Insights Court of Appeal rules on whether words complained of in libel action against Jeremy Corbyn MP were statements of fact or opinion


Richard Millett, a blogger, observer, reporter, and commentator whose subjects of interest include Israel, its policies on Palestine and the Palestinian people, issued proceedings against Jeremy Corbyn MP in relation to words he used in a televised interview on the Andrew Marr Show, first broadcast by the BBC on 23 September 2018, while Mr Corbyn was Leader of the Labour Party and Leader of the Opposition in Parliament.

During a wide-ranging interview, Andrew Marr asked Mr Corbyn if he was an anti-Semite. Mr Corbyn was asked first about an East London mural. He was then shown a recording of a speech he made in 2013, in which he referred to people in the audience as “Zionists” who “don’t understand English irony”.

Mr Marr suggested this was “A strange thing to say”. The words complained of (the Statement) were spoken by Mr Corbyn to Mr Marr in answer to that suggestion: Mr Corbyn said that he had been in a meeting in the House of Commons and that “two people I referred to had been incredibly disruptive”. In fact, Mr Corbyn said, “the police wanted to throw them out of the meeting”. When the Palestinian Ambassador to the UK, Manuel Hassassian, had spoken they had been quiet, “but they came up and were really, really strong on him afterwards and he was quite upset by it. I know Manuel Hassassian quite well. And I was speaking in his defence. …”. Later on, Mr Corbyn said that the two had been “very, very abusive to Manuel. Very abusive. And I was upset on his behalf from what he’d – he’d spoken obviously at the meeting but also the way he was treated by them at the end of it. And so I felt I should say something in his support. And I did”.

Mr Millett sued on the basis that, although he was not named in the Statement, he was defamed because national media coverage before the broadcast of the programme had made him identifiable to viewers as one of those referred to by Mr Corbyn’s remarks about “Zionists”.

At the trial of preliminary issues, Mr Justice Saini found that the Statement referred to Mr Millett. He also ruled on the natural and ordinary meaning of the words and found that the meaning was a statement of fact and was defamatory of Mr Millett at common law.

Mr Corbyn appealed the decision, arguing that the meaning (which he did not dispute) was not a statement of fact, but honest opinion (as set out in s 3 of the Defamation Act 2013), and that it was not defamatory.

Honest opinion

Lord Justice Warby, giving the lead judgment, noted that s 3 of the 2013 Act provides that it is a defence to an action for defamation if the defendant can show that certain conditions are met. The first two conditions are: (i) that the statement complained of was a statement of opinion; and (ii) that the statement complained of indicated the basis of the opinion.

The issue before Saini J at first instance had been whether the first condition was met.

Warby LJ noted that the issue was a narrow one: whether, in their context, the words “disruptive” and “abusive” were statements of opinion or statements of fact. The key principle of law, he said, was that the answer must always be the one that would be given by the ordinary reasonable reader or viewer. This meant watching and listening to the interview as a whole, bearing in mind that the ordinary viewer would do so only once. The court should avoid over-elaborate analysis and give weight to its own impression. Warby LJ said that this was precisely how Saini J had approached the matter.

Warby LJ held that Saini J had not erred in his use of the term “bare comment”, as alleged by Mr Corbyn. Mr Corbyn argued that by using this term, Saini J must have concluded that Mr Corbyn’s words were a statement of opinion, but one that he must, as a matter of law, treat as a statement of fact, following point (iv) of the summary of the common law principles set out in Koutsogiannis v The Random House Group Ltd [2019] EWHC 48 (QB), which established that “Some statements which are, by their nature and appearance opinion, are nevertheless treated as statements of fact where, for instance, the opinion implies that a claimant has done something but does not indicate what that something is, i.e. the statement is a bare comment”. This was wrong, Mr Corbyn argued, as any such rule was disapproved by the Supreme Court in Joseph v Spiller [2010] UKSC 53. Further, Mr Corbyn argued, Saini J’s approach wrongly conflated the first two conditions of the statutory analysis, when he was only concerned with the first.

Warby LJ disagreed, finding that Saini J had made a clear and unequivocal finding that, in the context of the Statement, the terms “disruptive” and “abusive” were allegations of fact. He had then set out an alternative basis for the decision, rejecting Mr Corbyn’s submission that the statement was “merely expressing a view” on the basis that even if the Statement was on its face opinion (which Saini J said it was not), the case would be one of “bare comment” and therefore fall within point (iv) of Koutsogiannis.

Warby LJ said that this decision was an unobjectionable application of accepted principles to the undisputed facts of the case. It was a finding of fact, with which an appeal court would only interfere if it was satisfied that the finding was wrong, which it was not. Having watched the whole interview, Warby LJ agreed with Saini J.

In Warby LJ’s view, Mr Corbyn was giving his explanation as to why he had said that the Zionists in the 2013 meeting did not understand English irony. To do so, he was explaining, from his standpoint, what had happened. He was telling the story. In doing so, he provided factual background and context. In the particular words complained of he was 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”.

Warby LJ also held that the concept of “bare comment” was an aspect of the first condition of the statutory test, which was exactly how Saini J had treated it.

As for Spiller, Warby LJ said that that decision was not comparable as it was about the separate common law requirement that, to be defensible, a comment must “explicitly or implicitly indicate, at least in general terms, what are the facts on which the comment is being made”, which is reflected in s 3(3) of the 2013 Act and which was not an issue before Saini J who had not addressed it.

Further, Warby LJ said, Saini J had approached the issue according to the key principle, as set out in Butt v Secretary of State for the Home Department [2019] EWCA Civ 933, that the ultimate determinant is how the statement would strike the ordinary reasonable reader. This is the correct approach.

Warby LJ said that the cases on “bare comment” do not lay down a rigid rule of law that require a court to depart from this key principle, and artificially treat a statement of opinion as if it was a statement of fact. On the contrary, the authorities show that “bare comment” is a pointer, or guideline, or rule of thumb that reflect the key principle. This was how Saini J had approached it. Therefore, although a statement that “the claimant said X, in Y tone, and in Z manner, and that was very, very abusive” would contain a comment on factual allegations, Mr Corbyn’s statement was different. He said of the Zionists that they had been incredibly disruptive” and that they were very, very abusive”, without more; and those, as Saini J held, were statements of fact.


Finally, Warby LJ rejected Mr Corbyn’s submissions that Saini J had erred in his assessment of whether the statement was defamatory of Mr Millet. Saini J had considered whether the conduct that Mr Corbyn had accused Mr Millet of would be contrary to the common or shared values of British society and found that it would. This was the correct approach. He had then considered whether the seriousness threshold had been crossed and found that it had. Again, he had approached the matter correctly and his conclusion could not be faulted. In Warby LJ’s view, alleging disruptive behaviour that leads the police to want to remove a person from a public meeting, and 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, crossed the common law threshold of seriousness. Saini J was therefore right to hold that such allegations would tend to have a substantial adverse effect on the attitude that people would take to Mr Millett. (The Rt Hon Jeremy Corbyn MP v Richard Millett [2021] EWCA Civ 567 (20 April 2021) — to read the judgment in full, click here).