Gary Jones v Persons Unknown & Ors (No.2)

Under CPR 40.9, a non-party must first show that a judgment or order directly affects an interest recognised by law. The court must then decide whether to set aside or vary the judgment in the exercise of its judgment, having regard to matters including the merits, delay and prejudice.

An indirect economic consequence of a third party’s independent decision to satisfy a judgment does not ordinarily make the non-party directly affected. The application should ordinarily disclose a real prospect of successfully defending the claim. Although CPR 40.9 contains no express promptness requirement, delay remains relevant through the overriding objective, particularly where it causes identifiable prejudice.

Gary Jones obtained summary judgment against persons unknown and Huobi Global Limited following a cryptocurrency fraud. The judgment required delivery of 89.616088 Bitcoin said to have been transferred into a specified Huobi wallet.

Kyrrex Limited, which used that wallet for deposits, later applied under CPR 40.9 to be joined, and to have the judgment set aside or varied. It contended that the judgment had been obtained on materially inaccurate information and that Huobi had replenished Bitcoin transferred to Jones by debiting assets associated with Kyrrex. Jones disputed both Kyrrex’s standing and the merits of its proposed claims, and relied on delay and prejudice.

The central questions were whether Kyrrex was directly affected by the judgment and whether the court should exercise its discretion to reopen it.

1. Application dismissed. Kyrrex was not a person directly affected by the judgment within CPR 40.9. The order targeted the specified wallet, but Huobi had not needed to use Bitcoin belonging to Kyrrex or its clients to satisfy the judgment. Any depletion resulted from Huobi’s subsequent choice to replenish its own funds. That was an indirect effect.
2. The expression directly affected requires a materially adverse effect on an interest capable of recognition by law. The broader approach adopted in protester cases, including Shell UK v Persons Unknown, did not necessarily apply with equal force to a case concerning essentially property rights.
3. The court also considered whether Kyrrex had a real prospect of successfully defending the claim. Its proposed proprietary, constructive trust, unjust enrichment and tracing arguments faced considerable difficulties, including the custodial nature of the relevant wallets and the absence of clearly identifiable Bitcoin.
4. Delay was a further reason to refuse relief. CPR 40.9 contains no express promptness requirement, but promptness remains relevant to the overriding objective. More than two years, or more than eighteen months after disclosure, was difficult to justify in a cryptocurrency case requiring a timely response. The demise of Huobi and the passage of time caused significant prejudice.
5. The misleading information placed before the judge who made the original order was accepted to have been innocent. It did not create an automatic right to set aside the judgment and had only limited weight in the discretionary balance. General criticism of litigation conduct was also of limited relevance.
6. Jones was awarded costs on the standard basis until noon on 21 May 2025 and on the indemnity basis thereafter. Permission to appeal was refused.

Not an appeal. The judgment describes the earlier summary judgment and related orders, but no appellate history is stated.