Eversheds Sutherland lawyers Daire O’Herlihy and Melanie Ardiff have examined the position on the recovery of crypto assets in cases of fraud.

In a briefing note, the lawyers point to a significant resurgence in the crypto-currency market with Bitcoin's value reaching an all-time high.

Legal challenges

The lawyers write that the loss of crypto assets can lead to complex legal challenges, because the recovery process is not straightforward.

Legal frameworks are often ill-equipped to handle the intricacies of blockchain technology and the decentralised internet.

But they write that legal precedents are being set as courts adapt traditional legal remedies to the ‘on-chain’ environment.

Proprietary injunctions, freezing orders, and relief against ‘persons unknown’ are legal strategies used to tackle crypto-related crimes.

Swift action

The recovery of lost or stolen crypto assets requires swift and strategic legal action.

A Mareva injunction can often be a potentially critical move to freeze the crypto assets, preventing their dissipation.

The process involves solid evidence that there is a real risk of asset dissipation.

The injunction will follow tracing of stolen assets using blockchain forensics tools.

Freezing

Recent cases in Britain, such as AA v Persons Unknown, have set precedents that treat crypto-currencies as property, and allow for proprietary freezing injunctions and disclosure orders.

These legal tools have been instrumental in aiding the recovery of assets in international crypto-currency fraud cases, even when the perpetrators' identities remain concealed.

This sets a precedent for legal status of Bitcoin, in that it could be classified as property for injunctive orders.

However, the global nature of crypto-currency means that further orders must be sought outside Britain.

Shift

The Eversheds lawyers write that recent cases collectively signal a shift that the legal system is becoming more adept at handling the intricacies of crypto-currency and digital assets.

The proactive stance of the England and Wales judiciary in these matters reflects a broader trend towards the modernisation of legal processes and the recognition of the evolving nature of property and ownership in the digital age, they conclude.

However, there is limited case law in this jurisdiction, and it is not yet clear how Irish courts will handle the issues presented by crypto assets.