Andrew Spink KC appears in eagerly-awaited ‘Huobi v Tabarak’ crypto-fraud re-trial in the DIFC

Andrew Spink KC appeared in the DIFC Court of First Instance on behalf of the claimants in this landmark re-trial of (1) Gate Mena DMCC and (2) Huobi Mena FZE v Tabarak Investment Capital Ltd DEC-002-2024.

After securing a re-trial back in 2024 in the DIFC Court of Appeal, Andrew returned to the DIFC in February 2026 for the much anticipated five-day hearing.

The retrial was heard over five days from 2-6 February 2026 and concerned a number of legal and factual issues regarding the formation of contract under DIFC and common law which are likely to be of interest to legal practitioners faced with custody and escrow services in this area.

The DIFC recently enacted wide-reaching legislative reform, in the form of the DIFC Digital Assets Law and Law of Security and associated amendments to numerous DIFC laws (a project on which Andrew and Justina, alongside other OTC members, were instructed). 

These bespoke and innovative legislative reforms, alongside the Court of Appeal’s decision in Huobi v Tabarak and the high regard in which the DFSA is held internationally, serve to confirm the DIFC’s pre-eminence in and commitment to the digital assets, banking and financial services sectors.

The Background

Gate Mena DMCC is an entity whose business concerns “Over the Counter” trading in cryptocurrencies, involving the sale and purchase of cryptocurrencies for fiat currencies such as the US dollar or UAE Dirham. Huobi Mena FZE is an entity focused on the Middle East, Africa and Turkey, trading Bitcoin and other cryptocurrencies on international markets including on a ‘cryptocurrency-for-cryptocurrency’ basis.

In 2019 Gate Mena DMCC was introduced to a third-party (‘the Buyer’) who expressed an interest in purchasing 300 Bitcoin. Gate Mena DMCC approached Tabarak to act as an intermediary in the transaction. Prior to the transaction taking place, a number of modalities were agreed with respect to the transaction and Tabarak’s role within it. In summary, Tabarak would take control of the Bitcoin transferred by Gate Mena DMCC, but it would not transfer it to the Buyer until Tabarak first received payment of the whole of the purchase money into an account operated by Tabarak, following which Tabarak would transfer the purchase money to Gate Mena DMCC.

In 2020 a meeting took place at Tabarak’s offices attended by representatives from Gate Mena DMCC, Tabarak and the Buyer. During the meeting, the Buyer stated that he wished to use a brand new Trezor wallet that he had brought to the meeting instead of Tabarak’s own wallet. Following discussions, Tabarak agreed to set up the Trezor wallet to receive the 300 Bitcoin and used it to generate a 12-word seed phrase that would be required to access its contents. In the course of doing so, the Buyer, without Gate Mena DMCC’s knowledge, obtained access to the full seed phrase. After Gate Mena DMCC transferred the 300 Bitcoin to the Trezor wallet, it was then locked in a safe but when it was checked later that day it was discovered that 299.99 of the 300 Bitcoin had been misappropriated and transferred to another wallet. No payment was received by Gate Mena DMCC from the Buyer.

Gate Mena DMCC and Huobi Mena FZE brought proceedings against Tabarak for breach of contract as well as breach of various other legal duties under DIFC law. The claimants were unsuccessful in the original trial but successfully appealed in 2024 to the DIFC Court of Appeal and secured a re-trial in respect of the breach of contract claims. Andrew Spink KC, leading Justina Stewart, acted for the claimants in the successful appeal (Justina Stewart having acted at the original trial).

Read our coverage of the original appeal here. 

The Re-Trial

Andrew continues to act for the claimants, Gate Mena DMCC and Huobi Mena FZE, leading Stephen Doherty of Serle Court Chambers. They were assisted in the preparation of the claimants’ skeleton argument by Joshua Cainer of Outer Temple Chambers. The retrial was heard over five days from 2-6 February 2026 and concerned a number of legal and factual issues regarding the formation of contract under DIFC and common law. These include, in summary:

• Whether events at the meeting in 2020 meant that a new contract was entered into between Gate Mena DMCC and Tabarak. In particular, whether the words or conduct of the parties, viewed objectively, lead to a conclusion that they intended to create legal relations in this respect and that they had agreed upon all the terms they or the law requires as essential for the formation of legally binding relations.
  
• If there was a binding contract, what are the terms of the contract, and did it impose obligations on Tabarak stricter than an obligation to take reasonable care in the performance of the revised role allocated to Tabarak at the meeting.
  
• If there was a binding contract, was Tabarak in breach of any term of the contract and, in particular, was Tabarak strictly liable to Gate Mena DMCC for failing to return 300 Bitcoin if the Buyer failed to pay for them?

The case also raises a number of other novel issues concerning causation and the assessment of loss that will develop the law as it relates to the distinctive attributes of digital assets. These include, in summary:

• Did Gate Mena DMCC suffer loss as a result of any breach by Tabarak? This issue raises interesting points of law and fact as regards assessing losses where assets are are in effect “pooled” between different entities in a corporate group or transferred from one entitity to another (in this case from Huobi Mena FZE to Gate Mena DMCC) to enable the receiving entity to enter into a contract for the sale of the assets on the condition that, if the sale fails to complete, the assets will be returned to the transferring entity, the circumstances in which the contracting party alleging breach of contract may claim in respect of losses ultimately suffered by another, and the transferred loss principle set out in Swynson Ltd v Lowick Rose LLP [2017] UKSC 32, [2018] AC 31.
  
• Whether Gate Mena DMCC mitigated any loss and whether any such loss was caused by Gate Mena DMCC’s own conduct, including any failure to conduct due diligence in relation to the Buyer or implement effective security protocols.
  
• The basis of assessing the loss of 300 Bitcoin and, in particular:
  a) whether damages should be denominated in Bitcoin in accordance with Article 121 of the DIFC Contract Law and/or Article 21 of the DIFC Damages Law – this raises a broad issue of widespread importance as to whether Bitcoin is a form of “money” or “currency” under DIFC law; or
  
  b) alternatively, whether damages should be denominated in US dollars but assessed at the date of judgment or payment following judgment, either on the basis that there was no reasonable possibility of the claimants mitigating their losses, such that assessment at the date of breach is inappropriate, or following the principles in Southgate v Graham [2024] EWHC 1692 (Ch); or
  
  c) whether damages should be assessed at the date of breach with interest payable on those amounts.

These last issues will be well-familiar to practitioners in the law of digital assets who frequently have to grapple with the fluctuating value between the date on which digital assets are misappropriated and the date on which any proceedings are determined in their favour, on which there is currently limited authority.

Andrew was instructed by Sara Sheffield of Charles Russell Speechlys.

Find Out More

Andrew Spink KC has over 38 years’ experience at the Bar and over 20 years’ as a successful silk. Andrew is regularly instructed by domestic and overseas clients seeking heavyweight representation in commercial matters both in England and abroad, including the Middle-East, Europe, US, Asia-Pacific and Caribbean. Internationally, he is a registered DIFC Court advocate and provides advice to the DIFC governing body on law reform (company law, trusts, digital assets and smart contracts, banking and finance) and other strategic projects. He is a recent Chair of the Commercial Bar Association of England and Wales.

To find out more about Andrew, contact Lexie Johnson on + 44 (0) 207 427 0801 for a confidential discussion.

News 26 Mar, 2026