Gary Jones v Persons Unknown

A non-party is directly affected for the purposes of CPR r 40.9 where an order is prima facie capable of materially and adversely affecting a legally recognised interest. The interest need not be proprietary. Contractual rights may suffice, and an applicant need show material prejudice to its rights rather than their complete loss.

Once the gateway is met, the court must exercise its discretion consistently with the overriding objective. Where an order was obtained on a false factual basis and directly caused substantial loss to an innocent non-party, compelling countervailing delay or prejudice is required to justify allowing it to stand. The relevant merits question is whether the original order was justified, not whether the non-party can independently recover the transferred assets from the claimant.

Gary Jones obtained summary judgment after cryptocurrency fraud. The order required Huobi Global Ltd to transfer Bitcoin from the tHEL wallet to him. Huobi complied by transferring 98.2 Bitcoin to Mr Jones and debiting the same amount from Kyrrex Ltd's account associated with that wallet.

Kyrrex, which had not been joined to the proceedings, obtained expert evidence that none of Mr Jones's Bitcoin had reached the tHEL wallet. It applied under CPR r 40.9 to set aside the order. The High Court dismissed the application, holding that Kyrrex was not directly affected and that discretion would in any event have been exercised against it: [2025] EWHC 1823 (Comm).

The central questions were whether Kyrrex had standing as a person directly affected, and whether delay or other prejudice justified preserving an order made on an incorrect tracing basis.

1. Appeal allowed unanimously. Kyrrex was directly affected by the order within CPR r 40.9. The rule is not confined to proprietary interests. It extends to any legally recognised interest that is prima facie capable of being materially and adversely affected directly by the order. Kyrrex's contractual right, if that was the nature of its entitlement, to withdraw the Bitcoin credited to its account was sufficient.

2. The effect was direct. The order required Huobi to take 98.2 Bitcoin from the tHEL wallet. The evidence showed that the wallet was associated exclusively with Kyrrex's account and was primarily used by Kyrrex. It was foreseeable, if not probable, that Huobi would debit Kyrrex when complying. Alternatively, the order necessarily reduced the fixed and identifiable class of persons interested in the wallet, and Kyrrex was one of those who bore that loss.

3. The judge had addressed the wrong merits question. The issue was not whether Kyrrex could establish a restitutionary claim against Mr Jones. It was whether there was a realistic prospect that the original order should not have been made. The unchallenged expert evidence showed a compelling case that Mr Jones's Bitcoin had never reached the tHEL wallet and that the order had been obtained on a false basis.

4. Kyrrex had not acted with sufficient promptness, but its delay was not gross. The possible prejudice to Mr Jones did not begin to outweigh the substantial injustice of allowing an apparently insupportable order to remain in force.

5. The court set aside the relevant parts of the summary-judgment order under CPR r 40.9. It declined to order immediate repayment to Kyrrex or to the wallet because the rights of Kyrrex, Mr Jones, Huobi and HTX remained unresolved. The parties were to seek agreement, or make written submissions, on security for the Bitcoin pending any further claim.

In obiter observations, the court expressed serious doubt about requiring costs fixed in sterling to be discharged in Bitcoin. Cryptocurrency is property, but treating it as money for this purpose would be novel and required full argument.

• Court of Appeal (Civil Division): Allowed Kyrrex's appeal and set aside the relevant parts of the summary-judgment order under CPR r 40.9: [2026] EWCA Civ 1212 .
• High Court, London Circuit Commercial Court: Dismissed Kyrrex's CPR r 40.9 application, holding that it was not directly affected and that relief would in any event have been refused: [2025] EWHC 1823 (Comm) .
• High Court, Commercial Court: Granted Mr Jones summary judgment and ordered delivery up of Bitcoin from the tHEL wallet: [2022] EWHC 2543 (Comm).