Craig Wright v Peter McCormack

In contempt proceedings, a report prepared and submitted by a party’s solicitors may be admissible as an admission made by an agent where the solicitors had ostensible authority to act. The fact that the report is hearsay does not, by itself, prevent admission. A later assertion that the lawyers acted without instructions raises issues for determination at the final hearing, rather than requiring exclusion or proof to the criminal standard at an earlier stage.

The court must keep proceedings initiated on its own initiative under review. Where disputed facts and extensive legal issues make the process disproportionate, and the likely sanction would be limited, the proceedings may be brought to an end in the public interest.

The court considered contempt proceedings arising from the alleged disclosure of the substance of a draft judgment during an embargo period. The proceedings concerned alleged disclosures by Dr Craig Wright, including Slack messages and an email summary.

Dr Wright disputed the use of an account contained in a report prepared by his former solicitors, Ontier. He contended that the report was unauthorised, privileged and inadmissible. The court was asked whether the report was admissible, whether it disclosed a case to answer, and whether Dr Wright should be required to waive privilege.

The court also considered whether, having initiated the proceedings under Civil Procedure Rules 1998 rule 81.6, it remained in the public interest and proportionate to continue them.

1. Admissibility. The Ontier report was admissible. Civil Procedure Rules 1998 rule 81.4 did not require the evidence in this process to be given by affidavit or affirmation. The court was entitled to direct that the issue be determined by reference to the report.
2. The report contained hearsay, but that did not make it inadmissible. The relevant approach depended partly on whether the proceedings were civil or criminal, but on either analysis the report was capable of admission. It appeared on its face to contain statements made by solicitors acting as Dr Wright’s professional agents.
3. Statements made by a lawyer with ostensible authority may be admitted as admissions made by an agent. Authority may ordinarily be inferred from the circumstances. The court concluded that the correspondence, the absence of any contemporaneous objection, reliance on the report by Dr Wright’s counsel, and his later silence pointed to the report having been prepared and submitted on his behalf.
4. The arguments based on privilege, the right to silence and the privilege against self-incrimination did not justify exclusion at this stage. If the report had been authorised, privilege had been waived. Any later evidence raising lack of authority or privilege would be considered at the final hearing when deciding whether the case was proved to the criminal standard.
5. The court distinguished the case-management considerations which had led to exclusion under section 78 of the Police and Criminal Evidence Act 1984 in R v Newell. A detailed factual account deliberately submitted to the court by solicitors ostensibly acting for a litigant was materially different from the brief early case-management entry considered in that case.
6. Case to answer. The admissible material was sufficient for a reasonable tribunal to conclude that the ingredients of contempt might be established. The weaknesses alleged in the report raised factual issues for resolution after the evidence, not a basis for terminating the proceedings at this stage.
7. Continuation of proceedings. Under Civil Procedure Rules 1998 rule 81.6(1), the court had to keep proceedings initiated on its own initiative under review. The court lacked the investigatory resources to deal efficiently with disputed facts and numerous legal issues. Although there was prima facie evidence of an embargo breach, the likely sanction was limited, Dr Wright appeared to understand the seriousness of the alleged breach, and the costs of continuing would outweigh any tangible benefit to the administration of justice.
8. The summons was discharged and the proceedings were brought to an end. The court expressed a provisional view that the relevant costs should not be claimed as reserved costs and indicated that the material should be provided to the other side, subject to the stated limitation concerning the unredacted report.

First-instance proceedings in the High Court. The judgment records that Chamberlain J had previously initiated the contempt process after the consequential hearing, but this Divisional Court discharged the summons and ended the proceedings.