Wright v Granath

For the purposes of the lis pendens provisions of the Lugano Convention 2007, proceedings may involve the same cause of action even where one claim seeks damages for defamation and the other seeks a negative declaration of non-liability. The court must compare the basic claimed rights and obligations pleaded in each jurisdiction at a relatively high level, without conducting a detailed analysis of unfamiliar domestic law. A substantial and important area of common dispute, such as the defamatory meaning of the same publication, may suffice where simultaneous determination creates a potential for irreconcilable judgments. A claimant’s jurisdiction under Article 5(3) does not create an indefeasible right to proceed despite Article 27.

Dr Craig Wright brought proceedings in England alleging that Magnus Granath had defamed him by publishing a tweet suggesting that he had fraudulently claimed to be Satoshi Nakamoto. Before the English claim was issued, Granath had commenced proceedings in the Oslo District Court seeking a declaration that he was not liable for damages concerning nine tweets, including the tweet relied on in England.

Granath applied under CPR r.11(1) and r.11(6), relying on Article 27 of the Lugano Convention 2007. The issues were whether the proceedings involved the same cause of action and object, and whether Wright nevertheless possessed a substantive right to sue in England under Article 5(3).

1. Same cause of action and object. The comparison required an examination of the pleadings and the basic claimed rights and obligations of the parties, without micro-analysis of domestic law. The court had to identify whether there was a substantial and important area of common dispute and a potential for irreconcilable judgments.
2. The English and Norwegian proceedings concerned the same tweet. The Norwegian claim put in issue truth, public interest and absence of loss, while the English claim put in issue the meaning and defamatory character of the tweet. The court could not safely assume that the Norwegian pleadings excluded an issue of defamatory meaning. That issue was logically prior to truth and public interest and might be determined in Norway.
3. The fact that matters characterised as defences in English law were pleaded as the basis of a negative-declaration claim in Norway did not prevent comparison under Article 27. They were claims in the Norwegian proceedings, not defences stricto sensu. Nor was the greater number of tweets in Norway material, since the greater included the lesser.
4. The court rejected a narrow approach based solely on issue estoppel. If Granath succeeded in Norway on truth or public interest, English proceedings would be stillborn and pursuing them would be an abuse of process. The substantial overlap concerning meaning, together with the potential for conflicting decisions, was sufficient. The object of both proceedings was also the same: to establish liability or non-liability for the tweet.
5. Wright’s reliance on the “mosaic” and “centre of interests” bases of jurisdiction under Article 5(3) did not confer an indefeasible substantive right to proceed. The Norwegian negative-declaration claim was global, and Article 27 therefore defeated the English proceedings.
6. Granath succeeded on both issues. The court granted declaratory relief under CPR r.11(1) and dismissed the proceedings under r.11(6).