Disagreement is not dishonesty: Court of Appeal clarifies the honest opinion defence
In Bridgen v Hancock [2026] EWCA Civ 991, the Court of Appeal has ruled that a tweet posted by Matt Hancock, former Conservative MP and Health Secretary, accusing an unnamed “sitting MP” of promoting “anti-semitic” conspiracy theories, is protected by the defence of honest opinion.
The claim was brought against Hancock by Andrew Bridgen, another former Conservative MP. In determining that the honest opinion defence applied, the Court of Appeal struck out Bridgen’s Reply to Hancock’s honest opinion defence and awarded summary judgment in favour of Hancock, resolving the claim without the need for a trial.
The judgment clarifies two important elements of the honest opinion defence under section 3 of the Defamation Act 2013 (“2013 Act”): first, the approach to determining whether an honest person could have held the opinion under section 3(4) of the 2013 Act; and second, the standard required to prove that the defendant did not genuinely hold the opinion under section 3(5) of the 2013 Act.
Background
On 11 January 2023, Bridgen posted a tweet linking an article about reported adverse effects of Covid vaccines, adding a comment attributed to a cardiologist that this was “the biggest crime against humanity since the Holocaust”. Several MPs and the Government’s independent adviser on antisemitism criticised the tweet publicly.
Hancock first raised the matter in the House of Commons during Prime Minister’s Questions and about half an hour after doing so, posted a tweet embedding the video of the exchange and denouncing the tweet posted by Bridgen without naming him. He posted: “[t]he disgusting and dangerous anti-semitic, anti-vax, anti scientific conspiracy theories spouted by a sitting MP this morning are unacceptable and have absolutely no place in our society”.
Bridgen brought a claim in defamation in respect of the allegation of antisemitism, arguing that readers would identify him as the unnamed MP and understand the tweet to mean he was, in fact, antisemitic. In response to the claim, Hancock relied on the defence of honest opinion under section 3 of the 2013 Act.
Section 3 requires that a defendant shows that:
- a statement was one of opinion (section 3(2));
- it indicated the basis of the opinion (section 3(3)); and
- an honest person could have held that opinion on the facts relied on (section 3(4)).
Even if those requirements are met, a claimant can still defeat the defence by proving the defendant did not genuinely hold the opinion (section 3(5)).
At a short trial of preliminary issues, the High Court agreed, as was common ground, that the statement complained of was defamatory at common law and that though part of the tweet was a statement of fact, the allegation of antisemitism was a statement of opinion. It then went on to determine that the statement of opinion indicated the basis of the opinion, meaning that the first two conditions under section 3(2) and 3(3) were satisfied.
After the exchange of pleadings, Hancock applied for summary judgment on three bases, two of which related to the merits of Hancock’s honest opinion defence. In particular, that Bridgen had no real prospect of resisting a finding that the defence of honest opinion applied (including showing that the requirement under section 3(4) that an honest person could have held the opinion was not satisfied) and that his case under section 3(5) in his Reply that Hancock did not genuinely hold the opinion had no real prospect of success.
The High Court dismissed both applications on the basis Bridgen’s prospects of success were not “unreal” and that these issues needed to be tested at trial. In particular, it considered that:
- the honest opinion defence raised “highly evaluative” issues requiring fuller evidence and argument at trial in order to establish the limits of what views can be held;
- evidence of how other commentators responded to the tweet posted by Bridgen, including a letter from Jewish doctors and scientists stating that it was not antisemitic, might be relevant to the assessment;
- Hancock’s purpose or motive in posting his tweet might be relevant to the questions of whether an honest person could hold the opinion in it and whether Hancock genuinely held that opinion;
- Bridgen had a realistic prospect of proving that Hancock did not genuinely hold the opinion, on the basis it was a highly unreasonable opinion and he had improper motives.
Hancock appealed. The Court of Appeal was therefore required to resolve two issues in particular: could an honest person have held the opinion that Bridgen’s tweet was antisemitic, and in particular what, if any, evidence should be taken into account? And, did Bridgen have a real prospect of showing that Hancock did not genuinely hold the opinion he expressed?
Objective honesty under section 3(4) 2013 Act: could an honest person hold the view?
In answering the first question, the Court of Appeal held that the boundaries of whether an opinion is capable of being held by a hypothetical ordinary honest person is a question for the court to determine objectively on the basis of established facts and argument. That opinion does not have to be justified, fair or reasonable, quoting Diplock LJ in Silkin v Beaverbrook Newspapers Ltd [1958] 1 WLR 743, 747, “the crank, the enthusiast, may say what he honestly thinks as much as the reasonable man or woman who sits on a jury””.
The Court of Appeal confirmed that the opinions of commentators or third parties on the same or similar matters is not evidence by which the statutory question is answered, meaning that the letter from Jewish doctors and scientists and a definition of antisemitism produced by the International Holocaust Remembrance Alliance were inadmissible. Admitting such evidence would risk expensive and unproductive satellite disputes about whose opinions counted and why. The question was simply whether an honest person could hold Hancock’s opinion on the basis of the facts.
Applying this approach, the Court of Appeal found that objectively an honest person could think that comparing the Covid vaccine rollout to the Holocaust trivialised the Holocaust and was therefore antisemitic, even though many would disagree with that view. The law protects all opinions that are honestly held even if they are irrational, unreasonable or held by only a “lone voice”. The requirement under section 3(4) was therefore satisfied and the issue did not need to go to trial.
Dishonesty under section 3(5) of the 2013 Act: could Bridgen show Hancock did not genuinely hold the opinion expressed?
Turning to the second question, the Court of Appeal confirmed that a strict standard applies when assessing whether a defendant did not genuinely hold the opinion expressed, and that it is not enough for a claimant to rely on neutral or equivocal material. The pleaded facts and evidence must point more towards dishonesty than honesty, in a way analogous to the approach taken to allegations of fraud. The Court of Appeal found that the High Court had erred in failing to apply that strict standard.
The Court of Appeal also rejected the idea that an opinion being objectively unreasonable can, by itself, show that the defendant probably did not believe it.The honest opinion defence exists precisely to protect opinions that others may regard as unreasonable or irrational, so long as they are genuinely held. It would be incoherent to find that section 3(4) is satisfied and then infer from the same unreasonableness that Hancock probably did not hold the opinion under section 3(5). The Court of Appeal also rejected recklessness as a route to defeat the defence under section 3(5), emphasising that one cannot be “recklessly indifferent to whether one holds an opinion”, one either holds it or one does not.
Bridgen’s arguments, including that Hancock had a motive to discredit him and that other people had not condemned the tweet in the same terms, were considered individually and found incapable of showing a probability of dishonesty. The Court of Appeal also confirmed that Hancock was not required to give his own evidence explaining his state of mind, since the burden of proof rests on the claimant to show the opinion was not genuinely held.
Bridgen’s case under section 3(5) as advanced in his Reply therefore had no prospect of success and there was no other compelling reason for the issue to await trial. As a result, the statement complained of was protected by the defence of honest opinion: Hancock’s appeals were allowed, Bridgen’s Reply was struck out and Hancock was awarded summary judgment.
Comment
This decision confirms that the honest opinion defence gives considerable latitude to strongly worded and unpopular statements of opinion, provided they are indicated as opinion, linked to a sufficient factual basis and honestly held. It confirms that the section 3(4) assessment is an objective one: the question is whether an honest person could have held the opinion on the relevant facts, not how others reacted to it or what third-party commentary may suggest about the boundaries of permissible opinion.
The decision is also significant for defendants seeking early determination of defamation claims based on an honest opinion defence, where the pleaded facts do not realistically support a case under section 3(5). Disagreeing with an opinion, an opinion being unpopular or alleged improper motive will unlikely, without more, be sufficient. A claimant will need positive evidence that the opinion was not genuinely held to meet the strict standard.
For further information, please email the authors or your usual CMS contact.
This article was co-authored by Alice Robson, Trainee Solicitor at CMS.
