Section 9 Defamation Act 2013: a difficult burden for Claimants to discharge – Tom Double

1 08 2019

The decision of Mr Justice Nicklin in Craig Wright v Roger Ver ([2019] EWHC 2094 (QB)) confirms the high hurdle that a claimant must overcome in a defamation case where section 9 of the Defamation Act 2013 applies.

Where a defendant in a libel claim is not domiciled in the United Kingdom, another Member State or a state which is a contracting party to the Lugano Convention, claimants have a very difficult task in obtaining evidence to satisfy the Court that of all the places in which the statements complained of have been published England and Wales is clearly the most appropriate jurisdiction to bring the claim.   Following the decisions in Ahuja v Politika Novine I Magazini D.O.O & Ors [2015] EWHC 3380 (QB) and Huda v Wells ([2017] EWHC 2553 (QB), this is the third case in which section 9 has been applied strictly by the Court.

Dr Wright is an Australian computer scientist and businessman who claims to be the inventor of Bitcoin, Satoshi Nakamato.  Mr Ver is a bitcoin investor and is currently involved with several bitcoin related projects.   Dr Wright brought libel proceedings against Mr Ver in May 2019 in respect of three online publications, all of which he asserted bore the innuendo meaning that he “had fraudulently claimed to be Satoshi Nakamoto, that is to say the person, or one of the group of people, who developed bitcoin.

The crux of Dr Wright’s case on why England and Wales was clearly the most appropriate place for this claim to be determined was that he had immigrated to the UK with his family from Australia in December 2015, it was where he now spent the overwhelming majority of his time and where the business people with whom he dealt primarily are based.

While Mr Ver was under no burden to show that a jurisdiction other than England and Wales was a more appropriate place for the action to be tried, he adduced statistics relating to the number of followers and viewers for the YouTube channel and Twitter feed where two of the publications complained of had been made available online.  Such evidence indicated that the highest number of publishees were based in the US, by a considerable margin.

Where Dr Wright’s evidence (consisting of seven separate witness statements) fell short was in that it failed to address the extent of his global reputation and, more specifically, where he had allegedly suffered most damage by Mr Ver’s publications.  Without such evidence, the Court is somewhat “blindfolded”, and therefore cannot properly satisfy itself that England and Wales is “clearly the most appropriate place” for the action to proceed.

This decision is another reminder that where section 9(1) applies, claimants should be encouraged to obtain relevant evidence prior to issuing a claim.   Even if this an “immense and complex” task, it is highly unlikely to constitute an interference with a claimant’s right of access to the court, particularly where the claimant is of substantial means (see, for instance, Ahuja [40]).

Mr Ver was represented by Iain Wilson and Tom Double of Brett Wilson LLP and Hugh Tomlinson QC and Ian Helme of Matrix Chambers. 

This post originally appeared on the Brett Wilson Media Law Blog and is reproduced with permission and thanks.


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1 08 2019
‘Section 9 Defamation Act 2013: a difficult burden for Claimants to discharge’ | Private Law Theory - Obligations, property, legal theory

[…] “The decision of Mr Justice Nicklin in Craig Wright v Roger Ver ([2019] EWHC 2094 (QB)) confirms the high hurdle that a claimant must overcome in a defamation case where section 9 of the Defamation Act 2013 applies. Where a defendant in a libel claim is not domiciled in the United Kingdom, another Member State or a state which is a contracting party to the Lugano Convention, claimants have a very difficult task in obtaining evidence to satisfy the Court that of all the places in which the statements complained of have been published England and Wales is clearly the most appropriate jurisdiction to bring the claim …” (more) […]

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