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QUARTERLY / 2023
Digital Asset Legal Review 

The legal landscape surrounding digital assets is constantly evolving, making it increasingly difficult to keep up with the latest developments. Ontier's latest resource offers a solution: a comprehensive resource that tracks and summarises the most important quarterly judgments in the world of digital assets. Our aim is to provide fellow professionals with the tools and insights needed to stay ahead of the game, and confidently navigate this exciting area of law. 

Authors

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Felicity Potter

PARTNER (UK)

felicity.potter@ontier.net

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Alexander Unal

ASSOCIATE (UK)

alexander.unal@ontier.co.uk

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David McCoy

CONSULTANT (UK)

david.mccoy@ontier.co.uk

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Serena Tam

ASSOCIATE (UK)

serena.tam@ontier.co.uk

Anchor 1
Q1

Q1

Two significant judgments delivered during this quarter may pave the way to stronger remedies for owners of digital assets. The Court of Appeal in Tulip Trading Limited v van der Laan and others [2023] EWCA Civ 83 held the question of whether software developers of a given Bitcoin network could be subject to fiduciary and tortious duties to users of the network should proceed to trial. The High Court in Osbourne v Persons Unknown [2023] EWHC 340 (KB) held that there was a “realistically arguable case” that NFTs could be classed as 'property' as a matter of English law, potentially widening the scope of proprietary injunctions to include a new class of digital assets. A notable feature that these judgments share is that they were both delivered in the context of digital asset recovery claims issued in the High Court.

Q2

Q2

In this quarter, in the context of applications for injunctive relief, we have observed both a novel development in the Court’s management of digital asset disputes, and a restatement of age-old rules concerning full and frank disclosure. In Law v Persons Unknown (from January 2023 but only recently reported), the High Court ordered the transfer to England & Wales funds that were in a cryptocurrency account maintained by a cryptocurrency exchange and controlled by defendants responsible for a fraud . The Court accepted materials proving the location of the Claimant’s misappropriated cryptocurrency, which included evidence from the public blockchain as to its whereabouts. To facilitate enforcement the Court ordered that the cryptocurrency in question be transferred into fiat and paid into the court funds office to enable the Claimant to apply for execution against those sums. This case further highlights the court’s willingness to adapt and facilitate a practical approach to the recovery of stolen digital assets. In Piroozzadeh v Persons Unknown and others [2023] EWHC 1024 (Ch), the High Court discharged an interim property injunction against Binance, a cryptocurrency exchange, on the basis that the Claimant had failed in its duty to give full and frank disclosure when making its without notice application. Amongst other things, the Court held that the Claimant (and his legal representatives) had failed to make the Court aware of potential defences, including the practical difficulty of identifying the traceable proceeds once they had been co-mingled in an unsegregated pool known as a ‘hot wallet’.

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