Craig Wright v Peter McCormack
| Jurisdiction | England & Wales |
| Judge | Lord Justice Warby |
| Judgment Date | 05 April 2023 |
| Neutral Citation | [2023] EWHC 1030 (KB) |
| Docket Number | No. QB-2019-001430 |
| Court | King's Bench Division |
[2023] EWHC 1030 (KB)
Lord Justice Warby
and
Mr Justice Nicklin
No. QB-2019-001430
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
DIVISIONAL COURT
IN THE MATTER OF A CONTEMPT APPLICATION OF THE COURT'S OWN
INITIATIVE PURSUANT TO CPR 81.6
AGAINST DR CRAIG STEVEN WRIGHT
IN CONNECTION WITH PROCEEDINGS IN THE KINGS BENCH DIVISION, MEDIA
AND COMMUNICATIONS LIST
Royal Courts of Justice
Strand
London, WC2A 2LL
Mr T Grey and Mr G Callus (instructed by Janes Solicitors) appeared on behalf of the Claimant.
THE DEFENDANT did not appear and was not represented.
This judgment is given following the third hearing in these proceedings to determine whether Dr Craig Wright committed a contempt of court by disclosing the substance of a draft judgment in breach of the embargo provided for by Practice Direction 40E. The main issues at this stage are a question of admissibility, whether Dr Wright has any case to answer and, if so, what should happen next.
This is the judgment of the court to which we have both contributed.
The Background
The background facts, in summary, are these. Dr Wright claims to be “Satoshi Nakamoto”, the inventor of Bitcoin. Peter McCormack tweeted and said in a recorded discussion that this was a mendacious and fraudulent claim. Dr Wright sued Mr McCormack for libel. Chamberlain J tried the action and concluded that some of Mr McCormack's publications were defamatory and caused serious harm to Dr Wright's reputation at the time that they were made. As Mr McCormack had abandoned any attempt to establish that the allegations were true or protected by the public interest defence under section 4 of the Defamation Act 2013, the judge concluded that Dr Wright had made out his case on liability, but he also concluded that only nominal damages of £1 should be awarded.
On the afternoon of 26 July 2022, a draft judgment setting out those conclusions and the reasons for them was circulated to the parties in confidence following the standard procedure. That procedure includes an express embargo on disclosure of the substance of the draft before the judgment is made public by “handing down”. The terms of the embargo as included at the top of the draft judgment and in PD40E state that the parties must take all reasonable steps to ensure that the confidentiality of the draft is preserved and that a breach of the obligations may be treated as a contempt of court. The judgment was not handed down publicly until 1 August 2022.
On the evening of 26 July 2022, Dr Wright posted messages on the Slack messaging platform (“the Slack messages”) which included these words:
“If a person would spend 4 million to receive a dollar plus and 2 million costs …
So the other side is bankrupt …
what would you think? …
Ie. the only thing that matters is crushing the other side … Well. I would spend 4 million to make an enemy pay 1.”
Mr McCormack's solicitors (“RPC”), saw the Slack messages and, on 4 August 2022, after the hand-down, raised the matter in a letter to Dr Wright's solicitors, Ontier. RPC noted that Dr Wright's initial costs budget had suggested that his costs to trial would be approximately £4 million. RPC expressed concern that the Slack messages had disclosed the outcome of the case in breach of the embargo and that this was potentially a contempt of court. They suggested that the purpose of the breach appeared to have been “to limit the impact of the critical findings in the judgment” before these became known to Dr Wright's colleagues and the public via handing-down. RPC pointed out that in April 2022, Falk J DBE had determined that Ontier, when acting on Dr Wright's instructions, had broken the embargo attaching to a draft judgment which Falk J had circulated.
On 5 August 2022, Ontier wrote to Chamberlain J via his clerk to bring the matter to the court's attention and to inform it that “… we are treating the matters raised in RPC's letter as a matter of extreme urgency and importance.” The following day, the judge's clerk replied by email that: “Mr Justice Chamberlain will expect your report during the week commencing 8 August 2022.” On Thursday 11 August 2022, Ontier produced a report on the matter contained in a letter addressed to the court (“the Ontier report”). A redacted version was provided to RPC.
The Ontier report gave a detailed account of the steps the firm had taken upon receipt of the draft judgment and addressed the allegation that the Slack messages represented a breach of the embargo. The report proceeded on the basis, which is accepted by Dr Wright, that he had posted the Slack messages, albeit there was a dispute or difference about the time at which he had done so. Paragraph 17 of the Ontier report said that “Dr Wright has informed us of the following …” and then set out a rebuttal of the allegation of breach. This included an account of Dr Wright's purpose in posting the Slack messages and of the context in which he did so. It was said that his purpose “… was not to give any indication as to the outcome set out …” in the draft judgment, but rather “… to encourage debate amongst the members of the Slack Channel and to give an indication of Dr Wright's dogged approach to his opponents in the digital sphere generally …” Paragraph 23 of the Ontier report said that “… Dr Wright does not believe that his posts on the Slack Channel breached the embargo and it was certainly not his intention …” It went on to say that “to the extent that” his posts were or might be considered a breach, Dr Wright “unreservedly apologises to the court” and wished to emphasise that any such breach was entirely unintentional and inadvertent.
The hearing to decide matters consequential on the judgment took place on 20 December 2022. At that hearing, counsel for Mr McCormack advanced submissions in support of the complaint made in RPC's letter. They relied for this purpose on the Ontier report. Mr Callus represented Dr Wright at the hearing. His skeleton argument did not deal with the alleged breach of the judgment embargo. Early in the hearing the judge made clear that he proposed to address the issue and asked Mr Callus:
“Are you going to say anything at all about the embargo or not? Obviously, I have seen what is contained in Ontier's report. I have to consider that and decide what to do about it.”
Mr Callus answered:
“… I am in somewhat of a difficulty because it really depends how your Lordship wishes to proceed on the issue of the embargo and the extent to which your Lordship is satisfied by the explanation that has been given in the [Ontier report].”
Mr Callus concluded by informing the judge that he had nothing to add to the Ontier report.
In the reserved judgment that he gave on the consequential matters ( [2022] EWHC 3343 KB), the judge reviewed the relevant parts of the Ontier report, setting out all or most of paragraphs 17 and 23 of the report. He concluded that paragraph 17 had to be considered in the light of certain contextual matters, that there “may” have been a contempt, that the matter required further investigation and that he should exercise his powers to initiate a contempt application. A summons was issued on the court's initiative, pursuant to CPR 81.6.
Following a directions hearing before Nicklin J on 12 January 2023, a fresh summons was issued. This required Dr Wright to address allegations that he had committed contempt:
(1) on 26 July 2022 by revealing the substance of the draft judgment in the Slack messages; and/or (2) on 28 July 2022 by emailing a summary of the draft judgment to five people who were not entitled to see it, all in breach of PD40E, paragraph 2.4.
In response to the fresh summons, Dr Wright submitted two affidavits of his own, both sworn on 13 March 2023, and a witness statement from Joel Dalais. Dr Wright's first affidavit addressed the substance of the allegations. He made admissions, but denied committing a contempt. He gave a detailed account of events and the surrounding circumstances. In his second affidavit, Dr Wright said “At no point did I give any instructions to my solicitors to file the Ontier report … In filing the report, Ontier acted entirely of their own volition and motion without any authority from me …” He accepted that he did have “… limited involvement in answering some questions to allow Ontier to prepare the report.” But he said that he had “explicitly asked Ontier not to file any report.” Dr Wright said that the report contained privileged communications, the privilege over which he had never waived and that “The content of the report does not … represent my account of events.” In short, Dr Wright says that in filling the Ontier report his then solicitors acted in breach of his express instructions and disclosed privileged material without his authority or consent, and he repudiates their account of events. Dr Wright's second affidavit further states that he had been advised that, in these circumstances, the Ontier report may not be admissible.
Dr Wright instructed new solicitors and new leading council, Mr Tim Grey, and Mr Grey leads Mr Callus, who was, as we have said, Dr Wright's junior counsel at the trial and at the consequentials hearing. The matter was listed for hearing by this Divisional Court with a time estimate of 1 ...
To continue reading
Request your trial