High Court confirms that cryptocurrency is property

Cryptocurrency
The High Court has confirmed that cryptocurrency is property that may be the subject of a proprietary order. Individuals holding such assets need to ensure they are properly dealt with in their Wills.

Background

The circumstances of the case were that a Canadian insurance company was hacked and their systems encrypted, and that company was insured against cybercrime by the applicant, “AA”. The insured company was sent notes by the first defendant (an unknown person or persons) on 10th/11th October 2019 demanding Bitcoin.

“Hello, to get your data back you have to pay for the decryption tool, the price is $1,200,000 (one million two hundred thousand). You have to make the payment in Bitcoins.”

After some negotiation, the insurance company ‘AA’ agreed to pay a ransom of $950,000 USD in Bitcoin in exchange for a decryption tool. 109.25 Bitcoin was transferred per the defendant’s instructions and the defendant sent the decryption tool which was then used on the affected systems. It took five days for the insured company to decrypt its 20 servers and 10 business days to decrypt its 1,000 desktop computers.

The insurance company was unable to identify the person to whom the Bitcoin was sent (the second defendant).

After payment was made, a specialist company Chainalysis Inc was able to trace some of the Bitcoin and confirm it had been transferred into fiat currency, with the remaining 96 Bitcoin sent to an address that was linked with the exchange Bitfinex which was operated by iFinex and BFXWW Inc, the third and fourth defendants. The insurer made an application without notice to the unknown first and second defendant with limited notice to the Bitfinex parties, seeking a proprietary injunction and associated orders.

Outcome

The High Court granted an interim proprietary injunction and in doing so, confirmed that cryptoassets are property. In addition, ancillary orders were granted:

(a) for a hearing to be held in private;

(b) to preserve the anonymity of the applicant, in order to reduce the risk of further cyberattacks;

(c) to identify those responsible who are now holding the Bitcoin; and

(b) for alternative service, due to the urgency and in order to preserve the Bitcoin.

Implications

The case provides confirmation from the Courts that cryptoassets are property and can be the subject of a proprietary order.

The case is consistent with two previous decisions made in the English Courts (Vorotyntseva v Money-4 Limited, trading as Nebeus.com [2018] EWHC 2598 (Ch) and Liam David Robertson v Persons Unknown (unreported 15th July 2019) –  Moulder J), and with the UKJT Legal Statement on Cryptoassets and Smart Contracts, which was considered ‘an accurate statement as to the position under English law’.

Mr Justice Bryan quoted the UKJT Legal Statement which notes at paras 82 – 84:

In other cases, the courts have found no difficulty in treating novel kinds of intangible assets as property. Although some of those cases are concerned with the meaning of property in particular statutory contexts, there are at least two concerning property in general. In Dairy Swift v Dairywise Farms Ltd, the court held that a milk quota could be the subject of a trust; and in Armstrong v Winnington, the court held that an EU carbon emissions allowance could be the subject of a tracing claim as a form of “other intangible property”, even though it was neither a thing in possession nor a thing in action.

A number of important 20th century statutes define property in terms that assume that intangible property is not limited to things in action. The Theft Act 1968, the Proceeds of Crime Act 2002, and the Fraud Act 2006 all define property as including things in action “and other intangible property”. It might be said that those statutes are extending the definition of property for their own, special purposes, but they at least demonstrate that there is no conceptual difficulty in treating intangible things as property even if they may not be things in action. Moreover, the Patents Act 1977 goes further in providing, at s30, that a patent or application for a patent “is personal property (without being a thing in action)”. That necessarily recognises that personal property can include things other than things in possession (which a patent clearly is not) and things in action.

We conclude that the fact that a cryptoasset might not be a thing in action on the narrower definition of that term does not in itself mean that it cannot be treated as property.”

Repeating the legal statement’s conclusion that a crypto asset might not be a thing in action on a narrow definition of that term, but that does not mean that it cannot be treated as property, Mr Justice Bryan noted he considered that crypto assets such as Bitcoin are property. At [59] he states:

They meet the four criteria set out in Lord Wilberforce’s classic definition of property in National Provincial Bank v Ainsworth [1965] 1 AC 1175 as being definable, identifiable by third parties, capable in their nature of assumption by third parties, and having some degree of permanence. That too, was the conclusion of the Singapore International Commercial Court in B2C2 Limited v Quoine PTC Limited [2019] SGHC (I) 03 [142].

It is also noteworthy that the Court was willing to support the granting of a proprietary injunction with orders that helped ensure its effectiveness; such as holding the hearing in private (contrary to the open justice principle contained in CPR 39.2), and allowing AA and its insured client to remain anonymous (to reduce the risk of further copycat attacks).

Shortly after the judgement, HMRC published an updated version of its guidance Cryptoassets: tax for individuals (20th December 2019). This updated guide included a new section on the legal status of cryptocurrency exchange tokens, in the context of Inheritance Tax and Capital Gains Tax. Individuals holding such assets need to ensure they are properly dealt with in their Wills.

For more information see our guide: ‘I have cryptocurrency – can I include this in my Will?‘ and our general guide to Digital Assets.

Case reference: AA v Persons Unknown & Ors, Re Bitcoin [2019] EWHC 3556 (Comm) (13 December 2019) – Mr Justice Bryan

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