In the recent High Court case of Mooij v Persons Unknown [2024] EWHC 814 (Comm), the claimant brought a bitcoin fraud claim against multiple defendants, including the first and second "persons unknown" defendants (D1 and D2) who were described as being the fraudsters and beneficiaries of the fraud respectively. Mr Mooij sought summary judgment and continuation of freezing orders against D1 and D2 on the basis that they had not responded to the claim.

During the course of submissions, the court’s attention was drawn to the decision in Boonyaem v Persons Unknown and others [2023] EWHC 3180 (Comm) which appeared to be authority for the proposition that the court should not grant summary judgment for any non-proprietary relief where the identity of "persons unknown" remained unknown at the time of the application for judgment.

Boonyaem was a broadly similar type of case to that of Mooij, where the first two "persons unknown" defendants were the wrongdoers and beneficiaries of the wrongdoing — although Mrs Boonyaem claimed to have been defrauded of her investment in what were described as tether tokens or "USDT" which saw the digital tokens "pegged" to the US dollar, rather than in bitcoin. A worldwide freezing injunction had been granted by the court in that case, on both proprietary and non-proprietary bases, and an order for substituted service on the unknown defendants had been made. However, the court refused to grant summary judgment or continue the injunctions against the unidentified fraudsters, drawing a distinction between granting interim relief and final judgment where there was no "identifiable person against whom judgment can properly be given".

In Mooij, the court also considered the case of Cameron v Liverpool Victoria Insurance Co Ltd [2019] UKSC 6, which had been relied on in Boonyaem, and concluded that the difficulty identified in that case with "persons unknown" who were anonymous and could not be identified was that it was not possible to establish jurisdiction over them because they could not be served. However, in the case before the court, alternative service on D1 and D2 had been ordered by way of non-fungible token airdrop into the target wallet and by filing the relevant documents at court.

In declining to follow Boonyaem, HHJ Russen KC found that, as jurisdiction was established by the alternative service directed by the court, the court had jurisdiction to grant final judgments. The judge acknowledged that unless and until the "persons unknown" defendants could be identified, this may provide a practical problem for enforcement, but this was not considered to be a reason for the court not to exercise its jurisdiction to grant judgment. The judge went on to conclude that as D1 and D2 had not resisted the case brought against them by Mr Mooij, they had no real prospects of successfully defending the claim and that summary judgment should therefore follow.

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