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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and will likely be tested in future contested litigation where the stolen funds have been deposited and then withdrawn from an innocent exchange.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.

Privilege: Privacy and Confidentiality Are Not to Be Equated

In Jinxin Inc v Aser Media PTE Ltd & Others, the High Court of England and Wales determined that directors’ personal emails and documents on a company’s computer systems were confidential, despite the company’s ability to monitor and access them. In reaching that decision, the judge stated that the parties were mistaken in describing the reasonable expectation of privacy as a touchstone of confidentiality: while the tests for both confidentiality and privacy are objective and may lead to the same answer on the same facts, they should not be equated as they have been developed on different legal foundations and protect different interests. The key element for a claim for confidentiality in information that has been shared with a third party is whether the information was shared in circumstances importing an obligation of confidence on that third party.

Reflective Loss Principle: Sufficiently Settled for Summary Determination

In its judgment in Burnford & Others v Automobile Association Developments Ltd, the Court of Appeal has provided a useful summary of the current status of the ‘reflective loss’ principle – the rule that shareholders cannot bring a claim for diminution in the value of their shares where that diminution is a consequence of loss suffered by the company and in respect of which the company has a claim. The message is clear: despite there being a degree of uncertainly about its application in a very few cases, for the vast majority of cases the law is now settled, and despite its lack of popularity, the principle is here to stay.

Exercising an Option to Arbitrate: a Matter of Content over Form

In Aiteo Eastern E&P Company Limited v Shell Western Supply and Trading Limited the High Court of England and Wales considered what a party with an option to refer a dispute to arbitration must do to successfully exercise that option. It concluded that all that was required was an unequivocal statement requiring the other party to arbitrate an identified dispute. In terms of how that statement was to be delivered, the judge clarified that “it is the message which matters, not the medium”. In this case, the unequivocal statement was found to have been made in a notice of appeal challenging a Nigerian court’s jurisdiction to hear the dispute.

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.

Time to terminate? How to mitigate risk

The coronavirus pandemic and global economic and political uncertainties mean that more businesses than ever are tied into unprofitable contracts or are required to purchase unwanted goods and services. Alternatively, they may find themselves facing refusals to perform contracts by their contractual counterparties. Absent a commercial resolution, companies may need to consider whether and how a contract can validly be terminated. Following on from our blog post on ir/remediable breaches in termination events, in this post we look at termination more generally and set out key considerations to avoid frequent pitfalls.

MUR Shipping U-Turn: non-contractual performance would have overcome a force majeure event

Earlier this year, the High Court of England and Wales held in MUR Shipping BV v RTI Ltd that an obligation to undertake ‘reasonable endeavours’ to overcome a force majeure event did not require the claimant to accept non-contractual performance. Last week, in a majority decision , the Court of Appeal allowed the defendant’s appeal, finding that the force majeure event could (and should) have been overcome by acceptance of the non-contractual performance proposed by the defendant and, accordingly, the claimant was not entitled to suspend its obligations under the terms of the force majeure clause.

Obtaining Disclosure from Third Parties Outside the Jurisdiction Now Easier

Two recent developments have made it easier for those litigating in England and Wales to obtain information and documents from third parties outside the jurisdiction: the first is a new jurisdictional gateway for applications for information from third parties outside the jurisdiction; the second is the Court of Appeal’s decision in Gorbachev v Guriev, in which a third-party disclosure order was made against parties outside the jurisdiction in respect of documents within the jurisdiction.