“[1] Soho Theatre will not tolerate intimidation of audience members due to their nationality, race, religion or beliefs. [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. [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. [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. [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. ...”
“[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. [7] Soho Theatre has been in touch with every audience member who attended on Saturday night to invite them to feedback on what happened. [8] Soho Theatre is fully co-operating with police and others in investigations into this incident. [9] The show ran for three performances at Soho Theatre.” [9] The show ran for three performances at Soho Theatre.”
“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. This conduct was: (a) intimidating and antisemitic; (b) appalling and unacceptable; and (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.”
“(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”
“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. 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. 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)
“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.”
“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]. 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].”
“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. 12. The following key principles can be distilled from the authorities … : (i) The governing principle is reasonableness. (ii) The intention of the publisher is irrelevant. (iii) The hypothetical reasonable reader is not naïve, 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 naïve. (iv) Over-elaborate analysis should be avoided and the court should certainly not take a too literal approach to the task. (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. (vi) Any meaning that emerges as the produce of some strained, or forced, or utterly unreasonable interpretation should be rejected. (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. (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). (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. (x) No evidence, beyond the publication complained of, is admissible in determining the natural and ordinary meaning. (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. (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. (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).” (i) The governing principle is reasonableness. (ii) The intention of the publisher is irrelevant. (iii) The hypothetical reasonable reader is not naïve, 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 naïve. (iv) Over-elaborate analysis should be avoided and the court should certainly not take a too literal approach to the task. (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. (vi) Any meaning that emerges as the produce of some strained, or forced, or utterly unreasonable interpretation should be rejected. (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. (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). (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. (x) No evidence, beyond the publication complained of, is admissible in determining the natural and ordinary meaning. (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. (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. (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).”
“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: ‘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.’” ‘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.’”
“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.”