On December 13 2019, in the case of AA v Persons Unknown  EWHC 3556 (Comm), the UK Commercial Court granted an interim proprietary injunction over Bitcoin, thereby confirming its status as property.
English law traditionally recognises two classes of property:
- a thing in possession (i.e., anything tangible that can be possessed); and
- a thing in action (i.e., aright that can be legally enforced, such as a debt).
Bryan J noted that, prima facie this created a difficulty for Bitcoin and other cryptocurrencies in that they are not tangible, nor may ownership of Bitcoins create legally enforceable rights. In reaching his conclusion on this point, BryanJ accepted the analysis offered by the UK Jurisdictional Taskforce (“UKJT”) in its Legal Statement on Cryptoassets and Smart Contracts.
Essentially, the UKJT concluded that cryptocurrencies, including Bitcoin, can be treated as property because cryptocurrencies:
- are capable of ownership;
- are capable of definition and their owners can be identified;
- are as permanent as other financial assets and only exist until they are cancelled, redeemed, repaid or exercised;
- have stability, as ordinary assets are subject to deterioration, corruption and loss; and
- are not disqualified from being property due to their distinctive features, in that they are intangible, require cryptographic authentication, require the use of a distributed ledger, decentralised, ruled by consensus and so forth.
Drawing on the UKJT’s guidance, Bryan J noted that in some circumstances English law recognises personal property which does not strictly qualify as a thing in possession or a thing in action (e.g.,the Patents Act 1977 provides that a patent is a type of intangible property which does not qualify as a “thing in action”). On this basis, Bryan J concluded that cryptoassets such as Bitcoin can qualify as property.
The uncertainty surrounding the legal status of cryptocurrencies, particularly Bitcoin, has been regarded as a hurdle to their wider adoption. The Commercial Court’s decision therefore represents a significant step forward in surmounting this hurdle.
Source: Blockchain – Baker McKenzie