Craig Wright v Roger Ver
| Jurisdiction | England & Wales |
| Judge | Lord Justice Dingemans,Lord Justice Popplewell,Lord Justice Flaux |
| Judgment Date | 29 May 2020 |
| Neutral Citation | [2020] EWCA Civ 672 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: A2/2019/2072 |
| Date | 29 May 2020 |
[2020] EWCA Civ 672
Lord Justice Flaux
Lord Justice Popplewell
and
Lord Justice Dingemans
Case No: A2/2019/2072
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MEDIA AND COMMUNICATIONS LIST
The Honourable Mr Justice Nicklin
QB/2019/1430
Royal Courts of Justice
Strand, London, WC2A 2LL
Adam Wolanski QC and Greg Callus (instructed by SCA ONTIER LLP) for the Appellant
Hugh Tomlinson QC and Ian Helme (instructed by Brett Wilson LLP) for the Respondent
Hearing date: 6 May 2020
Approved Judgment
Introduction
This appeal raises issues about the proper interpretation and effect of section 9 of the Defamation Act 2013. Section 9(2) provides that “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”. By a judgment dated 31 July 2019 Mr Justice Nicklin (“the judge”) found that England and Wales was not clearly the most appropriate place in which to bring the libel claim in this action and made a declaration that the Court had no jurisdiction to hear the claim.
The claimant appeals on the grounds that the judge took the wrong approach to section 9 so that he did not make relevant findings about the appropriate place to bring the libel claim, and that if he had done so England and Wales would be shown to be clearly the most appropriate place to bring the claim. The defendant resists the appeal saying that the judge properly applied section 9 in the circumstances of this case. The defendant also filed a respondent's notice saying that if the judge did take a wrong approach, the decision should be upheld because on an analysis of the relevant evidence, England and Wales was not clearly the most appropriate place in which to bring the libel claim.
By the conclusion of the written and oral submissions it became apparent that the issues on this appeal are whether: (1) the judge took a proper approach to section 9 in this case; and (2) whether England and Wales was clearly the most appropriate jurisdiction to bring the claim.
The factual background and the relevant publications
The background to the claim arises in relation to a controversy about who was the developer of Bitcoin. Bitcoin is a cryptocurrency. “Satoshi Nakamoto” is the pseudonym used by the person, or persons, who developed Bitcoin. On 31 October 2008 an academic paper was published under the name of Satoshi Nakamoto titled “Bitcoin: A peer to peer electronic cash system”. The academic paper described the manner in which the electronic cash system operated.
Dr Craig Wright, the claimant and appellant, is a national of Australia who now lives in Surrey. He has lived in the United Kingdom since December 2015 after emigrating from Australia. He also became a citizen of Antigua and Barbuda in 2017. He is a computer scientist with a particular interest in cryptocurrencies, including Bitcoin. Dr Wright says that he is Satoshi Nakamoto.
Roger Ver, the defendant and respondent, is a bitcoin investor and commentator on bitcoin and other cryptocurrencies. Mr Ver was born in California, in the United States and raised in Silicon Valley. He moved to Japan, which he described in evidence as the global centre for cryptocurrencies, in 2005. In 2014 he renounced his US citizenship and became a citizen of St Kitts & Nevis, although he continues to live in Japan. Mr Ver does not accept that Dr Wright is Satoshi Nakamoto.
I should make it clear that this judgment does not address whether Dr Wright is Satoshi Nakamoto. This is because it was not an issue on the appeal.
The evidence before the judge showed that Dr Wright and Mr Ver had had good relations in the past, and that Dr Wright described Mr Ver as a “trusted colleague”. It then appears that they developed competing visions for the development of Bitcoin. Mr Ver favoured a version known as Bitcoin ABC. The “ABC” stands for “Adjustable Blocksize Cap”. Dr Wright favoured Bitcoin SV. The “SV” stands for “Satoshi Vision”. Dr Wright considered that Bitcoin ABC was not Bitcoin because it did not work within existing legal frameworks. When it became clear that Mr Ver was not supporting Bitcoin SV there was a falling out which appears to have been in November 2018. The extent of the breakdown in relations appears from the fact that Dr Wright sent Mr Ver an email in which he declared that Mr Ver was his “enemy”.
Dr Wright claims that he was libelled by Mr Ver in a YouTube Video posted on the Bitcoin.com YouTube channel on about 15 April 2019, a tweet containing the YouTube Video posted on Mr Ver's Twitter Account on 3 May 2019, and a reply on Mr Ver's Twitter Account posted on 3 May 2019 from BkkShadow some 8 minutes after the tweet from Mr Ver. The defamatory meaning of these publications is said to be that Dr Wright “had fraudulently claimed to be Satoshi Nakamoto, that is to say the person, or one of the group of people who developed Bitcoin”.
There was evidence about the number of viewers of the YouTube channel and about the followers of Mr Ver's Twitter Account. The viewers of the YouTube channel were from 25 February 2016 to 22 June 2019: 1,821,515 of which 422,698 (23.2 per cent of the total) were in the US and 96,915 (5.3 per cent of the total) were in the UK. There were further breakdowns of figures for April 2019 showing a total of 73,135 views of which 20,870 (28.5 per cent of the total) were in the US and 4,985 (6.8 per cent of the total) were in the UK. In the period of 14–18 April 2019 there were 24,913 views of which 168,780 (29 per cent of the total) were in the US and 52,554 (7 per cent of the total) were in the UK. The figures showed that there were 582,000 active followers of Mr Ver's Twitter account, of which 168,780 (29 per cent of the total) were in the US and 52,554 (7 per cent of the total) were in the UK.
The proceedings below
Following the publication of the YouTube video on 15 April 2019 a letter before action was sent to Mr Ver on 1 May 2019. On 2 May 2019 Mr Ver was visiting London. A claim form on behalf of Dr Wright complaining of the publication in the YouTube video was issued, and it was served personally on Mr Ver, pursuant to the provisions of CPR Part 6.5(2). Personal service on overseas defendants while temporarily present in this jurisdiction is an established part of the common law, although it has sometimes been considered in other jurisdictions to be an exorbitant exercise of jurisdiction and is excluded as a basis for establishing jurisdiction under certain conventions, see article 3 of the Lugano Convention (Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters) scheduled to the Civil Jurisdiction and Judgments Act 1991.
The Twitter postings took place on 3 May 2019. On 16 May 2019 Dr Wright applied, without notice to Mr Ver, to Master Thornett for permission to amend the claim form to introduce the Twitter postings, to serve the proceedings out of the jurisdiction in Japan, and for permission to serve by email. On 13 June 2019 Mr Ver filed an acknowledgement of service indicating an intention to contest the jurisdiction of the court. The main ground of challenge was based on section 9 of the Defamation Act 2013 but there were other grounds, which it is not necessary to set out.
On 27 June 2019 Mr Ver made an application to challenge the court's jurisdiction. Witness statements were filed by both parties up to 25 July 2019. The hearing took place on 29 July 2019 and judgment was given on 31 July 2019.
The evidence at the hearing before the judge
In the light of the issues on this appeal it is necessary to set out some details of the relevant evidence adduced below.
The evidence on behalf of Dr Wright was given by: Duncan McElvie, a freelance process server, in a witness statement dated 5 July 2019; Dr Wright, in witness statements dated 17 and 25 July 2019; Simon Cohen, a senior associate at SCA ONTIER LLP, in witness statements dated 18 and 25 July 2019; Michael de Leeuw, a member of the New York Bar in a witness statement dated 19 July 2019; and Jimmy Nguyen, a former CEO of nChain and a former practising attorney in the US, in a witness statement dated 25 July 2019. There was also exhibited to the evidence below a witness statement from Ines Santos, a solicitor at SCA ONTIER LLP made in support of applications made to Master Thornett.
The evidence on behalf of Mr Ver was given by: Mr Ver, in witness statements dated 27 June and 23 July 2019; Tom Double, a solicitor at Brett Wilson LLP dated 23 July 2019; Kevin Goering, a member of the New York Bar, in a witness statement dated 23 July 2019; and John O'Brien, a member of the California Bar, in a witness statement dated 23 July 2019.
So far as is material the evidence showed that Dr Wright said he was a computer scientist and entrepreneur. He said he was “a highly active member of the cryptocurrency community”. Dr Wright said that Mr Ver was an investor in and commentator of the bitcoin and wider cryptocurrency sector.
Dr Wright said he was now a resident of England and had a “close, settled connection with the United Kingdom”. He said he was born in Brisbane and held Australian and Antiguan and Barbudian citizenship and passports. He got...
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