or Alice and Bob’s Adventures in Cryptoland: understanding the basics of crypto – a roadmap for the uninitiated

As at October 2022, the time of writing this article, the market capital of Bitcoin is US$400 billion, down from a high of US$870 billion just last year. Despite the ravages of the crypto winter of 2021–22 the total cryptocurrency market (covering the circa 19,000 cryptocurrencies currently in existence) is still worth an estimated US$1 trillion. To put this into some perspective, this is circa one-tenth of the total value of all the world’s mined gold. This is an astonishing figure for an asset class which was only sketched out as a concept in 2008.

Given the rise of crypto it is unsurprising that financial remedy cases increasingly involve cryptoassets in one form or another – ranging from small holdings of cryptocurrency held exclusively on online platforms such as Binance or Coinbase, to the hobby purchase of non-fungible tokens (NFTs) (generally proving ownership of digital art of often questionable quality), to the prospect of vast and undisclosed sums held in ‘offline, cold-wallets’ for which the veil of anonymity inherent in the platform causes significant identification and tracing problems.

To many, this jargon-filled world still seems rather new and unfamiliar. Without a basic understanding of what these assets are, how they are created, how they are traded and how they are valued, one can be excused for feeling a little lost when dealing with a ‘cryptocase’. The hope is that this article will shed at least some light on these issues, together with a brief discussion of the legal problems that arise and matters that may be of particular relevance to financial remedy cases.

In parallel to this article, Sofia Thomas of Thomas Consulting is providing a blog post on the tax implications associated with holding crypto, a must read for anyone grappling with the gross and net value of such assets.1

What are cryptoassets?

There is no one single definition of ‘cryptoassets’ although the umbrella term is generally used to cover asset classes all linked by the following main features:

• the assets are intangible, existing only virtually;
• trades are recorded on a publicly distributed transaction ledger;
• cryptographic authentication is used to prove ownership;
• transactions are valid if deemed so by the majority; and
• transactions take place in the absence of any form of central control.

The rise of the cryptoasset has both interested and concerned governments. In March 2018, HM Treasury, the Financial Conduct Authority and the Bank of England were jointly tasked with creating a ‘Cryptoassets Taskforce’ to report on the cryptoasset market and its potential risks and rewards to the UK economy. The Taskforce reported in October 2018,2 identifying three broad classes of ‘cryptoassets’ then being traded, being exchange tokens (often referred to as ‘cryptocurrency’), security tokens (which prove ownership of a fractional stake in a larger asset, similar to a share or other form of equity) and utility tokens, which can be redeemed for a specific product or service (perhaps similar to a voucher for a specific retailer).

Advances in the market are such that there are already new classes of asset in addition to those identified by the Taskforce. There is the NFT, in respect of which US$41 billion was spent in 2021, mostly on digital artwork (or more accurately ‘bragging rights’ to claim ownership of a piece of artwork which can still be accessed, viewed, copied and printed out by anyone). The catalyst of the NFT rush was the sale in February 2021 of a collage of 5,000 pieces of artwork created by the artist Mike Winkelmann (known online as ‘Beeple’) by Christies for US$69.3 million.3

There is also now a burgeoning crypto financial services market (essentially peer-to-peer lending platforms) which use ‘smart-contracts’ to enforce agreements in an arena known as ‘decentralised finance’ (or ‘DeFi’ for those in the know).

Given the breadth of the term, the complexity of the market and the regular evolution of the technology, it is not possible here to provide a detailed explanation of all forms of cryptoassets. In order to try to achieve some focus, this article concentrates on the basics of the first of these, the exchange token (‘cryptocurrency’) and in particular Bitcoin, being the first and most well-known.

History – from ‘crypto’ to ‘cryptocurrency’

‘Crypto’

Being half of the portmanteau, cryptography deserves some exposition. Despite the bad pun in the main title of this article, it was the cryptographic breakthroughs of the 1970s, not the 1940s, that led us to the workings of cryptoassets. In brief, prior to the 1970s all codes (Enigma included) suffered from the same inherent flaw. To encode a message a master set of instructions (‘a key’) was required. That single encryption key explained both to the sender (in cryptographic convention, ‘Alice’) how to encode the message and, when applied in reverse, to the recipient (conventionally, ‘Bob’) how to decode the message. This traditional method of encryption is known as single-key (or ‘symmetric’) encryption. This created a constant problem for the codemakers – that single key needed to be shared between Alice and Bob in absolute secrecy. Often the weakness of the encryption lay not in the code itself but in the risk of the key being intercepted.

In the 1970s, this seemingly intractable problem was solved twice. First by GCHQ (but the work remained classified until 1997) and, secondly, by two American cryptographers, Whitfield Diffie and Martin Hellman. In 1976, Diffie and Hellman published a paper outlining a dual public/private key distribution technique,4 whereby Bob could provide a ‘public’ (i.e. non-secret) key to Alice to enable her to encrypt a message, but Bob would use a separate private (secret) key in order to decrypt it. Or to put it differently, the encryption works only one way. Once Alice has encrypted a message neither she, nor anyone else without the private key, can decrypt it again. In this way a message could be encoded entirely safely, Bob knowing that it was only his secret private key which could decode the message. This two-key encryption technique is known as ‘asymmetric’ encryption.

Asymmetric encryption provides one other extremely important benefit – the ability to mathematically authenticate a document. Anything encoded with Bob’s private key can be decoded with Bob’s corresponding public key. Therefore, if Alice successfully decodes a message using Bob’s public key, she can be sure that it must have been encoded (or ‘digitally signed’) by Bob, thus proving Bob’s authorship of the document. It is this technique of digital signatures that is utilised by Bitcoin.

Since the 1970s, other asymmetric encryption techniques have been created, including that used for Bitcoin (known as ECDSA5).

‘Currency’

On 31 October 2008, the presumably pseudonymous Satoshi Nakamoto6 published a white paper ‘Bitcoin: A Peer-to-Peer Electronic Cash system’https://www.ussc.gov/sites/default/files/pdf/training/annual-national-training-seminar/2018/Emerging_Tech_Bitcoin_Crypto.pdf]] proposing a new system of digital currency based on utilising private key digital signatures combined with a distributed public record.

The ground-breaking feature of Nakamoto’s proposal was to entirely dispense with the need for financial institutions or central authorities. All previous systems of electronic transactions require the transacting parties to repose trust in a financial institution to facilitate the transaction. That comes with cost, delay and the risk of fraud. In Nakamoto’s own words, ‘what is needed is an electronic payment system based on cryptographic proof instead of trust, allowing any two willing parties to transact directly with each other without need for a trusted third party’.

Nakamoto then proffered an elegant solution. The very brief summary is this: parties could replace trust in institutions with mathematical certainty and absolute transparency.

What was proposed was the creation of an electronic public ledger which relied on public-private key cryptography to mathematically verify all transactions. Transactions would be connected in a long chain with each transaction mathematically linked to the transaction prior. To create a transfer of a coin, a transferor would use their private key to ‘sign’ a mathematical combination of the prior transaction of that coin and the public key of the recipient. Any recipient could verify the signature using the transferor’s public key and thus verify the chain of ownership all the way to them. Transactions would then be collated together in blocks, time-stamped and cryptographically joined to the previous blocks (thus creating the ‘blockchain’) by way of a mathematically intensive puzzle. Completing the puzzle is known as a ‘proof of work’ and being involved in doing so is called ‘mining’. Computers that undertake mining are known as ‘nodes’. Mining is vital – as without time-stamping and validating there is no method to prevent fraud (i.e. double-spending the same coin). To incentivise mining, the successful miner receives brand-new minted Bitcoins by way of ‘block rewards’ and also transaction fees. Thus, mining additionally adds new currency to the pool.

Given the absence of any financial institution or centralised record keeping, Nakamoto believed that absolute transparency was required so all can see that the system is trustworthy and accurate. All transactions are therefore public. But transparency comes at the cost of privacy. The solution for Nakamoto is anonymity. Bitcoin addresses are entirely anonymous. Anyone can create a new address at any time. Per the white paper, ‘the public can see that someone is sending an amount to someone else, but without information linking the transaction to anyone’.

Having sketched out the basics in the white paper, in January 2009 Nakamoto published the open-source software and created the first block in the blockchain (‘the genesis block’). Perhaps to prove the date it was created or perhaps to make a political point, the genesis block contains the headline from The Times from 3 January 2009, ‘Chancellor on brink of second bailout for banks’.

The growth of Bitcoin, the rise of other cryptocurrencies and volatility

The almost mythological rise of Bitcoin is well known. At first, Bitcoin was exchanged and mined by a relatively small hobbyist community. On 22 May 2010, Laszlo Hanyecz became the first person to directly purchase products or services with Bitcoin and therefore has the honour of being the first person to spend Bitcoin. Hanyecz purchased two pizzas for the grand total of 10,000 Bitcoins. Those two pizzas would today be worth £178,000,000.

The increase in value of Bitcoin is, of course, due to the vast rate at which it has been adopted and traded. That same increase in value led many to jump on the mining bandwagon. Once the preserve of a few ‘bedroom miners’, now mining is largely associated with huge operations in vast data centres located in jurisdictions where electricity is cheap and regulations may be few. The popularity of Bitcoin is such that Bitcoin mining currently consumes approximately 160 terawatt hours of electricity per annum, more than that used by the entire country of Argentina.

It may not be a surprise therefore that other would-be currency creators have attempted to follow suit. Indeed, anyone at any time can create a cryptocurrency. Most are worth nothing, but some become popular for reasons that are utterly unpredictable. In December 2013, software engineers Billy Markus and Jackson Palmer created ‘Dogecoin’. The coin was intended as a joke (a ‘memecoin’), the name referencing an amusing picture of a Shiba Inu dog. At the time of writing, the market capital of Dogecoin is US$16 billion.7

By far the most popular coin (after Bitcoin) is Ethereum. Ethereum’s blockchain is radically different to Bitcoin. Ethereum allows more than just currency transactions. Ethereum’s blockchain includes financial instruments such as ‘smart contracts’ and NFTs for art and collectibles. Following the 15 September 2022 upgrade to Ethereum v2 (known as the ‘merge’), ‘proof of work’ mining has been replaced by ‘proof of stake’ mining, virtually eliminating mining’s very high energy consumption and the attendant detrimental impact on the environment.

Volatility

The vast increase in the value of crypto has come at a cost of spectacular volatility. On 1 April 2020, one Bitcoin was worth circa £6,000. On 1 April 2021, it was worth £41,000. On 1 April 2022, it was worth £35,000. At the time of writing, Bitcoins are currently trading at about £17,900. No doubt when you read this, the price will be radically different again.

This instability is found with nearly all cryptocurrencies. Attempts have been made to provide some stability and coins have been created which claim to be stable (‘stablecoins’). Stablecoins are notionally pegged to the value of an underlying asset – sometimes backed with collateral and sometimes not. But even stablecoins can come with significant risk. In May 2022, over the space of 4 days the price of TerraUSD (algorithmically linked to the value of the US dollar but not properly collateralised) fell from US$1 to US$0.03.

The volatility in the market is such that the value of a cryptocurrency portfolio may be radically different at the start of proceedings than at the end.

In addition, liquidity may be an issue if a party has a holding of a rather exotic cryptocurrency. While there are always likely to be purchasers of Bitcoin and Ethereum, a party may genuinely struggle to find a purchaser for ‘Useless Ethereum Tokens’ (UET)8 or ‘TrumpCoins’ (FREED).9

Given the risks (and conversely, the potential rewards), parties and the court should think carefully about how such assets are factored into the distribution exercise. Cryptoassets may be good candidates for in-specie Wells v Wells [2002] EWCA Civ 476, [2002] 2 FLR 97 sharing.

How is cryptocurrency purchased and held? Exchanges, wallets and wallet addresses

Exchanges

Since the age of the at-home Bitcoin miner has largely ended, most individuals now obtain their cryptocurrency by purchasing it from others in exchange for fiat (i.e. traditional) currency. For most, the only way to do so is by utilising the services of a cryptoexchange. Some of the best-known exchanges are Binance, Kraken, Gate.io, Coinbase and Bitstamp, but there are many others. To purchase crypto, fiat currency is sent to the exchange, an order is put in for the purchase of cryptocurrency and, assuming the order is filled, cryptocurrency is received.

Once crypto has been received, any balance is accessed via the use of a wallet (in this context essentially an account) held on that exchange. Keeping cryptofunds on an exchange is indeed akin to keeping funds in a bank account – the funds are held on the user’s behalf by the exchange. The user can spend the funds or withdraw them as they please, but the funds are ultimately controlled and held by the exchange – the exchange retains the private keys. The wallet is said to be ‘custodial’, the custodian being the exchange. Many people are content with managing their crypto in this manner.

However, there are risks inherent in keeping crypto on an exchange. If the exchange were to go out of business, the entire balance could be lost with no recourse to the Financial Services Compensation Scheme. This is not unprecedented, in July 2022 crypto trading and lending firms Celsius and Voyager Digital filed for bankruptcy leaving users with no access to funds. Further, exchanges have been known to have been hacked. By way of a very recent example, in October 2022 Binance was the victim of a hack, losing an estimated US$570m of which (at the time of writing) US$100m still remained unrecovered. Indeed, to date, an estimated circa 50 exchanges have been hacked losing an estimated total of over US$2.5 billion.

To avoid this possibility and to retain total (and anonymous) control over crypto, users can and do transfer their balances out of the exchanges and into non-custodial wallets solely controlled by the user.

Non-custodial wallets – hot and cold

A non-custodial wallet is any wallet address for which the private key is known only to the user. Public/private key pairs can be created for the user by online wallet providers, or by the user themselves using either software or well-known websites such as https://www.bitaddress.org.

However, having sole knowledge of the private key comes with its own risks. The private key is the only method by which a user can prove the right to deal with its associated cryptoassets. If the private key were lost, the user would be unable to sign transactions and thereby essentially ‘loses’ the funds (or at least has no access to them unless the private key is again located – with some people going to great lengths to find lost keys10). By some estimates, circa 10% to 15% of all Bitcoins have already been lost in this way. Similarly, if a private key were stolen, the thief would have unfettered ability to spend all the associated funds.

It is therefore extremely important to keep wallets safe. This creates a difficulty. In order to transact, the user needs to be connected to the internet. But keeping data online always comes with security risks. Therefore, it is not uncommon for users to have two types of wallet – one wallet connected to the internet for regular transactions, known as a ‘hot wallet’ and one wallet kept entirely offline for funds which are transacted infrequently, known as a ‘cold wallet’. A cold wallet could be no more than a simple piece of paper stored in a safe on which the keys are printed, or the use of more sophisticated encrypted hardware wallets (which often look like key fobs or USB memory sticks) which require codes or some form of two-factor authentication to access. Such devices can contain numerous pairs of keys for numerous different pots or for different currencies.

Public keys and privacy

The transparent nature of the blockchain means that knowledge of a public Bitcoin key (or the associated wallet address) allows oversight of all transactions conducted with the associated private key. This raises security and privacy concerns. Understandably, Alice may not wish Bob to be able to view all the transactions she has ever undertaken with her private key.

There have been several advances to deal with this concern. The two major ones are HD (also known as ‘seeded’) wallets and ‘privacy coins’.

HD wallets employ an algorithm which creates a brand-new public/private key pair for each individual transaction. These wallets use master key pairs (called ‘seed keys’ or ‘extended keys’) to create numerous (perhaps millions) of subkeys. Such wallets are called hierarchical deterministic (‘HD’ or ‘seeded’) wallets and can be used with many different coins including Bitcoin.

With HD wallets, privacy is retained because knowledge of the single-use public key only provides details of that single transaction. However, knowledge of the seed/extended public key would indeed provide overview of all transactions undertaken within the wallet by all of the keys derived from it. Therefore, when seeking disclosure of public keys, it is important to ensure that the extended public key for such a wallet is disclosed rather than just some of the individual sub-keys. Without the extended public key, it is impossible to have full oversight of the transaction history of that wallet.

The second advance was the creation of the ‘privacy coin’. These are different cryptocurrencies which have blockchains specifically designed to obfuscate the wallet address associated with any coin. There are numerous such coins, currently the most popular being Monero (XMR)11 and Zcash (ZEC).12 Privacy coins often use several techniques in combination to hide a wallet balance, including the use of encrypted one-time keys and transactions signed by numerous private keys, only one of which belongs to the actual sender (‘ring signatures’). As a result, it can be extremely difficult to obtain details of the balance of such holdings, although there are some companies that claim to be able to provide tracing services for such coins.

The legal status of cryptocurrency

Cryptocurrency as ‘property’?

The debate as to whether cryptoassets are property to which proprietary injunctions (or, indeed, property adjustment orders) can attach has now largely been put to bed. Given that a cryptoasset is no more than characters in a record, it was argued in some quarters that the inability to easily define cryptoassets as either a ‘chose in action’ or a ‘chose in possession’ should lead to the conclusion that cryptoassets are not property at all.

However, in November 2019 the UK Jurisdictional Taskforce (not to be confused with the previously mentioned joint ‘Cryptoasset Taskforce’), published a paper (‘Legal statement of cryptoassets and smart contracts’),13 in which they undertook a broad overview of the law and concluded instead that ‘cryptoassets possess all the characteristics of property’. The Taskforce’s view was that the asset class met all the characteristics of property as set out by Lord Wilberforce in National Provincial Bank v Ainsworth [1965] 1 AC 1175 (being definable, identifiable by third parties, capable in their nature of assumption by third parties, and having some degree of permanence or stability), and by the Court of Appeal in Fairstar Heavy Transport NV v Adkins & Anor [2013] EWCA Civ 886 (being ‘certainty, exclusivity, control and assignability’).

In AA v Persons Unknown [2019] EWHC 3556 (Comm), Bryan J adopted the view of the UK Jurisdictional Taskforce and held that Bitcoins were, indeed, property over which a proprietary injunction could be made.

AA v Persons Unknown was not the first case to treat cryptoassets as property (preservation orders over such assets had been made in at least two previous authorities: Vorotyntseva v Money-4 Limited t/a as Nebeus.com [2018] EWHC 2598 (Ch) and Liam David Robertson v Persons Unknown, CL-2019-000444 (15 July 2019, unreported)), but it was certainly the first cryptocase to be reported after the publication of the Taskforce report and certainly the first to examine the legal nature of cryptoassets in any detail.

AA has since been followed by Fetch.Ai Ltd & Anor v Persons Unknown [2021] EWHC 2254 (Comm), in which HHJ Pelling QC (sitting as a Judge of the High Court) granted a worldwide freezing order and a Norwich Pharmacal/disclosure orders against Binance Holdings Ltd and Binance Markets Ltd, again concluding that Bitcoins are, indeed, property.

Pelling J also cited and approved the decision in Ion Science Ltd v Persons Unknown & Ors (21 December 2020, unreported) (Commercial Court), in which Butcher J considered that the governing law (lex situs) of the cryptoasset was the place in which the person or company who owns it is domiciled.

Given the above conclusions, it is suggested that there is little doubt that the Family Court can make both property adjustment orders and proprietary injunctions in respect of cryptoassets.

Cryptocurrency as ‘currency’?

Although the legal status of cryptocurrency varies from jurisdiction to jurisdiction (ranging from outright bans in jurisdictions such as Egypt, to outright acceptance in El Salvador where Bitcoins are now legal tender), as far as the United Kingdom is concerned, while the holding of cryptocurrency is legal, it is not considered currency or money.

This reflects the stance of the Bank of England, the G20 Finance Ministers and the Central Bank Governors. The October 2018 report of the Cryptoassets Taskforce stated ‘while cryptoassets can be used as a means of exchange, they are not considered to be a currency or money’. HM Revenue & Customs has also adopted this view.14

Given that cryptoassets are not considered ‘currency’ by HM Revenue & Customs (albeit this does not appear to have been tested by the courts), it is suggested that the Family Court should not make either lump sum or periodical payments orders expressed as being payable in cryptocurrencies.

Cryptoassets – particular issues arising in financial remedy proceedings

Disclosure

Assuming possession of the appropriate public key (assuming extended public keys are held for HD wallets) and assuming the coin in question is not a ‘privacy coin’, any party wishing to examine historic wallet transactions can do so with relative ease. There are several websites (www.blockchain.com/explorer being one of the most well-known) which will display the full transaction history of any wallet address.

Therefore, knowledge of the public key is vital for full disclosure. It is suggested that anyone dealing with a cryptoasset case should ensure that they have requested the following:

• Full details of all cryptoassets held together with details of name, type of asset (i.e. cryptocurrency, NFT, smart contract, etc), size of holding and where held (including details of all exchanges or other commercial platforms on which such assets are held).
• For assets held on exchanges, commercial platforms or otherwise in custodial wallets: account numbers/wallet addresses with associated public keys for all such accounts (with extended public keys to be provided in respect of all HD wallets), together with detailed transaction statements for the period of 12 months prior to the date of Form E.
• For all cryptoassets held outside exchanges in non-custodial wallets: wallet addresses for all wallets held together with associated public keys (with extended public keys to be provided in respect of all HD wallets).

In most cases the above should provide enough information to enable completion of the computation exercise.

As for private keys, it is suggested that an order for their disclosure should only be made in very limited circumstances. Public keys are sufficient to provide full oversight of all transactions. It is much more difficult to understand why disclosure of a private key should be ordered when that provides no further assistance with the discovery exercise and hands unfettered control to anyone in possession of it. Furthermore, communicating the private key (an undertaking that goes entirely against all the core principles of private key cryptography) brings with it the risk that the information will be compromised and funds lost.

If full disclosure is not forthcoming, the anonymous nature of the blockchain can create real difficulties in finding assets. However, the one exception to the rigorously deregulated and anonymous world of the blockchain are the cryptoexchanges. At some point, individuals are likely to need to exchange fiat for crypto, or the reverse. Not only is the use of fiat currency likely to appear on the face of bank statements, but also many exchanges are in territories that require the use of ‘know your customer’ policies. Since January 2020, firms carrying on cryptoasset activity in the United Kingdom have had to comply with the Money Laundering, Terrorist Financing and Transfer of Funds (Information on the Payer) Regulations 2017 (SI 2017/692). Many other jurisdictions have similar provisions. As a result, third party disclosure applications against such exchanges could provide fruitful results. Of course, much will depend on the jurisdiction in which the exchange is based, and legal advice from that jurisdiction may be required.

The other starting point in any non-disclosure case must be to consider engaging the services of an appropriate expert. There are several companies that offer identification and tracing services of one sort or another, often using proprietary software to identify the quickly branching movement of funds out of a wallet and into or through other wallets. Discussions with such an expert are likely to be of fundamental importance and may well inform the forensic avenues that should be pursued. It was the use of such a forensic tracing company that allowed the anonymous claimant insurer in AA v Persons Unknown [2019] EWHC 3556 (Comm) to trace the funds stolen from their defrauded client to the Bitfinex exchange.

Freezing injunctions

Rather like disclosure, the efficacy of the freezing exercise may depend on whether the funds are held with an exchange against whom an order can be served, or in an anonymous non-custodial wallet. If funds are on an exchange based in a foreign jurisdiction, again advice may be required from that jurisdiction. If funds are held in a non-custodial wallet, all may depend on the willingness of the respondent to comply with any order the court makes. Parties may also want to consider whether there are any steps that can be taken to have the cryptofunds held securely pending final outcome. Cryptocurrency does not lend itself to being held in such a way (given that mere knowledge of the private key provides anyone unfettered ability to deal), but there are companies that offer escrow services. Care should, of course, be taken when using any such services given they may essentially become custodian wallet holders. Additionally, parties may wish to explore the use of moving funds into ‘multi-signature’ wallets, which require at least two private keys (one held by each party) to authorise any transaction.

Interim orders in crypto cases – forms of order

In an article for Family Law Week, Andrzej Bojarski and Byron James provide three suggested example orders that could be used when seeking freezing orders, disclosure orders or the instruction of an expert.15 The drafts are no more than a suggestion and they certainly do not form part of the compendium of standardised orders, but they do offer a good starting point for anyone seeking to freeze cryptoassets or seeking an order for specific disclosure. It should, of course, be noted that given the unusual nature of crypto and the vastly differing factual circumstances that can arise, care should be taken to obtain an order which achieves the required outcome but at the same time is sufficiently proportionate and limited in scope.

Final orders

Given the current view of HM Revenue & Customs that crypto is a capital asset and not a currency, it is suggested that cryptoassets are properly dealt with by way of property adjustment orders and not by way of lump sum or periodical payment orders.

However, before making any such order the court will need to consider the risk and liquidity profile of the asset. Given the volatility and high-risk profile, crypto may be apt for a Wells v Wells [2002] EWCA Civ 476, [2002] 2 FLR 97 sharing order. It is suggested any cash offsetting exercise should otherwise be taken with care. Given the Cornick v Cornick [1994] 2 FLR 530 line of authorities, parties should be made aware that even a radical change in value post-final hearing will very unlikely found an application for a Barder set-aside.

Conclusion

In a research note published in June 2021,16 the Financial Conduct Authority estimated that 2.3 million British adults (4.4% of the population) held cryptocurrency in some form or another. Given these numbers, it is likely that Forms E will refer to cryptoassets with increasing frequency. Certainly, anecdotal evidence appears to suggest that crypto is being raised by clients on a more regular basis.

This world of crypto can seem odd, if not surreal, to the uninitiated. There is something Carrollian about an economy where an incorporeal coin stamped with the face of a grinning dog can be worth US$9 billion or where a collage of pictures by an artist called ‘Beeple’ can be sold for US$69 million even though it can still be viewed by anyone on the Christies website.17 It should perhaps be noted in passing that the price paid for Beeple’s ‘the first 5000 days’ is just a shade under the price paid for van Gogh’s ‘Cabanes de bois parmi les oliviers et cyprès’ sold by the very same auction house in the very same year.18 Given Charles Dodgson’s fascination with ciphers and mathematical puzzles, often referenced in his poems,19 he no doubt would have found some wry satisfaction in all of this peculiarity.

However, at its heart, cryptoassets are just items of value. They can be held, valued and transferred just like any other asset. All that is needed to deal with them is a basic roadmap. Having trekked through this article, it is hoped that practitioners may feel that they now at least have some landmarks to assist.