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

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].