In Bridgen v Hancock, the Court of Appeal has granted summary judgment to Matt Hancock in a libel case against him.
Background
On 11 January 2023, Andrew Bridgen – then a Conservative MP – posted a tweet containing a link to an article by Dr Joshua Guetzkow, an academic, who had written about adverse reactions from people who had received Covid vaccinations, to which Bridgen added the following comment: ‘As one consultant cardiologist said to me this is the biggest crime against humanity since the Holocaust.’
Bridgen’s tweet (which eventually led to him being expelled from the Conservative party) was criticised by several political figures, including Hancock, who responded to it by asking a question in the Commons at Prime Minister’s Questions. About 30 minutes later, Hancock posted a tweet under the heading ‘My question to @RishiSunak in PMQs’ with a video of the exchange at PMQs, together with a comment in which he condemned what Bridgen had said in his tweet earlier that day, albeit without naming him: ‘The disgusting and dangerous antisemitic, anti-vax, anti-scientific conspiracy theories spouted by a sitting MP this morning are unacceptable and have absolutely no place in our society.’
Bridgen sued Hancock for libel over his use of the term ‘antisemitic’.
High Court proceedings
At a trial of preliminary issues, Hancock’s tweet was found to carry the following defamatory imputation: ‘An unnamed MP had said something that morning related to vaccination which was baseless, unscientific, dangerous and offensive, including because its character was antisemitic.’
The judge determined that the italicised words were a statement of fact, but the remainder was a statement of opinion which indicated the basis of the opinion. Accordingly, the first and second conditions of the honest opinion defence, as set out in sections 3(2) and 3(3) of the Defamation Act 2013 (the act), were held to be met.
Hancock applied for summary judgment on three grounds, two of which related to the honest opinion defence, namely that Bridgen had no real prospect of:
(i) resisting a finding that the honest opinion defence applied (that is, Hancock satisfying the requirement at section 3(4)(a) of the act that an honest person could have held the opinion on the basis of any fact which existed at the time the statement complained of was made); and/or
(ii) persuading the court that Hancock himself did not hold the opinion (which Bridgen had advanced pursuant to
section 3(5) of the act).
Mrs Justice Collins Rice rejected both of these grounds, essentially on the basis that they involved matters of fact, evidence and evaluation which ought to be decided at trial. Hancock sought to appeal the judge’s decision.
Court of Appeal
Honest commentator
Addressing section 3(4)(a), Hancock argued that honest readers of Bridgen’s tweet – apprised of essential uncontroversial facts about the Holocaust and the pandemic – could form the view that the publication was antisemitic in character because it belittled the historical experience of Jewish people. Bridgen denied this and contended that the responses of third parties to Hancock’s tweet (that is, those commenting on his tweet) should be used as a yardstick of what the hypothetical honest commentator might think, and that such views would demonstrate that the opinion expressed by Hancock could not have been held by an honest person.
The court held that the test as to whether an honest person could have held the opinion is purely objective and that, as a result, the views expressed by third parties on the same matter were not admissible.
The court recognised that the boundaries of the honest opinion defence were extremely wide and that an honest person could still be protected by the law even if they were, for instance, prejudiced or exaggerated in their views. Accordingly, the court had little hesitation in concluding that Hancock’s tweet fell within the parameters set by the law, since his opinion was pertinent and one that an honest person could hold based on the facts on which he relied.
Dishonesty
Pursuant to section 3(5) of the act, even if section 3(4) is satisfied, the honest opinion defence can be defeated if the claimant can show that the defendant did not hold the opinion. The court emphasised that this provision requires a claimant to prove that a defendant acted with ‘a dishonest state of mind’.
Bridgen contended that Hancock did not hold the opinion because he said, among other things, there was no proper basis for it and that the opinion was so unreasonable that Hancock cannot possibly have held it.
In determining this issue, the court considered that Collins Rice J had erred because she had failed to apply a ‘heightened standard’ to Bridgen’s pleaded case, which she ought to have done since a plea of a dishonest state of mind is akin to an allegation of fraud and thus the pleaded facts must demonstrate a ‘probability of malice, and be more consistent with its existence than its non-existence’. Had Collins Rice J properly applied this test, the court considered that she would have been bound to conclude that Bridgen’s case did not meet the requisite standard.
The court also held that the objective unreasonableness of an opinion could never be enough of itself to show a probability that the defendant did not hold it.
Comment
This decision illustrates that the honest opinion defence is extremely wide. After a defendant has established the first two conditions of the defence – namely, that the statement was a statement of opinion which indicated its basis – a claimant will often struggle to persuade the court that the defence should not succeed where it is based on at least one fact which is relevant to, and capable of supporting, the opinion in question.
Tom Double is a partner at Brett Wilson
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