A "bullying" judge has been slammed for his extraordinary behaviour towards a claimant at a trial.
The Court of Appeal departed from the genteel tone usually adopted for judge-on-judge analysis to express alarm at the "threatening" and "overbearing" manner in which Mr Justice Jay presided over a libel trial. In reviewing Jay's judgment, the three appeal judges found that the High Court judge had "seriously transgressed" from remaining neutral to act in a manner which was "manifestly unfair and hostile" to claimant Jan Tomasz Serafin.
Serafin, a Polish national residing in the UK, had brought a libel case against the publishers and editor of a Polish magazine, Nowy Czas. The claim concerned an article alleging that Serafin had tricked women into investing money in his business and misused his position at a care home to win contracts. During a seven day trial in November 2017, Jay was not persuaded by Serafin's case and instead carried out a demolition job on the claimant's character. Jay found in favour of the defendants. Serafin appealed on grounds which included unfair judicial treatment.
In considering the matter, the Court of Appeal noted that the Jay had "clearly formed an adverse view" of Serafin. Jay had described the claimant as "fundamentally untrustworthy" and a "latter-day Don Juan figure who is only out for himself" with an "element of the Walter Mitty about him".
Serafin, who represented himself in court as a litigant in person, was on the receiving end of a verbal pummelling by Jay over the trial. In one exchange Jay said "there is a lack of clarity with your evidence which I am finding irritating". On another occasion, Jay admonished Serafin for not being able to produce a document in a beat:
Jay: Yes, well it is very simple. Where are the documents to show your investment of £365,000?
Serafin: I’ll try to find that in a second, but-
Jay: 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?
Serafin: In the bundle, yes.
Jay : It should be at your fingertips [Pause] Well, you can deal with in reexamination I suppose, otherwise we will be here all day….
Jay: I am warning you, you find that after lunch-
Jay. – 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?
Serafin: Yes, I do.
In another bashing, Jay suggested that he would shift the burden of proof:
Jay: 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.
Serafin: No, that’s not true. [Inaudible].
Jay: 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.
When there appeared to be a discrepancy in emails in the trial bundle, Jay threatened Serafin with prosecution, something that the appeal judges noted was before that matter had even been properly investigated or Serafin had been permitted to explain:
Jay: 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?
Serafin: Yes, I do...
Jay: Has the penny dropped? You understand?
Serafin: I do.
And in yet another bollocking, Jay pounced on an admission by Serafin that he had had a relationship with two women at the same time, saying, "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."
However, it was Jay's turn to be on the receiving end of a spanking once the Court of Appeal judges had reviewed his judgment.
Judge-on-judge. A court artist's depiction.
The three appeal judges said that Jay appeared to have "cast off the mantle of impartiality...taken up the cudgels of cross-examination" and "developed an animus towards the claimant.” They added that his conduct was "all the more surprising and troubling" given that Serafin was representing himself and English was not his first language. They found that "the nature, tenor and frequency" of Jay's interventions rendered the trial unfair and so upheld Serafin's appeal.
Jay was the leading counsel at the Leveson Inquiry into press ethics between 2011 to 2012 and appointed to the High Court in 2013. And is now the sore recipient of a first class Court of Appeal thrashing.