BSV Claims Ltd v Bittylicious Ltd and others

The underlying claim is by the proposed class representative (PCR) of the UK-based holders of the cryptocurrency Bitcoin Satoshi Vision (BSV), which was delisted by the defendant cryptocurrency exchanges between April and June 2019. The most significant part of the PCR’s claim by quantum is for the so-called “Forgone Growth Effect”, seeking damages of up to £9 billion for the loss allegedly suffered by BSV having been prevented by the defendants’ conduct from becoming a major cryptocurrency or, alternatively, having lost the chance to become a major cryptocurrency.

Binance, a defendant, sought to strike out the PCR’s claim for the “Forgone Growth Effect”, arguing in short that the BSV holders should have mitigated their losses by selling their BSV and buying other cryptocurrencies instead, and that the PCR’s alternative claim based on loss of a chance did not fall within the scope of that doctrine.

The PCR resisted that application on four grounds (§48), of which three were rejected by the CAT. On the fourth – concerning the BSV holders’ alleged lack of awareness of the relevant events – the CAT held that “the evidence before us (just about) crosses the threshold” of showing “some BSV holders may reasonably have remained unaware of the delisting events throughout the relevant period” (§79, emphasis in original).

The CAT struck out the PCR’s alternative “loss of a chance” claim, holding that that doctrine was inapplicable to the PCR’s case (§94).

The CAT also indicated that it may be appropriate to order a preliminary issue to determine the extent to which the claim for the Forgone Growth Effect could be maintained as a matter of principle (§109).

Brian Kennelly KC and Jason Pobjoy acted for Binance.

The judgment can be found here.