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Currie v Soho Theatre Company Ltd
Factual and Procedural Background
The Appellant, a stand-up comedian, brought a libel claim arising from a press release published by the Respondent on its website (and, in an abbreviated form, on Twitter) on 13 February 2024 following an incident at the Appellant's performance at Company A on 10 February 2024. There has been no trial of the merits and no defence filed. With permission granted by Judge Arnold on 16 September 2025, the Appellant appealed the finding of Judge Nicklin as to the natural and ordinary meaning of the press release recorded in para 1 of the Order dated 3 April 2025.
The press release (as published on Company A's website) stated, among other things, that following the end of the Appellant's show Jewish members of the audience were subjected to verbal abuse and the performer aggressively demanded they leave the theatre; that Company A would not be inviting the Appellant back; that Company A was investigating, consulting the police and working with Company B; and that notes to editors clarified the incident was not part of the performance, was not pre-planned, Company A had contacted attendees and was cooperating with police. The Twitter version omitted the notes to editors.
By a consent order made by Judge Steyn on 27 January 2025 the parties agreed three preliminary issues for trial: (a) the natural, ordinary and/or inferential meaning of the statement complained of; (b) whether the statement is or includes a statement of fact or opinion; and (c) if opinion, the basis of the opinion. The parties agreed (and the Respondent accepted) that, on the meaning found, the press release is defamatory of the Appellant at common law.
Legal Issues Presented
- What is the natural and ordinary meaning of the press release complained of?
- Whether the statement complained of is or includes statements of fact or of opinion.
- If any part is opinion, what is the basis of that opinion?
- On appeal, whether the Judge's meaning should be varied to include the words "because they were Jewish" (i.e. whether the press release conveyed a factual allegation of motive) and whether the Judge was plainly wrong or erred in law in his approach to implication and to fact/opinion.
Arguments of the Parties
Appellant's Arguments
- The Judge's factual meaning was "plainly wrong" and no reasonable judge could have reached it: the only meaning the press release could convey was that the Appellant abused audience members because they were Jewish.
- The Judge erred in law by failing to apply the law on implications: the reasonable reader reads implications more readily than a lawyer (relying on Lewis v Daily Telegraph Limited).
- The Judge wrongly treated parts of the press release as opinion and failed to recognise the impact of those opinions on the factual meaning.
- The Judge's conclusions were internally inconsistent: rejecting that a prejudiced mental state was conveyed but nonetheless concluding the conduct was "antisemitic."
Respondent's Arguments
- The press release did not attribute or allege a particular motive as a matter of fact; para [1] was a statement of Company A's policy and a summary rather than an allegation of motive.
- Terms such as "intimidation", "antisemitism", "appalling actions" were expressions of opinion rather than allegations of fact.
- The publication should be read in context (including that investigations, including police investigations, were ongoing), and the ordinary reader would not treat para [2] as a definitive factual statement of motive.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Butt v Secretary of State for the Home Department [2019] EWCA Civ 933; [2019] EMLR 23 | How the statement would strike the ordinary and reasonable reader (task for determining fact or opinion). | The Judge applied this test in determining how the press release would be read by the ordinary reasonable reader. |
| Lewis v Daily Telegraph Limited [1964] AC 234 | The proposition that lay readers read in implications more readily than lawyers; difficulty of drawing the line between pure construction and implication. | Relied on by the Appellant to argue the reasonable reader would read in a factual implication of motive. |
| Stocker v Stocker [2019] UKSC 17; [2020] AC 593 | Appellate standard: the appeal calls for "disciplined restraint"; only interfere if first-instance meaning was outside reasonably available alternatives or vitiated by legal error. | The court applied this appellate approach in reviewing Judge Nicklin's finding of meaning. |
| Blake v Fox [2023] EWCA Civ 1000; [2024] EMLR 2 | Application of Stocker: role of appellate court and restraint; Stocker test applies to binary fact/opinion questions. | The court followed Blake's exposition of the appellate role and its application to fact/opinion issues. |
| Dyson Technology Ltd v Channel Four Ltd [2023] EWCA Civ 884 | Example of Stocker test applied to whether the ordinary reader would understand a statement to refer to the claimant. | Cited in support of the proposition that Stocker applies equally to binary questions. |
| Millett v Corbyn | Observation that appellate courts should not "second-guess" fact/opinion decisions absent legal error; high threshold for interference. | Used to support the conservative appellate approach and the high threshold for overturning first-instance findings. |
| Koutsogiannis v Random House Group Limited [2019] EWHC 48 (QB); [2020] 4 WLR 25 | Set of principles for determining the single natural and ordinary meaning of words (reasonableness, context, bane and antidote, readership, no external evidence, judge's own impression, etc.). | The court treated these principles as the governing approach to determine meaning and applied them in analysis. |
| Slim v Daily Telegraph Ltd [1968] 2 QB 157 | Recognition of artificiality in the process because individual readers may understand words differently (cited for reader variance). | Cited within Koutsogiannis principles to support the approach to reader variability and the court's task. |
| Pena v Tameside Hospital NHS Foundation Trust [2011] EWHC 3027 (QB) | Attribution of motive can often be comment (opinion) rather than fact; state of mind is hard to prove and often dependent on inference. | The court found this reasoning helpful in distinguishing factual allegations of motive from comment/opinion. |
| Branson v Bower [2001] EWCA Civ 791; [2001] EMLR 32 | Discussion of when assertions as to motive amount to comment; the author may be expressing inferences rather than asserting direct factual knowledge. | Cited (via Pena) to support the proposition that in context assertions about motive may be properly characterised as comment. |
| Edgington v Fitzmaurice (1885) 29 Ch D 459 | Dictum that the state of a man's mind is as much a fact as the state of his digestion (on proving state of mind as fact). | Referenced as background on when state of mind might be treated as fact, but balanced against difficulties of proof and inference. |
| Clarke v. Norton [1910] VLR 494 | Authority cited on the sense of "comment" as a deduction, inference or conclusion. | Cited via Gatley/Branson to define what amounts to comment for fair comment purposes. |
| Gatley (9th ed.), Chapter 12.6 | Textbook exposition on comment and its sense as inference or deduction. | Referenced to explain the conceptual basis for treating inferences about motive as comment. |
| Duncan & Neill on Defamation (3rd edn) at 13.16 | Summarises that allegations which can only be established by inference (e.g. motives) are likely to be classed as comment. | Quoted in Pena and relied upon as supportive authority for classifying attributions of motive as comment. |
Court's Reasoning and Analysis
The court recited the Judge's method and conclusion and applied established principles. The Judge's approach at first instance was to read the press release before submissions, apply the ordinary reasonable reader test (Butt), consider only the terms as published, and treat the matter as largely clear and unambiguous. The Judge found the natural and ordinary meaning to be that, following the Appellant's show, the Appellant had verbally abused Jewish audience members, aggressively demanded they leave, and there were grounds to investigate whether a criminal offence had been committed; descriptors such as "intimidating", "antisemitic", "appalling and unacceptable" and inconsistency with Company A's values were characterised as expressions of opinion. The Judge held the overall meaning defamatory.
On appeal the court applied the Stocker/Blake appellate standard of "disciplined restraint", and treated the Koutsogiannis principles as the governing approach to meaning. The court found the reasoning in Pena and Branson persuasive on the point that attributions of motive may, in context, properly be classed as comment because the state of mind is often only inferable. The critical issue on appeal was whether the implicit words "because they were Jewish" had to be categorised as a factual allegation of motive or could reasonably be categorised as the Respondent's opinion.
The court accepted several concessions favourable to the Appellant for analytical purposes (that "antisemitic" implies acts carried out because people were Jewish; that para [1] was a policy statement rather than merely a summary; and that the statement must be read as a whole). Despite that, the court concluded that the Judge was not legally wrong and his conclusion that the attribution of motive could be treated as opinion was within the range of reasonably available conclusions. The court emphasised contextual features that supported this: the format (a press release on Company A's website setting out Company A's position rather than investigative journalism), the presence elsewhere in the release of clear expressions of opinion, and the ongoing nature of investigations (including police involvement) which an ordinary reasonable reader would recognise as indicating the matter was not yet definitively resolved as fact.
Holding and Implications
DISMISSED
Direct effect: The appeal was dismissed and Judge Nicklin's determination of the natural and ordinary meaning stands (i.e. the meaning found at first instance remains the operative meaning for the preliminary issues). The decision was reached on application of established principles and the appellate standard of disciplined restraint; the opinion does not purport to establish any new precedent beyond applying existing authorities.
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