Crypto Open Patent Alliance v Dr. Craig Steven Wright

Hearing date: 7 March 2025

Approved Judgment

This judgment was handed down remotely at 10.30am on 12 May 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

THE HON Mr Justice Mellor

On 7 March 2025 I heard applications by COPA and SquareUp Europe Limited (‘SquareUp’) (together ‘the Applicants’) for civil restraint orders against Dr Wright together with certain other relief. At the conclusion of submissions, I announced my decisions (a) to grant a General Civil Restraint Order (‘GCRO’) for three years against Dr Wright, (b) to refer the case to the Attorney General and (c) as to the costs of these applications for reasons which I would hand down in writing later. This judgment contains those reasons. Later that day, I made an Order giving effect to those decisions – my Order dated 7 March 2025.

The applications were issued on 21 November 2024 on the basis that the Court should first determine certain allegations of contempt made against Dr Wright. This occurred in late December 2024 – see [2024] EWHC 3315 (Ch) (my findings on contempt) and [2024] EWHC 3316 (Ch) (sentencing). Accordingly, these applications were listed for early March 2025. They were supported by the 23 ^rd witness statement of Philip Sherrell (‘Sherrell 23’) of Bird & Bird LLP dated 21 November 2024. Dr Wright filed some further evidence in the contempt proceedings in the form of a witness statement dated 22 November 2024, in which he responded to Sherrell 23.

At the hearing the Applicants were represented by Mr Hough KC and Mr Moss, instructed by Bird & Bird LLP. I am satisfied that Dr Wright was properly served with the applications and was well aware of them. Shortly before the hearing, Dr Wright sent an email making it clear that he would play no part in the hearing. His email referred to a recent motorbike accident in which he was injured. Whilst I had every sympathy for his predicament, his recent posts on social media demonstrated his recovery was well underway, he was not incapacitated and would have been able to participate in the hearing if he had chosen to do so. He made no application to adjourn the hearing. A remote link was sent to him prior to the hearing but he chose not to appear. In these circumstances, I determined it was appropriate to hear and decide the applications. In what follows I have taken into account the points made in his witness statement dated 22 November 2024 and his other submissions made in the contempt proceedings, to the extent relevant.

The primary relief sought on each application (dated 21 November 2024) was for a GCRO against Dr Wright, alternatively an Extended Civil Restraint Order (‘ECRO’). The Applicants also drew my attention to the discretion to refer the case to the Attorney General so that consideration could be given to an application for a civil proceedings order under s.42(1) of the Senior Courts Act 1981.

Applicable legal principles

Rule 3.11 of the Civil Procedure Rules 1998 and Practice Direction 3C provide for three different levels of civil restraint orders:

i) Limited CRO: This form of order may be granted where a party has made two or more applications which are totally without merit (‘TWM’). It restrains the party subject to the order from making any further application in the proceedings in which the order is made without first obtaining the permission of the court: PD 3C, paras. 2.1–2.2.

ii) Extended CRO: This form of order may be made where a party has persistently issued claims or made applications which are TWM. It restrains the party subject to the order from issuing claims or making applications concerning any matter “involving or relating to or touching upon or leading to the proceedings in which the order is made” without first obtaining the permission of the court: PD 3C, paras 3.1–3.2.

iii) General CRO: This form of order may be made where a party has persistently issued claims or made applications which are totally without merit in circumstances where an ECRO would not be sufficient or appropriate. It restrains the party subject to the order from issuing any claim or making any application without first obtaining the permission of the court: PD 3C, paras 4.1–4.2.

My attention was drawn to the recent general summary of the law on CROs in Achille v Philip Calcutt [2024] EWHC 2169 (KB), Pepperall J. at [4]–[7] and to the following established propositions, all of which I accept.

An ECRO or GCRO may only be made for a period of up to three years, but it may be extended for incremental further periods of up to three years on application.

In Nowak v Nursing and Midwifery Council [2013] EWHC 1932 (QB), Leggatt J gave the following explanation for the CRO regime at [58]–[59]:

“[58]…[T]he rationale for the regime of civil restraint orders is that a litigant who makes claims or applications which have absolutely no merit harms the administration of justice by wasting the limited time and resources of the courts. Such claims and applications consume public funds and divert the courts from dealing with cases which have real merit. Litigants who repeatedly make hopeless claims or applications impose costs on others for no good purpose…

[59] It is important to note that a civil restraint order does not prohibit access to the courts. It merely requires a person who has repeatedly made wholly unmeritorious claims or applications to have any new claim or application which falls within the scope of the order reviewed by a judge at the outset to determine whether it should be permitted to proceed. The purpose of a civil restraint order is simply to protect the court's process from abuse, and not to shut out claims or applications which are properly arguable.”

When deciding whether to make a CRO and what form of order to make, there are three questions for the court: (i) whether the litigant has persistently brought claims or applications which are TWM; (ii) whether an objective assessment of the risk demonstrates that the person will issue further abusive claims or applications unless restrained; and (iii) what order is just and proportionate to address the risk identified. See Nowak at [63]–[70]; Camden LBC v Saint Benedict's Land Trust Ltd [2019] EWHC 3576 (Ch) at [44].

An ECRO or GCRO requires as the gateway condition the individual having persistently brought claims or applications which are TWM. This requires a minimum of three such claims or applications: CFC 26 Ltd v Brown Shipley & Co [2017] 1 WLR 4589; Sartipy v Tigris Industries Inc [2019] 1 WLR 5892 at [28]. There is no limitation on the timeframe for consideration of previous TWM claims or applications: Society of Lloyd's v Noel [2015] 1 WLR 4393; Saint Benedict's at [45].

A claim or application will be TWM for this purpose if it has been certified as such, and such a certification is conclusive: Crimson Flower Productions Ltd v Glass Slipper Ltd [2020] EWHC 942 (Ch); Achille at [6]. However, a previous claim or application may also be considered TWM for this purpose without a certification having been made, but that requires some consideration of the underlying merits: R (Kumar) v SSCA [2007] 1 WLR 536 at [67]–[69].

Even if the minimum threshold is met, it does not necessarily satisfy the condition that the individual has “persistently” brought claims or applications which are TWM. That requires an evaluation of the party's overall conduct. It may be easier to decide that there has been persistence if the party seeks repeatedly to relitigate issues than if there are three or more entirely unrelated applications or claims years apart: Sartipy at [30]. The overriding consideration is the “threat level” of continued issue of TWM claims or applications: Re Ludlam [2009] EWHC 2067 (Ch). Thus, the “persistence” element is not solely concerned with the number of claims / applications deemed to be TWM, but also with their nature and substance. A series of TWM claims or applications which demonstrate determined relitigation of issues may raise the “threat level”.

Only claims or applications made by the person can count towards the minimum requirement of three TWM claims / applications: Sartipy at [29]. However, if that threshold is met, bad conduct by a party in a capacity as defendant may be taken into account to demonstrate the necessary persistence for the purposes of seeking an ECRO and/or to demonstrate the need for a GCRO: Sartipy at [31].

The references in the rules to the target of a CRO application having brought TWM claims or applications extends to situations where the person was not the named party but was the real party standing behind the claimant or applicant: Sartipy at [32]. As Mr Hough KC submitted, that principle is of obvious significance as regards the Tulip Trading action, instigated by Dr Wright.

Since a GCRO or an ECRO were mooted here, I requested the Applicants to focus in particular on the difference between the two orders.

The test for making a GCRO rather than an ECRO is that the latter form of order would be insufficient or otherwise inappropriate. In practice, a GCRO covers a situation where a litigant “adopts a scattergun approach to litigation on a number of different grievances without necessarily exhibiting such an...