COPA v Wright September CMC
| Jurisdiction | England & Wales |
| Judge | Mr Justice Mellor |
| Judgment Date | 03 October 2023 |
| Neutral Citation | [2023] EWHC 2408 (Ch) |
| Court | Chancery Division |
| Docket Number | Claim Nos. IL-2021-000019 |
[2023] EWHC 2408 (Ch)
Mr. Justice Mellor
Claim Nos. IL-2021-000019
IL-2022-000069
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
INTELLECTUAL PROPERTY LIST (ChD)
The Rolls Building
7 Rolls Buildings
Fetter Lane
London EC4A 1NL
Mr. Jonathan Hough KC and Mr. Jonathan Moss (instructed by Bird & Bird LLP) appeared for the COPA Claimant.
Mr. Vernon Flynn KC and Mr. Richard Greenberg (instructed by Travers Smith LLP) appeared for Dr Wright and the Claimants in the BTC Core Claim.
Hearing Dates: 19 th, 22 nd & 26 th September 2023
APPROVED JUDGMENT
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic. This judgment was handed down remotely by circulation to the parties' representatives by email. It will also be released for publication on the National Archives and other websites. The date and time for hand-down is deemed to be Tuesday 3 rd October 2023 at 10.30am.
THE HON Mr Justice Mellor
Introduction
This is my judgment from a further CMC, appointed to be heard in the vacation in an effort to keep the timetable down to trial on track. There were five applications before the Court, two brought by the Claimant in the COPA Claim (‘COPA’) and three by the Defendant in the COPA Claim (‘Dr Wright’). The position on each application can be summarised as follows:
i) COPA's Consolidated RFI application: COPA served a comprehensive RFI on 23 June 2023. After the issue of COPA's application, Dr Wright provided a response on 11 September 2023, but COPA is not satisfied with virtually all of his responses and asks the Court to order that substantive answers are given.
ii) COPA's chain of custody application: The CCMC order provided for Dr Wright to supply chain of custody information in relation to Dr Wright's principal reliance documents. COPA was not satisfied with the information supplied, so it issued an application (as the order required). Dr Wright agreed to provide further information but the outstanding issue concerned the deadline for that information to be provided. Fortunately, this was agreed and I need say no more about this application.
iii) Dr Wright's ASD expert evidence application: Dr Wright seeks permission to adduce expert evidence on autism spectrum disorder (“ ASD”) with a view to arguing for adjustments regarding his cross-examination. COPA resists the application, suggesting that he can provide notes from treating clinicians and the Court can form its own view on what, if any, measures to take at trial.
iv) Dr Wright's RFI application on COPA's draft primer: The parties were not able to agree a technical primer on cryptocurrency technology relating to Bitcoin. Each side blames the other for the failure. Dr Wright has applied for COPA to answer an RFI about whether its draft primer related to the technology at its inception or taking account of later developments. COPA's position is that it would be a pointless exercise to revisit the draft primer, and that the answer is for the experts to address this topic in their reports.
v) Dr Wright's application to exclude hearsay evidence: COPA served a CEA notice in relation to expert reports served in previous proceedings involving Dr Wright. He applies to exclude the material from evidence. COPA maintains that the material is admissible, relevant and ought not to be excluded, while accepting that Dr Wright may make any points he wishes at trial as arguments as to weight.
I address the four outstanding applications in turn, although it will be noted that the bulk of this judgment concerns the first.
Background
Following a joint CMC in four actions (IL-2021-000019, IL-2022-000035, IL-2022-000036 and IL-2022-000069), all involving Dr Wright, I directed the trial of what has been called ‘the Identity Issue’, namely whether Dr Wright is the pseudonymous ‘Satoshi Nakamoto’ i.e. the person who created Bitcoin in 2009. The Identity Issue is essentially the issue in the COPA action, and is now the preliminary issue in the BTC Core action. The defendants in the other two claims (IL-2022-000035 and IL-2022-000036) are bound by the determination of the Identity Issue. The Identity Issue is the subject of the COPA trial, set to commence in January 2024. See generally my judgment from that joint CMC – [2023] EWHC 1894 (Ch).
As I mentioned at the end of that judgment, there were outstanding and threatened applications which needed to be determined quickly. Hence this hearing.
I received very useful Skeleton Arguments from Counsel listed on the title page. In addition, I received a letter from Macfarlanes LLP, the solicitors representing the 14 individual defendants in the BTC Core claim. Macfarlanes' letter was a useful reminder that, when case managing the Identity Issue to the trial in January, I must also keep in mind the interests of those 14 individual defendants. In their letter, Macfarlanes made a series of representations concerning the ASD Application, which I have taken into account.
COPA's RFI Application
The relevant background to this application is as follows:
i) COPA had served three RFIs and had also sought answers in correspondence about Dr Wright's pleaded case. COPA contends that Dr Wright consistently failed properly to answer the RFIs and questions.
ii) COPA then served a Consolidated RFI on 23 June 2023, seeking a response by 28 July 2023, the date on which fact evidence was due. COPA made it clear that Dr Wright could answer any request by reference to passages in his witness statement.
iii) Dr Wright suggested that COPA should wait to see his evidence before deciding whether to press its request. COPA took the view that this was a delaying tactic and issued its application on 14 July 2023 seeking a time order for Dr Wright to serve a response. This application was referred to me on paper shortly before the end of the summer term. Having briefly reviewed the 66 requests, I determined it was not an appropriate application to decide on paper and invited the parties to liaise with my clerk to arrange a hearing in the Long Vacation – which led to this hearing being appointed.
iv) Having reviewed Dr Wright's witness statements, COPA issued a fresh application dated 8 th September 2023, this time seeking an order that Dr Wright must provide substantive answers to the requests. This application is supported by Sherrell 12, in which Mr Sherrell explains, by reference to groups of requests, why the information is required to enable COPA to prepare its case.
v) On 11 th September 2023, Dr Wright's response to the Consolidated RFI was served. As COPA submitted, he refused to respond to a substantial number of the requests, but his response assisted to define the scope of the dispute.
Applicable Principles
I was addressed at length as to the applicable principles. I summarise these below. There was little dispute as to the principles, but plenty as to precisely how they should be applied to this particular case. Much of the dispute turns on how one interprets ‘matters in dispute’.
CPR r.18.1(1) provides that “ [t]he court may at any time order a party to – (a) clarify any matter which is in dispute in the proceedings; or (b) give additional information in relation to any such matter, whether or not the matter is contained or referred to in a statement of case”.
PD18 §1.2 adds that “ [a] Request should be concise and strictly confined to matters which are reasonably necessary and proportionate to enable the first party to prepare his own case or to understand the case he has to meet”.
COPA referred me to the following passages in the authorities:
i) The power is “ one of the court's case management powers, and its exercise should be considered in the context of the case management of [the] action”, powers which are “ capable of being used flexibly to meet the precise needs of the individual case”: Toussaint v Mattis [2001] CP Rep 61, para. 16 (Schiemann LJ).
ii) “ A Part 18 request is not like the old request for particulars under the [RSC]. It is to be interpreted in the light of the overriding objective and is part of the more open approach to litigation which the CPR seeks to establish and promote. Information sought must of course relate to ‘any matter in dispute’. But if it does, then the rule precisely covers a situation where there is potentially relevant information relating to the matter which is solely within the knowledge of one side. In modern litigation, it is not the position that a party can hold back on relevant information and leave its opponent to take a chance to see if it chooses to put forward a witness from whom that information might be elicited by way of cross-examination at trial.” ( National Grid Electricity Transmission plc v ABB Ltd [2014] EWHC 1555...
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