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You are here: BAILII >> Databases >> England and Wales High Court (Commercial Court) Decisions >> Mooij v Persons Unknown [2024] EWHC 814 (Comm) (14 February 2024) URL: https://www.bailii.org/ew/cases/EWHC/Comm/2024/814.html Cite as: [2024] WLR 3800, [2024] WLR(D) 170, [2024] EWHC 814 (Comm), [2024] 1 WLR 3800 |
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Neutral Citation Number: [
2024]
EWHC
814
(
Comm)
No. CC-2023-BRS-000015
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS
IN BRISTOL
CIRCUIT
COMMERCIAL
COURT
2 Redcliff Street
Bristol BS1 6GR
Wednesday 14 February
2024
Before:
HIS HONOUR JUDGE RUSSEN KC
(Sitting as a High Court Judge)
BETWEEN:
- - - - - - - - - - - - - - - - - - - - -
JOHANNES NICOLAAS LAMBERTUS MOOIJ
Claimant
- and -
(1) PERSONS UNKNOWN
(being the individuals or companies who obtained access to the Applicant's BTC
between about 21 March 2023 and 31 May 2023 and carried out the transactions on or
about the same dates as a result of which the cryptocurrencies held in those accounts
were transferred to other accounts ("Transferred Assets"))
(2) PERSONS UNKNOWN
(Being the individuals or companies who own or control the accounts into which the
Transferred Assets were transferred other than purchasers for full value)
(3) PERSONS UNKNOWN
(Being the individuals or companies who are innocent receivers who have no
reasonable grounds for thinking that what has appeared in their account belongs to the
Applicant/Claimant)
(4) THE OWNER OF, CONTROLLER AND/OR THE PERSONS CURRENTLY IN
CONTROL OF THE RIGHTS AND ASSETS THAT WERE THE PROPERTY OF
HUOBI GLOBAL LIMITED (a company registered in the Seychelles)
(5) BINANCE HOLDINGS LIMITED
(a company registered in the Cayman Islands)
(6) MEGAMARKETS TRADING LIMITED
(a company registered in England and Wales, Company No. 13842907)
(7) NEW HUO TECHNOLOGY HOLDINGS LIMITED, TRADING AS NEW HUO
TECH (a company registered in the British Virgin Islands)
(8) HUOBI TECHNOLOGY EUROPE LTD
(a company registered in England and Wales, Company No. 11378832)
(9) HUOBIPAY (a company registered in Lithuania)
(10) HUOBI INTERNATIONAL PTE.LTD (a company registered in Singapore)
(11) BRTUOMI WORLDWIDE LIMITED (a company registered in the BVI)
Defendants
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
A P P E A R A N C E S
MR A. MAGUIRE (instructed by HCR Legal LLP) appeared on behalf of the Claimant.
THE DEFENDANTS did not appear and were not represented.
- - - - - - - - - - - - - - - - - - - - -
HTML VERSION OF JUDGMENT
Crown Copyright ©
HHJ RUSSEN KC:
2024,
made by Mr Johannes Mooij against the first defendant, described as "Persons Unknown", and ten other defendants; although against two of those defendants, defendants 5 and 6, the claim has since been discontinued.
Commercial
Court.
Commercial
Court and the judgment given by him (in fact also on 14 December 2023) in a broadly similar type of case.
EWHC
3180 (
Comm).
The case did not concern bitcoin but instead what were described as Tether tokens or "USDT" (or, as third formulation, the type of cryptocurrency usually referred to as "stablecoin") which in that case saw the digital tokens "pegged" to the US dollar. The claimant in that case claimed to have been defrauded of her investment in the USDT. Her claim was also supported by expert forensic evidence which showed that the USDT in which she had invested had been transferred from her Bitkub Thailand wallet to wallets under the control of the defendants. A worldwide freezing injunction had been granted, on both proprietary and non-proprietary bases, and an order for substituted service on the first two defendants by various means (which included transferring a non-fungible token to the relevant wallet addresses) had been made by Bryan J. There was also a third defendant, INGFX Limited, which was registered in the UK, been served in the conventional manner and against whom Bryan J had also granted the freezing injunction. None of the defendants had acknowledged service in the time permitted. The claimant's application before the Mr Salter KC was for summary judgment on her proprietary claim in respect of the traceable proceeds. As in the present case, the defendants did not appear and were not represented at the hearing before him.
2024]
2 WLR 45, the judge in Boonyaem, at [30], observed:
"The procedural law of England and Wales recognises that, in certain circumstances, proceedings may becommenced,
(and an injunction may be granted) against 'persons unknown'. For this purpose, the law divides 'persons unknown' into three categories. The first comprises defendants, such as most hit and run drivers, who are not only anonymous but who cannot even be identified. It is not possible to bring proceedings against such persons as unidentified parties, because it is not possible in principle "to locate or
communicate
with [them] and to know without further inquiry whether [they are] the same as the person[s] described in the claim form". The second category comprises individuals or entities who identifiable, but whose names are not known, as such squatters in a property. Persons in this group can properly be sued as 'persons unknown', provided only that it is possible to bring the proceedings effectively to their attention e.g. by one of the methods of alternative service. The third category (which is not relevant for the purposes of the present proceedings) comprises 'newcomers', i.e. those who are not identifiable as parties to the proceedings at the time when an order is made, but whom it is sought to bind by that order."
And his footnoted reference there, at the end, was to the very recent decision of the Supreme Court in Wolverhampton CC v London Gypsies and Travellers.
"Broadly speaking, the persons whom the claimant seeks to sue I this case as 'Persons Unknown Category A' are SC----"
So that was the alleged fraudster with whom the claimant had
communicated
"-- and those who are said to have participated with SC in the fraudulent scheme perpetrated on the claimant. The difficulty is that the claimant does not know who those persons are. She never met SC and conducted all of her relevant exchanges either online or by telephone."
And I might interpose there that that is broadly the position in relation to the defendants 1 and 2 in the case before me.
"This, however, is not an application for interim relief but for final judgment. The disclosure order made by Bryan J has produced no useful results. It has not assisted in identifying the persons who perpetrated the fraud on the claimant. In the circumstances, 'Persons Unknown Category A' does not describe any identifiable person against whom judgment can properly be given. The persons presently sued as the first defendants in this case fall into the first of the categories of 'persons unknown' identified in paragraph 30 above. Like hit and run drivers, they cannot properly be sued to judgment unless and until they can be identified. The fact that they perpetrated the fraud on the claimant is not, of itself, a sufficient identification. As Lord Sumption noted in Cameron v Liverpool Victoria Insurance Co Ltd [2019] UKSC 6; [2019] 1 WLR 1471:
" One does not identify an unknown person simply by referring to something that he has done in the past The impossibility of service in such a case is due not just to the fact that the defendant cannot be found but to the fact that it is not known who the defendant is. The problem is conceptual and not just practical "
I am therefore presently not prepared to give final judgment against the first defendants as 'Persons Unknown'."
Commercial
Court in London, before its transfer to Bristol, made provision for effecting service on the first and second defendants, and indeed all the other defendants. HHJ Pelling KC was careful, with Mr Maguire no doubt presenting to him the submissions on a jurisdictional peg for service overseas and the means for alternative service upon them, to direct, at paragraph 7 of his directions order of 14 December 2023, the means by which service would be effected. So far as defendants 1 and 2 are concerned, there having been provision for serving other defendants by their respective email addresses, he said that service in relation to them and the other defendants should be by NFT (i.e non-fungible token) airdrop into the target wallet and, additionally, by filing the relevant documents at court. That last method of alternative service was one adopted by Bryan J in another case to which Mr Maguire has directed my attention: AA v Persons Unknown [2019]
EWHC
(
Comm)
3556; [2020] 4 WLR 35, at paragraph [75]. The order of 14 December
2024 specified the period for filing an acknowledgment of service by the defendants to be 31 days. Unsurprisingly, there was no suggestion or contemplation that the substituted service would only be effective if it was later acknowledged by a self-identifying defendant. Such a direction would be perverse in signalling to a presently unidentified defendant that the best way to evade the court's jurisdiction would be to ignore it. It would make a nonsense of ordering substituted service in the first place.
" that proceedings should be brought to the notice of person against whom damages are sought (unless, exceptionally, service can be dispensed with), so that he or she has an opportunity to be heard; that service is the means by which that is effected; and that, in circumstances in which service of the amended claim on the substituted defendant would be impossible (even alternative service being tantamount to no service at all), the judge had accordingly been right to refuse permission to amend."
" .. As this court explained in Abela v Baadarani [2013] 1 WLR 2043, para. 37, service has a number of purposes, but the most important is to ensure that the contents of the document served come to the attention of the defendant. Whether they have done so is a question of fact. If the focus is on whether service can in practice be effected, as we think it should be, then it is unnecessary to carry out the preliminary exercise of classifying cases as falling into either the first or the second of Lord Sumption's categories."
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