It is increasingly common to use email threading to reduce the burden and expense of reviewing and producing multiple copies of different stages of the same email conversation. However, the use of threading can backfire significantly if the technology is not fully understood.
Stolen Cryptoassets: Further Guidance on Injunctions and Jurisdiction
In Osbourne v Persons Unknown & Others, the High Court of England and Wales confirmed that there is ‘at least a realistically arguable case’ that non-fungible tokens are to be treated as property as a matter of English law and that their inherently unique nature makes them suitable objects of prohibitory injunctions.
The Court also held that it is ‘strongly arguable’ that when a cryptoasset is stolen from a victim located in England, a constructive trust arises that is governed by English law. Further, if that cryptoasset is subsequently transferred to others, the question of whether they are constructive trustees is also a matter of English law. As such, the Court has jurisdiction over claims against those subsequent recipients of the stolen cryptoasset regardless of their location.
Court of Appeal decides that cryptoasset software developers may have a duty to help recover bitcoin
The Court of Appeal has decided that cryptoasset software developers may owe fiduciary duties or a duty of care to help recover bitcoin which is inaccessible as a result of criminal activity.
This is not a final decision. The Court has simply decided that the claim, against foreign defendants, is arguable and can go to trial.
Crypto Exchange Found to Hold Stolen Assets on Trust for Victim of Crypto Crime
In Jones v Persons Unknown & Others the High Court made several rulings of interest in the developing area of crypto fraud litigation.
After granting judgment in favour of the claimant for claims of deceit and unjust enrichment against fraudsters, the court went on to rule that a crypto exchange controlling the wallet holding the claimant’s stolen Bitcoin was a constructive trustee. The court ordered the fraudsters and the exchange to deliver up the Bitcoin to the claimant.
The decision that an exchange is a constructive trustee in these circumstances remains controversial and will likely be tested in future contested litigation where the stolen funds have been deposited and then withdrawn from an innocent exchange. Contested cases may also explore the question of whether and in what circumstances stolen crypto assets can be traced through intermediary accounts, particularly where they have been mixed with other assets that are not part of the fraud.
Crypto-Recovery: Bitcoin Association Produces Software to Freeze Coins
As reported in a blog post earlier this year, the High Court of England and Wales held in Tulip Trading Limited v Bitcoin Association for BSV & Others that software developers do not owe a legal duty of care to assist owners in recovering lost or stolen cryptocurrency. Despite the High Court’s decision, Bitcoin Association agreed a settlement with Tulip Trading, which included a commitment that it would release software making it possible for bitcoin to be frozen where a court order has been issued to this effect. Last month, Bitcoin Association announced that it has now done so.
New EU liability rules proposed for artificial intelligence
European Commission publishes new liability rules to simplify claims for damage caused by AI-systems
Court of Appeal Lifts Stay to Allow English Court to Determine the Validity of Arbitration Clause
The Court of Appeal of England and Wales has set aside a stay in order to allow the English court to determine the validity of an arbitration clause contained in a contract between an English consumer and a foreign company. The stay had been imposed by the Commercial Court under section 9 of the Arbitration Act 1996 in favour of arbitral proceedings in New York. The Court of Appeal considered that the case had significant implications for consumers in general and it was therefore important that the issues were considered and ruled upon in public in an English court rather than privately in a US arbitration.
In-house E-Disclosure Teams Should Not Be Vilified
Cabo Concepts Ltd v MGA Entertainments (UK) Ltd & Another has caused much agitation among litigators and e-disclosure professionals. On the face of it, the case appears to be a warning against conducting e-disclosure in-house. However, properly administered, the use of in-house technology and teams can be highly effective and efficient. Here are our key pointers for companies with in-house capabilities to ensure the smooth running of the disclosure process.
US-UK Data Access Agreement: Top Five Things to Know
In May 2020, we published a blog post about the US-UK Data Access Agreement, a first-of-its-kind reciprocal agreement between the US and the UK. Under the agreement, law enforcement agencies in either country could obtain stored electronic data from communications service providers (CSPs) in the other country for the purpose of countering serious crime via a much-streamlined process, thereby overhauling the infamously sluggish mutual legal assistance process.
Crypto-nite: Court of Appeal to consider whether cryptocurrency software developers owe a duty of care to currency owners
In Tulip Trading Ltd v Bitcoin Association for BSV and Others the High Court considered whether software developers of cryptocurrency networks could owe a duty of care to owners of digital assets that have been lost or stolen.