The Dekagram: 14th August 2023

• Published date: 14 August 2023
• Law Firm: Deka Chambers
• Author: Ms Sarah Prager

Our eye was caught this week by a recent judgment by Mellor J in a cryptocurrency case. Not that the subject matter of the claim especially concerns travel and cross border practitioners; but the question of whether a party can rely on determinations of fact made in one case as evidence in another matter is one of universal application.

Wright v Coinbase, Wright v Payward [2023] EWHC 1893 (Ch)

Dr Wright claims to be the creator of the Bitcoin System; the person who wrote the original Bitcoin code and (using a pseudonym) published a White Paper describing it. He is bringing four actions for passing off in the Business and Property Courts. At the heart of each of these actions is the question of whether he was the person who wrote the Code and then the White Paper under an assumed name. Mellor J has the pleasure and privilege of hearing all four actions, and heard a CMC on 25^th and 26^th May during which, amongst other issues such as the Defendants' application for security for costs (at [45] to [91]), he considered (at [27] to [44]) the status of findings of fact made in previous proceedings. That issue arose because both sets of Defendants wished to amend their Defences to plead that:

The First Claimant is and has been involved in various proceedings, in this jurisdiction and overseas, in which his evidence (including documentary evidence adduced by him) has been the subject of serious adverse comment.

There followed seven examples, from claims brought as far afield as Australia and Norway.

Dr Wright sought to resist the amendments on the basis of the rule in Hollington v Newthorn [1943] 1 KB 587 that a decision of another court or tribunal is inadmissible as evidence of the truth of those findings. The Defendants accepted that this principle is good law, but argued that:

the Defendants do not rely upon the decisions cited as evidence of the truth of those findings. Instead, those decisions are referred to as reason why the Defendants require the Claimants to substantiate their various assertions with hard evidence: contemporaneous documents and/or credible corroborative testimony. In circumstances where the First Claimant's evidence on relevant matters has been repeatedly undermined and disbelieved in the past, the Defendants are entitled to explain why they contend that the First Claimant's assertions should not be taken at face value.

It is therefore perfectly proper to plead, as the Defendants have done, that because of the adverse comment made by...