Crypto-Assets As Property: Cayman Litigators' Tools To Assist In Their Tracing And Recovery

Adopting the analysis of the United Kingdom Jurisdictional Task Force ('UKJT") on the proprietary status of crypto currencies, a recent decision of the English High Court, AA v Persons Unknown,1 has found that crypto assets such as Bitcoin are "property" and therefore capable of being the subject of a proprietary injunction or freezing order. This finding will be of interest to anybody using Bitcoin as a form of payment or to carry value.

Coming to this conclusion, the court considered that crypto assets meet the four criteria of the classic definition of property set out by Lord Wilberforce 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.2

Importantly for litigators in the crypto space, this decision supports the view as expressed by the UKJT3 that the common law is capable of stretching traditional definitions and concepts to adapt to new business practices and that, notwithstanding the traditional definition of property in English law which recognises no forms of property other than choses in possession and choses in action, there appears to be no conceptual difficulty in treating intangible things as property even if they may not be choses in action.4 Effectively, the court approved the UKJT's view that crypto assets constitute a third kind of property.

Impact on Cayman?

Whilst a first instance...