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Legal Remedies - Court Injunctions
Injunctions are a legal remedy that involves the Court providing a discretionary order requiring a party to do a specific act, or to refrain from doing a specific act. This type of remedy is becoming increasingly utilised where cryptocurrencies are involved.
An example of where this was used is the case of Toma v Murray EWHC 2295 (Ch). The claimants had sold bitcoin to an account that was controlled by the defendant, however the payment received was reversed leaving the claimant without the bitcoin and the payment. The claimant was concerned that this was an instance of fraud, and applied for an injunction against the defendant from using the bitcoin whilst pending final determination of their claim. This is just one example of how injunctions may be important for those dealing in cryptocurrency.
We have outlined the different types of injunctions below, as well as the legal tests used by the Court in determining whether these should be granted. These legal tests utilise certain methods in determining whether the application should be granted, and whilst they appear to be using simple terms (such as “good reason“), it is not quite so simple to establish – which is where we come in.
Urgent Ex-Parte ApplicationsAn urgent ex-parte application for an injunction which is made without notice to the intended respondents (the other party). This type of injunction is only granted by the Court where the Court believes that there are “good reasons” for not giving notice to the other party. “Good reasons” is determined by the Civil Procedure Rules under rule 25.3(1). An example of a “good reason” would be where giving the notice would defeat the very purpose for which the order is sought.
Proprietary InjunctionsThis is an interim order which identifies the claimant’s (your) right to property. This operates to freeze the property until such time as the order is lifer, or the claimant has been able to enforce judgement. The test for this includes:
- specifying the property ;
- establishing that there is a “good arguable case” (that a serious issue is to be tried) that the assets are the property of the claimant. This is a lower standard of proof than is needed at trial.
- the “balance of convenience” must be in favour of granting the injunction (which includes consideration of whether damages would be an adequate remedy); and
- it must be “just and convenient” to grant the injunction.
Worldwide freezing ordersThis an interim order designed to protect the Applicant against dissipation. It preserves the property, as well as all other assets worldwide, to the value of the claim. The test for this includes:
- Specifying the property;
- The Court must have jurisdiction over the defendant/ respondent;
- The Applicant must have a “good arguable case” on the merits;
- There must be a “real risk of dissipation”;
- In most cases, the Application must show there are assets which would be caught by the order; and
- It must be just and convenient to grant the injunction.
Third Party Disclosure Orders (Bankers Trust / Norwich Pharmacal Orders)An application for this type of injunction is made where the Applicant would like the intended respondent to provide information. The test for this information requires the following:
- There has to be good grounds to conclude the property ,in respect of which disclosure is sought, belongs to the claimant;
- There must be a real prospect that the information sought will lead to the location or preservation of such assets;
- The order should not be wider than necessary;
- The interests of the Applicant in getting an order have to be balanced against the detriment to the Respondent;
- The Applicant must provide undertakings only use the documents for the purpose specified, to pay the Respondent’s expenses of compliance and to compensate the respondent for loss if the order was wrongly granted.
“I am Spartacus” OrderThis colloquially named order is an ancillary order within the injunction for persons unknown to identify themselves and provide contact details. This application was made in PML V Persons Unknown EWHC 383 (QB). The jurisdictional basis is likely to be the power to make any ancillary order required to make the WFO/PI effective.
Need Advice?Whoever you are, an individual, company, multinational corporation or government agency, if you require advice or more information on locating and tracing cryptocurrency, legal advice regarding freezing/seizing of crypto assets or utilising crypto assets, wherever you live in the world, there are options available to you. It is worth picking up the phone and calling us or if you prefer send an email to firstname.lastname@example.org or call him directly on +44 7725 329437.
Contact us to discuss your requirements and how we can help