Craig Wright v Roger Ver

JurisdictionEngland & Wales
CourtQueen's Bench Division
JudgeMr Justice Nicklin
Judgment Date31 July 2019
Neutral Citation[2019] EWHC 2094 (QB)
Docket NumberCase No: QB-2019-001430
Date31 July 2019

[2019] EWHC 2094 (QB)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

MEDIA & COMMUNICATIONS LIST

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

THE HONOURABLE Mr Justice Nicklin

Case No: QB-2019-001430

Between:
Craig Wright
Claimant
and
Roger Ver
Defendant

Adam Wolanski QC and Lily Walker-Parr (instructed by SCA ONTIER LLP) for the Claimant

Hugh Tomlinson QC (instructed by Brett Wilson LLP) for the Defendant

Hearing date: 29 July 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.

THE HONOURABLE Mr Justice Nicklin

Mr Justice Nicklin Mr Justice Nicklin The Honourable
1

This is a claim for libel. The Claimant is a computer scientist with a particular interest in cryptocurrencies. He is a national of Australia, who has lived in the United Kingdom since December 2015. Bitcoin is a cryptocurrency. The Defendant is a bitcoin investor. He also describes himself as a commentator within the bitcoin and cryptocurrency industries who is currently involved in several bitcoin related projects. The Defendant was born in the United States, in 1979, and moved to Japan in 2005. Since 2014 he has been domiciled in, and a citizen of, St Kitts & Nevis. Satoshi Nakamoto is the name used by the pseudonymous person(s) who developed bitcoin.

2

The Claimant complains that he has been libelled in the following publications:

i) a video posted by the Defendant to a YouTube account held by bitcoin.com on or around 15 April 2019 (“the YouTube Video”);

ii) a tweet containing the YouTube Video which was posted on the Defendant's Twitter account (“the Twitter Account”) on 3 May 2019 (“the Twitter Posting”); and

iii) a reply to the Twitter Posting which was also posted on Twitter on 3 May 2019 by a third party (“the BKKShadow Posting”).

3

For the purposes of the present application I need not set out the contents of the videos about which the Claimant complains. It suffices that I set out the defamatory innuendo meaning that the Claimant says these publications bear: The Claimant had fraudulently claimed to be Satoshi Nakamoto, that is to say the person, or one of the group of people, who developed bitcoin.”

4

The principal issue I have to determine on the present application is whether the Court has jurisdiction over the claim. Section 9 of the Defamation Act 2013 provides (so far as material):

9 Action against a person not domiciled in the UK or a Member State etc

(1) This section applies to an action for defamation against a person who is not domiciled—

(a) in the United Kingdom;

(b) in another Member State; or

(c) in a state which is for the time being a contracting party to the Lugano Convention.

(2) A court does not have jurisdiction to hear and determine an action to which this section applies unless the court is satisfied that, of all the places in which the statement complained of has been published, England and Wales is clearly the most appropriate place in which to bring an action in respect of the statement.

(3) The references in subsection (2) to the statement complained of include references to any statement which conveys the same, or substantially the same, imputation as the statement complained of.

(4) For the purposes of this section—

(a) a person is domiciled in the United Kingdom or in another Member State if the person is domiciled there for the purposes of the Brussels Regulation;

(b) a person is domiciled in a state which is a contracting party to the Lugano Convention if the person is domiciled in the state for the purposes of that Convention…

5

It is common ground that the Defendant is not domiciled in any of the places identified in s.9(1). Therefore, this Court does not have jurisdiction over the Claimant's claim for libel unless the Court is satisfied that of all the places that the statements complained of have been published, England and Wales is clearly the most appropriate place in which to bring the claim.

Procedural history

6

The Claimant sent a letter before action to the Defendant on 1 May 2019, seeking a response by 8 May 2019. However, on 2 May 2019, discovering the Defendant was visiting London, the Claimant issued a Claim Form and arranged for it to be served personally on him ( CPR Part 6.5(2)). At that stage, the Claim Form made a claim for libel solely in relation to the YouTube Video. Service of the Claim Form on the Defendant whilst he was within the jurisdiction is important; it meant that the Claimant did not require the Court's permission to serve the proceedings.

7

On 16 May 2019, the Claimant made an application, without notice to the Defendant, for an order granting him permission:

i) pursuant to CPR Part 17.2(b) to amend the Claim Form to add further claims in respect of the Twitter Posting and the BKKShadow Posting;

ii) pursuant to CPR Part 6.38(1) 1, to serve on the Defendant the Particulars of Claim and any further documents in the proceedings “ out of the jurisdiction in Japan where the Defendant is domiciled”; and

iii) pursuant to CPR Part 6.15 and 6.27, to serve the Amended Claim Form and Particulars of Claim using an alternative method, namely email.

8

There was a hearing before Master Thornett that same day, at which the Claimant was represented by junior Counsel and a representative of his solicitors. The Master granted the Claimant permission to amend the Claim Form and, pursuant to CPR 6.15(1), permitted the Claimant to serve the Amended Claim Form, the Particulars of Claim and his Order by email to two bitcoin.com email addresses. The Master's Order

recited that, although the application had been made without notice, he had been satisfied that the Defendant was likely to be aware of the application because of an email sent on 15 May 2019. The order made no reference to the Defendant being outside the jurisdiction. It contained the usual provision enabling the Defendant to apply to vary or discharge the Order pursuant to CPR Part 23.10
9

On 13 June 2019, and within the time for doing so under Master Thornett's order, the Defendant filed an Acknowledgement of Service indicating that he intended to contest the Court's jurisdiction. In the accompanying letter from his solicitors, the Defendant indicated that the basis of the challenge was lack of jurisdiction under s.9 based on the Defendant's domicile. Following further correspondence between the parties, on 27 June 2019, the Defendant made the Application that is before the Court today, for a declaration that the Court did and does not have jurisdiction over the claim and to set aside Master Thornett's Order on the basis of material non-disclosure, namely the failure to draw the Master's attention to s.9 Defamation Act 2013 (“the Set-Aside Application”). I deal with the Set-Aside Application below ([56]–[60]).

10

A substantial amount of evidence has been filed by both parties. There are two statements each from the Defendant and the Claimant, and several other witness statements. Principally, this evidence concerns the parties' connections with this (and other) jurisdictions, the extent of publication in England and Wales (compared with other jurisdictions) and the importance to the Claimant of his reputation in this jurisdiction.

Legal Framework

11

I have set out the terms of s.9 above. The terms and effect of the section have only received direct consideration in one earlier case: Ahuja v Politika Novine I Magazini DOO & others [2016] 1 WLR 1414. I made some observations on s.9 in Huda v Wells [2018] EMLR 7 [84]–[85], but the case was decided on other grounds and so they are strictly obiter. They also must be understood in the context of that particular case.

12

The Explanatory Notes to the Defamation Act 2013 state, in relation to s.9:

“65. This section aims to address the issue of ‘libel tourism’ (a term which is used to apply where cases with a tenuous link to England and Wales are brought in this jurisdiction). Subsection (1) focuses the provision on cases where an action is brought against a person who is not domiciled in the UK, an EU Member State or a state which is a party to the Lugano Convention. This is in order to avoid conflict with European jurisdictional rules (in particular the Brussels Regulation on jurisdictional matters).

66. Subsection (2) provides that a court does not have jurisdiction to hear and determine an action to which the section applies unless it is satisfied that, of all the places in which the statement complained of has been published, England and Wales is clearly the most appropriate place in which to bring an action in respect of the statement. This means that in cases where a statement has been published in this jurisdiction and also abroad the court will be required to consider the overall global picture to consider where it would be most appropriate for a claim to be heard. It is intended that this will overcome the problem of courts readily accepting jurisdiction simply because a claimant frames their claim so as to focus on damage which has occurred in this jurisdiction only. This would mean that, for example, if a statement was published 100,000 times in Australia and only 5,000 times in England that would be a good basis on which to conclude that the most appropriate jurisdiction in which to bring an action in respect of the statement was Australia rather than England. There will however be a range of factors which the court may wish to take into account including, for example, the amount of damage to the claimant's reputation in this jurisdiction compared to elsewhere, the extent to which the publication was targeted at a readership in this jurisdiction compared to elsewhere, and whether there is reason to think that the claimant would not receive a fair hearing elsewhere.”

13

Sir Michael Tugendhat considered...

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