One of the fundamental difficulties that arises with crypto recovery claims is that the wrongdoers responsible for the misappropriation will (at least at the outset) almost always be unknown. That difficulty is (or may be) compounded in circumstances where different people or categories of people: (i) are responsible for the initial wrongdoing, eg a hack or scam; (ii) receive the misappropriated assets pursuant to the wrongdoing; and (iii) have received the misappropriated assets through subsequent transfers (whether in the knowledge of the misappropriation or not). To overcome these difficulties, victims may need to bring claims against "persons unknown" for the purpose of recovering the assets (or equivalent monetary value). In doing so, it may be necessary or helpful to take steps to reveal the identity of some or all of the above categories of people. As His Honour Judge Pelling KC put it (speaking extra-judicially): "In a crypto fraud claim it is likely that crypto assets will have been moved multiple times ultimately to an exchange after removal from the claimant's wallet. This is usually for the purpose of enabling assets to be "cross chained" so as to render tracing more difficult or practically impossible or to facilitate the conversion of the defalcated crypto currency and its transfer in a way that makes tracing impossible or practically so. It may be necessary therefore to bring proceedings against different classes of persons unknown in order to cater for these possibilities."[1] This article considers the BVI and Cayman Islands courts' jurisdiction to order service against persons unknown in further detail. The persons unknown jurisdiction: Cameron[2]revisited The jurisdiction to sue persons unknown, by reference to a description that "is sufficiently certain as to identify both those who are included and those who are not," has been invoked by the English courts on numerous occasions, particularly within the context of abuses of the internet, trespassing and other torts committed by protesters, demonstrators and paparazzi; and, more recently, within the context of crypto fraud. In Cameron, the UK Supreme Court distinguished between two kinds of cases in which defendants cannot be named and in respect of which different considerations apply: The first category comprises anonymous defendants whose names are unknown but who are otherwise identifiable (for example, squatters, who are identifiable by their location at the relevant property). The second category comprises anonymous defendants whose names are unknown and who cannot be identified either (for example, hit and run drivers, who have fled the scene and in respect of which there is no CCTV or other evidence available with which to identify them). The distinction is that in the first category, the defendant is described in a way that it makes it possible in principle to locate or communicate with him or her and to know, without further enquiry, whether he or she is the same person described in the claim form; whereas, in the second category, that is not possible. The appeal in Cameron was primarily concerned with the issue or amendment of the claim form on persons unknown, rather than the issue as to how a claim form may actually be served on them. However, the Supreme Court held in that case that the "legitimacy of issuing or amending a claim form so as to sue an unnamed defendant can properly be tested by asking whether it is conceptually (not just practically) possible to serve it. The court generally acts in personam. Although an action is completely constituted on the issue of the claim form, for example for the purpose of stopping the running of the limitation period, the general rule is that "service of the originating process is the act by which the defendant is subjected to the court's jurisdiction."[3] The court then went on to hold that an identifiable but anonymous defendant (i.e. the first category of defendant set out above) could be served, ...
