Corbyn v Millett

Reference: [2021] EWCA Civ 567

Court: Court of Appeal (Civil Division)

Judge: Vos MR, Sharp P, Warby LJ

Date of judgment: 20 Apr 2021

Summary: Preliminary issue – whether statement fact or opinion – bare comment – whether statement defamatory at common law

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Appearances: William Bennett QC - Leading Counsel (Respondent)  John Stables (Respondent) 

Instructing Solicitors: Patron Law for the Claimant/Respondent

Facts

C (the Respondent) is a blogger, observer, reporter and commentator whose subjects of interest include Israel and Palestine. He commenced libel proceedings against the Rt Hon Jeremy Corbyn MP (‘D’) (the Appellant), in respect of an interview that D gave on the Andrew Marr Show. D was asked about a 2013 speech in which he had referred to people in the audience as “Zionists” who “don’t understand English irony”.

Master Cook granted an order for the trial of three preliminary issues. The issues were tried by Saini J, who held that:

(1)  The words complained of referred to C, and bore the natural and ordinary meaning that (in summary): (a) at a meeting at the House of Commons, C had behaved in so disruptive a way that the police had wanted to remove him; (b) at another meeting, C had been extremely abusive of the speaker Mr Hassassian (the Palestinian Ambassador to the UK), who was caused distress; (c) D was so concerned about this that he felt the need to speak to support Mr Hassassian; and (d) C’s conduct towards Mr Hassassian was based on Mr Hassassian’s speech and views.

(2)  The imputations conveyed were ones of fact. As to D’s submission that he was merely expressing a view on conduct, this was a “classic case” of a statement which in context implies that a claimant has done something but does not indicate what that something is (a type of bare comment): [88].

(3)  The imputations were defamatory at common law in that: (a) they crossed the common law threshold of seriousness, and (b) such allegations would tend to have a substantial adverse effect on the attitude that people would take to Mr Millett.

C appealed against findings (2) and (3).

Issue

(1) Did the judge err in finding that the words ‘disruptive’ and ‘abusive’ were statements of fact?

(2) In particular, did the judge err in his approach to ‘bare comment’?

(3) Did the judge err in holding that imputations were defamatory at common law?

Held

Warby LJ (Vos MR and Sharp P agreeing):

(1)  No. The Judge’s decision was an “unobjectionable application of accepted principles to the undisputed facts of the case”. As the decision was a finding of fact, absent legal error the CA would only interfere if it was satisfied the finding was wrong. To the contrary, Warby LJ agreed with the Judge that D was giving his explanation as to why he had said that the Zionists in the meeting did not understand English irony. To do so, he was “explaining, from his standpoint, what had happened”; “telling the story”; and “presenting viewers with a factual narrative”.

(2) No. The CA rejected D’s submission that the Judge’s use of the term ‘bare comment’ showed that he must have concluded that D’s words were a statement of opinion, but one that he must treat as a statement of fact, and had therefore wrongly conflated the first two stages of the statutory analysis (ss 3(2) and (3) of the 2013 Act).

The Judge’s clear and unequivocal finding was that the terms ‘disruptive’ and ‘abusive’ were allegations of fact. The remainder of [88] set out an alternative basis for the decision by recording D’s submission that the statement was “merely expressing a view”, and rejecting it on the basis that even if the statement was an opinion, it was a bare comment.

In any case, D’s criticism of the Judge was ill-founded in law and in fact:

(a)  The Judge was correct to treat the concept of bare comment as an aspect of the first condition (in section 3(2) of the 2013 Act). Joseph v Spiller [2010] UKSC 53 did not affect the right approach to the first condition, as it was a decision about the second condition now contained in s3(3).

(b)  There is no rule that requires a court to artificially treat a statement of opinion as if it was a statement of fact. The question is simply: “would the words used strike the ordinary viewer as a statement of fact or opinion?” Cases on bare comment do not lay down a rigid rule of law that requires a Court to depart from this key principle.

(3) No. This was also finding on a question of fact, and the Judge made no error of law. To the contrary, Warby LJ found that the Judge was correct. In particular:

(a)  The judge did not err in finding that the behaviour of which C was accused was of such a level of seriousness “as to involve the police in potentially ejecting Mr. Millett and the other individual (suggesting criminal misconduct)”. The bracketed reference to “suggesting criminal misconduct” did not impermissibly add to the meaning the Judge had identified.

(b)  Right-thinking viewers would not regard the conduct attributed to C as an acceptable exercise of free speech. D did not downplay what had happened but emphasised its seriousness, for example stating that the police wanted to throw D out of the meeting.

(c)  The Judge was not wrong to deal separately with the consensus requirement (that the statement “tends to lower C in the estimation of right-thinking people generally”) and the threshold of seriousness (that the imputation must have a “substantially adverse effect” on the way that people would treat C). These are separate but complementary components of the common law test.

However, there was some merit in D’s criticism of the Judge’s multi-factorial approach to the common law threshold of seriousness (which for example, took into account circumstantial matters such as the programme’s influence). These matters are generally left out of account at this stage, but may be relevant to the statutory requirement of serious harm. Nevertheless, the Judge’s overarching conclusion that the words complained of crosses the common law threshold of seriousness could not be faulted.

 

Comment

Paragraphs [7]-[13] of the judgment provides a convenient summary of the “well-known” legal framework applicable to preliminary issue libel trials, which Warby LJ described as the “the norm”. Helpful guidance is provided as to the approach to non-written publications, such as broadcasts. Warby LJ explained that when assessing a broadcast, “this is not a matter of studying the transcript, which cannot tell you how words are spoken, in what tone, or with what emphasis. It means watching and listening to the interview as a whole, bearing in mind that the ordinary viewer will only do so once”.

On the fact/opinion ground, the CA’s clarification of the correct approach to ‘bare comment’ is of particular note. Warby LJ held this to be an aspect of the first condition in section 3(2) of the 2013 Act: that the statement is one of opinion. Also of interest is the CA’s analysis of the interaction between the honest opinion defence and political speech. Warby LJ noted that while D was right to identify the defence of honest opinion as a “bulwark of free speech” which “must not be whittled away by artificially treating comments as if they were statements of fact”, if a person could use this defence to escape liability for a false defamatory allegation of fact the law would fail to give due protection to reputation.

As to whether the statements were defamatory at common law, the CA’s criticism of the Judge’s ‘multifactorial approach’ to the common law threshold of seriousness is instructive. However, the CA did suggest that this approach is likely to be appropriate when it comes to the statutory requirement to show serious harm to reputation.

The matter will now proceed to trial, which will need to consider s(1) of the 2013 Act. This issue was not considered by the Judge nor the CA, as the Master refused D’s application for a trial of serious harm as a preliminary issue.