Jurisdiction In Defamation Cases

Wright v Ver [2020] EWCA Civ 672

Case background

The claim was brought by Mr Wright (Claimant), an Australian national who had lived in the UK for four years, against a bitcoin investor, Mr Ver (Defendant), who was born in the USA but had renounced his citizenship and instead became a citizen of St Kitts and Nevis, although he was living in Japan.

The claim related to three publications, including a YouTube video and some tweets. The Claimant stated that all three publications were defamatory as they stated that he had fraudulently claimed to be Satoshi Nakamoto (the person who had first developed the bitcoin).

The Defendant challenged the Court’s jurisdiction on the basis that he was domiciled in Japan. The Court therefore needed to determine whether it had jurisdiction in accordance with Section 9(2) Defamation Act 2013.

What was decided?

In the first instance, the Court held that it did not have jurisdiction to hear the claim. In reaching this decision, the Court applied a two-stage test, which considered:

• The nature of the publication; and
• The extent of the publication in each jurisdiction and the level of harm to reputation in each jurisdiction.

The Claimant appealed this decision and ultimately the Court of Appeal was asked to decide whether the Judge had taken the correct approach to Section 9 Defamation Act 2013 and whether England and Wales was the most appropriate jurisdiction to bring the claim.

Court of Appeal Decision

The Court of Appeal held that Section 9 requires a claimant to satisfy a Court on the balance of probabilities that:

“of all the places in which the statement complained of has been published, England and Wales is clearly the most appropriate place in which to bring an action in respect of the statement.”

The Court of Appeal clarified that in order to prove the above, a number of factors would need to be considered, including:

• The best evidence available to show all the jurisdictions in which the statement is published;
• The number of times that the statement has been published in each jurisdiction;
• The amount of damage to a claimant’s reputation in England and Wales compared with elsewhere; and
• The availability of fair judicial process or remedies in alternative jurisdictions.

This list of factors is not exhaustive and will be fact specific.

The Court of Appeal disagreed with the two-stage test set out by the Court in the first instance. They did however ultimately uphold the decision that England and Wales was not the most appropriate jurisdiction to hear the claim.

Why is this decision important?

The Court of Appeal’s decision provides that in cases involving a defendant who is domiciled outside of the UK, jurisdiction in England and Wales can only be established where it can be demonstrated that it is:

“clearly the most appropriate place in which to bring an action”.

Put simply, there is one question to be asked in determining whether the English Courts have jurisdiction, which is set out in Section 9(2) Defamation Act 2013. It was clarified that in most cases the extent of publication and damage to reputation will prove to be decisive factors. The Court did stress that other factors may be relevant and that the means of assessment will always be fact specific.