In an important judgment of relevance to competition litigation and the digital assets market, on 21 May 2025, the Court of Appeal delivered its decision in BSV Claims Ltd v Bittylicious Ltd & Others [2025] EWCA Civ 661, dismissing an appeal brought by, BSV Claims Ltd, which sought billions in damages over alleged anti-competitive delisting practices by major crypto exchanges.
Background
The Proposed Class Representative ("PCR"), BSV Claims Ltd, brought opt-out collective proceedings under section 47B of the Competition Act 1998 (the "CA"), on behalf of approximately 243,000 UK based holders of the cryptocurrency Bitcoin Satoshi Vision ("BSV"). The claim alleged that several major cryptocurrency exchanges, including Binance Europe Services Limited ("Binance"), Kraken, Bittylicious Limited, and ShapeShift A.G, colluded between April and June 2019 to delist BSV in breach of Article 101 Treaty on the Functioning of the European Union and/or the Chapter I prohibition under section 2 of the CA, causing the value of a single BSV coin to fall from £55 (on 11 April 2019) to £39 (18 April 2019).
BSV, created in 2018, was promoted by Dr Craig Wright, who is notoriously known for claiming to be Satoshi Nakamoto, a claim that has now been discredited (see Crypto Open Patent Alliance v. Craig Steven Wright [2024] EWHC 1198 (Ch)). In light of the controversy over Dr Craig Wright's claims and following the announcement of their intention to delist, between 15 April and 5 June 2019, the defendants delisted BSV from their exchanges. Insofar as Binance was concerned, BSV holders were required to withdraw their holdings before 22 July 2019 absent which any remaining holdings were converted to another cryptocurrency.
The PCR were divided into three sub-classes:
- Sub-class A: circa 155,000 class members who sold some of their BSV before 29 July 2022 (i.e., when the proceedings were initiated).
- Sub-class B: circa 75,000 class members who retained BSV through to 29 July 2022.
- Sub-class C: circa 13,000 class members who lost access due to the exchanges' actions (e.g., forced conversions or account closures).
The appeal concerned sub-class B, whose claim was put forward on the basis of a theory termed a "foregone growth effect" — i.e., the defendants' anti-competitive conduct deprived the sub-class B holders of massive growth in the value of BSV, which would have occurred when it became a top-tier cryptocurrency akin to Bitcoin. The total claimed damages for this group alone exceeded £8.99 billion, amounting to over 350 times the pre-delisting value of sub-class B's BSV coins.
Binance applied to the Competition Appeal Tribunal ("CAT") to strike out this part of the claim (and/or for reverse summary judgment), contending that (i) such losses were irrecoverable in law under the market mitigation rule and, (ii) the alternative loss of a chance claim, (i.e., the chance being the possibility that BSV would have increased dramatically in value to become a top-tier cryptocurrency, like BTC) was defective in law, since it did not fall within the loss of a chance doctrine. Based on one of the grounds the PCR resisted the application – concerning the BSV holders' alleged lack of awareness of the relevant events – the Tribunal 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] [2024] CAT [48]. In light of this, the CAT declined to strike out or summarily dismiss the claims. However, it did reject the loss of a chance claim, holding that the doctrine was inapplicable [94] [2024] CAT [48].
The Appeal
The PCR appealed to the Court of Appeal on the basis that the Tribunal was (a) wrong to find that the market mitigation rule applied at all to the claim; and (b) wrong to strike-out the loss of a chance claim. Delivering the lead judgment, Sir Geoffrey Vos, with Lord Justice Males and Lord Justice Snowden concurring, dismissed the appeal on all grounds, ultimately finding that the arguments advanced by the PCR for sub-class B were flawed.
The Market Mitigation Rule
The core of the court's analysis rested on the long-established market mitigation rule explained in Aylwen v Taylor Joynson Garrett [2001] EWCA Civ 1171 and The Golden Victory [2007] 2 AC 353 at [79] as follows:
"Essentially it applies whenever there is an available market for whatever has been lost and its explanation is that the injured party should ordinarily go out into that market to make a substitute contract to mitigate (and generally thereby crystallise) his loss. Market prices move, both up and down. If the injured party delays unjustifiably in re-entering the market, he does so at his own risk: future speculation is to his account."
The court reaffirmed the principle namely that in respect of tradable assets like BSV, the sub-class B holders were expected to mitigate their loss by divesting in an available market once they become aware of the alleged wrongdoing. BSV (a) was "not a unique cryptocurrency without reasonably similar substitutes" [33]; and (b) by their nature cryptocurrencies are "volatile investments" and tradeable assets equivalent to shares, derivatives or other financial instruments and it would be "unthinkable" for holders of freely tradeable shares, whose value had been reduced by tortious conduct, to be able to claim more than the current value of those shares to compensate them for the prospect that their value might have substantially increased in the future [34]. Further, once the sub-class B holders became aware of the allegedly wrongful delisting event, they had a decision to make: either retain their BSV holdings or sell them and reinvest elsewhere and crystallise their loss. As Vos MR noted at [35]:
"...once the sub-class B holders knew of the delisting events, their investment decisions were nothing to do with the defendants... They had a duty to mitigate their losses and they cannot recover losses that they could reasonably have mitigated."
Loss of a Chance
Loss may be calculated on the basis of the lost chance of a benefit to the claimant, provided that the claimant can show that it had a real or substantial chance of obtaining that benefit. In those circumstances, the assessment of quantum is based on the evaluation of where in the range of probability the chance lay (see Allied Maples v. Simmons & Simmons [1995] 1 WLR 1602 at [1614D]). A loss of a chance analysis is appropriate where the chance that a particular course of events would have occurred was dependent on the hypothetical actions of third parties (Vasiliou v. HajiGeorgiou [2010] EWCA Civ 1475 per Patten LJ at [21]).
Here, it was argued that the sub-class B claim could proceed on a loss of a chance basis because the future value of BSV depended on the vagaries of third-party actions in relation to the market in BSV. That argument assumed that it was reasonable mitigation for the sub-class B holders to have retained their holdings once they became aware of the delisting events. Unsurprisingly, the court found that "it was not reasonable mitigation" of the damage to retain the damaged BSV in the "vain hope that they might become a top-tier cryptocurrency. The loss caused could and should have been crystallised as soon as it was known about" [38]. Accordingly, not only was the argument flawed, but it was also not applicable (in agreement with CAT).
Importance of Procedural Clarity
Whilst not determinative to the outcome, the court criticised the lack of a formal order from the CAT encapsulating its decision, noting that had one been made, the parties would have been able to address in a concise statement what the Tribunal had decided. While not required under the Competition Appeal Tribunal Rules 2015, the court recommended that the Tribunal provide an order in future complex decisions or whenever an appeal is in prospect.
Takeaways
The decision:
- Provides a dose of legal realism to crypto claims, affirming that established common law principles apply fully to digital asset disputes.
- Provides important guidance on the application of the market mitigation rule in collective proceedings involving tradable assets such as cryptocurrencies demonstrating that the courts are likely to apply orthodox loss and mitigation principles to crypto assets, treating them akin to shares or other tradable financial instruments.
- Places strict bounds on counterfactual damages models. Speculative valuation theories and damages model, particularly those relying on counterfactual market trajectories, may face judicial scepticism unless causally linked and grounded in plausible market analysis.
- Suggests that adopting the language of "loss of a chance" may not be effective unless the claim turns on true third-party contingencies.
- Reinforces the importance of procedural precision and clarity in collective proceedings, especially where an appealable decision is foreseeable.
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