The Rt Hon Jeremy Corbyn MP v Richard Millett
| Jurisdiction | England & Wales |
| Judge | Dame Victoria Sharp,Lord Justice Warby,Sir Geoffrey Vos |
| Judgment Date | 20 April 2021 |
| Neutral Citation | [2021] EWCA Civ 567 |
| Date | 20 April 2021 |
| Docket Number | Case No: A2/2020/1286 |
| Court | Court of Appeal (Civil Division) |
[2021] EWCA Civ 567
Sir Geoffrey Vos, MASTER OF THE ROLLS
Dame Victoria Sharp, PRESIDENT OF THE QUEEN'S BENCH DIVISION
and
Lord Justice Warby
Case No: A2/2020/1286
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MEDIA AND COMMUNICATIONS LIST
Mr Justice Saini
Royal Courts of Justice
Strand, London, WC2A 2LL
Anthony Hudson QC and Mark Henderson (instructed by Howe & Co) for the Appellant
William Bennett QC and John Stables (instructed by Patron Law) for the Respondent
Hearing date: 16 March 2021
Approved Judgment
Introduction
This is an appeal by the Rt Hon Jeremy Corbyn MP against decisions made at the trial of preliminary issues in a libel action.
Mr Corbyn is the defendant in the action, which relates to words he used in a televised interview on the Andrew Marr Show (“the Programme”), first broadcast by the BBC on 23 September 2018. At the time, Mr Corbyn was Leader of the Labour Party and Leader of the Opposition. 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 “Zionists” who “don't understand English irony”:
“The other evening we had a meeting in Parliament in which Manuel made an incredibly powerful and passionate and effective speech about the history of Palestine, the rights of the Palestinian people. This was dutifully recorded by the thankfully silent Zionists who were in the audience on that occasion and then came up and berated him afterwards for what he had said. They clearly have two problems. One is they don't want to study history and secondly, having lived in this country for a very long time, and probably all their lives, they don't understand English irony either.”
Mr Marr suggested this was “A strange thing to say”. The words complained of (“the Statement”) were spoken by Mr Corbyn in answer to that suggestion. Those words are underlined in this extract from the transcript, which shows the immediate context.
JC: Well, I was at a meeting in the House of Commons and the two people I referred to had been incredibly disruptive, indeed the police wanted to throw them out of the meeting. I didn't. I said they should remain in the meeting. They had been disruptive at a number of meetings. At the later meeting when Manuel spoke they were 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. Manuel of course is the Palestinian Ambassador to this country.
AMBut why did you say, ‘English irony’?
JC: Well, because of the way that Manuel, whose first language is not English, has an incredible command of English and made a number of ironic remarks towards them during the interchange that I had with them. This did happen some years ago, by the way.
AMAnd you also said that these people who might have been in this country for a very long time. What's relevant about that?
JC: That Manuel had come recently to this country and fully understands English humour and irony and the use of language. They were both British born people who clearly obviously had been here all their lives.
AMBut we've just agreed that the people who can identify antisemitism best are Jewish people. Many Jewish people thought that was anti-Semitic.
JC: They were 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.
AMGiven what Jewish comrades, Jewish members of the Labour Party have said about this, do you now accept that what you said was anti-Semitic?
JC: Well, it was not intended to be anti-Semitic in any way and I have no intention and have absolute opposition in every way to anti-Semitism because I can see where it leads to. I can see where it leads to now in Poland, in Hungary, in Central Europe, I can see where it led to in the past. We have to oppose racism in any form and I do …”
The claimant is Richard Millett, a “blogger”, observer, reporter, and commentator whose subjects of interest include Israel, its policies on Palestine, and the Palestinian people. 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 made him identifiable to viewers as one of those referred to by Mr Corbyn's remarks about “Zionists”.
Mr Corbyn applied for an order for the trial of preliminary issues. Master Cook directed a trial of three issues: “(a) the natural and ordinary meaning of the statement complained of, including whether it refers to Mr Millett, and any reference innuendo; (b) whether that meaning conveys a statement of fact or opinion, or else in part a statement of fact and in part of opinion; and (c) whether the meaning conveys a defamatory tendency at common law.”
The issues were tried by Saini J. His decision on issue (a) was that the words complained of referred to Mr Millett, and bore the following natural and ordinary meaning about him:
“The Claimant attended a meeting at the House of Commons. He behaved in so disruptive a way at this meeting that the police wished to remove him from the premises. Mr. Corbyn however asked that the Claimant be allowed to remain. The Claimant had acted in a disruptive way at other meetings. At a further meeting at which Mr. Hassassian was a speaker, the Claimant was extremely abusive in his treatment of Mr. Hassassian after his speech. Such was the nature of this abuse that Mr. Hassassian was caused distress by the Claimant's behaviour. These actions of the Claimant so concerned Mr. Corbyn that he felt the need to speak to support Mr. Hassassian. This conduct of the Claimant towards Mr. Hassassian was based on what Mr. Hassassian had said and the views he was expressing.”
There is no appeal against that decision. The appeal is against the Judge's further decisions that (b) this meaning is a statement of fact and (c) this meaning is defamatory of the claimant at common law.
The Legal Framework
In the past, a case like this would have been resolved by the verdict of a jury after the pleading of a full Defence and a trial of all the issues. By section 11 of the Defamation Act 2013 (“the 2013 Act”), Parliament removed the statutory presumption in favour of jury trial in libel cases. That has enabled judges to try discrete factual issues in these cases without waiting for a full trial. Preliminary trials such as the one in this case are now the norm. They can be held swiftly, and are likely to result in savings of time and costs: see Greenstein v Campaign Against Antisemitism [2019] EWHC 281 (QB) [10] (Nicklin J), Vardy v Rooney [2020] EWHC 3156 (QB) [8]. The Judge's task is to make findings of fact, applying well-known legal principles.
The starting point is to identify the meaning the words would convey to the ordinary reasonable reader or viewer. For that purpose, the Court applies long-established principles conveniently distilled in Koutsogiannis v The Random House Group Ltd [2019] EWHC 48 (QB) [2020] 4 WLR 25 [12] (Nicklin J). The practice is to read or watch the offending publication to capture an initial reaction, before reading or hearing argument. That has been approved by this Court as “the correct approach for a judge at first instance”: Tinkler v Ferguson [2019] EWCA Civ 819 [9].
At common law, a meaning is defamatory and therefore actionable if it satisfies two requirements. The first, known as “the consensus requirement”, is that the meaning must be one that “tends to lower the claimant in the estimation of right-thinking people generally.” The Judge has to determine “whether the behaviour or views that the offending statement attributes to a claimant are contrary to common, shared values of our society”: Monroe v Hopkins [2017] EWHC 433 (QB), [2017] 4 WLR 68 [51]. The second requirement is known as the “threshold of seriousness”. To be defamatory, the imputation must be one that would tend to have a “substantially adverse effect” on the way that people would treat the claimant: Thornton v Telegraph Media Group Ltd [2010] EWHC 1414 (QB), [2011] 1 WLR 1985 [98] (Tugendhat J).
Today, there is an additional, statutory, requirement. Section 1(1) of the 2013 Act provides that “A statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant”. This means that a claimant must now prove not only that the statement had a defamatory tendency, but also that it did as matter of fact cause serious reputational harm or was likely to do so: see Lachaux v Independent Print Ltd [2019] UKSC 27 [2020] AC 612. We are not concerned with this issue. Master Cook refused Mr Corbyn's application for a trial of serious harm as a preliminary issue.
One defence to a libel claim is the defence of honest opinion, provided for by section 3 of the 2013 Act. Section 3 abolished and replaced the common law defence of fair comment. But, so far as relevant, the section broadly reflects the common law. The terms “comment” and “opinion” are interchangeable. The matters a defendant must prove are identified in sub-sections (1) to (4):
“3 Honest opinion
(1) It is a defence to an action for defamation for the defendant to show that the following conditions...
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