Tulip Trading – Success on costs, permission to appeal refused, and embargo breached

On Friday 6th May, the leading group of defendants in Tulip Trading Ltd v Bitcoin Association for BSV & others, represented by James Ramsden QC, succeeded at the consequential hearing following their successful jurisdictional challenge in March ([2022] EWHC 667 (Ch)). They obtained the full extent of their agreed costs, and refusal of the claimant’s application for permission to appeal. The judge also found that Ontier, the Claimant’s solicitors, had breached the embargo on the draft judgment before it was handed down on 25th March 2022.

As to costs, the claimant had agreed to pay the majority of the relevant defendants’ costs, subject to their argument that such costs should be reduced and awarded on an “issues basis”. The judge rejected this argument, concluding that the Defendants were decisive winners, having defeated the claim in its entirety. The fact that England & Wales might have been the appropriate jurisdiction to pursue the claim if it had merit, did not justify an issues-based costs order or justify a departure from the usual rule that costs follow the event.

The judge refused permission to appeal to the Court of Appeal, observing that her decision was made on orthodox principles and appellate authority, she had taken full account of the complex and developing nature of the area, and it was inappropriate for her to grant permission to appeal on the “some other compelling reason” test as that was more apt for the Court of Appeal on any renewed application by the Claimant.

On the issue of embargo, a draft judgment on the jurisdictional challenge had been circulated in March, subject to the usual stipulation requiring the parties to preserve its confidentiality and take no action (other than internally) in response to the draft until its formal handing down. The judge considered and applied the recent Court of Appeal judgment in R (Counsel General for Wales) v Secretary of State for Business [2022] EWCA Civ 181. The judge considered that Ontier had breached this embargo due to certain steps it took with a different client during the embargo period. Whilst Falk J decided not to take further steps, such as ordering committal for contempt of court, the judge commented that Ontier, as an international law firm, should have been more circumspect and that breach of the embargo was always a serious matter.

Click here to access Falk J’s judgment.

The information provided in this article is of a general nature and does not constitute, nor should be relied on, as legal or professional advice.

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