Marcus Bagnall Hamuzah Mawanda January 20 2023 UK Court of Appeal to decide whether existence of fiduciary or tortious duties owed by blockchain developers to owners of digital assets held on such networks is "serious issue to be tried" Wiggin LLP | Tech, Data, Telecoms & Media - United Kingdom Marcus Bagnall, Hamuzah Mawanda Tech, Data, Telecoms & Media FactsDecisionCommentTulip Trading v Wladimir van der Laan & Ors was heard in December 2022 before the UK Court of Appeal (COA). The COA must now decide if the High Court in Tulip Trading v Bitcoin Association & Ors (25 March 2022) (the High Court case) was correct in holding that there is "no serious issue to be tried" regarding whether Bitcoin's software developers owe a duty to Tulip Trading Limited (TTL) to assist in recovering bitcoins that were stolen in a computer hack.FactsTTL is a company based in Seychelles. Its chief executive officer, Dr Craig Wright, claims to be "Satoshi Nakamoto", the pseudonymous creator of Bitcoin. Wright discovered that his computers had been hacked, which resulted in over £3 billion of Bitcoin going missing. TTL claimed it owned such digital assets and sought assistance from the Bitcoin network and its developers.Although the COA's decision is not expected until later this year, it is worth highlighting this critical case as it is the first time an English senior court will address the issue of whether software developers behind blockchain networks owe duties to those who own digital assets on such networks.Decision High Court caseIn the High Court case, Falk J dismissed the claim that the developers owed a fiduciary duty to TTL, noting that the developers could not "realistically owe continuing obligations to . . . remain as developers and make future updates whenever it might be in the interests of owners to do so". Falk J further held that as Bitcoin developers are essentially a fluctuating body of individuals, to impose "a duty of care of the nature sought . . . cannot realistically be argued to be fair, just and reasonable".Falk J also dismissed the claim that the Bitcoin developers had failed to make appropriate changes to the network that would have allowed TTL to regain control and access to their stolen Bitcoin, as this would have changed "how the networks work, and were intended to work, rather than to address a known defect". TTL should have instead protected itself against its private keys being stolen by keeping copies in different places or by being insured. If, however, TTL had established an issue to be tried, England would have been the appropriate forum (for further details please see "Law Commission launches new project to investigate how private international law rules apply to digital assets").Appeal to COAIn granting TTL permission to appeal the High Court case, Lady Justice Andrews stated that Falk J "fell into error in deciding that there was not even a serious issue to be tried and in the approach she adopted".Before the COA, TTL argued that, as this case involved developing complex areas of law, a summary High Court determination was inappropriate, considering that digital assets (whether held by financial institutions or individuals) are susceptible to hacks much like the one TTL suffered. TTL had a legitimate expectation that the Bitcoin developers would act in their best interest regarding the Bitcoin software protocol, as this code governed TTL's access to and control of their digital assets. On the other hand, the defendants argued that imposing such duties would be untenably wide and would be owed to "an unlimited class of persons, in an unlimited set of circumstances". Further, the defendants argued that "there is no special and coherent reason to impose and establish such duties", which, if owed to such a broad class of users, would risk competing multi-jurisdictional ownership claims for the same digital assets.CommentThe COA will now consider whether "there is a serious issue to be tried". If the appeal is granted, the case will be sent back to the High Court to determine whether the Bitcoin developers owe fiduciary or tortious duties to TTL.In the balance of probabilities are not just the rights of the parties involved but also the potential implications for tokenholders and developers across the entire crypto industry. If the UK courts find that developers owe fiduciary or tortious duties to digital asset owners, blockchain developers could be compelled to assist digital asset owners in regaining control and access to their assets. This would have significant implications for the industry and lead to changes in how developers approach the design and maintenance of blockchain networks.The outcome of this case will clarify the legal responsibilities of blockchain network developers towards digital asset owners, which is a crucial step in the ongoing development of the crypto and blockchain industry.For further information on this topic please contact Marcus Bagnall or Hamuzah Mawanda at Wiggin by telephone (+44 20 7612 9612) or email ([email protected] or [email protected]). The Wiggin website can be accessed at www.wiggin.co.uk.