How judges, one decision at a time, engineered the common law for digital assets
1) The question that wouldn’t fit the old boxes (2018–2019)
Nineteenth‑century categories—things in possession and things in action—were never going to map neatly onto strings of code. The first English judges to be asked for urgent relief over Bitcoin and other tokens therefore had to decide whether these assets were “property” at all—because nothing follows (freezing orders, proprietary injunctions, tracing, trusts) unless that premise holds.
Birss J signalled early pragmatism in Vorotyntseva v Money‑4 Ltd (t/a Nebeus.com) [2018] EWHC 2596 (Ch), granting a freezing order over Bitcoin and Ether. He treated the assets as amenable to the court’s protective jurisdiction even before a fully reasoned “property” analysis had been articulated. The conceptual foundation arrived a year later. In AA v Persons Unknown [2019] EWHC 3556 (Comm), Bryan J held that “cryptoassets such as Bitcoin are property” for the purposes of a proprietary injunction, expressly drawing on the UK Jurisdiction Taskforce’s 2019 Legal Statement. That pairing—the court’s reasoning and the UKJT’s analysis—became the hinge on which English private law swung toward digital assets.
What changed?
Judges accepted that intangibles recorded on a distributed ledger could satisfy the Ainsworth indicia (definable, identifiable by third parties, capable of assumption, and sufficiently permanent). That single step unlocked the whole equitable toolkit.
2) Conflict‑of‑laws and the “where” of a weightless asset (2020–2021)
Once cryptoassets were treated as property, claimants needed to know where that property sits for jurisdiction and governing law.
In Ion Science Ltd v Persons Unknown (Commercial Court, 21 Dec 2020, unreported), Butcher J accepted—at an urgent ex parte hearing—the now‑influential view that the lex situs of a cryptoasset is the owner’s domicile. That pragmatic connecting factor guided service‑out applications and choice‑of‑law analysis across subsequent cases. HHJ Pelling QC (as he then was) extended the court’s reach in Fetch.ai Ltd v Persons Unknown [2021] EWHC 2254 (Comm), combining proprietary injunctions, a worldwide freezing order, and Bankers Trust / Norwich Pharmacal relief against Binance entities and unnamed wrongdoers. The message: exchanges are part of the remedial pathway, even when the fraud runs through anonymised wallets.
What changed?
The Commercial Court made the conflict rules workable for crypto claims and showed a willingness to compel information from intermediaries to make tracing real, not aspirational.
3) Procedure bends to the blockchain (2022–2023)
Two adjacent innovations—service by NFT and a new service‑out gateway—turned emergency relief into recoveries.
Service by NFT. In D’Aloia v Persons Unknown [2022] EWHC 1723 (Ch), Trower J permitted service by air‑dropping an NFT into the defendants’ wallets (alongside email). In Osbourne v Persons Unknown [2023] EWHC 39 (KB), the High Court went further: NFT service alone was enough on the facts. Both decisions recognise that identity‑light defendants can still be notified at the locus of control—the wallet. The disclosure gateway (PD 6B, para 3.1(25)). Effective 1 October 2022, a new gateway allowed claimants to serve out information‑order applications (Norwich Pharmacal / Bankers Trust) on non‑party intermediaries abroad. Butcher J made first use of it in LMN v Bitflyer Holdings Inc [2022] EWHC 2954 (Comm), compelling KYC and account data from multiple overseas exchanges.
What changed?
Anonymity and cross‑border custody stopped being show‑stoppers. English courts stitched together practical routes: notify the wallet; compel the exchange; follow the money.
4) Equity adapts: constructive trusts and delivery‑up against exchanges (2022)
Judges then used equitable principle to attach consequences to custody.
In Jones v Persons Unknown & Huobi Global Ltd [2022] EWHC 2543 (Comm), Nigel Cooper KC (sitting as a DHCJ) granted summary judgment for delivery‑up of ~89.6 BTC. The court accepted that the exchange controlling the destination wallet stood as a constructive trustee for the victim—so it had to return the coins. That is equity doing what it does best: imposing duties that reflect the reality of control.
What changed?
Exchanges learned that passive custody after a notified fraud can crystallise proprietary exposure—and that “we’re just a platform” won’t always wash.
5) Duties at the code‑layer? The Tulip debate (2022–2025)
Could core developers owe fiduciary duties to owners of assets on the networks they maintain?
Falk J said no at first instance (Tulip Trading Ltd v Bitcoin Association for BSV [2022] EWHC 667 (Ch)). The Court of Appeal—Birss LJ giving the lead judgment—held the contrary was arguable and should go to trial: on some fact patterns, developers might owe duties to implement a patch to restore a claimant’s access. The point remains fact‑sensitive, but the door is open. A separate but influential backdrop is COPA v Wright (2024): Mellor J found Dr Craig Wright not to be Satoshi Nakamoto, heavily criticising fabricated evidence. Beyond its IP ramifications, that judgment emphasised the court’s intolerance for speculative crypto litigation untethered to proof.
What changed?
Appellate guidance reframed developers as potential fiduciaries in exceptional circumstances, while trial courts signalled a hard line on evidence and credibility in crypto disputes.
6) Consumer law meets clickwrap: Payward (Kraken) v Chechetkin (2023)
Crypto disputes are not only about fraud. In Payward Inc v Chechetkin [2023] EWHC 1780 (Comm), the Commercial Court refused to enforce a US arbitral award against a UK consumer because doing so would contravene UK public policy and the Consumer Rights Act 2015. Arbitration clauses and foreign governing‑law terms in exchange T&Cs are not bullet‑proof.
What changed?
Platform boilerplate yielded to mandatory consumer protections: exchanges face substantive English‑law scrutiny when dealing with UK users.
7) Enforcement architecture: Parliament arms the courts (2023–2025)
Judicial innovation was matched by statute. The Economic Crime and Corporate Transparency Act 2023 (ECCTA) amended POCA 2002 to create a crypto‑specific civil recovery framework:
Chapter 3C–3F (Part 5 POCA): seizure, crypto‑wallet freezing (including exchange‑hosted wallets), forfeiture, and even conversion to cash to manage volatility risks. Home Office circulars in April 2024 explain operation and scope; legislation.gov.uk sets out the text. Government factsheets emphasise speed: enabling law enforcement and courts to restrain, realise or destroy illicit cryptoassets efficiently.
In parallel, structural reform is proceeding on property classification. The Law Commission’s 2023 Final Report recommended recognising a “third” category of personal property for digital assets, and in 2024–2025 the Government introduced the Property (Digital Assets etc) Bill (via the Law Commission special procedure) to confirm that digital assets can be property without being things in possession or action.
What changed?
Crypto moved from judicial improvisation to a codified enforcement stack—freezing, seizing, forfeiting—while the conceptual status of digital assets is being statutorily crystallised.
8) Maturing practice: judgments against the unknown; enforcing foreign crypto judgments (2024–2025)
In Mooij v Persons Unknown [2024] EWHC 814 (Comm), the High Court granted summary judgment (money and proprietary relief) against unidentified defendants, emphasising that proper alternative service and cogent tracing can justify final relief despite anonymity. In Tai Mo Shan Ltd v Persons Unknown [2024] EWHC 1514 (Comm), Pelling J took a practical approach to enforcing a US crypto‑fraud judgment in England, including permission to serve by NFT and out of the jurisdiction—another example of courts aligning procedure with the technology and transnational reality.
What changed?
Courts now treat service, identity and borders as solvable logistics, not fatal defects—provided claimants marshal the evidence and use the new gateways.
Judge‑by‑judge threads
Birss J / LJ: from early freezing over crypto (Vorotyntseva) to the Court of Appeal’s Tulip judgment keeping developer duties arguable—the same judge’s arc mirrors the system’s move from emergency pragmatism to principled, appellate‑level analysis. Bryan J: the AA property holding: the keystone that allowed proprietary remedies, tracing and trusts to operate across crypto. Butcher J: operationalised disclosure and service out in LMN v Bitflyer, making the PD 6B 3.1(25) gateway a living tool for victims. Trower J and KB judges in D’Aloia / Osbourne: normalised NFT service, proving procedure can inhabit the blockchain when defendants do. Nigel Cooper KC (DHCJ): in Jones, treated exchanges as constructive trustees where they control misdirected assets—showing equity’s flexibility with novel custody. Mellor J: in COPA v Wright, re‑anchored the crypto docket in evidential rigour, a salutary counterweight to speculative narratives.
A concise chronology (selected waypoints)
2018 – Vorotyntseva (Birss J): early freezing orders over BTC/ETH. 2019 – UKJT Legal Statement; AA v Persons Unknown (Bryan J): cryptoassets are property. 2020 – Ion Science (Butcher J): good arguable case that lex situs = owner’s domicile. 2021 – Fetch.ai (HHJ Pelling QC): proprietary/freezing + Norwich Pharmacal/Bankers Trust against exchanges. 2022 – D’Aloia (Trower J): service by NFT permitted. 2022 – Jones (DHCJ Cooper KC): constructive trust and delivery‑up against an exchange. Nov 2022 – PD 6B 3.1(25) (“disclosure gateway”) comes into force; LMN v Bitflyer first use. 2023 – Osbourne (KB): NFT‑only service approved. Court of Appeal in Tulip: developer duties arguable. 2023 – Payward v Chechetkin: US award refused on public policy / CRA 2015 grounds. 2023 – ECCTA receives Royal Assent; crypto seizure/freezing/forfeiture powers added to POCA. 2024 – Home Office circulars activate crypto confiscation/forfeiture and wallet freezing architecture. 2024 – Tai Mo Shan: enforcement of a US crypto judgment; NFT and service‑out orders granted. 2024 – COPA v Wright: Wright not Satoshi; robust credibility findings. 2024–2025 – Property (Digital Assets etc) Bill progresses to confirm digital assets’ proprietary status in statute. 2024–2025 – Mooij: summary judgment against persons unknown in a crypto fraud claim.
The doctrinal arc—what the judges built
Property status secured From AA onward, English law recognises cryptoassets as property, unlocking proprietary injunctions, tracing, constructive trusts and enforcement on insolvency and succession. The UKJT statement provided persuasive scaffolding; the courts supplied binding reasons. Equity’s remedies applied to code‑based assets Constructive trusts, Bankers Trust and Norwich Pharmacal orders migrated smoothly to crypto, particularly where exchanges hold KYC material or exercise wallet control. LMN shows disclosure can be compelled across borders using the PD 6B gateway. Procedure adapted to anonymity and globalisation Service by NFT (first alongside, then in place of email) recognises that a wallet is a service address in all but name. Courts now routinely grant service out and alternative service where the assets, defendants, and documents are dispersed. Duties and control are the live frontiers Tulip keeps alive the possibility that those who control code used to maintain asset registries might, in exceptional cases, owe owner‑facing duties. That remains a trial question, but it reframes arguments about control vs. title for key‑loss or hack scenarios. Enforcement became systemic, not heroic With ECCTA 2023 and the Home Office 2024 circulars, officers and courts can freeze wallets, seize, convert volatile tokens to cash, and forfeit assets within a purpose‑built statutory scheme—mirroring the success of account‑freezing orders for fiat.
Practitioner’s toolkit (2025 edition)
Anchors for jurisdiction: domicile‑based lex situs (Ion Science) + damage in England pleading; combine with PD 6B 3.1(25) to reach foreign exchanges. Asset control theory: Where an exchange controls a wallet linked to misappropriated coins, argue constructive trusteeship and seek delivery‑up (Jones). Service: If identities and addresses are unknown, propose NFT service (with a link to a document depository) and/or email/IM; explain how the defendants are likely to access the wallet. Osbourne shows NFT‑only service can be enough on the facts. Parallel state powers: Where criminality is clear or suspected, consider POCA routes (crypto‑wallet freezing, seizure, forfeiture) to complement civil recovery—especially where dissipation risk is acute. Consumer overlay: For exchange‑user disputes, assess CRA 2015 and public‑policy defences; Payward v Chechetkin shows foreign awards and governing‑law clauses can be refused.
What remains genuinely unsettled?
Developers’ duties: The scope and trigger (if any) for fiduciary or tortious obligations at the code layer await trial‑level findings post‑Tulip. Choice‑of‑law for proprietary effects: Lex situs by domicile is widely used but not definitively fixed by appellate authority; further guidance (or legislation) may harmonise conflict‑rules as cross‑border enforcement expands. Custody models: As staking, cross‑chain bridges and smart‑contract vaults proliferate, expect arguments about who really has control—and therefore who bears trust or restitutionary obligations—to become more technical and fact‑dense.
The through‑line: common law in motion
Read chronologically, this is a characteristically English story. Judges began with small, humane steps (freeze what might vanish; treat the asset as property to stop a wrong), then articulated general principles, and finally refashioned procedure to fit a borderless, pseudonymous market. Parliament followed with enforcement architecture. The result by late 2025 is a jurisdiction where a claimant can: (i) locate the asset (jurisdictionally), (ii) serve the wrongdoer (even in a wallet), (iii) compel the intermediary, (iv) recover the asset (or its cash), and (v) enforce—all within a coherent legal frame.
It is not that crypto was made to fit the law; rather the law was made to work for cryptoassets—faithful to principle, flexible in practice.
Sources (selected, with links embedded by citation)
Property status & foundations: AA v Persons Unknown (Comm, 2019); UKJT Legal Statement (2019).
Freezing & early injunctions: Vorotyntseva v Money‑4 (2018).
Lex situs & conflicts: Ion Science (2020, unreported); commentary.
Disclosure gateway & cross‑border orders: LMN v Bitflyer (2022); PD 6B 3.1(25).
Service by NFT: D’Aloia (2022); Osbourne (2023).
Constructive trust/delivery‑up against exchange: Jones v Persons Unknown & Huobi (2022).
Developers’ duties: Tulip Trading (CA 2023).
Consumer protection & arbitration: Payward v Chechetkin (2023).
Enforcement regime: ECCTA 2023; Home Office 2024 circulars on crypto confiscation/forfeiture and wallet‑freezing.
Maturing practice: Mooij v Persons Unknown (2024); Tai Mo Shan (2024).
Public law backdrop to evidence and credibility: COPA v Wright (2024).
“MARK‑ML” stylistic coda
If you are teaching or writing, frame this field as a sequence of judicial moves:
Name the asset (AA). Find the forum (Ion Science). Reach the data (PD 6B 3.1(25); LMN). Notify the wallet (D’Aloia/Osbourne). Make the exchange hold the ring (Jones). Keep developer duties on the table (Tulip). Use the state’s levers when needed (ECCTA/POCA). Don’t blink on proof (COPA v Wright).
That is the narrative spine English judges have written—case by case, judge by judge—turning digital puzzles into legal answers.
