KB-2024-002315 - [2025] EWHC 1782 (KB)

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.