Craig Wright v Magnus Granath
| Jurisdiction | England & Wales |
| Judge | Mr Justice Jay |
| Judgment Date | 16 January 2020 |
| Neutral Citation | [2020] EWHC 51 (QB) |
| Date | 16 January 2020 |
| Docket Number | Case No: QB-2019-002311 |
| Court | Queen's Bench Division |
[2020] EWHC 51 (QB)
Mr Justice Jay
Case No: QB-2019-002311
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MEDIA AND COMMUNICATIONS LIST
Royal Courts of Justice
Strand, London, WC2A 2LL
Adam Wolanski QC and Greg Callus (instructed by SCA ONTIER LLP) for the Claimant
Hugh Tomlinson QC and Darryl Hutcheon (instructed by Atkins Thomson Ltd) for the Defendant
Hearing date: 12 th December 2019
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.
Introduction
Dr Craig Wright is a computer scientist with a particular interest in cryptocurrencies. He has lived in the UK since December 2015. It is alleged that he claims, or has claimed, to be the creator of Bitcoin using the pseudonym of “Satoshi Nakamoto”.
Mr Magnus Granath is a citizen of Norway resident in Oslo. He tweets on various technology issues, including cryptocurrencies, using the handle “@Hodlonaut”. In March 2019 he had approximately 8,000 followers of whom about 560 were in the UK. Mr Granath, amongst others, believes that Dr Wright's claim to be “Satoshi Nakamoto” is false.
On 17 th March 2019 Mr Granath posted an anonymous tweet using his Twitter handle, in these terms:
“The forensics to CSW's first attempt to fraudulently ‘prove’ he is Satoshi. Enabled by @gavinandresen. Never forget. @CraigWrightIsAFraud.”
Without extrinsic facts it is not entirely clear what this means. Dr Wright's case is that the tweet bears the following innuendo meaning:
“… [Dr Wright] had fraudulently claimed to be Satoshi Nakamoto, that is to say the person, or one of the group of people, who developed the crypto currency Bitcoin.”
Before proceedings were instituted in this jurisdiction, Mr Granath brought a claim in the District Court of Oslo seeking, in essence, negative declaratory relief (“NDR”): in other words, relief to the effect that he is not liable to pay damages for libel in connection with his publication of the Tweet. It follows that this Court is not the “court first seised” for the purposes of the Lugano Convention 2007.
In these circumstances, Mr Granath seeks orders (1) pursuant to CPR r.11(1), declaring that the Court should not exercise its jurisdiction in these proceedings, and (2) pursuant to r.11(6), setting aside service of the Claim Form and/or dismissing the proceedings. His application is brought under the mandatory provisions of Article 27 of the Lugano Convention which apply if the proceedings in this Court involve the same cause of action as the Oslo proceedings.
In view of the parties' submissions, there are two issues which require my resolution, viz.:
(1) do both sets of proceedings involve the same cause of action ( “le même objet et la même cause”)?
(2) if so, does Dr Wright enjoy a substantive right as a victim of defamation to sue in the UK, being a right which cannot by its very nature be displaced by Article 27?
Procedural History
On 29 th March 2019 Dr Wright's solicitors sent a letter of claim to Mr Granath via Twitter. It set out the terms of nine tweets on the Hodlonaut account posted between 13 th and 18 th March but limited the libel complaint to the one sent on 17 th March. At that stage Mr Granath's identity as author of the tweets was unknown.
The letter of claim sought a number of remedies including that Mr Granath identify himself, remove the tweets from his twitter feed, undertake not to repeat the allegation of dishonesty, apologise, and assent to the making of a statement in open court.
Following receipt of the letter of claim, Mr Granath deleted these nine tweets without making any admission of liability.
On 19 th May Mr Granath issued proceedings in the Oslo District Court seeking a declaratory judgment that he was not liable to pay damages to Dr Wright in respect of the nine tweets. These proceedings were served in June. Meanwhile, on 20 th May Mr Granath identified himself as Hodlonaut when he returned the letter of claim signed with his name.
On 26 th June Dr Wright issued the Claim Form in the present action. This was accompanied by Form N510 setting out the basis on which he was entitled to serve the proceedings out of the jurisdiction without the Court's permission. The form certified that there were no proceedings between the parties concerning the same claim in any other Convention territory.
On 6 th August the Claim Form and Particulars of Claim were served in Norway.
On 19 th August Dr Wright filed and served a Notice of Defence in the Norwegian proceedings. He asked the Oslo District Court (1) to dismiss the proceedings for want of jurisdiction, alternatively (2) that the case be referred to the Oslo Conciliation Board, or in the further alternative (3) that the case be stayed pursuant to Article 28 of the Lugano Convention because there was a pending similar action in England against another individual.
On 21 st August Mr Granath filed an Acknowledgment of Service. He issued the CPR Part 11 application on 2 nd September (sealed by the Court the following day). In these circumstances, he was not required to, nor could he, file a Defence.
On 6 th December the Oslo District Court dismissed Dr Wright's applications on all three bases. I shall focus on the first. The Court concluded that there was jurisdiction to bring negative actions for a declaration (see Folien Fischer AG v Ritrama SpA, Case C-133/11, [2013] QB 523), that the relief sought was “global” in the sense that it was not limited to any harm or loss suffered in Norway, and that Article 5(3) of the Lugano Convention was applicable because the “harmful event” occurred in Norway. I understand that Dr Wright is considering an appeal but for present purposes I must proceed on the footing that the Oslo District Court has accepted jurisdiction.
On 9 th December Dr Wright issued an application to adduce expert evidence of Norwegian law. He has failed to give the requisite three days' notice. Mr Granath objects to the adduction of this evidence. Although I read it de bene esse before the hearing started, it was only touched on by Mr Adam Wolanski QC during the course of his oral argument; and in my view, it takes the matter no further.
The Pleadings in the Two Sets of Proceedings
The Opening Writ in the Oslo District Court has been translated by a Government Authorised Translator. It is more discursive than Particulars of Claim in this jurisdiction, and I have read it without any knowledge of Norwegian law. I think that it would be unsafe to apply the interpretative skills of an English lawyer to this particular document.
According to the Opening Writ, the case concerns “Question of libel on Twitter”. Mr Granath claims “a declaratory judgment that [he] is not liable to pay damages to [Dr] Wright” in relation to the nine tweets. It is averred that Norwegian law applies. The material section of Part 3 of the Opening Writ, “Basis of Claim”, provides as follows:
“In order that Wright shall have a claim for damages from Granath's allegations on Twitter, the allegation must be made negligently, and they must be libellous and unlawful, see Damage Compensation Act (Damages Act), section 3–6a.
Granath believes he can substantiate that Wright is not Satoshi Nakamoto and that Granath's allegations are correct. Therefore, they are not libellous. Neither has Granath acted negligently in relation to the statements. In any case, Granath had honourable reasons to put forward the allegations. Freedom of expression is a key human right under both the Constitution of Norway, Article 100, and the ECHR, Article 10. Granath's statements are within the wide framework of freedom of expression that these rules establish. This means that the statements are not unlawful, regardless of whether they are accessible in Norway, the EU or other countries.
In the alternative, we will argue that even if the statements are libellous, Craig Wright has not suffered any loss, and there is no basis on which to award him restitution for non-economic loss. His reputation was long damaged even before Granath put forward the allegations on Twitter.
Accordingly, we ask the Court to find in favour of Granath regarding the claims by Wright. We will also ask for a declaratory judgment that Granath's statements on Twitter about Wright are lawful.”
The Particulars of Claim in these proceedings relate only to the 17 th March tweet. I have already set out the pleaded innuendo meaning. It is averred that the publication of the words complained of caused serious harm to Dr Wright's reputation. The relief sought is: (1) damages, including aggravated damages, for libel; (2) an injunction restraining further publication; and (3) an order under section 12 of the Defamation Act 2013 that Mr Granath publishes a summary of the judgment in the proceedings.
The witness statement of Mr Mark Thomson, solicitor for Mr Granath, explains that his client does not accept that the serious harm threshold has been met in relation to the single tweet sought to be litigated in this jurisdiction. He does not state in terms what the defences would be if this present application were to fail, but I think that is implicit that – at the very least – the defences of truth and qualified privilege would be relied on. Whether Dr Wright's claimed innuendo meaning is accepted is unclear: this is equally so in relation to the Opening Writ in the Oslo District Court, about which Mr Thomson wisely refrains from expressing an opinion.
Relevant Provisions of the Lugano Convention 2007
I set out the relevant parts of Articles 5, 27 and 28:
“ Special jurisdiction
Article 5
A person domiciled in a State bound by this Convention...
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Dr Craig Steven Wright v Magnus Granath
...Norway. He was successful at first instance in getting the UK claim dismissed, but this was overturned on appeal, see Wright v Granath [2020] EWHC 51 (QB) and Wright v Granath [2021] EWCA Civ 29 The defendant has now served a 35-page defence: (i) he admits that the Tweet identified the cl......