At the heart of the Supreme Court judgment in Serafin v Malkiewicz was the question of whether the Court of Appeal was correct in finding that the defamation proceedings before Justice Jay had been unfair (though the Court’s reasons with respect to the public interest defence under s 4 of the Defamation Act 2013 are also profoundly significant).

Mr Serafin, a Polish national who has resided in the UK for many years, brought a defamation claim against the appellants (as the defendants) who are the editor-in-chief, owner and editor of a Polish newspaper. In October 2014, the appellants published a two-page article titled ‘Bankruptcy Need Not Be Painful’ which Mr Serafin claimed contained 14 different defamatory allegations.

Mr Serafin represented himself, with support from a McKenzie friend, in the proceedings before Justice Jay in the High Court. The appellants were represented by a Queen’s Counsel. The trial judge agreed that most of the meanings were seriously defamatory however he held, inter alia, that the public interest defence had been made out in relation to all of the allegations. The trial judge also concluded that even if the public interest defence had not succeeded, he would not have awarded damages to the claimant because his ‘reputation was “shot to pieces” by the proven allegations’.

On appeal, Mr Serafin (who was then represented by counsel) challenged the trial judge’s findings under the Defamation Act 2013 and claimed that the trial had been unfair. In respect of the latter ground of appeal, the Court of Appeal had regard to substantial parts of the trial transcript and concluded that the trial had indeed been unfair, since:

…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.

[114]

This ‘rare finding that the judge’s conduct of the trial was unfair’ towards Mr Serafin raised ‘sensitive and important’ issues on appeal before the Supreme Court ([1]).

Bias versus unfairness

Leggatt LJ in Bubbles & Wine Ltd v Lusha defined ‘bias’ as ‘prejudice against one party or its case for reasons unconnected with the legal or factual merits of the case’. Having determined that the Court of Appeal’s ‘clear focus’ on unfairness was correct and having not been addressed on the meaning of bias, the Supreme Court concluded that ‘it would be wise here only to assume, rather than to decide, that the quite narrow definition of [bias] offered by Leggatt LJ … is correct’  ([39]). Proceeding on that basis, the Court held that ‘it was far from clear that the [fair-minded and informed] observer would consider that the judge had given an appearance of bias’ since ‘insofar as the judge evinced prejudice against the claimant, it was the product of his almost immediate conclusion that the claim was hopeless and that the hearing of it represented a disgraceful waste of judicial resources’ ([39]).

This begs the question of whether the definition of bias from Bubbles is, in fact, correct.

The right to a fair trial requires that decision-makers are free from actual bias and from the appearance of bias: ‘justice should not only be done, but should manifestly and undoubtedly be seen to be done’ (McCarthy). The ‘test’ of apparent bias is whether the circumstances of the case would lead a fair-minded and informed observer to conclude that there was a real possibility that the decision-maker was biased (Porter v Magill). The definition of bias proffered in Bubbles (which, it should be noted, drew on earlier authorities which defined bias as prejudice ‘for reasons unconnected with the merits of the issue’ (e.g. Flaherty v National Greyhound Racing Club)) places a considerable limitation on the fair-minded and informed observer test. Overlaying Bubbles onto Porter, the question becomes whether the circumstances of the case would lead a fair-minded and informed observer to conclude that there is a real possibility of prejudice which is unrelated to the factual or legal merits of the case. This qualification raises the enduring question of how informed the hypothetical observer is. Are they legally trained such as to enable them to identify (insofar as lawyers can) prejudice unrelated to the factual or legal merits? Lord Kerr in Belize considered that ‘[t]he concept of apparent bias [rests] on a fair and reasoned judgment formed as a result of composed and considered appraisal of the relevant facts’. So, the question, based on the Bubbles qualification, becomes:

 Would a fair-minded and informed observer, having conducted a composed and considered appraisal of the relevant facts, conclude that there is a real possibility of prejudice on the part of the decision-maker which is unrelated to the legal or factual merits of the case?

Does this mystical person exist? Even if they do, what does this conception of bias protect against? It seems that, short of ad hominem attacks on a person, there is very little that could not be said to be attributable to the legal or factual merits of the case.

And this brings us to a further, fundamental, issue with the Bubbles definition. Is it the decision-maker’s subjective assessment of the factual or legal merits that is sufficient to preclude a finding of bias, or is it an objective assessment of those merits by the hypothetical fair-minded and informed observer? Recall that the Supreme Court held that no fair-minded and informed observer would consider there to have been a risk of bias, since the trial judge’s animus towards Mr Serafin ‘was the product of his almost immediate conclusion that the claim was hopeless’. But that ‘immediate conclusion’ was wrong, at least according to the Court of Appeal.

The Supreme Court subsequently held that the Court of Appeal’s approach to s 4 of the Defamation Act 2013 was erroneous and the claim has been remitted for trial for another judge to determine the factual and legal merits of Mr Serafin’s claim. If three courts can disagree as to the ‘factual and legal merits’ of a case, how can the fair-minded and informed observer be expected to determine whether a judge’s prejudice was related to those merits and, thus, not evidence of bias?

Given how difficult it is to operationalise, the Porter plus Bubbles definition of bias effectively strips the rule of any real meaning or protection. But, does this matter, when it is possible to argue that the trial was unfair in any event?

When confronted with a claim that a trial has been unfair, the reviewing court must determine whether the judge has failed to discharge their judicial function. While evidence of a such a failure might give rise to an apprehension of bias, the latter issue requires a distinct analysis, from the point of view of the fair-minded and informed observer.

In affirming the Court of Appeal’s determination that the trial had been unfair, the Supreme Court noted that the ‘leading authority’ on unfairness remains Jones v National Coal Board. While judges today tend to adopt a more proactive role in proceedings, it is still a core principle ‘under the adversarial system [that] the judge remains aloof from the fray and neutral during the elicitation of the evidence…’ (Michel v The Queen, [31]).

The trial transcript is replete with examples of Justice Jay failing to discharge his judicial function. The Supreme Court appended 25 examples including instances of what the Court of Appeal rightly characterised as bullying of and animustowards Mr Serafin who, it must be recalled, was a self-represented litigant whose first language was not English. In respect of litigants in person, the Equal Treatment Bench Book advises judges against ‘interrupting, engaging in dialogue, indicating a preliminary view of cutting short an argument in the same way that might be done with a qualified lawyer’. A cursory review of the appended transcript extracts from the proceedings before Justice Jay reflects a number of examples of precisely this conduct.

Notwithstanding the ‘profound sensitivity’ with which the Supreme Court approached the question of the trial’s fairness, the transcript evidenced a ‘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’ (at [48]). This, in turn, drove the Supreme Court:

…with profound regret, to uphold the Court of Appeal’s conclusion that [Justice Jay] 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.

One is left to wonder why, if the harassment and intimidation to which the judge subjected Mr Serafin ‘would never have occurred if the claimant had been represented’ this did not meet even narrow definition of ‘bias’ espoused in Bubbles? If the trial judge would not have conducted himself in the manner that he did if the claim was argued by a lawyer, then can his hostility be attributed to the ‘factual or legal merits’ of the case (whatever those may be)? Given the degree of animus displayed towards Mr Serafin, can justice truly be said to have been seen to have been done?

Conclusion

Ultimately, in terms of the outcome, it does not matter whether the trial judge’s conduct constituted bias or resulted in an unfair trial: a retrial was, in the circumstances, the only option in either instance. But the Supreme Court’s judgment leaves unresolved a range of profoundly important questions regarding the meaning of ‘bias’ and the role of the ‘fair-minded and informed observer’.

Dr Stevie Martin, University Lecturer in Public Law, University of Cambridge

(Suggested citation: S. Martin, ‘Bullying, threatening and animus: what remains of the rule against apparent bias following the Supreme Court’s judgment in Serafin?’, U.K. Const. L. Blog (22nd July 2020) (available at https://ukconstitutionallaw.org/))