Wright v Ver

Under section 9 of the Defamation Act 2013, a claimant suing a defendant outside the specified domiciles must prove, on the balance of probabilities, that England and Wales is clearly the most appropriate of all jurisdictions in which the statement was published.

The court must make a fact-specific, multifactorial assessment. Relevant matters include the extent and targeting of publication, comparative reputational harm, the claimant’s connections and reputation, the availability of fair proceedings and adequate remedies elsewhere, costs, language, access to justice and the location of witnesses. Publication and reputational harm may be decisive, but they do not constitute a separate two-stage test. The court should make the best available assessment of competing jurisdictions on the evidence.

The claimant, an Australian national resident in England, brought a libel claim against the respondent, who lived in Japan. The claim concerned a YouTube video and Twitter publications alleging that the claimant had fraudulently claimed to be the creator of Bitcoin. Publication in the United States was approximately four times greater than publication in the United Kingdom.

Nicklin J declared that the High Court lacked jurisdiction because England and Wales was not clearly the most appropriate place for the action under section 9(2) of the Defamation Act 2013. The claimant appealed, contending that the judge had adopted an impermissible two-stage approach and had failed to compare the available jurisdictions. The respondent sought to uphold the result even if the judge’s approach was erroneous.

The issues were whether the judge had applied section 9 properly and whether England and Wales was clearly the most appropriate jurisdiction.

1. The appeal was dismissed unanimously. Although the judge’s two-stage formulation did not correctly express the complete statutory inquiry, England and Wales was not clearly the most appropriate place for the claim. A state in the United States willing to accept jurisdiction, including California, was the most appropriate jurisdiction on the evidence.

2. Section 9 of the Defamation Act 2013 requires a claimant to satisfy the court, on the balance of probabilities, that England and Wales is clearly the most appropriate of all jurisdictions in which the statement was published. The court must consider the best available evidence and make a fact-specific, multifactorial assessment.

3. The nature and extent of publication and comparative damage to reputation are important and may be decisive. They should not, however, be treated as an exclusive two-stage test. That formulation adds an unnecessary gloss to the statutory question and does not accommodate all potentially relevant considerations.

4. Other relevant matters may include whether publication was targeted at readers in England and Wales, the availability of fair judicial processes and adequate remedies elsewhere, litigation costs, language barriers, access to justice and the location of witnesses. The list is not exhaustive. The court should make the best assessment possible of whether any competing jurisdiction is an appropriate forum, although the ultimate question remains whether England and Wales is clearly the most appropriate.

5. The much greater publication in the United States strongly favoured that jurisdiction. The claimant had a global reputation concerning a global cryptocurrency, and the controversy about the authorship of Bitcoin was itself international. His United Kingdom reputation was a segment of that global reputation. His business connections, copyright registration and associated publicity also demonstrated substantial links with the United States.

6. United States courts would accept jurisdiction following the respondent’s consent. There was no evidence that they could not provide an adequate remedy, that access to justice would be impaired, or that witnesses would encounter difficulty. The claimant’s links with England did not outweigh these matters.

Popplewell and Flaux LJJ agreed with Dingemans LJ.

1. Court of Appeal (Civil Division): By [2020] EWCA Civ 672, dismissed the claimant’s appeal. It held that the judge’s two-stage formulation was incomplete but upheld the declaration that England and Wales was not clearly the most appropriate jurisdiction.

2. High Court, Queen’s Bench Division: Nicklin J held on 31 July 2019 that England and Wales was not clearly the most appropriate place for the libel claim and declared that the court had no jurisdiction. No neutral citation for that judgment is stated.