Cryptocurrency: a digital wave across the legal world
21 AUG 2022
The Financial Conduct Authority defined cryptoassets as “cryptographically secured digital representations of value or contractual rights that use some type of distributed ledger technology (DLT) and can be transferred, stored or traded electronically”. This definition encapsulates cryptocurrencies using blockchain protocols, as well as non-fungible tokens (NFTs).
Cryptocurrency is a rapidly evolving asset class, and cryptoassets such as NFTs, have gained popularity over the recent years. However, the issue is, this evolution is raising a variety of novel legal issues which the English courts are ironing out rapidly through various case law. Although the English courts are arguably reacting positively to this change, there are inevitably legal grey areas that still need to be addressed to prepare for this wave of digitalisation.
Cryptoassets classified as property
The English courts confirmed in Robertson V Persons Unknown  that Cryptoassets are classed as property and consequently will be afforded protection. In this case, the claimant was a victim of ‘spear-phishing’ in which he was deceived into sending 100 Bitcoin to a fraudster. The courts confirmed that the cryptoassets were indeed property, thus they granted an asset preservation order over the stolen Bitcoin. This is a highly significant judgment, as it demonstrates the English courts enthusiasm to tackle the growing concern of cyber fraud, whilst addressing the legal grey area of whether cryptocurrency could be classed as property.
Significantly, echoing the trending wave, the UK Jurisdiction Taskforce of the LawTech Delivery Panel stated in a ‘Legal Statement’ that cryptoassets can essentially in principle be treated as property. This brings us to the question of what protection by the court can cryptocurrency then afford?
Protection by the court in relation to cryptocurrency as property
The High Court compelled by the UK Jurisdiction Taskforce of the LawTech Delivery Panels statement, reinforced that cryptoassets such as Bitcoin constitute property capable of being the subject of a proprietary injunction, as the court in AA v Persons Unknown  granted an injunction to assist in the recovery of Bitcoin that had been paid to satisfy a malware ransom demand. Crucially this is a significant decision, as Bitcoin was found to meet the four criteria set out in Lord Wilberforce’s seminal definition of property. This is likely to have far reaching implications by paving the way for crypotassets to be regarded as a mainstream asset class.
The courts have shown they are willing to grant an array of orders, for example, a ‘Bankers Trust’ Order, in Ion Science Ltd v Persons Unknow and others , revealed the identity of the company owning the account that was used to execute a fraud against the claimant. The court then made a Third-party Debt Order, allowing the claimant to recover its losses from the account.
The courts are also likely to order an Asset Preservation Order which prevents any dealings with stolen Bitcoin, as it is a form of transaction whereby in one click the asset can be dissipated. The English courts have also granted numerous freezing orders and other injunctions. For example, in Danisz v Persons Unknown , the High Court granted the claimant an interim proprietary injunction and a worldwide freezing order. Signifying that courts understand the urgency to prevent cryptocurrencies transactions occurring in the events of fraud, thus are prepared to offer an array of orders available to prevent further loss.
Grey areas in relation to cryptocurrency
However, a grey area is that if Bitcoin and other cryptocurrencies are classed as property, and can be the subject of interim remedies, then from a litigators perspective the concern arises of the issues Bitcoin presents when applying for freezing orders. For example, the issue arises how Bitcoins interact with the standard form freezing order and the usual duties on freezing order applicants. Unlike asset freezes on traditional assets, which allows litigators and asset-tracing professionals put account providers on notice and have entries made in property registers as well as investigations of possible undisclosed assets, Bitcoin by its very nature, operates without the extensive traditional institutional infrastructure that is often relied on when tracing assets, thus a new approach will be needed for cryptocurrencies.
There are also limits to the use of Bitcoin in the legal world. For example, in Tulip Trading V Bitcoin Association BSV and others  the court rejected the claimant’s proposal to post security for the defendant’s costs by transferring Bitcoin to their solicitors. This highlights the courts emphasis that although the law is evolving to bring cryptocurrency into the scope of the legal world, cryptoassets such as Bitcoin are too volatile to meet the test for adequate security. This is because the fall in value of Bitcoin could result in the security being effectively valueless.
The law evolving to accommodate cryptocurrency further
It seems unlikely that English courts will accept Bitcoin as acceptable security for costs unless an acceptable mechanism can be used to address price volatility. However other forms of cryptocurrency may be acceptable, as the HM Treasury has proposed to regulate stablecoins pegged at traditional fiat currency to maintain a stable value. This suggests that in the future if the proposals are adequately established, some forms of cryptocurrency may be acceptable security.
In the evolving technological and digital world, businesses are adapting to the new digital reality, as Mastercard announced it will begin to accept crypto payments on its networks and Tesla proposing to price its cars in cryptocurrency. This evidently signifies the legal world needs to keep up with this change, as criminals are too advancing in this area, with the US government having seized more than 1 billion US dollars’ worth of Bitcoin in enforcement actions related to the defunct darknet marketplace.
The English courts and UK government have shown their enthusiasm to adapt to cryptoassets by offering an array of orders to deal with crypto fraud. However, further development in the legal world can naturally be expected in the following years, with cryptoassets becoming an increasingly mainstream asset. Disputes are likely to increase relating to securities and rights, consequently, additional regulatory oversight will be necessary, as it is a highly complex area which clients will look to seek advice on how these assets can be identified, preserved and enforced against. Signifying further development in the legal field is on the horizon to keep up with the new digital era.
Yulia BarnesManaging Partner
Yulia Barnes is our Managing Partner. She is an experienced solicitor and advises on a wide range of contentious and non-contentious matters for both private and corporate clients.Yulia started her legal career at a large international Magic Circle firm. She then became a partner at a regional law firm and headed a Dispute Resolution Department. She then moved in-house before starting her own Boutique practice, Barnes Law, with the aim of providing exclusive services to high net-worth individuals and privately-owned businesses. More details can be found on her LinkedIn profile.
Expertise Yulia and her team are widely recognised for their professional and practical approach to matters. She is committed to ensuring that her clients’ objectives are achieved in the most cost-effective way possible.
Approach Yulia has a wealth of experience working with businesses of all sizes: from large multinational corporations to start-ups. She has particular expertise in a hospitality industry, investment funds, private and corporate clients, and focuses on startups and technology-driven companies. Yulia brings the same level of attention to detail, professionalism and a personal touch to every case and client, and truly immerses herself in her clients’ businesses. She prides herself on her problem-solving, commercially astute approach and her track record of partnering with clients to help them achieve their strategic objectives.
Will joined Barnes Law as an Associate Solicitor in Spring 2023, shortly after qualifying in September 2022.
Will works mostly on real estate and corporate/commercial matters. Will enjoys providing advice on transactional matters.
Away from the office, Will can be found reading or playing golf. While he played rugby until university, and rowed throughout his degree, he now tends to watch both from the sidelines. During the winter he can also be found skiing.
Will plans to continue developing his legal skills and experience at Barnes Law, under the expertise and guidance provided by Yulia.
Mark is an experienced solicitor whose practice areas include intellectual property (IP), IT, data protection and general commercial law.
Mark advises businesses of all sizes – from sole traders to corporations. Among his clients are: clothing and lifestyle brands, restaurants and food suppliers, IT companies, banks, hedge funds and venture capital firms, education providers, medical and pharmaceutical brands.
Outside of his practice, Mark also advises members of the Institute of Directors as part of its Directors’ Advisory Service.
- Prosecuting a UK trademark application on behalf of an education provider and representing them in related UK IPO opposition and revocation proceedings;
- Advising a publisher and a delivery business on data protection matters, B2B and B2C Ts & Cs of sale, website and app Ts & Cs, all aspects of global brand protection;
- Advising footwear brands, alternative asset managers and hedge funds on their global brand protection, including overcoming various refusals, representing them in opposition proceedings and settlement negotiations;
- Representing a central bank in opposition proceedings before the UK IPO;
- Advising a lifestyle brand concerning trademark clearance and protection, negotiations for a website/app development and maintenance agreement.
Ioulia TatawatFamily Law Adviser
Ioulia has a solid background in family law and offers guidance, clarity, and support to clients during one of their most challenging times in their life.
She advises on all three pillars of separation: divorce, children matters and financial settlements. Ioulia is a member of Resolution and is keen to try to settle matters at early stages.
Ioulia is dedicated to assisting clients and navigating them through their legal matters with clarity and support.
Alex joined Barnes Law in September 2023 after finishing his master’s degree in law. Prior to joining Barnes Law, Alex worked in property litigation at Ashfords. Alex assists Yulia on a variety of both contentious and non-contentious matters.
Outside of the office, Alex enjoys reading and hiking. Prior to working in law, Alex was a competitive tennis player.
Alex continues to develop his skills in legal practice under Yulia’s guidance, he plans to sit the Solicitor’s Qualifying Exams (SQE) in 2024.
Mehves joined Barnes Law in August 2023, right after graduating from Queen Mary, University of London (LLB Senior Status). As part of her qualification journey, Mehves is currently pursuing her Legal Practice Course (‘LPC’) at the University of Law. She also holds a degree in European Union Law from Maastricht University, Netherlands.
Mehves works closely with Yulia on a variety of contentions matters and also writes Barnes Law’s legal blogs, manages social media accounts and is responsible for marketing.
Outside of work and studies, she enjoys running, tennis and yoga.
Mehves is looking forward to developing her legal skills at Barnes Law.
Julia PodgornovaInvestor Relationship Manager
Julia guides clients in making important business decisions based on comprehensive risk assessment and strategy. She supports investors in devising strategies designed to maximise each business’s potential from pre-seed to IPO.
Julia’s particular area of expertise are IT start-ups at different stages. Julia supports business through their fund-raising journey. As an Investor Relations Manager, Julia communicates with investors to facilitate a smooth round and legal part of each transaction.
In her free time Julia enjoys sailing, ballroom dancing, art exhibitions and travel.