From: Enrichment - Restitution & Unjust Enrichment Legal Issues <ENRICHMENT@LISTS.MCGILL.CA> on behalf of Andrew Dickinson <0000040138809280-dmarc-request@LISTS.MCGILL.CA>

Sent: Wednesday 27 August 2025 16:56

To: ENRICHMENT@LISTS.MCGILL.CA

Subject: Re: [RDG] Recent cases

If goodwill (associated with a business) can be protected by the tort of passing off and be classified within English law as property by reason of the identifiable right of protection attached to it, then it does not seem too far-fetched for a legal order to treat the association with a specific "entitlement" recognised within a cryptoasset network as deserving of similar protection and being treated as an "identifiable transferable right" allowing it to be fairly described as property, and/or to recognise and give effect to the right recognised in foreign law. Just to be clear, I am not saying that English law already has, or should, accord this treatment, but that the analogy of goodwill is helpful in understanding how we might conceive of the "legitimate expectation" that comes with participation in a cryptoasset network by association with a specifically identified "entitlement" (which could be in the nature of a claim right, but need not have that character).

As it seems to me, the UK legislature could abolish or choose not to recognise any (domestic) right to a cryptoasset, as it can abolish or choose not to recognise any (domestic) right to any other species of property (cf Somerset's case).

The following passage from the judgment of Lord MacNaghten in Muller, attempting (in my view, impressively) to capture the essence of goodwill as a thing existing in law, is worth noting:

"It is a thing very easy to describe, very difficult to define. It is the benefit and advantage of the good name, reputation, and connection of a business. It is the attractive force which brings in custom. It is the one thing which distinguishes an old-established business from a new business at its first start. The goodwill of a business must emanate from a particular centre or source. However widely extended or diffused its influence may be, goodwill is worth nothing unless it has power of attraction sufficient to bring customers home to the source from which it emanates. Goodwill is composed of a variety of elements. It differs in its composition in different trades and in different businesses in the same trade. One element may preponderate here and another element there. To analyze goodwill and split it up into its component parts, to pare it down as the Commissioners desire to do until nothing is left but a dry residuum ingrained in the actual place where the business is carried on while everything else is in the air, seems to me to be as useful for practical purposes as it would be to resolve the human body into the various substances of which it is said to be composed. The goodwill of a business is one whole, and in a case like this it must be dealt with as such."

So, by analogy, cryptoassets cannot exist without the network, as the source of the "legitimate expectation" to be associated that I have referred to in my writing on the conflict of laws aspects. Without the network, and the protocols/code that underpin it, there is nothing to speak of. With the "attractive force" of those factual phenomena, there may be something that the law is willing to protect and to which it will give recognition.

That is as far as I have been willing to go so far.

From: Robert Stevens <robert.stevens@law.ox.ac.uk>
Sent: Wednesday, August 27, 2025 16:28
To: ENRICHMENT@LISTS.MCGILL.CA <ENRICHMENT@LISTS.MCGILL.CA>; Andrew Dickinson <andrew.dickinson@stcatz.ox.ac.uk>
Subject: Re: Recent cases

As Lord Macnaughton said in IRC v Muller, "[a man] may vindicate his exclusive right to [goodwill] if necessary by process of law." [1901] AC 217, 223. This is done through the tort of passing off. If you buy a business with its goodwill, you acquire the goodwill, and can then sue anyone if they pass off their business as yours.

With goodwill, we have an identifiable transferable right. So, it is patrimonial property.

The problem with crypto is that it isn't like goodwill. Where is the right (or privilege, or power, or immunity) associated with it? The problem is starkly obvious in the conflict of laws: which specific right is it being claimed is being governed by which law?

Could the UK legislature abolish crypto, as it could abolish the (domestic) right to goodwill? What does the fact that it couldn't tell us?

If crypto does attract a right (or privilege, or power, or immunity) then it is patrimonial property, even if judges say it isn't. Conversely, if it doesn't, then it isn't patrimonial property however loudly or frequently judges say it is.

From: Enrichment - Restitution & Unjust Enrichment Legal Issues <ENRICHMENT@LISTS.MCGILL.CA> on behalf of Andrew Dickinson <0000040138809280-dmarc-request@LISTS.MCGILL.CA>
Sent: Wednesday, August 27, 2025 15:08
To: ENRICHMENT@LISTS.MCGILL.CA <ENRICHMENT@LISTS.MCGILL.CA>
Subject: Re: [RDG] Recent cases

Goodwill has always seemed to me to provide a potentially valuable analogy, at least in the sphere of the conflict of laws (see IRC v Muller [1901] AC 217; Dickinson, ch 5 in Fox and Green (eds), Cryptocurrencies in Public and Private Law (OUP, 2019), [5.106]ff; Tulip Trading Ltd v Bitcoin Association For BSV & Ors [2022] EWHC 667 (Ch), [144]-[145]).

Although difficult to define in Hohfeldian terms, it attracts legal protection and represents more than a mere factual expectation of future benefit.

Best wishes

Andrew

From: Enrichment - Restitution & Unjust Enrichment Legal Issues <ENRICHMENT@LISTS.MCGILL.CA> on behalf of Matthew Hoyle <MHoyle@OECLAW.CO.UK>
Sent: Wednesday, August 27, 2025 14:27
To: ENRICHMENT@LISTS.MCGILL.CA <ENRICHMENT@LISTS.MCGILL.CA>
Subject: Re: [RDG] Recent cases

Counsel fees are an odd example. Although its often said they constituted a gentleman s obligation , the reality is more complex than that. Certainly by the 20^th century, payment was a professional obligation for a solicitor and non-payment of fees was regarded as professional misconduct.

I m not sufficiently familiar with the history to say for certain that this was always the case, but as things presently stand fees still have important juristic effects. An unwillingness to assume liability for fees by a solicitor means the barrister is not subject to the cab rank rule (Code of Conduct, rC30.7.a). A failure to pay fees is a recognised ground for returning instructions unilaterally (rC26.5), and a solicitor who fails to pay can be listed on the Bar Council s List of Defaulting Solicitors (which in turn is a further group disapplying the cab rank rule from any instructions they offer: gC91).

In Scotland, I believe that a system similar to the old English one still obtains, and (although some on the list will know better than I) advocates will generally refuse instructions from solicitors whom the Faculty has listed as defaulting on payment.

So the payment of fees, even if not directly enforceable, had/has important juristic consequences for both parties.

Matthew Hoyle

Barrister

One Essex Court

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From: Enrichment - Restitution & Unjust Enrichment Legal Issues <ENRICHMENT@LISTS.MCGILL.CA> On Behalf Of Kelvin F.K. Low
Sent: 27 August 2025 13:09
To: ENRICHMENT@LISTS.MCGILL.CA
Subject: Re: [RDG] Recent cases

On D'Aloia, Timothy Chan and I have a comment in the LMCLQ. On the subject of 'property', this is what we say in reply:

"Three cases supposedly mandate the recognition of a third category of personal property absent any Hohfeldian legal relationship whatsoever provided there is a clear and well founded expectation. First, unenforceable contractual rights in Ex parte Huggins; In re Huggins. Secondly, barrister s outstanding fees, which under the old regime created no debt at all, in Gwinnutt v George. However, although neither creditor in Ex parte Huggins or Gwinnutt v George could bring actions against their debtors , a natural obligation nevertheless exists in both cases which creates a legal relationship. While there may be no Hohfeldian claim right in either case, both cases involved Hohfeldian privileges as both creditors would be immune to recovery of any sums paid on the basis of unjust enrichment even if they could not bring an action to recover said sums.

This leaves the difficult case of Attorney-General of Hong Kong v Nai-Keung, in which export quotas for textiles were held by the Privy Council to be other intangible property under the Hong Kong Theft Ordinance 1970. According to D Aloia, the quotas similarly entailed no rights but merely an expectation that a corresponding licence would be granted. But surely a mere expectation would not suffice otherwise spes successionis would also be property. What distinguishes the export quotas in Nai-Keung from mere spes are public law rights conferred upon holders of the former to challenge any wrongful denial of licences. These are, without doubt, a form of Hohfeldian relation."

A preprint of the case comment is available on SSRN: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=5033278.

Kelvin

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From: Enrichment - Restitution & Unjust Enrichment Legal Issues <ENRICHMENT@LISTS.MCGILL.CA> on behalf of Lionel Smith <lionel.smith@MCGILL.CA>
Sent: Wednesday, August 27, 2025 7:33:51 PM
To: ENRICHMENT@LISTS.MCGILL.CA <ENRICHMENT@LISTS.MCGILL.CA>
Subject: [RDG] Recent cases

Some interesting effects of the decision in Byers can be seen in Humphrey v Bennett [2025] EWHC 448 (Ch), a long-running saga. This episode concerns some contentious amendments to the pleadings. There is some interesting discussion of s 29 of the LRA 2002, of want of authority as a ground of unjust enrichment liability, and of pleading issues. Since it is all about amendments, though, nothing is really resolved as a matter of law

On the crypto front, the lengthy judgment in D Aloia v Persons Unknown [2024] EWHC 2342 (Ch); [2025] 1 WLR 821 may be of interest. This jumped out at me personally:

[5] USDT attract property rights under English law. It is neither a chose in action nor a chose in possession, but rather a distinct form of property not premised on an underlying legal right. It can be the subject of tracing and can constitute trust property in the same way as other property.

The discussion of the nature of property ([104]-[173]) includes some interesting cases and a great deal of academic commentary, and concludes in part ([173]): I have concluded that: as a matter of existing English case law an expectation can suffice for the foundation of property rights even in the absence of a legal relationship

Lionel

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