Proprietary injunction and Bankers Trust Order made in fraud case involving cryptocurrency

In the unreported case of Ion Science Ltd v Persons unknown and others (21 December 2020 – Commercial Court)the Commercial Court granted a proprietary injunction, worldwide freezing order and ancillary disclosure order against persons unknown, along with a Bankers Trust Order against the parent companies of two cryptocurrency exchanges, in a cryptocurrency initial coin offering (ICO) fraud claim.

The were other facets to the case involving service of proceedings out of the jurisdiction, freezing orders and alternative methods of service but the key aspects relate to the issues of whether cryptocurrency (such as Bitcoin) is property and whether the facts of the case warranted the making of a Bankers Trust Order.

In relying on, in part, an analysis of the UK Jurisdictional Taskforce’s legal statement on cryptoasset and smart contracts (November 2019) and on the New Zealand decision in Ruscoe v Cryptopia Ltd (in liquidation) [2020] NZHC 782, Butcher J was satisfied that there was a serious issue to be tried that cryptoassets, such as Bitcoin, were property, within the common law definition of that term.

Butcher J was also satisfied that there was a basis on which the court could permit service out of the jurisdiction of a claim for a Bankers Trust Order, even where no positive remedy was sought from the respondent, other than information. The Order was made against two cryptocurrency exchanges operating outside of our jurisdiction. A Bankers Trust Order is a type of third party disclosure order, potentially available in the relatively narrow circumstances in which there is a fairly clear-cut case of fraud and the claimant seeks disclosure of confidential documents (usually) from the defendant’s bank to support a proprietary claim to trace assets.

Scott Nodder