Class representative BSV Claims Ltd’s (BCL) claims against a group of cryptocurrency exchanges, for losses allegedly caused by the anticompetitive de-listing of the Bitcoin Satoshi Vision (BSV) cryptocurrency faced a setback in July 2024 when the Competition Appeal Tribunal ruled that significant parts of the claim by value could not be pursued. On 21 May 2025, the Court of Appeal dismissed an appeal of these conclusions by BCL.

Background

In April 2019, Bittylicious, Kraken, Shapeshift and Binance (the Defendants) made a series of tweets and other public announcements declaring their intention to delist BSV and calling on other exchanges to do the same. The Defendants terminated the trading of BSV on their exchanges between April and June 2019.

In 2022, BCL issued a claim on behalf of all UK residents who held BSV coins on 11 April 2019. BCL alleged that the Defendants had infringed competition law by colluding to de-list BSV. It claimed the anticompetitive agreement between the exchanges had (i) caused a crash in the price of BSV, and (ii) prevented BSV from developing into, or caused it to lose the chance to develop into, a “top-tier” cryptocurrency with a value similar to Bitcoin or Bitcoin Cash (the Foregone Growth Effect).

BCL claimed the effects of this alleged anti-competitive conduct differed as between three different sub-classes of claimant:

• For Sub-Class A, who sold their BSV coins at de-listing, BCL claimed the fall in value of BSV allegedly caused by the Defendants’ conduct from £55 on 11 April 2019 to £39 on 18 April 2019;
• For Sub-Class B, who retained their BSV, BCL claimed the lost actual value of their BSV coins (as for Sub-Class A) and the value they would have attained according to the Foregone Growth Effect; and
• For Sub-Class C, who lost access to their BSV coins, BCL claimed the entire value of £55 per coin.

Before the Tribunal, Binance applied for large parts (by value) of the claim to be struck out, arguing that, under the market mitigation rule, Sub-Class B ought to have mitigated their losses by selling their BSV coins and purchasing substitutes on the open market; any loss caused by the retention of BSV coins after the de-listing event was a result of the claimants’ own investment choices and was irrecoverable in law. 

Further, Binance argued that the “loss of a chance” claim was legally unworkable. The loss of a chance doctrine only applies where the lost chance depends on the particular actions that would have been taken by a specified third party. That would not be the case here, where what would have happened to the value of BSV coins was a question of the market in general.

Although the Tribunal decided not to strike out the Sub-Class B claim on the basis of the market mitigation rule, it decided that these claims would only work if it could be shown that members of Sub-Class B reasonably remained unaware of the de-listing (and so could not be expected to sell their BSV coins and purchase alternative assets). The loss of a chance claim, however, should be struck out because it could not work in law. BCL appealed both of these conclusions.

For more details on the background to this claim and the Tribunal’s decision, read our article.

What did the Court of Appeal say?

Sir Geoffrey Vos, Master of the Rolls, gave the Court of Appeal’s unanimous judgment dismissing the appeal. He noted at the outset of the judgment that Sub-Class B’s claim was valued at approximately £9bn, yet the actual value of their BSV holdings on 11 April 2019 was £25.5m. Sir Geoffrey stated that counsel for BCL had been unable to answer his question as to how it could claim hundreds of times more than the value of the assets. Nonetheless, BCL proceeded to argue that the Tribunal should not have limited the claims as it did.

BCL said that the application of the market mitigation rule ought to be fully explored at trial. It wished to have the opportunity to argue that BSV was a unique cryptocurrency without a suitable substitute, and that it was therefore reasonable for Sub-Class B to keep their BSV coins after the de-listing event rather than trade them for alternative assets. 

The Court of Appeal said this argument was flawed, and BCL’s own case meant it would be unable to resist the application of the market mitigation rule in this way. To plead its claim for the Foregone Growth Effect, BCL had used other cryptocurrencies, namely Bitcoin and Bitcoin Cash, as benchmarks for the increases in value BSV could have achieved. On BCL’s own case, therefore, there was an available market for substitute cryptocurrency investments. Any Sub-Class B member who knew of the delisting event could have decided to sell their BSV coins and purchase one of those cryptocurrencies instead. 

Moreover, cryptocurrencies are volatile investments like shares, derivatives and other tradeable financial instruments. It would be “unthinkable” for the holders of tradable shares to be able to make claims of this nature. It was equally untenable for the holders of cryptocurrencies to be able to do so. The claimants had an investment decision to take as to whether to retain their BSV coins, just as the holders of shares must. An investor may choose to retain the asset, but that is their decision, and what then happens to the value of the asset is for their account. 

The Tribunal’s reasoning on the loss of a chance claim was also found to have been correct. BCL’s claim was that BSV would have had the chance to increase significantly in value if the Defendants had not behaved as they did. But that argument does not suggest BSV’s value depended on the hypothetical decisions or actions of any particular third party, which is what the loss of a chance doctrine requires. 

As a more fundamental point, the Court of Appeal also said that Sub-Class B could not claim loss of a chance because that would depend on it having been reasonable for them to continue to hold their BSV coins after the delisting event, which it was not. In effect, they had chosen to take a chance on BSV still becoming a top-tier cryptocurrency, when instead they ought to have mitigated their losses. This point had already been decided in relation to the market mitigation rule, and the loss of a chance doctrine could not provide any opportunity to revive it.

Comment

The Court of Appeal’s judgment was brief, running to just 45 substantive paragraphs, which may indicate that it had little difficulty in dismissing BCL’s arguments on appeal. 

That Sir Geoffrey Vos MR gave the Court’s judgment is interesting, given his well-known interest in English law’s ability to deal with issues relating to crypto assets. Sir Geoffrey’s indication that, when applying the market mitigation rule, cryptocurrencies can be treated like other tradable financial instruments, is noteworthy. This bolsters the existing view that English law is well-equipped to deal with new technologies, and quite capable of applying established rules to new asset classes. 

Sir Geoffrey raised a further criticism of the way BCL had pleaded its case. While it is typical for Tribunal claims to be pled by reference to expert evidence, in this case that approach had led BCL to plead its claim for damages in terms of an “immediate and persistent effect” and the “foregone growth effect”, which the judgment considered were not legal terms, but rather the constructions of the expert. The Court of Appeal commented that it would have been easier for the courts to deal with the issues if the pleadings had been framed in the more usual manner, with loss or damage to the assets pleaded as a loss or reduction in their value, with consequential losses if relevant. This is a reminder that courts expect parties to translate their expert’s views into orthodox legal concepts when preparing pleadings.

Notwithstanding all of this, the claim remains certified and able to proceed, albeit on a limited basis. If it does go to trial, it will be interesting to see how the Tribunal deals with some of the claim’s relatively novel substantive elements, including the idea of collusion between competitors being effected via public tweets, and whether a boycott of an asset, as opposed to a competitor, can be anticompetitive “by object”.