ANOTHER POTENTIAL BREACH OF AN EMBARGO ON A JUDGMENT: JUDGE DECIDES TO TAKE FURTHER ACTION TO INVESTIGATE

December 23, 2022 · by · in Civil Procedure, Conduct

The judgment in  Wright v McCormack [2022] EWHC 3343 (KB) shows a variation on the risks of disclosing the contents of an embargoed judgment.  The claimant did not disclose the full judgment but various messages on social media could be taken as disclosing the result. The judge decided that the matter warranted further investigation.

 

“The practice of issuing judgments under embargo is an unusual feature of litigation in this jurisdiction. It has many benefits, which can only be achieved if parties abide scrupulously by the terms of the embargo. The Court of Appeal has signalled that breaches are likely to result in contempt proceedings. In my judgment, it would not be appropriate to take no further action in this case, where there is evidence showing that a litigant in High Court proceedings may have acted in deliberate breach of the embargo.”

 

THE CASE

Mr Justice Chamberlain handed down a draft judgment subject to an embargo.   The trial related to who was the inventor of Bitcoin.   The claimant succeeded at trial but only recovered £1 in damages.  The claimant received a copy of the embargoed judgment and wrote various messages on a specialist messaging platform.

THE MESSAGES

 

    1. Later on the evening of 26 July 2022, Dr Wright posted three messages on the “#bitcoin-general” channel of the MetaNet workspace of the Slack messaging platform. (Slack is a platform designed for business use on which members can establish “workspaces” on which to communicate. Each workspace has “channels” dedicated to particular topics on which members can have conversations.) The MetaNet workspace was established by MetaNet ICU Ltd, a company established to promote industry education in relation to Bitcoin Satoshi Vision (“BSV”), a product which Dr Wright and Calvin Ayre together promote. It has 340 active members. The “#bitcoin-general” channel has 290 members.
    1. Dr Wright’s messages were as follows:
“If a person would spend 4 million to receive a dollar plus and 2 million costs…
So the other side is bankrupt…
What would you think? (edited)”
“Ie.
The only thing that matters is crushing other side”
“Well.
I would spend 4 million to make an enemy pay 1.”

THE JUDGE’S DISCUSSION OF THIS ISSUE

The judge determined that there was a potential breach and issued an order summonsing the claimant to attend court so that further directions could be given.

    1. The importance of keeping confidential draft judgments circulated under the provisions of CPR 40E PD was recently emphasised by Sir Geoffrey Vos MR in R (Counsel General for Wales) v Secretary of State for Business, Energy and Industrial Strategy [2022] EWCA Civ 181, [2022] 1 WLR 1915. At [21], the Master of the Rolls said this:
“I should say that I have called this case into court because, amongst other reasons, the breaches that occurred here are not alone. I have become aware formally and informally of other breaches in other cases. It seems, anecdotally at least, that violations of the embargo on publicising either the content or the substance of draft judgments are becoming more frequent. The purpose of this judgment is not to castigate those whose inadvertent oversights gave rise to the breaches in this case, but to send a clear message to all those who receive embargoed judgments in advance of hand-down that the embargo must be respected. In future, those who break embargoes can expect to find themselves the subject of contempt proceedings as para 2.8 of CPR PD 40E envisages.”
    1. CPR 81.6(1) provides as follows:
“If the court considers that a contempt of court (including a contempt in the face of the court) may have been committed, the court on its own initiative shall consider whether to proceed against the defendant in contempt proceedings.”
    1. I have considered carefully the explanation given in para. 17 of Ontier’s report. However, it has to be evaluated in the light of three important contextual matters.
    1. First, this case was one in which Dr Wright’s own estimate of the costs he would incur to trial (as given to Master Davison, who dealt with costs budgeting in March 2020) was close to £4 million. This fact was referred to in Mr McCormack’s evidence: see para. 12 of his Third Witness Statement. Anyone with a close interest in the litigation would be likely to know about it.
    1. Second, although Dr Wright was engaged in a great deal of litigation worldwide, this case had attracted considerable publicity among those with an interest in cryptocurrency. Dr Wright embarked on this claim in order to establish that he is Satoshi (or, at least, to dissuade others from denying that proposition). He appears to have regarded those objects as important in part because of their impact on the success of Bitcoin Satoshi Vision (BSV), which he and Mr Ayre promote and in which they have a very significant financial interest.
    1. Third, the 290 members of the channel on which Dr Wright’s posts appeared on 26 July 2022 would all have been people with an interest in cryptocurrency in general and BSV in particular. Whether they had been told this by Dr Wright or not, any such person with even a passing knowledge of how High Court litigation in England works would know that, usually, the parties to a judgment are sent an embargoed copy of the judgment in advance of its being handed down.
    1. Against that background, I am unable to accept without further investigation Dr Wright’s explanation, as reported by Ontier, that the purpose of his posts on 26 July 2022 (hours after being informed of the substance of the judgment), was “not to give any indication as to the outcome set out in the Draft Judgment”, but merely to “encourage debate”. I consider that there is a real prospect that a court might find that, by posting those messages, Dr Wright was disclosing, and intending to disclose, the substance of the judgment contrary to the clear terms of the embargo, which had been explained to him. The emails referred to at paragraphs 33-44 of Ontier’s report appear to be a further breach of the embargo by Dr Wright, which may amount to a further contempt of court, depending on the view the court takes as to his state of mind when he forwarded the relevant emails.
    1. The practice of issuing judgments under embargo is an unusual feature of litigation in this jurisdiction. It has many benefits, which can only be achieved if parties abide scrupulously by the terms of the embargo. The Court of Appeal has signalled that breaches are likely to result in contempt proceedings. In my judgment, it would not be appropriate to take no further action in this case, where there is evidence showing that a litigant in High Court proceedings may have acted in deliberate breach of the embargo.
  1. Pursuant to CPR 81.6(1), I will therefore issue a summons requiring Dr Wright to attend court for directions to be given. The matter will then be listed before another judge, nominated by the Judge in Charge of the Media and Communications List, who will give directions for the further conduct of the contempt proceedings.