Persons unknown must identify themselves in order to challenge a bill of costs (Wright v The Person or Persons Unknown responsible for the operation and publication of the website www.bitcoin.org (including the person or persons using the pseudonym Cøbra)

Dispute Resolution analysis: A person unknown who refused to identify himself during proceedings for breach of copyright was debarred from challenging a bill of costs in detailed assessment proceedings unless he identified himself.

Wright v The Person or Persons Unknown responsible for the operation and publication of the website www.bitcoin.org (including the person or persons using the pseudonym Cøbra [2022] EWHC 2982 (SCCO)

What are the practical implications of this case?

This is an interesting judgment in relation to a somewhat unusual set of circumstances. A person unknown accused of breaching copyright refused to identify himself but appears to have monitored the proceedings as they developed. When default judgment was entered against him, he sought to challenge the Claimant’s bill of costs in a detailed assessment. Although there seemed to be little authority guiding the Court, it was held to be a fundamental principle of civil procedure that anybody wishing to participate in legal proceedings should identify themselves at the outset of their involvement in those proceedings. By stating the proposition so broadly, this is likely to be an authority of wider impact beyond the particular and unusual circumstances of this case. This is particularly so given the increase in litigation against persons unknown in the context of claims involving cryptocurrency and digital asset frauds.

What was the background?

The Claimant (“Mr Wright”) issued proceedings alleging that the Defendant person or persons unknown had infringed his copyright by making a copy of a literary work entitled “Bitcoin: a Peer-to-Peer Electronic Cash System” available on the website it operated. The Defendant refused to identify himself and so proceedings were issued against persons unknown. Mr Wright gained the impression that the operator of the website was based in the United States. Accordingly, he applied for permission to serve out of the jurisdiction by email. Mann J granted such permission and directed that if a person who is a Defendant shall file an acknowledgment of service, an admission or a defence, that person should also disclose to Mr Wright their full name. None of those documents was filed and, accordingly, Mr Wright applied for default judgment. A remote hearing took place before HHJ Hodge QC at which a number of persons attended, one of whom using the name Cøbra. That person declined to speak but had submitted a short pdf document setting out the Defendants’ position on the claim. Default judgment was entered in favour of Mr Wright, however, the Judge declined to conduct a summary assessment of costs. Detailed assessment proceedings were commenced in October 2021. The Defendant served points of dispute. Only shortly before the detailed assessment hearing did Mr Wright’s counsel first take the point that the Defendant’s failure to identify himself should debar him from taking part in the detailed assessment proceedings. Once the point was raised, the Judge concluded that an opportunity needed to be given for the Defendant to serve evidence, following service of a properly prepared application and to hear detailed submissions at a later hearing. The application was made under CPR r.3.2(1)(m) for an order that unless the Defendant revealed his identify to the Court and Mr Wright within 7 days he should be debarred from participating in the detailed assessment and the points of dispute should be disregarded by the Court.

What did the court decide?

It was common ground that counsel for neither party had been able to find any reported cases where persons unknown had taken an active role in proceedings. Despite a number of authorities being cited, the Court concluded that none of them really bore upon the matters requiring determination. In the absence of any provision in Part 47 requiring a party to provide their name and address, one must look to the rules as a whole. They are clear in requiring a party to identify themselves at the outset of their involvement in the proceedings. This included detailed assessment proceedings. The serving of points of dispute did not constitute submission to the jurisdiction of the Court. If the Defendant wants to challenge Mr Wright’s bill of costs, they will have to identify themselves in the manner required by the Claimant. A period of 21 days was given to permit the Defendant to bring an appeal and, thereafter, they would be given a further period of 14 days to identify themselves. In the absence of either an appeal or identification Mr Wright would be at liberty to seek a default costs certificate.

Case details

• Court: High Court of Justice, Senior Courts Costs Office
• Judge: Costs Judge Rowley
• Date of judgment: 23 November 2022

Article by Phillip Patterson – first published by LexisNexis