A New Cryptocurrency Remedy Against Software Developers?

There has been an increase in claims relating to misappropriated cryptoassets in offshore jurisdictions. The Courts of the Cayman Islands, BVI and Bermuda are guided by the decisions of the Courts of England and Wales.

To date, a major problem with regard to the recovery of stolen cryptoassets is the fact that the perpetrators are often untraceable rendering traditional proprietary restitutionary remedies of limited use.

In Tulip Trading Limited v Van Der Lan & Others [2023] EWCA Civ 83, the Court of Appeal of England and Wales unanimously allowed Tulip's appeal and found that there was a serious issue to be tried in relation to Tulip's case that the law on fiduciaries should be significantly developed. The Court of Appeal found that software developers may have a duty to introduce code so that stolen bitcoin could be transferred to its rightful owner. This would potentially provide an alternative remedy to victims of cryptoasset theft