure in this case. You are under an obligation under the rules to give disclosure of all relevant documents. There are many documents which are relevant that I have not seen. Your failure to disclose them will give rise to an adverse inference. Do you know what that means?
C: No.
J: I will hold things against you. You should have disclosed things. It is only fair. The same would apply the other way round, if the defendants did not give proper disclosure.
C: I am missing what I can say, only that evidence was exchanged by my previous-
J: I am not accepting you blaming them.
C: No. Just was missing a few things, not that many.
J: It is more than a few things. …
    1. At the time disclosure had been given, both sides had been represented by solicitors and counsel and no application for further disclosure had been made.
    2. When an issue arose as to two discrepant emails – one produced by Ds and another copy in the trial bundle – the Judge threatened the Claimant with prosecution and imprisonment for forgery even before he had investigated the matter or permitted the Claimant to explain: Day 2 p.88D:
Mr Metzer QC: -and you, on oath, have said that you have not changed the document, you realise you could be liable for perjury?
C: Yes, I realise that, but I never changed any document. This is an email between her and me, and I’m not quite sure I’ve still got it. I had special file for those documents.
J: Well, I think this is so important that we should make available the electronic copy, because you understand what the consequences are. If I think that you are lying, I will send the papers to the Director of Public Prosecutions, and if you are found guilty by a jury, of perjury, you will go to prison. Do you understand?
C: Yes, I do.
Mr Metzer QC: So, do you want to just-
J: Has the penny dropped? You understand?
C: I do.
    1. Later, the Claimant explained that the emails were two different emails, which why 5the version he had produced was discrepant from Ds’ copy. Even then the Judge treated the Claimant’s explanation with hostility, scepticism and rudeness, telling him that he (the Claimant) “would have to demonstrate” that it was just a printing error.
    2. When the Defendants themselves gave evidence, the Judge adopted an entirely different approach. At no point did he criticise either the Defendant’s conduct, even when it was apparent that they had published defamatory allegations in the article for which they had no basis. He suggested answers to the witnesses, e.g. when the Claimant asked the First Defendant which of his (the Claimant’s) family members in Poland had thought the Claimant was still married, the Judge interrupted to say to the witness, You would not want to [name the person] anyway because the source is confidential [Day 3 p119], even when the First Defendant had not claimed any such confidentiality. The Judge also repeatedly let the Claimant know that the Claimant was not cross-examining to his satisfaction, telling him that his questions were wasting [his] time [Day 3 p117] (and again); or not relevant [Day 4 p80]; or not “proper” [Day 3 p8]; Day 4 p9] (“That was not a brilliant question was it?“); Day 4 p14 (“So this is a hopeless line of questioning. The more you try and distance yourself from this, the worse it gets from your perspective“).
    3. The Judge tried to stop the Claimant cross-examining one of the Defendant’s witnesses, a woman to whom the Claimant owed money. When the Claimant asked the witness why she had not sued him if she believed she was owed money, the Judge interrupted the cross-examination to support the witness and admonish the Claimant for his prior relationship behaviour [Day 4 p78-9]:
J: Yes. What is the point of her suing you if you are bankrupt? …. Complete waste of time suing you. You have not made any proposals, by the way, to repay this money, have you?
C: Serafin: No.
J: You seem pretty craven about that. I think you need to get on with this because you are just making it worse, okay?
C: Serafin: Yes.
J: Just speed up and come to a conclusion. It is not the best part of your case.
C: I know.
J: You know? Well then why aggravate it even more?
C: I know that this is my worst bundle. [sic]
J: [inaudible] you have acted completely in the wrong and you were with at least one other woman at the time, when the money was lent to you?
C: Yes, I accept it.
J: It was deplorable behaviour and I am going to say so in my judgment.
C: Yes, I know.
J: Well, are you going to stop asking questions or not?
  1. The Judge appeared to regard hearing from the Claimant in any capacity as a waste of time. Halfway through the trial, during Day 4, counsel for Ds suggested to the Judge that he might ask the Claimant which parts of the article he still maintained were false [Day 4, p20]. The Judge’s response was curt: “I would not even bother, Mr Metzer. I think we have got to assume every point is lies“. It was to Claimant’s credit that he managed to continue to present his case in the face of this show of contempt for him by the bench.