MEDIA AND COMMUNICATIONS LIST
Royal Courts of Justice
Strand, London, WC2A 2LL
Before :
MR JUSTICE JOHNSON
Between :
Martin Whyte | Claimant |
- and - | |
British Medical Association | Defendant |
David Hirst (instructed by Rahman Lowe Solicitors) for the Claimant
Guy Vassall-Adams KC (instructed by JMW Solicitors LLP) for the Defendant
Hearing date: 11 July 2025
Approved Judgment
Mr Justice Johnson:
The claimant seeks damages in libel in respect of an email sent by the defendant that said he had posted comments that were deeply troubling and antisemitic, unacceptable, prejudicial, discriminatory and incompatible with holding office for the defendant. The defendant’s defence is that the email constituted a statement of honest opinion, amounting to a defence under section 3 of the Defamation Act 2013.
It is common ground that the email was a statement of opinion and that it indicated, in general terms, the basis for that opinion (specifically, tweets that had been sent by the claimant). The claimant does not deny that the defendant held the opinion expressed in the email. The only issue between the parties, which is critical to the defence under section 3, is whether an honest person could have held that opinion based on facts proved by the defendant. That issue will determine the outcome of the case. It is an entirely objective issue. The defendant seeks summary judgment on the issue, and hence the claim. It says that the claimant has no real prospect of success and there is no other compelling reason why the case should go to trial. The claimant says that the defendant has taken his tweets entirely out of context and that he has a real prospect of success on the question of whether an honest person could have believed that his tweets, read in context, were deeply troubling and antisemitic. He says they were the opposite, in that they were intended to, and did, call out hypocrisy and antisemitism.
The facts
In support of its application for summary judgment, the defendant relies on witness statements of (1) Greg Beales, the defendant’s Director of Communications and Policy, (2) Dr Robert Laurenson, a member of the defendant’s Resident Doctors Committee, and (3) Katherine Mills, the defendant’s solicitor. The claimant has filed a witness statement, and an extensive exhibit, in response.
The parties
The defendant is an independent trade union and voluntary professional association which represents doctors and medical students from all branches of medicine all over the United Kingdom. In July 2023, it had 190,366 members.
The claimant is a junior doctor (now known as a ‘resident doctor’) in paediatric medicine based in North-East England. He was a member of the defendant from 2015 until 2024. From October 2022, he was the elected Deputy Chair of the defendant’s Northern Regional Junior Doctors Committee. In November 2022, he was elected Deputy Co-Chair for Professional Issues on that committee. He was thereby (with 11 others) a member of the executive committee of that committee. The claimant says that his “personal politics have always been socialist, anti-fascist, and anti-racist”. He created an account on twitter on 20 July 2011. He has posted 4,493 tweets.
The claimant’s tweets
The defendant relies on three of the claimant’s tweets, less than 0.1% of his oeuvre.
The first tweet: The American Civil Liberties Union posted a tweet stating “The city of Dickinson, Texas is requiring people applying for Hurricane Harvey aid to promise not to boycott Israel. This is unconstitutional.” This tweet was republished by another account with the comment “well this seems quite bad”. On 20 October 2017, the claimant replied:
“Lifehack: promise not to boycott Israel, but do it anyway. Do it out of spite.”
The second tweet: On 18 April 2018, the claimant posted this tweet (in response to a tweet that was deleted 3 days later and which is not now apparently available):
“Me: it’s important to represent Judaism and Jewish people fairly and respectfully in art.
Also me: Jew banker goblins.”
The third tweet: On 27 October 2018, 11 people died as a result of an antisemitic mass-shooting at a synagogue in Pittsburgh, Pennsylvania. Jeremy Corbyn MP, then the leader of the labour party, tweeted “My thoughts are with those killed or injured in this horrific act of antisemitic violence, and with their loved ones. We must stand together against hate and terror.” A tweet in reply from an account with the handle “Count Dankula” showed an image of Mr Corbyn apparently laying a wreath. In this context, the claimant tweeted:
“hahaha zeig heil hahaha gas the jews hahaha just kidding but have you seen these youtube videos about the holohoax they’re pretty convincing imo…”
Further tweets were posted in response from other accounts. These included:
“Not sure where he’s come out as a holocaust denier”
“When? If he did say that there’s probably a bit more context to it than that as well.”
“Yep. I remember all the times Count talked about how Holocaust was fake. Y’know, that’s basically his entire channel. Like, it’s not like he’s NEVER SAID THAT IN HIS ENTIRE GODDAMN LIFE or anything.”
The Daily Mail approaches the defendant, and the defendant’s response
On 21 April 2023, a journalist from the Daily Mail newspaper emailed the defendant and referred to the tweets set out above, and other tweets said to have been posted by the claimant. The journalist said that he was “writing a story for our website and tomorrow’s newspaper about Martin Whyte, deputy co-chair of the BMA JDC – supposedly responsible for conduct and ethics…” [ellipses in original]. He asked if the defendant or the claimant would like to comment.
Mr Beales called the claimant. The claimant confirmed that the Daily Mail was referencing his Twitter account, but that he did not remember posting the particular messages that had been quoted. Mr Beales then arranged for the defendant’s media team to research the claimant’s tweets. They did so, and within a matter of minutes they located the tweets that had been quoted by the Daily Mail. There was a recognition that the full context for each tweet was not clear, and that the claimant might have been mocking a previous commentator’s post rather than posting “out of the blue”. However, it was suggested that this would involve “a leap of faith”.
The claimant sent a message to Dr Laurenson in which he said “I have utterly fucked this.” He also said that he felt like he was being “hung out to dry” but that he recognised that the defendant had to “do what [it had] to do.”
Mr Beales spoke to the claimant again and indicated that a recommendation would be made that he be suspended from the defendant pending an investigation. Whilst this was happening, an executive meeting was taking place of the defendant’s junior doctors committee. After reviewing the tweets that had been sent by the claimant, he was asked to resign. He did so by an email at 12.03pm.
Later that day, the defendant’s junior doctors committee sent this email to its 61,146 junior doctor members (“the email”):
“We unfortunately have distressing information to share.
Today we have discovered that a UK Junior Doctors Committee officer has made deeply troubling comments online that are anti-Semitic.
There is absolutely no place in the BMA for anti-Semitism.
The comments in question were made by Dr Whyte, who had until today been an officer of the UK Junior Doctors Committee. This was totally unacceptable.
We were not aware of these comments, nor of any anti-Semitic views. Any form of anti-Semitism is inexcusable. We strive to be a tolerant, diverse and progressive organisation. We want to assure members that we treat anti-Semitism and all forms of prejudice and discrimination with the utmost seriousness.
As soon as this information came to light, Dr Whyte was immediately removed from all BMA activities and has subsequently resigned from the UK JDC.
As such, he is no longer involved with any BMA work or communications.
For anyone that may need support regarding this, please contact the BMA counselling and support line which is available 24/7 on [telephone number given].
UK Junior Doctors Committee Officers”
This is the published statement on which the claimant sues. The parties agree that it amounts to an expression of opinion, and that it bears the following meaning which is defamatory of the claimant at common law:
“(a) The Claimant had posted comments online that were deeply troubling and anti-semitic.
(b) His comments were unacceptable, prejudicial, discriminatory, and incompatible with holding office for the BMA.”
Disciplinary proceedings
A complaint was made about the claimant’s tweets. An investigation was conducted by a law firm. The investigation concluded that the first and third tweet were detrimental to the honour and interests of the medical profession or the defendant, and/or were likely to bring the profession into disrepute. The matter was referred to a Resolution Panel, who agreed. It imposed a permanent ban on the claimant holding office for the defendant “to reflect the harm done to the image and reputation of the BMA and profession at large.” The panel recommended that the claimant should undergo training in relation to antisemitism and in relation to the fact that behaviour which is not intended to cause offence can nonetheless have that effect. An appeal was dismissed. The appeal panel said they “considered the tweets very serious and reprehensible.”
Claimant’s account
The claimant explains how he was shocked when he was contacted about this by the defendant (“a rabbit in headlights”) and how he does not feel he was given a sufficient opportunity to respond. Although he was initially told that the defendant wanted him to be “part of the message the BMA writes”, he says that he was given no opportunity to contribute to, or comment on, the email before it was sent. He says that his tweets have been taken out of context, and that both the Daily Mail and the defendant read the tweets at face value and in isolation, without appreciating the context in which they were written. He also makes complaints about the conduct of the disciplinary proceedings.
The claimant says that his use of social media was highly political and involved a heavy use of irony, sarcasm, hyperbole and absurdism. He points out that there was no adverse reaction to his tweets at the time they were sent, and says that if he had made overtly racist comments then these would immediately have been challenged or called out. He says that he does not follow anyone on social media who espouses racist views, and that he follows one account which represents “a left-wing Jewish diasporic group”. He points to other tweets that he has posted which “acknowledge the problem of antisemitism” and “Jewish people being sidelined in their own conversation.” He says that, when read in context, the small number of individual tweets which were the focus of the Daily Mail’s complaint are not in fact objectionable, and that the complaint “was manufactured as a tactic in the politics around the junior doctor’s strike.”
He explains the context for each of the three tweets.
First tweet: The claimant says that his tweet is an instance of an established comedic use of the “life hack” or “top tip” as a structure for the presentation of silly, sarcastic or unhelpful information. It was a response to the absurd unenforceability of the conditions on aid that were being proposed by the City of Dickinson. His intention was to highlight the obvious flaw in those conditions, and their sheer absurdity. He says that even if the tweet is taken literally, it is a dyad with its parent tweet, and that the “spite” is most obviously directed at the United States authorities rather than the state of Israel or Jewish people.
Second tweet: The claimant says that it is clear that he was responding to a tweet that has subsequently been deleted, and that in the absence of that missing context, his tweet cannot properly be understood. He says that the structure “Me… Also me…” is a common internet meme or shorthand by which to present two contradictory points and to highlight hypocrisy or inconsistency. The claimant is not now able to explain with certainty the precise context (because the relevant tweets have been deleted), but he believes that it concerned the use of goblins, “portrayed as hard-nosed bankers”, in the Harry Potter films. He considers that demonstrates hypocrisy on the part of the author of those books because she had been critical of Jeremy Corbyn MP for commenting on a mural which contained “some alleged, age-old anti-Jewish tropes based on capitalist domination.” He says that it is “deeply ironic” to suggest his tweet is antisemitic, because its purpose was to call out hypocrisy around the issue of antisemitism.
Third tweet: The claimant says that the image of Mr Corbyn laying a wreath related to an event to honour those killed by an air strike in 1985. He says that Mr Corbyn had been criticised for attending that event because it was close to memorials for people accused of involvement in terrorism. The account with the handle “Count Dankula” is owned by Mark Meechan. He was infamous for having trained a dog to perform a Nazi salute when he said “zeig heil” or “gas the jews.” The claimant’s response was in quotation marks, signifying that he was impersonating someone else, that person being Mr Meechan. He says he was lampooning Mr Meechan for presenting Mr Corbyn as antisemitic given his own antecedents. He points out that there were three replies which correctly acknowledge the claimant’s post for what it was and none of which suggested that it was reflective of the claimant’s own views.
The legal framework
Honest opinion
Section 3 of the Defamation Act 2013 prescribes the defence of honest opinion:
“3 Honest opinion
(1) It is a defence to an action for defamation for the defendant to show that the following conditions are met.
(2) The first condition is that the statement complained of was a statement of opinion.
(3) The second condition is that the statement complained of indicated, whether in general or specific terms, the basis of the opinion.
(4) The third condition is that an honest person could have held the opinion on the basis of—
(a) any fact which existed at the time the statement complained of was published;
…
(5) The defence is defeated if the claimant shows that the defendant did not hold the opinion.
…”
The burden of proof is on the defendant. It is common ground that the conditions in section 3(2) and 3(3) are satisfied. It is also common ground that the defendant held the opinion conveyed by the email, so that the defence of honest opinion is not defeated by section 3(5). It follows that the critical issue is that set out in section 3(4)(a). If the defendant fails on that issue the claimant will succeed in his claim. Otherwise, his claim will be dismissed.
The first stage of the section 3(4)(a) analysis is to identify the facts relied on by the defendant and which existed at the time the statement complained of was published. Something is only a fact if it is true. The defendant must thus prove the truth of the fact(s) on which it relies for the purposes of section 3(4)(a). In assessing whether the defendant has discharged that burden, the court must take account of “truly exculpatory” facts which are omitted or suppressed by the defendant and which show that the defendant’s asserted facts are untrue such that the underlying factual substratum for the opinion is removed: Branson v Bower [2002] QB 737 per Eady J at [37], and Dyson v MGN [2023] EWHC 3092 (KB) per Jay J at [126].
If, but only if, the defendant proves the underlying facts on which it relies, the next question is whether, based on those facts, an honest person could hold the requisite opinion. It follows that truly extraneous facts which do not have the effect of establishing that the defendant’s asserted facts are untrue are not relevant to the question of whether an honest person could hold the opinion that was conveyed. The issue is whether such an opinion could honestly be held on the basis of the facts alleged and proved by the defendant, not whether it could be held on the basis of some different factual matrix: Branson at [38], Carruthers v Associated Newspapers [2019] EWHC 33 (QB) per Nicklin J at [30] – [31]. The requirement for the opinion to be honestly held based on the facts proved by the defendant means that there must be some relationship between the facts relied on by the defendant and the opinion expressed by the defendant. However, it is not necessary that the proven facts objectively justify the expressed opinion. An honest person may be wrong, or irrational, or prejudiced, or obstinate, or prone to gross exaggeration. Thus, the defence is not defeated if the opinion involves “[m]ere exaggeration, or even gross exaggeration”, nor if the opinion is wrong, or the writer prejudiced or obstinate: Merivale v Carson (1887) 20 QBD 275 per Lord Esher MR at 281, Telnikoff v Matusevitch [1992] 2 AC 343 per Lord Keith at 354. An opinion may be capable of being held by an honest person even if it is not a reasonable or fair opinion to hold: Branson per Eady J at [26]. The defence of honest opinion is therefore wide. It is far less exacting than the defence of truth under section 2 of the 2013 Act. It is a “bulwark of free speech”: Duke of Sussex v Associated Newspapers [2023] EWHC 3120 (KB) per Nicklin J at [38], Branson per Eady J at [26].
Summary judgment
A court may order summary judgment on a claim, in the defendant’s favour, if (a) the claimant has no real prospect of succeeding on the claim and (b) there is no other compelling reason why the case should be disposed of at a trial: CPR 24.3. A “real prospect” is the converse of a prospect that is merely fanciful or involves an “absence of reality” – it is very well short of a case that is more likely than not to succeed: Swain v Hillman [2001] 1 All ER 91 per Lord Woolf MR at 92j, Three Rivers DC v Bank of England(No.3) [2003] 2 AC 1 per Lord Hobhouse at [158]. It is not appropriate to conduct a “mini-trial” on a summary judgment application – Swain per Lord Woolf MR at 95b. The burden is on the defendant to satisfy the test: Suresh v Samad (No.2)[2017] EWHC 76 (QB) per Warby J at [10(4)].
Submissions
Guy Vassall-Adams KC, for the defendant, submits that the overarching context is that the claimant is a regulated professional doctor who should not engage in conduct that is likely to bring the profession into disrepute. He says that the relevant facts are those that were known to the defendant at the time of the publication. They include the claimant’s admission that he was responsible for the twitter account, that he had admitted posting the tweets, the context for the tweets so far as that was known, and the claimant’s inability to justify or contextualise the tweets when he was asked about them. He says that, based on those proved facts, an honest person could form the opinion that each of the tweets is antisemitic, and therefore deeply troubling, unacceptable, prejudicial, discriminatory, and incompatible with holding office for the defendant. The first tweet reads as a call to boycott Israel because it is the Jewish state and the home of the Jewish people. It therefore demonstrates discrimination, prejudice and hostility towards Jewish people. The second tweet represents Jewish people in a grotesque and caricatured way, in the form of a well-known antisemitic trope. In response to the claimant’s explanation for this tweet, and its internal structure, Mr Vassall-Adams referenced an academic paper: “(Non-)quoting and subjectivity in online discourse”, by Lieven Vandelanotte, Discourse Context & Media, (2021) 41 100509. He says that this shows that the claimant adopted, rather than distanced himself from, the offensive remark in the second tweet, because he was attributing it to himself (“Also me:…”). Mr Vassall-Adams says that the third tweet uses highly offensive antisemitic language. The claimant’s explanation relies on facts (the identity of Count Dankula and that person’s antisemitism) that the defendant did not know about and which are thus irrelevant for the purposes of the statutory defence. Further, anyone posting on twitter ought to be aware that their posts might subsequently appear out of context. In any event, it cannot be assumed that every reader has a sophisticated understanding of every social media convention, such as the significance of the use of quotation marks.
David Hirst, for the claimant, submits that the claimant has a real prospect of success, because, for the purpose of section 3(4) of the 2013 Act, an honest person does not advance an extremely prejudicial opinion based on statements which are materially incomplete and which they have not seen or reviewed in context and where the underlying factual basis is wholly absent and where the facts relied on do not sufficiently support the opinion. He draws attention to two components in section 3(4)(a). First, the need for there to be proved facts. Second, the need for the opinion, based on the facts, to be honest. He says that when the facts are analysed, the defendant cannot show that the claimant made comments or expressed views that were antisemitic. He says that the facts do not support an opinion that the claimant was antisemitic, and that an honest person could not hold that opinion. He says that exculpatory facts must be taken into account in deciding whether the defendant’s alleged facts are true, irrespective of whether those exculpatory facts were known to the defendant. Here, he relies on the context that is explained by the claimant in his evidence to show that the defendant was wrong to say that the tweets were antisemitic.
In respect of the first tweet, he says that no honest person would leave out of account that the claimant was making a point as to the ease with which the rules could be flagrantly ignored. In any event, a statement about boycotting Israel cannot logically support an opinion that the claimant was antisemitic. In that respect, Mr Hirst draws attention to the decision of the Court of Appeal in R (Jewish Rights Watch Ltd) v Leicester City Council [2018] EWCA Civ 1551 [2018] 4 All ER 1040 and the decision of Chamberlain J in Hussain v Solicitors Regulation Authority [2025] EWHC 1170 (Admin). In respect of the second tweet, he says that an honest person would recognise that it is not possible to determine the context, and thus to form an opinion. In respect of the third tweet, he relies on the use of inverted commas to show that the claimant was attributing the views to another person.
Mr Hirst also submits that summary judgment is, anyway, inappropriate. The claimant has adduced 400 pages of evidence to support his explanations for his tweets. Further evidence as to the context for those tweets may become available before trial. He says that the application involves undertaking a mini-trial because the court must consider each of the tweets and determine both the veracity of the underlying facts on which the defendant relies, and whether an honest person could hold the expressed opinion on the basis of those facts.
Should summary judgment be entered?
The burden is on the defendant both to prove the defence of honest opinion at trial, and, on this summary judgment application, to establish that the claimant has no real prospect of defeating that defence at trial and that there is no other compelling reason for the case to go to trial.
The basic facts on which the defendant relies are the fact that the claimant posted the tweets, their content, and their known context at the time of the publication. There is no dispute about those facts. The claimant admits he posted the tweets. He admits their content. There is no dispute about what was known of the context at the time of publication.
It is important to focus on the agreed meaning of the email. The claimant’s arguments, in a number of places, engage with the question of whether an honest person could form the opinion that he is antisemitic. That is not, however, the opinion that the parties agree was conveyed by the email. That agreed opinion is not that the claimant is antisemitic, but that he had posted comments online that were antisemitic. There is a difference. The expressed opinion relates to what (it is agreed) the claimant posted (in the known context in which it was posted) rather than to the claimant’s mindset as a person.
The claimant points to what he says is the exculpatory context of his general social media discourse and the immediate context in which those three tweets were posted. The defendant does not dispute that (so far as that context was known by it) these are part of the underlying facts on which it relies for the purposes of section 3(4)(a) of the 2013 Act. That includes the context for the first tweet, the fact that the second tweet was a response to a tweet that has been deleted (so that the precise context is unknown), and that the third tweet was a response to the tweet from the Count Dankula account which was in turn a response to the tweet from Mr Corbyn.
Mr Hirst submits that it is necessary to consider the broader context, including that which was not known to the claimant. That may, at trial, include the content of tweets that were deleted and so were unknown to the defendant at the time of publication. It also includes the fact that the Count Dankula account is operated by Mark Meechan, and his antecedents, and it also includes the claimant’s explanation for each of the posts.
I accept the defendant’s submission that this broader context comprises truly extraneous matters that do not throw into doubt the basic facts on which the defendant relies. In his oral submissions, Mr Hirst relied on the decision of Nicklin J in Riley v Murray [2021] EWHC 3437 (QB) [2022] EMLR 8 at [73], [77] and [98] – [99]. He submitted that the defendant must prove as an underlying fact that these tweets are antisemitic. It is for this reason that he relies on the broader context because he says that shows that they were not. However, this approach treats the defendant’s email as a statement of fact and the applicable defence as a defence of truth under section 2 of the 2013 Act, such that the defendant would have to prove that it is substantially true that the claimant posted antisemitic tweets. That overlooks that the parties have agreed that the email conveys an opinion rather than expressing a fact. The issue is not whether the tweets are antisemitic. The issue is whether the defendant has proved a fact or facts on the basis of which an honest person could form the opinion that the tweets are antisemitic. The decision in Riley does not support Mr Hirst’s submission. In that case, the defendant relied on a section 3(4) defence in respect of a published opinion that the claimant was dangerous and stupid and risked inciting unlawful violence. In support of that defence, the defendant pleaded and relied upon an asserted fact that the claimant had publicly stated in a tweet that Jeremy Corbyn deserved to be violently attacked. The defendant failed to establish the truth of that asserted fact. It was for that reason that the defence could not be sustained.
Against that background, I consider each of the individual tweets. I do so in reverse order.
The third tweet, read in isolation and without any context, is obviously and grossly antisemitic. The context is that it was a response to a deleted tweet from the Count Dankula account and that subsequent replies expressed doubt as to whether somebody was a holocaust denier. That limited context does not greatly assist in the interpretation of the tweet. A particularly cautious person, recognising the limited known context, might conclude that it is not possible to form an opinion as to whether the third tweet, read in its true context, was antisemitic. However, not all honest people are particularly cautious. Some would (and certainly could) conclude that the tweet is antisemitic. I do not consider that the claimant has a real prospect of establishing otherwise.
For the reasons I have given, I do not consider that the broader context on which the claimant seeks to rely is relevant to the issues that arise. But even if it were, I would have reached the same conclusion. Even if it had been known that the third tweet was a response to Mark Meechan, and that he had achieved a degree of infamy, and that the language used by the claimant, in part, directly referenced the language used by Mr Meecham, that would not make a difference to the inevitable success of an honest opinion defence. Read in that context, the claimant’s account that he was simply seeking to lampoon Mr Meechan may well be capable of belief. It is possible that some people, fairly reading his tweet in its proper context, would form the opinion that it was not antisemitic at all (or that if it was, then it was not “deeply troubling” because that context shows that it was not intended to be taken in that way). At the time, it appears that nobody took objection to the tweet. If the email had amounted to a statement of fact that the claimant was an antisemite, and it was necessary for the defendant to prove that the claimant had no real prospect of defeating a truth defence, then an application for summary judgment might be difficult to sustain. However, the statutory honest opinion defence is, as I have explained, much broader and more permissive than a defence of truth. The defendant does not have to show that the tweet is antisemitic, or that a fair-minded reader would form the opinion that it is antisemitic, far less that the claimant is an antisemite. It only has to show that an honest reader, perhaps a grossly unfair or prejudiced, but honest, reader, could form the opinion that the tweet is antisemitic, deeply troubling, unacceptable, prejudicial, discriminatory, and incompatible with holding office for the defendant. There is a clear relationship between the content of the tweet and the charge that it has those characteristics. The context put forward by the claimant may raise an issue as to precisely what was intended by the claimant when posting the tweet, but it does not remove the scope for an opinion that, notwithstanding that context, it was an antisemitic and “deeply troubling” (etc) thing to write. It follows that an honest person could form the view that is expressed in the email, so far as this particular post is concerned. The defendant is bound to succeed on that issue.
The email refers to comments (in the plural). On the face of it, therefore, it might arguably not be enough for the defendant to succeed in respect of the third tweet alone. However, much the same analysis applies to the second tweet. Again, the latter part of that tweet is, on its face, read in isolation and without its context, obviously antisemitic. Again, the context may raise a question as to the claimant’s intention when posting the tweet, but it does not remove any scope for an honest opinion that it was antisemitic. The defendant is bound to succeed in showing that an honest person could form that opinion. For these purposes I have not considered it necessary to take account of the academic article on which the defendant relies, or on a detailed analysis of different rhetorical devices deployed in social media discourse. Honest people have differing levels of familiarity with such matters. Irrespective of their level of such familiarity, an honest person could form the opinion that the tweet is antisemitic.
It follows that the defendant is bound to succeed on its honest opinion defence, by reference to these two tweets alone. For completeness, however, I consider the same applies to the first tweet. Of course, there is conceptually a potential difference between criticism of the state of Israel and antisemitism. Objectively, the former may not necessarily amount to the latter, hence the reliance that Mr Hirst places on the decisions in Jewish Rights Watch and Hussain. But, at least in some contexts, it may do. And an honest person may hold that opinion whether or not it is objectively sound. It seems to me to be incontestable that a call to boycott Israel “out of spite” is capable, in isolation, of being understood by an honest person as antisemitic. The context, which at least in this case is complete, may give some pause for thought, but it does not remove the scope for an honest opinion that the tweet is antisemitic, particularly when read with the other two tweets (and bearing in mind that these are just 3 individual tweets amongst several thousand).
Once it is recognised that an honest person could form the opinion that the tweets were antisemitic and deeply troubling, it necessarily follows that an honest person could form the opinion that they were unacceptable, prejudicial and discriminatory. It also follows that they could form the opinion that they are incompatible with holding office with the defendant. For these purposes, it is not necessary for the defendant to prove anything about its internal policies or disciplinary processes, or anything beyond the accepted fact that the defendant is a large trade union representing the interests of thousands of doctors. An honest person who formed the opinion that the tweets were antisemitic and deeply troubling could likewise form the opinion that they are incompatible with holding office with the defendant. Again, I do not consider that there is scope for the contrary view that an honest person could not form that opinion.
The question of whether an honest person could hold the expressed opinion, based on the three tweets and their context as pleaded and proved by the defendant, is an objective issue that requires an evaluative assessment. Neither party has identified any further evidence that is likely to become available that would impact on that issue. The application of the first component of the summary judgment test (that is whether the claimant has a real prospect of success on that issue) is, likewise, a question for evaluative assessment. It does not involve conducting a mini-trial or making any finding of disputed fact. It is eminently capable of resolution on this interim application, and it is in accordance with the overriding objective (particularly saving costs) that it should be resolved.
Nor is there any other compelling reason why the case should go to trial. That would cause significant additional cost and delay, for no discernible benefit. Having concluded that the claim is bound to fail at trial, and in the absence of any other compelling consideration, the overriding objective requires that summary judgment is entered in the defendant’s favour.
Outcome
The claimant does not have a real prospect of successfully defeating the defendant’s honest opinion defence. There is no other compelling reason why the case should proceed to trial. I therefore enter summary judgment in the defendant’s favour.
