Case Law: Corbyn v Millett, Former Labour leader’s “fact/opinion” appeal dismissed – Percy Preston

On 20 April 2021, the Court of Appeal handed down judgment in Corbyn v Millet [2020] EWHC 1848. The decision upheld Saini J’s findings at the preliminary trial, which concerned words spoken by the then leader of the Labour Party Jeremy Corbyn on the Andrew Marr Show in September 2018.

Warby LJ confirmed the decision of the High Court that Mr Corbyn’s words amounted to a statement of fact rather than of opinion, and that his statement about the claimant – a blogger and commentator who writes on matters relating to Israel and Israel’s relations with Palestine – conveyed a defamatory tendency at common law.

Background

During a wide-ranging interview on the Andrew Marr Show, first broadcast by the BBC on 23 September 2018, Andrew Marr asked Mr Corbyn if he was an anti-Semite. Following Marr’s question, Mr Corbyn was shown a recording of a speech he made in 2013, in which he referred to “Zionists” who “don’t understand English irony.”

Andrew Marr suggested that this was a “strange thing to say.” In response, Mr Corbyn said that the speech referred to an incident in which two individuals attending a meeting at the House of Commons had been ‘incredibly disruptive’ and that after the meeting they were “very, very  abusive” towards the speaker Manuel Hassassian. At the time, Mr Hassassian was the Palestinian ambassador to the United Kingdom

Mr Corbyn did not refer to the claimant by name. However, Mr Millet sued on the basis that national media coverage before the broadcast made him identifiable as one of the ‘Zionists’ referred to by Mr Corbyn during the broadcast.

At first instance ([2020] EWHC 1848) Saini J determined the natural and ordinary meaning of Mr Corbyn’s statement to be that the claimant “behaved in so disruptive a way at this meeting that the police wished to remove him from the premises”, that “the claimant was extremely abusive in his treatment of Mr. Hassassian after his speech” and that the statement referred to Mr Millett [80].

The former Labour leader took no issue with the trial judge’s finding that his statement on the Andrew Marr show referred to the claimant and bore the meaning he suggested. However, Mr Corbyn was granted permission to appeal late in 2020 against the Judge’s further decisions that the statements were of fact rather than of opinion and that the meaning is defamatory of the claimant at common law.

Judgment

The first ground of the appeal concerned whether Mr Corbyn’s statement met the first condition of the defence of honest opinion set out in Section 3(2) of the Defamation Act 2013, which requires that ‘the statement complained of was a statement of opinion’.

It was submitted on behalf of Mr Corbyn that the Judge “erred (in law and/or in fact) in ruling that the statement was entirely factual” [15]. The question before the court was then, a narrow one: whether, in their context, the words “disruptive” and “abusive” were statements of opinion or statements of fact.

Warby LJ agreed with the High Court that Mr Corbyn’s statement was one of fact rather than opinion, holding that Saini J’s judgment “on the fact/opinion issue represents an unobjectionable application of accepted principles to the undisputed facts of the case” [21].

Explaining his decision, Warby LJ emphasised that this question must be answered from the perspective of the “ordinary reasonable reader or – as in this case – viewer” [21]. Adopting this perspective, the Court of Appeal rejected the proposal that Mr Corbyn’s retelling of the events surrounding his 2013 speech amounted to opinion:

“In the particular words complained of he was, in my judgment, presenting viewers with a factual narrative: the people referred to had disrupted several meetings at the House of Commons; at one such meeting they had been extremely disruptive; and on the most recent occasion, whilst they had let Mr Hassassian speak, they had subjected him to extreme abuse afterwards. This would all have struck the viewer as Mr Corbyn’s explanation of the factual background to his statement about “English irony”” [22].

Warby LJ also counselled against an overly analytical approach to the question of whether a statement is one of fact or opinion. Such investigations are to be treated as questions of “substance”, not a “matter of grammar and linguistics” [24]. The issue that must always engage the court’s attention when dealing with section 3(2) of the 2013 Defamation Act, is whether the words spoken would strike the ordinary viewer as a statement of fact or opinion.  The implications for the present case were clear:

“In practice, when someone uses a descriptive word without giving any detail of what he is describing, that will tend to come across as an allegation of fact. That is what the case on “bare comment” say” [24]

The judgment also clarified the appropriate stage at which to consider the concept of ‘bare comment’. Citing long-standing principles distilled in Koutsogiannis v The Random House Group Ltd [2019] EWHC 48 (QB) [2020] [16] by Nicklin J, Warby LJ confirmed that the concept of bare comment is an aspect of the first condition of the honest opinion defence, which requires that ‘the statement complained of was a statement of opinion’ (s 3(2) of the Defamation Act 2013). The Court rejected submissions on behalf of Mr Corbyn that bare comment should more properly be considered when determining whether ‘the statement complained of indicated, whether in general or specific terms, the basis of the opinion’ (section 3(3) Defamation Act 2013). Warby LJ made it clear that, contrary to arguments put forward by counsel for Mr Corbyn, the Supreme Court decision in Joseph v Spiller [2011] AC 852 was relevant to this second condition of the honest opinion defence, and not to the first condition set out in section 3(2) of the 2013 Act [23].

The second ground of appeal concerned whether Mr Corbyn’s statements were defamatory of the claimant at common law. Again, Warby LJ found that Saini J’s conclusions were not “wrong, perverse or otherwise unreasonable” [29]. Indeed, he agreed with them. Asking first whether right-thinking members of society would tend to think less of Mr Millet as a result of the statement, the Court rejected submissions on behalf of Mr Corbyn that, given highly charged political context of the debate, Mr Millet’s alleged conduct would amount to “an acceptable exercise of free speech” in the minds of right-thinking members of society [32].

Further, Warby J held that by “alleging such verbal abuse of a public speaker that the Leader of the Opposition was forced to speak up in controversial terms to defend him, crosses the common laws threshold of seriousness” [34]. The Court confirmed that the trial judge was correct to hold that such allegations would tend to have a substantial adverse effect (Thornton v Telegraph Media Group Limited [2010] EWHC 1414 (QB) [98]) on the way that people would treat Mr Millet.

The appeal was, therefore, dismissed.

Comment

This case was perhaps of greater interest for its potential to reignite Labour’s anti-Semitism row than for its legal significance. Warby LJ found on both issues that the trial judge had, for the most part, applied conventional legal principles to the facts in an uncontroversial manner.

Nevertheless, the Court’s judgment does provide useful guidance on the delicate exercise of distinguishing a statement of fact from a statement of opinion. In particular, Warby LJ offered a considered analysis supporting Saini J’s view that Corbyn’s words, though ostensibly descriptive of the claimant’s conduct, amounted to a “classic” from of bare comment – a statement which uses a descriptive word without indicating what it is describing.

The Court also stressed that the fact-sensitive nature of an inquiry into whether a statement amounts to comment or opinion means that only limited lessons can be taken from “other cases, about different words” [19]. A reminder to practitioners that when determining preliminary issues such as the meaning that words convey, context is king.

What next?

Unless Mr Corbyn and Mr Millet are able to reach a settlement, the case will now proceed to trial. Although both the High Court and the Court of Appeal agreed that Mr Corbyn’s statement was defamatory at common law, the same statement will now be subject to the higher statutory bar set out at section 1(1) of the Defamation Act 2013.

Percy Preston is a GDL student with a particular interest in media law.