Wright v McCormack

Reference: [2021] EWHC 2671 (QB)

Court: Queen's Bench Division

Judge: Julian Knowles J

Date of judgment: 8 Oct 2021

Summary: Defamation – libel – amendment – serious harm – Dingle – Burstein

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Appearances: Adam Wolanski QC - Leading Counsel (Claimant)  Greg Callus (Claimant)  Lily Walker-Parr (Claimant) 

Instructing Solicitors: ONTIER LLP

Facts

C is a well-known individual within the Bitcoin and wider cryptocurrency community. C avers that he is Satoshi Nakamoto (“Satoshi”), the individual or group of individuals widely understood to have created Bitcoin. D is a blogger within the cryptocurrency community with a large social media following.

C brought a claim for damages and other relief in libel in respect of a number of Tweets and a YouTube Video published by D, in which he repeated the phrase (mutatis mutandis) that C is not Satoshi. C therefore brings this action on the basis that D’s publications allege that C fraudulently claimed to be Satoshi.

C claims that he has suffered serious reputational harm as a result of these publications, including that he has had invitations to academic conferences withdrawn and papers rejected. D’s case is that the damage to C’s reputation was in fact caused by a number of other publications which make the same or similar allegations as the words complained of.

D initially sought to defend the claim on the basis that it was (1) an abuse of process, and that it was being in fact brought by third parties for commercial gain, (2) true under s.2 Defamation Act 2013 (“DA 2013”) and / or (3) a matter of public interest pursuant to s.4 DA 2013.

C alleges that he suffered distress and embarrassment as a result of the Publications, which D denies. D also sought to rely on third-party publications containing the same or similar allegation, both to defeat C’s plea of serious harm and in mitigation of damages.

This judgment concerns a number of applications heard at a Pre-Trial Review by Mr Justice Julian Knowles. It has a complex procedural background, outlined in the timeline, here. Of note, prior to the hearing, there were inconsistencies between the Claim Form and APOC, namely:

  • The Tweets complained of were pleaded in different timezones on the Claim Form (PST) and the APOC, ADef and ARep (GMT/ BST); and
  • The APOC included claims in respect of Publications 1-16, whereas the Claim Form only included Publications 1-10.

Issue

  1. Whether to allow C to amend the timestamps on the Tweets pleaded in the Claim Form so as to mirror those pleaded in the APOC (“the Third Amendment Application”).
  2. Whether to allow C, following the expiry of limitation, to amend his Claim Form so as to include Publications 12-16 (already pleaded in the APOC, and pleaded to in the ADef and ARep):
    • Pursuant to CPR 17.1(2)(b) and CPR 3.10, as a clerical step to reconcile an obvious mismatch in a pleaded claim caused by an oversight;
    • Pursuant to CPR 17.4/ s.35 Limitation Act 1980 (“LA 1980”), as a new claim, arising out of the same or substantially the same facts as were already in issue in the claim; or
    • By disapplying the 1-year limitation period under s.32A LA 1980 such that limitation is still running and CPR 17.4 is not engaged at all (“The First Amendment Application”).
  3. Whether the so-called ‘rule in Dingle’ precluded D from relying on adverse third-party publications to try to defeat a plea of serious harm under s.1 Defamation Act 2013.

Held

The (unopposed) Timestamp Application (“the Third Amendment Application”)

C’s amendment application granted on the basis that D had not suffered any prejudice (he had identified and pleaded to each publication in his AmDef) and it is desirable for there to be consistency between the Claim Form and the APOC, although nothing turns on it. ([56])

The Tweet timestamps on the Claim Form and APOC varied by 7 or 8 hours, apparently owing to the respective documents being drafted with reference to PDT time zone (where the Twitter HQ is based) and GMT (Publications 1-10)/BST (Publications 12-16) time zones.

 

The Application to add Publications 12-16 to the Claim Form (“First Amendment Application”)

1. CPR 17.1(2)(b) and CPR 3.10 – General power of court to rectify matters where there has been an error of procedure

C’s application granted pursuant to CPR 17.1(2)(b) and CPR 3.10 to ‘tidy up’ an obvious ‘inconsistency’ or ‘mismatch’ between the Claim Form and the APOC, ADef and ARep: Evans v CIG Mon Cymru Ltd [2008] 1 WLR 2675, [24]-[26], applied. ([108]-[115])

Nobody had been in any doubt about the scope of C’s case; it was an “obvious formal error”. C was not trying to gain some unfair tactical advantage by not amending the Claim Form at the same time as the APOC. D had pleaded an ADef in respect of Publications 12-16 and could not suggest that he would be prejudiced by the amendment. Had the Amended Claim Form been circulated with the APOC, it would also have been consented to. Further, D had expressly assented to the First Amendment Application which sought to align the Claim Form with the APOC, although not raised in D’s submissions.

It would prejudice C to refuse the amendments because he would be prevented from litigating his full case even though D is ready, and willing, to meet it. If refused under this heading and under CPR 17.4, D would likely strike out the relevant parts of C’s case on the grounds of irrelevance, which would be absurd in all the circumstances (including, in particular, D’s various consents during the litigation and the absence of prejudice). It would be a “stark surrender of substance to form” (Evans, [35]) and inconsistent with the Overriding Objective.

 

2. CPR 17.4 – Amendments to statements of case after the end of a relevant limitation period

If Julian Knowles J was wrong, he would have allowed the amendment under CPR 17.4 on the basis that the amendments sought were properly considered a new claim arising out of the same or substantially the same facts as were already in issue: they were reasonably arguable; merely tidying up amendments that D had been aware of since late 2019 and consented to litigate when he agreed to the APOC in December 2019; and D had consented to amend the Claim Form in November 2020. ([131]-[136])

The policy underpinning the provisions, that expired claims will not prejudice the party against whom the amendment is directed because they will have already had to investigate the same or substantially the same facts, applies here with particular force: Lokhova v Longmuir [2017] EMLR 7, [48] and Mercer Limited v Ballinger [2014] 1 WLR 3597, [34] applied.

 

3. 32A LA 1980 – Discretionary exclusion of time limit

If Julian Knowles J was wrong, he would have disapplied the limitation period under s.32A LA 1980. Considering the circumstances to which the court should have regard when disapplying limitation under s.32A(2) LA 1980, the only relevant consideration is delay. However, since the application was made in July 2020 and delayed until November 2020 due to D’s application, which he abandoned, “it does not really lie in his mouth to complain about delay” [138]. C’s legal team should have spotted the error earlier but there is no prejudice, so this is a minor matter. ([136]-[139])

It would therefore be equitable to disapply the limitation period in s.4A LA 1980 such that it would not apply to the causes of action arising under Publications 12-16. There is no prejudice to D, and it ensures consistency as between the Claim Form and APOC. (Otuo v Brierley [2016] EMLR 6 [37] and Wood v Chief Constable of West Midlands Police [2004] EWCA Civ 1638, applied.)

 

C’s Strike Out Application / D’s Application to Re-Amend the ADef

C’s application granted to strike out reference to third-party publications relied upon by D in respect of serious harm and mitigation of damage in the ADef and D’s Witness Statement. D’s application to amend the ADef was refused:

  • Evidence of other publications harmful to C’s reputation could not, in this case, be relied upon in respect of mitigation of damage or serious harm: Dingle v Associated Newspapers Ltd [1964] AC 371, applied.
  • Further, a reverse innuendo meaning plea which alleged a meaning that was at least as defamatory, if not more serious, than the C’s innuendo plea, was bad in law and accordingly struck out. A defendant should only plead a reverse innuendo meaning where he wishes to contend that readers would have understood the words either in a non-defamatory sense or in a lesser defamatory sense. D’s innuendo meaning did not, for example, go towards any Lucas-Box truth plea nor lessen the harm and therefore the damages. In the absence of these, it appeared that D wished to use the plea to put forward matters supporting a more defamatory meaning in order to resurrect a truth plea and cause the matters to be examined at trial. This fell afoul of the rule in Dingle. D would also fail to prove that all publishees of the words complained of had the extrinsic knowledge pleaded, as his plea went no further than bare assertion. ([193]-[198])
  • Further, this was not a Burstein case in which third party publications could be relied upon as ‘directly relevant background context’ in mitigation of damages: no ‘Burstein facts’ had been pleaded and the type of publications sought to be relied on by D (namely, publications carrying the same or similar defamatory allegations denied by C) do not fall within this principle.
  • Finally, any reference to Mr Ayre beyond an explanation of who he was (for example, evidence of alleged motive) was redundant, because the abuse of process plea has now been abandoned.

Comment

This is a comprehensive judgment dealing with numerous aspects of procedural and substantive law. Possibly the most notable topic is that of the applicability of ‘the rule in Dingle’ to serious harm under s.1 Defamation Act 2013.