Ramona Ang v Reliantco Investments Ltd
| Jurisdiction | England & Wales |
| Judge | Mr Justice Andrew Baker |
| Judgment Date | 12 April 2019 |
| Neutral Citation | [2019] EWHC 879 (Comm) |
| Docket Number | Case No: CL-2018-000386 |
| Court | Queen's Bench Division (Commercial Court) |
| Date | 12 April 2019 |
[2019] EWHC 879 (Comm)
Mr Justice Andrew Baker
Case No: CL-2018-000386
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
QUEEN'S BENCH DIVISION
COMMERCIAL COURT
Royal Courts of Justice
Rolls Building, Fetter Lane, London EC4A 1NL
Prof. Jonathan Harris QC (hon.), Zahler Bryan and Greg Callus (instructed by SCA Ontier LLP) for the Claimant
Matthew Bradley and Ian McDonald (instructed by Cooke, Young & Keidan LLP) for the Defendant
Hearing dates: 18, 21 February 2019
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Introduction
The defendant (‘Reliantco’) is a company incorporated in Cyprus offering financial products and services through an online trading platform under the ‘UFX’ trade name. The claimant, Ms Ang, is an individual of substantial means who invested in Bitcoin futures, on a leveraged basis, through the UFX platform. She claims, essentially and primarily, that Reliantco wrongfully blocked and terminated her UFX account and should compensate her for the loss of her open Bitcoin positions, or at a minimum should refund her cash value invested. She also makes claims for relief in respect of what she says have been breaches of data protection obligations owed by Reliantco in connection with her UFX account.
This judgment does not concern the merits of Ms Ang's claims but rather an application by Reliantco challenging the jurisdiction of this court to try them. Reliantco contends that Ms Ang is bound by its standard terms and conditions, clause 27.1 of which provides that the courts of Cyprus are to have exclusive jurisdiction over “all disputes and controversies arising out of or in connection with” her customer agreement. Reliantco therefore relies on Article 25 of the Brussels Regulation (Recast), i.e. Regulation (EU) No 1215/2012 on jurisdiction and enforcement of judgments in civil and commercial matters (‘Brussels (Recast)’).
Ms Ang says that clause 27.1 is ineffective to require her to bring her claim in Cyprus, either because she is a consumer within Section 4 of Brussels (Recast) or because clause 27.1 was not incorporated into her UFX customer agreement with Reliantco in such a way as to satisfy the requirements of Article 25. It is common ground that if Ms Ang is correct on either of those grounds, Reliantco's challenge to jurisdiction fails. Ms Ang says, in the alternative, that her data protection claims may be brought here notwithstanding Article 25 of Brussels (Recast) even if Article 25 applies to her primary substantive claims.
Background
As I have said already, the underlying claim arises from the alleged blocking of Ms Ang's account by Reliantco and its subsequent refusal to allow her to withdraw funds from the UFX platform. I do not say anything more about the claim at this stage, but it is necessary to set out a number of factual matters relevant to the present application. In doing so, I shall be stating how the facts appear on the evidence before the court for the purpose of this application. In the usual way, that does not involve making, or purporting to make, final and binding determinations as to the facts of the case. It does though bear in mind and apply the rule that to establish jurisdiction (that being ultimately Ms Ang's burden, even if this is Reliantco's application) a claimant must satisfy the court that on disputed matters relevant to the issue of jurisdiction she has the better of the argument on the material available at the necessarily preliminary stage at which the issue falls to be determined. (This case does not give rise to the problem of being unable reliably to form a view on the material available that is adverted to in recent restatements at the highest level of the effect of the applicable test: Brownlie v Four Seasons Holdings Inc. [2018] 1 WLR 192; Goldman Sachs International v Novo Banco SA [2018] 1 WLR 3683; Kaefer Aislamientos SA de CV v AMS Drilling Mexico SA de CV [2019] EWCA Civ 10.)
Ms Ang is an individual of substantial means. She is married with children. At all times material to her claim, she was not employed or earning a living in any self-employed trade or profession (unless, which is contentious between the parties and considered below, her activity as a customer of Reliantco via the UFX platform is itself to be so classified).
Ms Ang does not have any education or training in cryptocurrency investment or trading. She has an undergraduate degree and postgraduate diploma in psychology. When employed, she has predominantly held HR and associated roles. In 1993, when she first graduated from university, Ms Ang worked in money markets for two months as a trainee, observing US$/DM currency swaps. Other than that, she has no professional currency trading or money market experience (again, that is, unless her use of the UFX platform to invest in Bitcoin futures itself counts as such).
Ms Ang has been involved in a number of projects and companies with her husband. Between June 2013 and April 2014 she worked for Hotwire as Chief People Officer, managing human resources and recruitment. In an online article about Hotwire, Ms Ang was described as the “Investor Relations Contact”, but that only involved being an initial point of contact and liaison for external investors interested in the company. Up until 17 June 2016, Ms Ang acted in various directorships, but none of these concerned businesses involved with Bitcoin or currency trading, and none required or provided trading expertise. She has held and disposed of shares in certain companies, but has not engaged in the trading of stocks and shares or (save again to the extent that her UFX activity counts) trading in derivatives, options or other such assets.
When Ms Ang signed up to become a customer of Reliantco using the UFX platform, and during the life of the resulting customer account, her primary occupation was running the family home and bringing up the children. An aspect of that was playing a part in looking after the family's wealth. She also had a role assisting her husband in certain aspects of his professional life. I mean no disrespect to Ms Ang or the role in describing it like this, but it was essentially an ad hoc role as unpaid, part-time PA. Indeed, the description Ms Ang gave in her evidence of what the role entailed would be fit to serve as an outline job description for a part-time PA were her husband seeking to recruit one as paid help. It does not involve Bitcoin trading on behalf of her husband or the provision of foreign exchange or other financial services to him or anyone else as any kind of ‘client’.
Ms Ang's husband, Craig Wright, is a computer scientist with cybersecurity and blockchain expertise who works as Chief Scientist for nChain Ltd, a blockchain technology company with a corporate vision “ to transform how the world conducts all transactions – using the blockchain's distributed, decentralised ledger that chronologically records transactions in an immutable way”. As a researcher, he publishes prolifically and has developed innovations for which patent protection has been sought. He is the same Craig Wright who has identified himself publicly as being ‘Satoshi Nakamoto’, the online pseudonym associated with the inventor (or a co-inventor) of Bitcoin. I do not need to consider whether that claim is true, and on the evidence for this application I would not be in any position to do so.
Mr Wright is or has been a director and/or shareholder in a range of businesses engaged or hoping to engage in developing the use of cryptocurrencies and smart contracts, for example Denariuz Ltd, an English company which had an idea to become the world's first Bitcoin-based bank but which was dissolved in January 2017, Demorgan Ltd, an Australian company said to be focused on alternative currencies and next generation banking, and Panopticrypt Pty Ltd and subsidiaries including Coin-EXCH Pty Ltd and Ezas Pty Ltd. Coin-EXCH is reported to have been set up to operate as a secure online currency exchange platform and an “online eWallet solution” for the (intended) Denariuz Bitcoin bank. Ms Ang is or has been a shareholder or director in a number of these or related businesses, including all of those I have just mentioned by name.
Mr Wright is reputed to have amassed a huge Bitcoin cache himself through early involvement in Bitcoin mining. He is the defendant in a claim in the US District Court for the Southern District of Florida concerning that reputed cache brought by the estate of Dave Kleiman, a computer science collaborator of Mr Wright's in Florida who died in 2013.
Ms Ang was not dependant on trading or investment for an income or livelihood and had very limited knowledge of trading platforms. Other than her use of the UFX platform as a customer of Reliantco, she has used the eToro and IG platforms, but not extensively. As to eToro, she opened an account in March 2017 with c.US$20,000, and barely used the platform; she was (and it may be still is) a “Bronze” member of eToro (a category of membership for those investing equity of up to US$5,000), with no eToro activity since August 2017. As to IG, she opened an account in June 2016 but did not use it frequently; presently she has just £45 on the IG platform, with only two positions opened since 2 September 2017 and no activity at all since 17 January 2018.
Mr Bradley, for Reliantco, submitted that Ms Ang was or may have been selective and less than fully candid in her presentation of documentary records to support what she said about her eToro and IG accounts. In my judgment, however, there is no basis...
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