Owners of digital assets too often have fallen victim to thefts and scams, and then are left struggling to find ways to recover what was taken from them.  In recent months, the English courts have seen a flurry of rulings in such litigations, particularly when it comes to issuing injunctive relief, as injured plaintiffs explore various tactics for making themselves whole.  These rulings are helping to write a playbook about which litigation approaches and tactics may be successful for such digital asset holders and which may not.

A Fiduciary Duty to Patch Code?

A ruling of the England and Wales Court of Appeal issued on February 3, 2023 addressed the question of “whether the developers who look after bitcoin may arguably owe fiduciary duties or duties in tort to an owner of that cryptocurrency.”  Tulip Trading Ltd. v. van der Laan, [2023] EWCA Civ 83 (Feb. 3, 2023).  Reversing an earlier ruling of the High Court which had rejected any possibility of such a claim, the Court of Appeal held that the facts presented raised at least a triable issue whether those developers might owe fiduciary or tort duties to bitcoin owners.

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