Attribution, opinion and the limits of defamation: Court of Appeal upholds key distinction in comedian's libel claim

The Court of Appeal has upheld a High Court ruling that a theatre's public attribution of antisemitic motive to a performer was an expression of opinion rather than a statement of fact. The decision in Currie v Soho Theatre Company Limited [2026] EWCA Civ 400 confirms that allegations about a person's state of mind or motives are likely to be comment rather than statements of fact.

Background

The Claimant was Paul Currie, a stand-up comedian, who brought a libel claim against the Soho Theatre (the Respondent) over a press release published on its website and on social media site “X” in February 2024. The press release, issued after one of the comedian’s shows, stated that Jewish audience members had been “subjected to verbal abuse” and that the performer had “aggressively demand[ed] they leave the theatre.” The theatre went on to describe the conduct as both “appalling” and “unacceptable”, referred to “acts of antisemitism”, and noted that the theatre was consulting with the police and the Campaign Against Antisemitism. It was accepted by both sides that the press release was defamatory of the Claimant at common law.

A preliminary issues trial was held in the High Court to determine the meaning of the press release and whether its allegations were statements of fact or opinion (and therefore whether the first condition for the defence of honest opinion under section 3(2) of the Defamation Act was satisfied).

Issues on appeal

The Claimant appealed on four grounds, but the central question was whether the press release conveyed, as a matter of fact, that the claimant had acted as he did because the audience members were Jewish or whether that attribution of motive was properly classified as opinion.

The court's decision

The Court of Appeal dismissed the appeal. The court accepted that, when one read the press release as a whole, there was an implicit suggestion that the Claimant had acted because the audience members were Jewish. However, the critical issue was not whether those words were implied, but whether they amounted to fact or opinion. 

The court held that the judge at first instance had been entitled to treat the attribution of motive as opinion. In reaching this conclusion, the court relied on the following four factors:

1. Nature of the statement: the press release was published on the theatre's own website and was primarily a document setting out the theatre's position, rather than a press article. It was therefore determined to be a document primarily used to set out the Respondent’s position, rather than for publicity or a factual news report.
2. Mixed content: the press release contained statements that were clearly expressions of opinion, the use of words like “appalling” and “unacceptable” were judged to convey to readers the theatre's own conclusions and criticisms, rather than present as assertions of fact. 
3. Ongoing investigation: the press release made clear that the matter was still under investigation both internally and by the police. An ordinary and reasonable reader would not treat it as a definitive factual account of the claimant's conduct or motives.
4. Attribution of motive as inference: The court cited Pena v Tameside Hospital NHS Foundation Trust [2011] EWHC 3027 (QB) and the Court of Appeal in Branson v Bower [2001] EWCA Civ 791, both of which held that allegations about a person's state, attributions of mind, or motives are, by their nature, matters that cannot be directly verified and are therefore likely to be understood as comment or inference rather than statements of fact. Where it is clear to a reader that someone is drawing an inference as to another person's motivation, it is reasonable to classify what they say as comment rather than fact. 

The court also confirmed that the correct approach on appeal is one of “disciplined restraint”. An appellate court should not interfere with a trial judge's finding on meaning unless the judge fell into legal error or reached a conclusion outside the range of reasonably available alternatives. The Claimant’s argument that the judge applied a lawyerly approach in their ruling was therefore not material to the key issue at hand.

Comment

This decision underscores the importance of how organizations frame public statements and apologies. Where a statement is an expression of opinion it may provide a defence on the basis it is honestly held.

Corporate statements which clearly present the organisation’s own assessment, acknowledge that matters are under investigation, and use evaluative rather than purely factual language are more likely to be treated as expressions of opinion. Organizations issuing press releases or public statements about incidents should consider the following practical steps:

• Signal that they are expressing a view, not asserting established facts.
   
• Avoid language that reads as a definitive factual account of what happened or why an individual acted as they did.
   
• Acknowledge any ongoing investigations or processes which may help frame the statement as preliminary and evaluative rather than conclusive.

For further information or questions regarding the subject matter in this article, please email the authors or your usual CMS contact.

This article was co-authored by Alice Robson, Trainee Solicitor at CMS.