Paul Currie v Soho Theatre Company Limited

This claim for libel, commenced on 12 July 2024, concerns a press statement published by the Defendant on its website and via Twitter on 13 February 2024.

As it appeared on the Defendant’s website, the press statement was published in the following terms (with paragraph numbers added in square brackets):

The version of the press release published on Twitter did not include the “Note to editors” section that appeared on the website.

In his Particulars of Claim, dated 12 November 2024, the Claimant contended that the press statement bore the following natural and ordinary meaning that was defamatory of him.

“(1)

The Claimant:

(a)

intimidated audience members because he had identified them to be Jewish in terms of their race, and/or religion or belief

(b)

verbally abused them because he had identified them to be Jewish; and

(c)

aggressively demanded that they leave the theatre because he had identified them to be Jewish.

(2)

That the Claimant’s said conduct amounts to acts of antisemitism, a form of racism and potentially criminal speech such as to render his acts incompatible with the values of the Defendant and justifying not asking the Claimant to perform again at the Defendant’s theatre in the future”.

The Claimant has selected for complaint the main body of the press release. He did not include the notes to editors but there is no dispute, however, that the court must consider the whole text of the press release, including the notes to editors, to determine the natural and ordinary meaning of the words complained of in their context in the press release, as a whole, as published on the website.

No Defence has yet been served. Instead, and following a well-established practice in defamation claims in the media and communications list, the parties agreed to seek the determination by the Court of various preliminary issues. In consequence, and by consent on 27 January 2025, Steyn J made an order directing the resolution of the following issues.

“(a)

The natural, ordinary and/or inferential meaning of the statement complained of in the Particulars of Claim.

(b)

Whether the statement complained of in the Particulars of Claim is or includes a statement of fact or opinion.

(c)

In so far as a statement comprises or includes a statement of opinion, it indicates the basis of the opinion”.

The 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 have confirmed today that that is not in dispute. In other words, it is accepted by the Defendant that the press release is defamatory of the Claimant at common law.

The order required the Defendant to set out its case on the preliminary issues. The Defendant duly did so on 10 February 2025. The Defendant contended that the natural and ordinary meaning of the press statement was:

“The Claimant, at the end of his show, verbally abused Jewish members of the audience and aggressively demanded that they leave the theatre. His conduct in doing so was inconsistent with the values of the Soho Theatre and was intimidating, antisemitic and potentially criminal justifying the theatre excluding him from future performances”.

The underlined part of that meaning the Defendant contended it was an expression of opinion.

The Defendant’s case also contained the following:

“The opinion included in the statement complained of was based on the following facts which were indicated in the statement complained of”.

Seven subparagraphs were then provided of what were alleged to be the facts upon which the opinion was said to be based. It is not necessary to set those out. It is common ground between the parties at the hearing today that the third preliminary issue to be determined by the court is to be answered in the affirmative.

For his part, the Claimant has confirmed that it is his intention that paragraph 1 of his meaning is an allegation of fact and paragraph 2, an expression of opinion.

Consistent with the usual practice, I read the press release first before considering the meaning advanced by the Claimant and the parties’ submissions on the preliminary issues (see Tinkler -v- Ferguson [2020] EWCA Civ 819 [9] per Longmore LJ). The purpose of doing this is to capture my initial reaction and putting myself, so far as possible, in the position of the hypothetical ordinary reasonable reader. Only after I have done that exercise did I go on to consider the parties’ pleaded cases and their arguments.

Some of Mr Hirst’s submissions in writing invited me to consider the meanings that were advanced in pre-action correspondence. That was not pursued in the hearing today, quite rightly, in my judgment. The parties’ beliefs as to the meaning of a publication are generally irrelevant to the determination of the natural and ordinary meaning. Extrinsic evidence – which this is – is not admissible on the determination of meaning. The only circumstances where pre-action correspondence might be relevant would be if there was a conscious admission of some fact that was relevant to the determination of the preliminary issue. That is not the case here. If a party’s case on meaning has shifted during the proceedings that could only ever have forensic force.

The approach to assessing a single natural and ordinary meaning is set out in the case of Koutsogiannis -v- Random House Group Ltd [2020] 4 WLR 25 [11]-[16], as approved by the Court of Appeal in Corbyn -v- Millet [2021] EMLR 19 [8] and Riley -v- Murray [2023] EMLR 3 [11]. The so-called Chase level meanings, that have potential importance in this case, are explained in Koutsogiannis [13].

In relation to the determination of fact opinion, the principles are set out in Koutsogiannis at [16] and [17], approved by the Court of Appeal in Corbyn -v- Millet [12]. As the Court of Appeal noted, in Corbyn [13]:

“Although it may seem logical to consider first whether a statement is defamatory and only then to consider whether a defence of honest opinion is available, this may not always be the best approach. That is because a statement of opinion may be less reputationally damaging than an allegation of fact, so ‘the answer to the first question may stifle the answer to the second’: British Chiropractic Association -v- Singh [2011] 1 WLR 133 [32]. It has become common for the two issues to be considered in the reverse order, as Saini J did in this case”.

The ultimate “question” or “determinant” will always be “how the statement would strike the ordinary reasonable reader”: Butt -v- The Secretary of State for the Home Department [2019] EMLR 23 [39]. The process is highly fact-sensitive and reference to earlier decisions are only ever likely to provide general assistance as to the broad principles to be applied: Corbyn [19]. The Court should not adopt “prescriptive rules” as to the decision as to whether the statement makes or contains allegations of fact or expressions of opinion.

Neither party contends that there is any external context to these publications that would affect the determination of the preliminary issues. The Court’s task is, therefore, to consider only the terms of the press release in the mediums in which they appeared.

I am not going to set out the arguments that were advanced by the parties in full in this judgment. I have considered what they have both submitted in both oral and written submissions, but the nature of the court’s task means that prolonged analysis of the arguments advanced may distract the court from its key task that must be performed. I will refer to the particular arguments of the parties where it is necessary to explain my decision.

In my judgment, the natural and ordinary meaning of the press release (as published on the website and on Twitter) is as follows:

“Following the end of the Claimant’s show, the Claimant 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 Claimant had committed a criminal offence.

This conduct was: (a) intimidating and antisemitic; (b) appalling and unacceptable; (c) inconsistent with the values of Soho Theatre, and justified the theatre in refusing to allow the Claimant the opportunity to perform at the Soho Theatre in the future”.

The first sentence of that meaning is an allegation of fact that is defamatory of the Claimant at common law. Largely, the parties’ rival meanings recognise that the press release conveyed an allegation of fact along the lines of the first paragraph of the meaning that I have found. The balance of the meaning – showed underlined – is an expression of an opinion. Overall and as a whole, the meaning is defamatory of the Claimant at common law. At this stage, the court is not considering whether the Claimant can satisfy the requirements of section 1 of the Defamation Act 2013.

The press release clearly indicated the basis of the opinion of the behaviour of the Claimant at his performance on the Saturday evening. That is not in dispute between the parties. If, therefore, the Defendant seeks to defend the opinion as found by the court as honest opinion, under s.3 Defamation Act 2013, the requirement of s.3(3) has been met.

Without falling into the trap of being overanalytical, my reasons for my decision are as follows.

First, this is a straightforward case. Largely, the meaning of the press release is clear and unambiguous. This is not a case of inference or implication where the reader must discern, or unpack, what is actually being said about the subject. Paragraph [2] of the press release makes, and would have been understood to make, a clear allegation of fact as to what had happened at the end of Saturday evening's performance. The parties are agreed that this allegation is at Chase Level 1. The balance of the press release provides details of what the Theatre is doing about the incident, its response and, importantly, the involvement of the police. The reader is told little about this, simply in the main body of the press release that the Theatre was “consulting with the police” and, in the Notes to Editors, published only on the website, that “Soho Theatre is fully cooperating with the police and others in investigations into the incident”. Readers would know, therefore, that there was police involvement following the incident. As such, the allegation contains a Chase Level 3 allegation that there were grounds to investigate whether by behaving in the way alleged the Claimant had committed a criminal offence.

Readers would know, therefore, that there was police involvement following the incident. As such, in my judgment, the allegation does contain a Chase level 3 allegation that there were grounds to investigate whether, by behaving in the way alleged, the Claimant had committed a criminal offence.

I do not accept Mr Hirst’s submission that the factual allegation made by the press release includes an allegation that the Claimant 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.

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.

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 Claimant. They are unequivocally expressions of opinion and would be readily understood as such by the hypothetical ordinary reasonable reader. Mr Hirst argued for the inclusion of “racism” in the meaning. I have not done so because, in context, the Theatre states that antisemitism is a form of racism. It therefore adds nothing to the defamatory sting which the meaning must capture.

I should briefly explain why I have rejected the parties’ contention that the element of criminality arises in the context of opinion. In my judgment, read in its proper context, references to the police involvement are not made by way of expression of any opinion. They are a factual statement of the aftermath of the incident. In context, this would not be understood to be something that gave any indication as to the seriousness of the incident in the Theatre’s eyes, still less an articulation by the Theatre that it thought that the incident merited a police investigation or was potentially criminal. It might have been different had the text stated that the Theatre had reported the incident to the police, but it does not. In my judgment, the reference in the press release to the involvement of the police is a factual allegation. It formed no part of the clearly expressed opinion of the Theatre. I have not therefore reflected this element in the factual part of the meaning found for the reasons I have explained.

Those are my reasons for the determination of the preliminary issues.