Court of Appeal upholds established principles to reject novel claim for crypto growth losses

This article was first published in the August/September issue of Butterworths Journal of International Banking and Financial Law

In BSV Claims v Bittylicious [2025] EWCA Civ 661, the English Court of Appeal handed down a significant judgment on quantifying losses in cryptocurrency claims. In this In Practice article the authors summarise the decision and provide some practical takeaways.

BSV Claims Limited, acting as class representative, brought collective proceedings against several exchanges, alleging they had anti-competitively delisted the cryptocurrency BSV¹.

The representative’s expert identified two types of loss²: (i) the “immediate and persistent effect” (the immediate fall in BSV’s value allegedly caused by the delisting) and the “forgone growth effect” (the loss of the growth in BSV’s value (or alternatively the loss of a chance of growth in its value), which would have occurred when / if it became a “top-tier cryptocurrency”).

One exchange applied to strike out the claim brought on behalf of a sub-group of BSV holders (Sub-Class B) which was based solely on the forgone growth effect.

The Competition Appeal Tribunal: (i) held that if the relevant BSV holders were actually or constructively aware of the delisting events (which was a question for trial), then the ‘market mitigation rule’³ applied as there was an available market of substitutable cryptocurrency investments⁴ and (ii) struck out the loss of chance claim for Sub-Class B, on the basis that the market mitigation rule applied equally to that claim, and in the alternative the Sub-Class B losses did not rely on any feature that would render a loss of chance analysis appropriate⁵. As a result, claimants who were actually or constructively aware of the delisting could only claim for the immediate and persistent effect; the forgone growth effect was irrecoverable. The representative appealed.

The Court of Appeal considered whether the Tribunal: (i) was correct in applying the market mitigation rule; and (ii) was right to strike out the loss of a chance claim.

Decision

The appeal was dismissed.

On the market mitigation rule, the Court held that it was clear “that those Sub-Class B holders who knew...

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