In Osbourne, the Claimant seeks relief against persons unknown who allegedly misappropriated two NFTs belonging to her. The two NFTs, entitled "Boss Beauties #680" ("BB#680") and "Boss Beauties #691" ("BB#691"), are said to be worth between £3,000 and £5,000, however their value to the Claimant exceeds their recognised financial value. In her application, the claimant continues to seek an injunction and orders for service out of the jurisdiction and by alternative means (in substance, an extension of the relief granted by Lavender J and HHJ Pelling).
To recap, the Claimant was granted an injunction restraining Persons Unknown Category A (and Mr Thembani Dube and Persons Unknown Category B) from dealing with or otherwise disposing of two NFTs removed from the Claimant's crypto wallet some months earlier. On 22 February 2023, Mr Healy-Pratt (sitting as a Deputy High Court Judge) issued his judgment; granting the extension and providing further comment on Lavender J's analysis of the applicable "gateways" and in particular the construction of gateway 15(a), specifically, which acts or events need to occur or be committed in England and Wales for the gateway to apply.
You can access our previous comment on Lavender J's judgment here.
Service out of the jurisdiction
Mr Healy-Pratt agreed with Lavender J that there is a serious issue to be tried between the Claimant and the Defendants and England and Wales is "clearly" the most appropriate forum.
However, when addressing the issue of whether there is a "good arguable case" that the claim falls within one of the "gateways" set out in sub-paragraph 3.1 of Practice Direction 6B, Lavender J conducted a "meticulous, considered and comprehensive review" of the construction of these gateways in his previous judgment. Whilst Mr Healy-Pratt accepted that:
- there is a strong arguable case the gateways at 15(a) may apply to the first defendant (who committed the alleged fraud); and
- gateway 15(c) may apply to the second and third defendant (allegedly holding the NFTs in constructive trust),
he agreed with Lavender J that there was a question as to the construction of gateway (15)(a). Specifically, the issue arises as to which acts or events need to occur or be committed in England and Wales for the gateway to apply. Lavender J refers to two interesting obiter authorities at paragraph 37 of his 13 January 2023 judgment. Without adding to Lavender J's analysis, Mr Healy-Pratt noted that this is an issue that may arise later in a fully argued and contested hearing. The High Court therefore continues to express some doubt that this gateway will apply to defendants who are not alleged to have removed the NFT, but come into possession of the assets for reasons unknown.
Service by an alternative means
Having agreed to extend the injunction, Mr Healy-Pratt followed the decision of Lavender J and concluded that the court may make an order permitting service by NFT airdrop, on the basis that the claimant was in possession of the email address of only one of the Defendants and had no available method of conventional service on the others.
Click here to access Mr Healy-Pratt's judgment.
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