Currie v Soho Theatre Company Ltd - Libel Appeal on Meaning

| | [Home ]
[Databases ]
[World Law ]
[Multidatabase Search ]
[Help ]
[Feedback ]
[DONATE ] | |
| # England and Wales Court of Appeal (Civil Division) Decisions | | |
| You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >>

  Currie   v Soho Theatre Company Ltd [2026] EWCA Civ 400 (31 March 2026)

URL: https://www.bailii.org/ew/cases/EWCA/Civ/2026/400.html
Cite as:
[2026] EWCA Civ 400 | | |
[New search ]

[Printable PDF version ]

[Help ]

| | | Neutral Citation Number: [2026] EWCA Civ 400 |
| | | Case No: CA-2025-000974 |
**IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
MR JUSTICE NICKLIN

[2025] EWHC 1645 (KB)**

| | | Royal Courts of Justice
Strand, London, WC2A 2LL |
| | | 31 March 2026 |
B e f o r e :

LORD JUSTICE SINGH
and
LORD JUSTICE COULSON

Between:
| | PAUL CURRIE | Appellant/
Claimant |
| | - and ? | |
| | SOHO THEATRE COMPANY LIMITED | Respondent
Defendant |

**William Bennett KC and David Hirst (instructed by Rahman Lowe Solicitors) for the Appellant
Gervase de Wilde (instructed by Reynolds Porter Chamberlain LLP) for the Respondent

Hearing date: 19 March 2026**

HTML VERSION OF APPROVED JUDGMENT ____________________

Crown Copyright ©

3. This judgment was handed down remotely at 10 a.m. on 31 March 2026 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
5. .............................
7. Lord Justice Singh:
9. Introduction
10. The Appellant, a stand-up comedian, has brought a claim in the High Court for libel arising from a Press Release published by the Respondent on its website and on Twitter on 13 February 2024, following an incident at the Appellant's show at the Soho Theatre in London on 10 February 2024. We are not concerned with the merits of that claim; there has been no trial of the merits or even a defence filed as yet. This is in accordance with normal procedure in cases of this kind, where a preliminary issue arises as to the meaning to be given to a statement.
12. With the permission of Arnold LJ, which was granted on 16 September 2025, the Appellant now appeals against the finding made by Nicklin J ("the Judge") as to the natural and ordinary meaning of the Press Release, as recorded in para 1 of the Order dated 3 April 2025.
15. Factual background
16. The Press Release which is the subject of the claim appeared with the heading 'Soho Theatre statement 13 Feb 2024' and read as follows (with the paragraph numbering inserted by the Judge for ease of reference):
18. "[1] Soho Theatre will not tolerate intimidation of audience members due to their nationality, race, religion or beliefs.
19. [2] On Saturday evening, following the end of Paul Currie's show Shtoom, Jewish members of the audience were subjected to verbal abuse and the performer aggressively demanding they leave the theatre.
20. [3] Such appalling actions are unacceptable and have no place on our stages, now or ever. We will not be inviting Paul Currie back to perform at our venue.
21. [4] Whilst we robustly support the right of artists to express a wide range of views in their shows, intimidation of audience members, acts of antisemitism or any other forms of racism will not be tolerated at Soho Theatre.
22. [5] We are continuing our investigation, discussing the incident with that evening's audience and consulting with the police. We are working with the Campaign Against Antisemitism to meet with members of the audience who were affected. We are taking professional advice to safeguard the much-valued inclusivity of Soho Theatre. ..."
24. The Press Release was accompanied on the Respondent's website by Notes to editors in the following terms:
26. "[6] The incident on the final night (Saturday 10 February) was not part of the performance (which is a non-verbal show), was not pre-planned, and did not take place on the previous two nights.
27. [7] Soho Theatre has been in touch with every audience member who attended on Saturday night to invite them to feedback on what happened.
28. [8] Soho Theatre is fully co-operating with police and others in investigations into this incident.
29. [9] The show ran for three performances at Soho Theatre."
31. The version of the Press Release which was published on Twitter did not include the Notes to editors.
34. The decision of the High Court
35. The parties had agreed that there should be a trial of preliminary issues and a consent order had been made by Steyn J on 27 January 2025, directing the resolution of the following three issues:-
37. (a) The natural, ordinary and/or inferential meaning of the statement complained of in the Particulars of Claim.
38. (b) Whether the statement complained of in the Particulars of Claim is or includes a statement of fact or opinion.
39. (c) In so far as a statement comprises or includes a statement of opinion, it indicates the basis of the opinion.
41. That order did not direct the determination of whether the natural and ordinary meaning found by the court is defamatory at common law, but the parties confirmed at the hearing before the Judge that that was not in dispute. In other words, it was accepted by the Respondent that the Press Release is defamatory of the Appellant at common law.
43. In determining the natural and ordinary meaning of the Press Release, the Judge took the following steps:
45. (1) The Judge read the Press Release first before considering the parties' submissions, to capture his initial reaction. This accords with the usual practice in cases of this kind.
46. (2) He stated that his task in relation to the question of fact or opinion was to determine "how the statement would strike the ordinary and reasonable reader", applying Butt v Secretary of State for the Home Department [2019] EWCA Civ 933; [2019] EMLR 23, at para 39 (Sharp LJ).
47. (3) The Judge considered only the terms of the Press Release in the media in which they appeared, as neither party had sought to rely on the external context.
48. (4) In setting out his reasons, the Judge said that this was "a straightforward case" and that "[l]argely, the meaning of the press release is clear and unambiguous". It was "not a case of inference or implication where the reader must discern, or unpack, what is actually being said about the subject": see para 23 of his judgment.
49. The Judge found that the natural and ordinary meaning of the Press Release ("the Meaning") is as follows:
51. "Following the end of the [Appellant's] show, the [Appellant] had verbally abused Jewish members of the audience and aggressively demanded that they leave the theatre and there were grounds to investigate whether by so doing the [Appellant] had committed a criminal offence.
52. This conduct was:
53. (a) intimidating and antisemitic;
54. (b) appalling and unacceptable; and
55. (c) inconsistent with the values of Soho Theatre,
56. and justified the theatre in refusing to allow the Claimant the opportunity to perform at the Soho Theatre in the future."
58. The Judge found that the first sentence of the Meaning was an allegation of fact. The underlined text was found by him to be an expression of opinion. The Judge found that the entire Meaning is defamatory of the Appellant at common law.
61. Grounds of Appeal
62. On this appeal the Appellant seeks a variation of the Judge's order which would add the words "because they were Jewish" so that the first sentence of para 1 of the Order would read as follows:
64. "(1) The Claimant intimidated, verbally abused members of the audience, and aggressively asked them to leave the theatre because they were Jewish; and (2) there were grounds to investigate whether by so doing the Claimant had committed a criminal offence" (emphasis added)
66. In summary, the Appellant's four grounds of appeal are as follows:
68. (1) Factual meaning plainly wrong: The meaning found by the Judge was "plainly wrong" to the degree that no reasonable judge could have reached the decision. The only meaning that the Press Release was capable of conveying was that the Appellant had abused audience members because they were Jewish.
69. (2) Error of law ? failure to apply law on implications: The Judge erred in finding that the factual allegation(s) made by the Press Release did not involve finding any inference or implication whatsoever. The learned Judge failed to apply the relevant law which states that the hypothetical reasonable reader reads an implication into words complained of more readily than a lawyer. In this context, Mr William Bennett KC, who appeared before us with Mr David Hirst for the Appellant, placed reliance on the well-known passage in Lewis v Daily Telegraph Limited [1964] AC 234, at 277, where Lord Devlin said:
70. > "My Lords, the natural and ordinary meaning of words ought in theory to be the same for the lawyer as for the layman, because the lawyer's first rule of construction is that words are to be given their natural and ordinary meaning as popularly understood. The proposition that ordinary words are the same for the lawyer as for the layman is as a matter of pure construction undoubtedly true. But it is very difficult to draw the line between pure construction and implication, and the lay man's capacity for implication is much greater than the lawyer's. The lawyer's rule is that the implication must be necessary as well as reasonable. The layman reads in an implication much more freely; and unfortunately, as the law of defamation has to take into account, is especially prone to do so when it is derogatory."
72. (3) Error of law ? statements of opinion do not influence interpretation of factual meanings: The Judge wrongly regarded the first sentence of the Press Release (i) as being a statement of opinion rather than a statement of fact and (ii) as not having any impact on how the reasonable reader would treat the second sentence.
73. (4) Plainly wrong ? meaning found internally incoherent: By rejecting the Appellant's case that the Press Release conveyed a prejudiced mental state but nevertheless determining that the Press Release conveyed the opinion that the Appellant's acts were "antisemitic", the Judge's conclusions were internally inconsistent.
75. Analysis
76. The critical part of the Judge's reasoning appears at paras 25-27 of his judgment:
78. "25. I do not accept Mr Hirst's submission that the factual allegation made by the press release includes an allegation that the [Appellant] had verbally abused members of the audience and aggressively demanded that they leave the theatre because they were Jewish. I accept Mr de Wilde's submission that the press release does not attribute or allege a particular motive, as a matter of fact. That is an unwarranted gloss on what is said in [2] of the press release and it is not supplied by [1]. Paragraph [1], seen in its proper context is a summary of what follows.
79. 26. The reference to intimidation in that paragraph is an expression of opinion, as it is in [4] of the press release where it is repeated. The element of intimidation is reflected in the meaning, as a whole, but in its proper place as an expression of opinion.
80. 27. The expression of opinion, in my judgment, is just as clear. Words like 'appalling actions', 'unacceptable', 'antisemitism' and 'intimidation' unmistakeably would convey to readers the conclusions, deductions and criticisms of the Theatre on the behaviour of the [Appellant]. They are unequivocally expressions of opinion and would be readily understood as such by the hypothetical ordinary reasonable reader. ?" (Emphasis in original)
82. It was common ground before us that the approach which an appellate court should take in this sort of context is that set out by the Supreme Court in Stocker v Stocker [2019] UKSC 17; [2020] AC 593, at para 59, where Lord Kerr JSC said:
84. "As to whether the appellate task needs to be described as one requiring caution, as Simon LJ suggested, I am doubtful. I would prefer to say that it calls for disciplined restraint. Certainly, the trial judge's conclusion should not be lightly set aside but if an appellate court considers that the meaning that he has given to the statement was outside the range of reasonably available alternatives, it should not be deterred from so saying by the use of epithets such as plainly or quite satisfied. If it was vitiated by an error of law then the appellate court will have to choose between remitting the matter or, more usually in this context, determining the meaning afresh. But if the appellate court would just prefer a different meaning within a reasonably available range, then it should not interfere."
86. Both sides urged upon this Court that approach of "disciplined restraint."
88. That approach was applied to the present context in Blake v Fox [2023] EWCA Civ 1000; [2024] EMLR 2, at paras 49-50. Warby LJ set out the role of an appellate court in this context as follows:
90. "49. In Stocker the Supreme Court held that on an appeal against a judicial determination of meaning the court should exercise 'disciplined restraint'. It should not interfere just because it would prefer a different meaning or conclusion within the reasonably available range. The court identified a range of reasons for such appellate self-discipline, including but not limited to the advantages a judge at first instance may have over one hearing an appeal: see [58]-[59].
91. 50. Although the question of whether a statement is one of fact or opinion is a binary one the approach is the same. We have recently held that the Stocker test applies on an appeal against the binary question of whether the ordinary reasonable reader would or would not understand a statement to refer to the claimant: Dyson Technology Ltd v Channel Four Ltd [2023] EWCA Civ 884 [36]. In Millett v Corbyn this court observed that 'we do not second-guess' decisions on whether a statement is one of fact or opinion which involve the application of accepted principles to the undisputed facts of the case; in the absence of legal error an appeal will only succeed if the court is satisfied that, allowing for the advantages available to the first instance court, the finding was wrong: [21], [36], [37]."
93. Turning to the underlying issue, as to the determination of the natural and ordinary meaning of a statement, it was common ground before us that the relevant principles are as set out by Nicklin J in Koutsogiannis v Random House Group Limited [2019] EWHC 48 (QB); [2020] 4 WLR 25, at paras 11-12:
95. "11. The Court's task is to determine the single natural and ordinary meaning of the words complained of, which is the meaning that the hypothetical reasonable reader would understand the words bear. It is well recognised that there is an artificiality in this process because individual readers may understand words in different ways: Slim v Daily Telegraph Ltd [1968] 2 QB 157, 173D? E, per Lord Diplock.
96. 12. The following key principles can be distilled from the authorities ? :
97. > (i) The governing principle is reasonableness.
98. > (ii) The intention of the publisher is irrelevant.
99. > (iii) The hypothetical reasonable reader is not na?ve, but he is not unduly suspicious. He can read between the lines. He can read in an implication more readily than a lawyer and may indulge in a certain amount of loose thinking but he must be treated as being a man who is not avid for scandal and someone who does not, and should not, select one bad meaning where other non-defamatory meanings are available. A reader who always adopts a bad meaning where a less serious or non-defamatory meaning is available is not reasonable: s/he is avid for scandal. But always to adopt the less derogatory meaning would also be unreasonable: it would be na?ve.
100. > (iv) Over-elaborate analysis should be avoided and the court should certainly not take a too literal approach to the task.
101. > (v) Consequently, a judge providing written reasons for conclusions on meaning should not fall into the trap of conducting too detailed an analysis of the various passages relied on by the respective parties.
102. > (vi) Any meaning that emerges as the produce of some strained, or forced, or utterly unreasonable interpretation should be rejected.
103. > (vii) It follows that it is not enough to say that by some person or another the words might be understood in a defamatory sense.
104. > (viii) The publication must be read as a whole, and any 'bane and antidote' taken together. Sometimes, the context will clothe the words in a more serious defamatory meaning (for example the classic 'rogues' gallery' case). In other cases, the context will weaken (even extinguish altogether) the defamatory meaning that the words would bear if they were read in isolation (e.g. bane and antidote cases).
105. > (ix) In order to determine the natural and ordinary meaning of the statement of which the claimant complains, it is necessary to take into account the context in which it appeared and the mode of publication.
106. > (x) No evidence, beyond the publication complained of, is admissible in determining the natural and ordinary meaning.
107. > (xi) The hypothetical reader is taken to be representative of those who would read the publication in question. The court can take judicial notice of facts which are common knowledge but should beware of reliance on impressionistic assessments of the characteristics of a publication's readership.
108. > (xii) Judges should have regard to the impression the article has made upon them themselves in considering what impact it would have made on the hypothetical reasonable reader.
109. > (xiii) In determining the single meaning, the court is free to choose the correct meaning; it is not bound by the meanings advanced by the parties (save that it cannot find a meaning that is more injurious than the claimant's pleaded meaning)."
111. In resolving the issues which arise on this appeal I have found particularly helpful what was said by Eady J in Pena v Tameside Hospital NHS Foundation Trust [2011] EWHC 3027 (QB), at para 27:
113. "Attribution of motive can often, depending on context, be properly classified as comment. It is true, of course, that the state of a man's mind can also, on occasion, be regarded as being as much a fact as the state of his stomach. On the other hand, we can rarely establish definitively what is going on in the mind of another person and are thus dependent on inference. Where it is clear to a listener or reader that someone is drawing an inference as to another person's motivation, it is reasonable to classify whatever he has to say in that context as comment rather than fact: see e.g. the discussion in the Court of Appeal in Branson v Bower [2001] EMLR 800, 805. The position is conveniently summarised in Duncan & Neill on Defamation (3rd edn) at 13.16:
114. > 'Allegations about a claimant which, by their very nature, cannot be verified by another person but only established by inference (for example, statements about a claimant's state of mind or motives) are likely to be classed as comment. In Branson v Bower it was held that it would have been clear to any reasonable reader that the author could not have had direct knowledge of the claimant's state of mind and, accordingly, that he must have been expressing his own views.'"
116. In the second sentence of that paragraph, Eady J no doubt had in mind the celebrated dictum by Bowen LJ in Edgington v Fitzmaurice (1885) 29 Ch D 459, at 483, in the context of the tort of deceit, that there must be a misstatement of an existing fact but that:
118. "the state of a man's mind is as much a fact as the state of his digestion. It is true that it is very difficult to prove what the state of a man's mind at a particular time is, but if it can be ascertained it is as much a fact as anything else."
120. In Pena Eady J cited the decision of the Court of Appeal in Branson v Bower [2001] EWCA Civ 791; [2001] EMLR 32. I have also found particularly helpful what was said by Latham LJ in Branson, at paras 12-13:
122. "12. This test is, in my view, accurately described in Gatley (9th ed.), Chapter 12.6. Citing from a judgment of Cussen J. in Clarke v. Norton [1910] VLR 494 at 499, the editors state, as to what amounts to comment for the purposes of permitting the defence of fair comment:
123. > 'More accurately it has been said that the sense of comment is "something which is or can reasonably be inferred to be a deduction, inference, conclusion, criticism, remark, observation, etc."'
124. 13. Whilst an assertion as to motive may be capable of amounting to an assertion of fact, that depends on its context. Having read with care the whole of the article from which the words complained of have been abstracted, it seems to me that the judge was fully entitled to come to the conclusion that the respondent was expressing a series of opinions about the motives of the appellant in a way which would leave the reader in no doubt that they were inferences drawn by the respondent from the facts set out in the article. The judge was accordingly entitled to take the view that it was not necessary for a jury to be required to answer the question whether the matters complained of were fact or comment. Accordingly I would dismiss this appeal."
126. A similar approach is apt in the present case.
128. In my view, the critical point in this appeal is not whether the words "because they were Jewish" were implicitly to be found in the Press Release. I would be prepared to accept the submission on behalf of the Appellant that, in expressing an opinion that something was "antisemitic", it was implicit that there were acts of antisemitism in the sense that the Appellant was said to have acted because people were (or were perceived by him) to be Jewish. I would also be prepared to accept that para [1] of the Press Release was not a summary of what followed. Rather it was a statement as to the Respondent's policy. Further, the Press Release needs to be read as a whole: para [2] should not be read in isolation and out of context. But I do not think any of these points assist the Appellant's case.
130. The critical issue, in my view, is whether the implicit words "because they were Jewish" had to be placed in the category of statements of fact or whether the Judge was reasonably entitled to place them into the category of an expression of opinion. As the Judge said in the middle of para 25, he accepted the submission made on behalf of the Respondent that the Press Release did not attribute or allege a particular motive "as a matter of fact." He placed "antisemitism" in the category of opinion, as is clear from para 27.
132. At the hearing before us Mr Bennett accepted that his submission is not that, whenever A says of B that he acted as he did because C is Jewish, that is necessarily to be categorised as a statement of fact. Since he accepts that in principle such a statement may be an expression of opinion, this Court could only interfere with the assessment of the Judge if we concluded that he fell into error in his approach or reached a conclusion which was not reasonably open to him. As Mr Bennett was at pains to stress at the hearing before us, he must overcome a high threshold that the Judge was "plainly wrong" but he submitted that he succeeds in doing so.
134. In my judgment, the Judge did not fall into error as a matter of law, and the meaning which he gave the Press Release was one that was reasonably open to him. He was entitled to reject the submission which had been made for the Appellant that the attribution of a state of mind to the Appellant (that he acted as he did "because they were Jewish") had to be characterised as a statement of fact.
136. I do not accept that the Judge applied a lawyerly approach. He did not compartmentalise different passages in the Press Release but did consider them as a whole.
138. Nor do I accept that there was an internal inconsistency in the Judge's reasoning. As I have said, the crucial question is not whether it can be said that the press release had the meaning that the Appellant had acted as he did because some members of the audience were Jewish, but rather whether that attribution of a state of mind to the Appellant is to be regarded as a statement of fact or could be regarded as an expression of the Respondent's opinion. As I have said, I have reached the conclusion that the latter approach was reasonably open to the Judge.
140. In reaching that conclusion I also bear in mind the following features of this case.
142. First, the statement was not made in a press article, for example a piece of investigative journalism or an article featuring gossip about a celebrity. It was on the Respondent's website, although there were also Notes to editors. This was consistent with its being primarily a document setting out the Respondent's position rather than a statement about what the Appellant had done.
144. Secondly, when the Press Release is read as a whole, it is undisputed that there were statements in it which were clearly expressions of the Respondent's opinion, so it did not consist only of statements of fact.
146. Thirdly, the Press Release made it clear that there was a continuing process being undertaken which had not yet been completed. This is why it mentioned that the police were investigating the matter. In my view, an ordinary and reasonable reader would not think that para [2] of the Press Release contained a definitive statement of fact about what the Appellant had done (and his reason for doing it), as that was still the subject of continuing investigation, including by the police. I do not accept that this is an unduly legalistic way of reading the Press Release. To the contrary, it is the correct way to read it, as an ordinary and reasonable reader would read it, in accordance with the principles which are well established in the authorities and which I have summarised earlier.
148. Finally, as my Lord, Coulson LJ observed during the hearing, there is necessarily an element of artificiality in the exercise that has to be performed, because defamation law itself draws a distinction between statements of fact and expressions of opinion. Although the Press Release must be read as a whole and as an ordinary and reasonable reader would read it, not as a lawyer would, to that extent there does have to be a separation of elements of the Press Release.
151. Conclusion
152. For the reasons I have given, I would dismiss this appeal.
155. Lord Justice Coulson:
156. I agree.

BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII
URL: https://www.bailii.org/ew/cases/EWCA/Civ/2026/400.html