Legal And Court Systems In The British Virgin Islands - Trials & Appeals & Compensation

Appleby lawyers, Andrew Willins and Olwyn Barry have authored a broad overview of the legal and court systems in the British Virgin Islands which has been updated to reflect the extensive amendments to the ECSC Civil Procedure Rules, which came into effect on 31 July 2023 for all proceedings commenced after that date.

THE LAW

Certain statutes in the BVI provide that English common law and principles of equity apply in the BVI. Section 72 of the Common Law (Declaration of Application) Act (CAP 13) and Section 11 of the West Indies Associated States Supreme Court (Virgin Islands) Act (CAP 80) combined provide that the common law of England is in force in the territory and, to the extent there is any conflict between the rules of equity and the common law, the rules of equity prevail.

As a pre-eminent financial services jurisdiction, it is unsurprising that the territory of the BVI has a robust and modern legislative suite on matters relating to corporate and commercial law. The English common law will only apply to the extent that it has not been modified by such statutes.

THE COURT SYSTEM

The British Virgin Islands' principal court is the Eastern Caribbean Supreme Court (ECSC), which also serves as the Superior Court of Record for two other British Overseas Territories (Anguilla and Montserrat) and six independent member states of the Organisation of Eastern Caribbean States. The ECSC has its headquarters in Saint Lucia however, each jurisdiction, including the BVI, has its own permanent High Court Registry and Judiciary.

The ECSC has such jurisdiction and powers as conferred on it by the constitution and other laws. It administers the common law and equity, as well as locally-enacted laws and applied laws. The ECSC consists of two divisions: the Court of Appeal and the High Court of Justice. In addition, the British Virgin Islands is also home to one of two Commercial Divisions of the ECSC High Court of Justice (the other being in St Lucia).

The Commercial Court hears "commercial claims" with a minimum value of US$500,000. "Commercial Claims" is broadly defined in the Eastern Caribbean Supreme Court Civil Procedure Rules (ECSC CPR) to include claims relating to contractual matters, company and partnership disputes, insolvency and restructuring matters and trust disputes. Since its establishment in 2009, the BVI Commercial Court has grown to the point where it has its own Commercial Court Registry, maintained by an assistant registrar and several administrators, court reporters and clerks. Since the COVID-19 pandemic, all BVI Commercial Court hearings have been conducted virtually by video conference; however, the BVI Commercial Court will return to in-person hearings from 18 September 2023. After that date, a formal application will be required to request permission for a hearing, or part of a hearing, to be conducted by video conference.

Appeals from the High Court (and the Commercial Division of the High Court) lie to the ECSC Court of Appeal, which is an itinerant court whose sittings rotate between the nine members of the ECSC. It sits in the BVI approximately three times a year for a week; usually in or around February, May and October (although it will also deal with more urgent matters on appeal from the BVI when sitting on other islands). If the decision being appealed is a final decision in civil proceedings, no leave to appeal is required. If the decision was an interlocutory decision, a party must obtain leave to appeal that decision to the Court of Appeal with the exception of a number of categories of interlocutory decisions including interlocutory decisions which grant/refuse an injunction or the appointment of a receiver.

An appeal lies as of right against a limited category of interlocutory decisions, most notably orders made in injunction applications, applications for the appointment of receivers or interlocutory orders. Otherwise, leave to appeal must be obtained from the High Court / Commercial Court Judge or the Court of Appeal itself. Since the COVID-19 pandemic, all ECSC Court of Appeal hearings have been conducted virtually by video conference.

Final appeal for cases from the British Virgin Islands lies to the Judicial Committee of the Privy Council, which sits in London, England (Privy Council). The Privy Council is the final appellate tribunal from a number of courts of the overseas territories of the UK, including the British Virgin Islands, and some Commonwealth countries. The Privy Council can be comprised of the Justices of the Supreme Court (the UK's ultimate appellate court, formerly the House of Lords) and Privy Counsellors. Privy Counsellors often are or were the most eminent judges from other Commonwealth countries or the UK's Court of Appeal. Cases are often heard by a five-member bench of the Privy Council.

The doctrine of judicial precedent applies to the British Virgin Islands courts. Therefore, the rationes decidendi (or "ratios") of decisions of the Privy Council in appeals from the British Virgin Islands courts are binding on the British Virgin Islands' courts in subsequent cases. The ratios of ECSC Court of Appeal decisions are binding on the High Court/Commercial Court, and those of the BVI High Court/Commercial Court decisions are normally followed by itself. In the absence of specific decisions of these courts, relevant decisions of the superior courts of record of England and Wales and of countries of the Commonwealth and decisions of the Privy Council on appeals from other countries, whilst not strictly binding, are highly persuasive for the reasons set out above.

OVERVIEW OF COURT PROCEDURE

The ECSC CPR govern proceedings in the British Virgin Islands. The ECSC CPR are largely modelled upon the English Civil Procedure Rules (CPR). There are, however, differences, and some areas covered in the CPR do not appear in the ECSC CPR. As a consequence of the similarity with the CPR, there exists a great deal of detailed commentary to the corresponding English rules, which for the most part is also applicable to the equivalent ECSC CPR and gives useful guidance. However, the ECSC CPR do have some notable differences to reflect local practice and statute.

On 25 April 2023 extensive amendments to the ECSC CPR were published in the Official Gazette. These amendments follow a lengthy period of review and consultation in an effort to modernize civil procedure. The Revised Edition of the ECSC CPR (the 2023 CPR) came into effect on 31 July 2023 for all proceedings commenced after that date. For proceedings commenced prior to that date, the 2023 CPR will not apply where a trial date has been fixed (unless that trial date is adjourned); and in cases where no trial date has been fixed, the 2023 CPR will apply from the date of the case management conference is fixed after the defence has been filed.

PROCEDURES AND TIMEFRAMES

Claims are subject to the BVI Limitation Ordinance 1961, which for example specifies a general limitation period for tort and contract claims of six years from the date the cause of action accrued. If a claim is brought after the specified limitation periods has expired, with no applicable exception such as fraud, this will act as a complete defence to the claim.

Unlike in the UK, there are no specific rules governing the pre-action conduct of parties with the result that there is no obligation to send a letter before action to a proposed defendant in advance of filing proceedings. That said, there could be cost consequences if a party's pre-action conduct could be said to be unreasonable or contrary to the 'Overriding Objective' in ECSC CPR Part 1 to deal with cases justly.

Civil proceedings may be commenced by (1) claim form, (2) fixed-date claim form or (3) originating application in insolvency matters. In most commercial cases, a claim form is used. The claim form must contain a concise statement of the nature of the claim, the specific remedy sought, an address for service on the claimant within the BVI and, if a money claim, a statement of value and interest claimed and the applicable rate. The claim form must then be served on the defendant(s) within six months of the date the claim was issued, or 12 months if it is to be served out of the jurisdiction under ECSC CPR Part 7 (Service of Court Process out of Jurisdiction). Service on a BVI company is effected by leaving it at the company's registered office in the BVI or the office of the company's registered agent. It has become standard practice for a representative of a company's registered agent to endorse the cover letter to confirm service of the documents on the company. An individual must be served personally.

As a general rule, a statement of claim should be filed and served with the claim form or set out within the claim form itself. When the claim form and statement of claim are served on the defendant(s), it must be accompanied with the necessary court forms to enable the defendant(s) to confirm whether they are defending, admitting, and/or acknowledging service of the claim. In cases filed electronically on the court's E-Litigation Portal, the authorisation code notice must also be served giving the defendant(s) access to the proceedings on the portal. Following service of the statement of claim and claim form within the BVI, the following timescales apply:

A defendant must file an acknowledgment of service within 14 days of service;
If a defendant is not challenging jurisdiction, it must then file a defence (and any counterclaim) within 28 days of service of the claim form in the BVI;
If a defendant is challenging jurisdiction, it must file that jurisdiction challenge within the same timeframe as the defence would otherwise fall due;
If the Defence includes a Counterclaim, the claimant may serve their Defence to Counterclaim within 28 days of service of the Defence and Counterclaim; and
Any reply to the Defence to Counterclaim must be served within 14 days of service of the claimant's Defence to Counterclaim.

Failure to comply with the prescribed timeframes may result in default judgment being entered against the defendant(s).

A fixed-date claim form is used less frequently in relation to specified claims. Generally, these are matters that will be decided on affidavit evidence without pleadings. The Commercial Court Registry will list a date for the first hearing of such cases on the Fixed Date Claim Form when it is issued. At that first hearing the matter can be determined summarily or case management directions given.

Applications under the Insolvency Act 2003 where there is not an existing court proceeding, such as applications for the appointment of liquidators, will be made by Originating Application. The Commercial Court deals with such applications on specified 'liquidation days' (usually two per month), which are prescribed by a Commercial Court notice at the commencement of each court year.

SERVICE OF THE JURISDICTION

By far the most significant amendment in the 2023 CPR is to the rules relating to service out of the jurisdiction. The 2023 CPR has abolished the need to obtain leave from the Court to serve BVI proceedings out of the jurisdiction for certain categories of proceedings commenced after 31 July 2023.

Previously, where the defendant to BVI proceedings was not domiciled or ordinarily resident in the jurisdiction, leave of the Court was required to serve such defendants out of the jurisdiction. In its previous form, ECSC CPR Part 7 (Service of Court Process out of Jurisdiction) prescribed the circumstances in which the court could grant such leave to serve out, which was only to be granted if the proceedings fell within the parameters (or "gateways") set out in ECSC CPR Part 7.3.

The re-framed Part 7 in the 2023 CPR provides that a "Court Process"1 may now be served out of the jurisdiction without leave of the Court where the Claimant or the Legal Practitioner signs a certificate stating the jurisdictional gateway in ECSC CPR 7.3 which the claim falls within, and confirming the signatory's belief that (i) the case is a proper one for the BVI Court's jurisdiction, (ii) the claim has a good arguable case, and (iii) the proposed method of service does not infringe the law of the foreign state. This certificate must be filed at the same time as the filing of the relevant court process.

The relevant gateways have also been expanded: an application may now be served out of the jurisdiction for interim relief in support of a foreign proceeding (revised ECSC CPR 7.3(11), and an application for a costs order against a non-party (revised ECSC CPR 7.3(12)).

A Claim Form being served out of the jurisdiction must state the timeframe within which the defendant(s) outside the jurisdiction must file an acknowledgment of service (typically 35 days after service of the Claim Form2) and a defence (together with any counterclaim) (typically 56 days after service3).

The mode of service out of the jurisdiction must comply with ECSC CPR 7.9 or 7.17 and it must not contravene the laws of the country where the court process is to be served. If the court process cannot reasonably be served in that prescribed manner, an application will need to be made seeking the court's permission to serve the foreign defendant with the proceedings by an alternative method of service. Upon such applications, the BVI Commercial Court had shown a willingness and flexibility to make such orders to enable service by alternative means particularly where there was evidence of a party attempting to evade the court process. The Court's jurisdiction to set aside service remains and the revised ECSC CPR 7.3 provides that the Court can set aside service of a court process if the proceedings do not fall within one of the gateways. On an application by a defendant seeking to set aside service of a court process under ECSC CPR 7.8, the burden rests upon the Claimant to show that the conditions for service out prescribed by Part 7 have been satisfied.

1 The previous iteration of the ECSC CPR permits service out of the jurisdiction of a Claim Form. The New Rules extend this to any other form of court process, including an interim remedy made before proceedings have been commenced, and an application. 2 Subject to any change by Practice Direction 3 Subject to any change by Practice Direction

ASSISTANCE OF FOREIGN COURTS

EVIDENCE FOR FOREIGN PROCEEDINGS

The Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters 1970 (Hague Evidence Convention) does not apply in the British Virgin Islands. However, the British Virgin Islands has implemented the Convention by the Evidence (Proceedings in Foreign Jurisdictions) Ordinance (Cap 24) 1988. The Hague Convention is included as a Schedule to the 1988 Act and section 9(3) provides that the 1988 Act "is enabling and shall, in its application, be given such construction as would as nearly as possible afford it conformity with the Convention".

Therefore, once a foreign court issues a letter of request seeking the assistance of the BVI High Court, an application can then be made to the BVI Court pursuant to ECSC CPR Part 71 for an order giving effect to the letter of request including the examination of witnesses in the BVI or the production of documents for those foreign, civil proceedings. The High Court has generous powers to make this order for disclosure requested by a Requesting Court, whether in existing proceedings or in proceedings which are contemplated before that Court. The relevant provisions of the 1988 Act are similar to the UK Evidence (Proceedings in other Jurisdictions) Act 1975.

DOCUMENTS; NORWICH PHARMACAL RELIEF

The Norwich Pharmacal4 jurisdiction in the BVI has been widely interpreted. It is well established that the BVI High Court has the power to grant Norwich Pharmacal orders in support of actual or intended foreign proceedings. This relief is regularly granted by the BVI Courts, most commonly requiring a Registered Agent of a BVI Company to provide information in relation to a BVI Company's shareholders, directors, beneficial owners and/or assets where the Court is satisfied that the BVI company is a 'wrongdoer', its Registered Agent is 'innocently mixed up in' that wrongdoing simply by virtue of its role as Registered Agent and the information held by the Registered Agent is necessary in order to bring proceedings in another jurisdiction (or in the BVI); either to identify the appropriate defendants to a claim and/or to plead out that claim.

Amongst other changes made to the BVI Business Companies Act 2003 (as amended), from 1 January 2023, each BVI company (with exceptions for listed companies and companies already making financial filings in BVI) has to file an annual financial return with its registered agent within 9 months after the end of the year to which it relates. Furthermore, the names of current directors of a BVI company will, on payment of a fee, be available to registered users of the online VIRRGIN company search website. These changes may further assist claimants seeking Norwich Pharmacal relief (or a disclosure order attached to an injunction) by providing a possible route to financial information, perhaps to assist in the enforcement of judgments, or confirmation that certain directors are linked to a company.

FREEZING ORDERS

Disclosure orders may also be obtained in conjunction with a freezing order (or Mareva injunction) where asset disclosure is required as a means of "policing" the injunction. Like Norwich Pharmacal orders, freezing orders may be obtained in aid of foreign as well as domestic proceedings. Applications for injunctive relief frequently come before the BVI Commercial Court, which has broad powers to make such orders when it is satisfied that it is 'just and convenient' to do so. After a period of uncertainty, this power to make standalone freezing orders in aid of existing or contemplated foreign proceedings was made clear by the Privy Council in its important decision in October 2021 in Broad Idea International Ltd v Convoy Collateral Ltd / Convoy Collateral Ltd v Cho Kwai Chee. This was also put on a statutory footing by the Eastern Caribbean Supreme Court (Virgin Islands) (Amendment) Act in January 2021 following the Court of Appeal decision in Broad Idea.

ENFORCEMENT OF FOREIGN JUDGMENTS IN THE BRITISH VIRGIN ISLANDS

Final and conclusive foreign monetary judgments may be enforced in the British Virgin Islands either:

at common law where new proceedings are issued seeking judgment in reliance on the foreign monetary judgment and an application is typically made for summary judgment pursuant to Part 15 of the ECSC CPR relying on the doctrine of estoppel; or
in the case of a foreign money judgment from specified jurisdictions5 , through a statutory registration process pursuant to the Reciprocal Enforcement of Judgments Act 1922 (cap 65) (1922 Act).

There is a further relevant statute, the Foreign Judgments (Reciprocal Enforcement) Act 1964 (cap 27) (1964 Act) however, there is a commonly held view amongst BVI practitioners that the relevant jurisdictions have not been properly designated and that the 1964 Act is accordingly not effective. The 1922 Act represents a simplified route of registering a monetary judgment and, where applicable, it is preferable to the common law route of enforcement. The application to register the judgment is made by a judgment creditor pursuant to Part 72 (Reciprocal Enforcement of Judgments) of the ECSC CPR, without notice, and must be supported by affidavit evidence confirming that the judgment has not been satisfied. Such application must be made within 12 months of the date of the foreign judgment, although the BVI Court may grant a longer period if it is just and convenient to do so. The reasonable incidental costs of the registration application are likely to be recoverable as if they were sums payable under the judgment.

Pursuant to the 1922 Act, a foreign judgment may not be registered and enforced if any of the following applies:

the foreign court acted without jurisdiction;
the judgment debtor was not within, or did not submit to, the jurisdiction of the foreign court;
the judgment debtor was within the jurisdiction but was not properly served;
the judgment was obtained by fraud;
the judgment is under appeal, or the judgment debtor has the right to or has expressed an intention to appeal; or
the judgment was in respect of a cause of action which is against public policy, or for some other reason could not have been entertained by the BVI Court.

If any of the conditions or bars listed above apply, then the foreign judgment will not be enforceable by way of registration under the 1922 Act.

Once obtained, the registered judgment must be served on the judgment debtor. Thereafter, it shall have the same force and effect in the BVI as if it was a domestic judgment obtained in the BVI on the date of registration.

Enforcement and execution are thereafter available pursuant to the routes provided at Part 45 of the ECSC CPR including:

a charging order / order for sale under Part 48 of the ECSC CPR over assets of the judgment creditor;
a garnishee order (a type of third-party debt order) under Part 50 of the ECSC CPR if the garnishee is in the BVI and owes a debt to the judgment creditor;
An order for seizure and sale of goods under Part 46 of the ECSC CPR; or
The appointment of a receiver by way of equitable execution of certain identifiable assets of the Judgment Creditor under Part 51 of the ECSC CPR.

Where the judgment debtor is a BVI company, an alternative procedure would be for the judgment creditor to rely on the unsatisfied judgment of the foreign court and to apply to appoint liquidators to the judgment debtor on the basis of insolvency. In such circumstances, the foreign judgment can be effectively enforced through a claim in BVI liquidation proceedings without the need to register the judgment. The Liquidator(s) of the judgment creditor would then be tasked with identifying the assets and liabilities of the judgment debtor. Official Liquidators have exceptional powers to investigate, gather in and realise the assets of the company; they also have the ability to obtain recognition and support from the courts in other jurisdictions where their investigations may indicate the existence of assets. However, the judgment creditor will rank as an unsecured creditor in the liquidation, and will share in any recoveries pari passu with other unsecured creditors.

The above statutory registration process is not available for foreign non-money judgments, and such judgments are not directly enforceable in the British Virgin Islands. However, in certain circumstances new proceedings can be brought in the BVI based on the same cause of action that gave rise to the foreign non-money judgment and the Claimant can seek to apply the principle of estoppel to persuade the BVI Court that summary judgment should be granted on the basis that the cause of action and issues ought not to be re-litigated in full before the BVI Court. This approach has been adopted by the Grand Court in the Cayman Islands, where non-money judgments may be recognised and enforced by way of equitable remedies should the principle of comity require it.

Enforcement of foreign arbitral awards is addressed below.

4 derived from the English case of Norwich Pharmacal Co. v Customs and Excise Commissioners 5 High Court of England, High Court in Northern Ireland, Court of Session in Scotland, The Bahamas , Barbados, Bermuda, Belize, Federal Republic of Nigeria, Guyana, Grenada, Jamaica, New South Wales, St Lucia, St. Vincent, Trinidad and Tobago.

ACCESS TO COURT FILES

In 2018, the ECSC launched the ECSC Electronic Litigation Portal (the E-Litigation Portal) permitting the electronic filing and service of Court documents. All Commercial Court cases issued after its launch must make use of the E-Litigation Portal. Parties to proceedings issued on this platform can access all documents filed in those proceedings via the E-Litigation Portal.

The right to inspect court filings has been expanded under the 2023 CPR. ECSC CPR 3.13 now provides that, upon payment of a small fee, a member of the public may obtain copies of a claim form, a Notice of Application filed under ECSC CPR 8.1 (6), a statement of case (but not any documents attached to it), a notice of appeal, and any judgments and orders from the court file. There are exceptions designed to protect settlement agreements and the welfare of children and this rule does not apply to documents filed before the new rule came into force. While not explicitly set out in the ECSC CPR, in certain circumstances a non-party can also obtain copies of the evidence filed in support of a claim form / Originating Application for the appointment of a liquidator (which the Court of Appeal has decided is to be treated as if it were a claim form for the purposes of ECSC CPR 3.13). In 2018 the Court of Appeal in Tchenguiz v. Mark McDonald et al decided that the supporting evidence also becomes available for public inspection where an applicant failed to set out in the claim form / Originating Application the grounds upon which the application was made. In those circumstances, the Originating Application together with the supporting affidavit(s) setting out the grounds to be relied upon are to be treated as one and together regarded as a claim form for the purposes of the right to inspection in ECSC CPR 3.13.

Leave of the court is required for a non-party to obtain any other documents in BVI proceedings although a court search will show a list of all filings (but not access to the documents themselves) that have been made in the proceedings. If the proceedings have been sealed, a court search will not reveal the proceedings and no documents or list of filings will be available publicly.

LITIGATION FUNDING

The Legal Profession Act 2015 (LPA), which for the most part came into force on 11 November 2015, confirms that fair and reasonable conditional fee arrangements are permissible in relation to non-contentious work only. In the absence of statutory provisions permitting conditional fee arrangements in relation to contentious legal matters, arguably the public policy rule at common law against champerty would preclude conditional fee arrangements6 . A 2020 decision of the BVI Court found this to be the case. However, there are conflicting views on this among BVI practitioners particularly arising from the fact that the Code of Ethics appended to the LPA states that "it is not improper for a legal practitioner to enter into a written agreement with a client for a contingency fee provided that such fee is fair and reasonable". Given the uncertainty surrounding the enforceability of contingency fee arrangements and the possible impact on the recovery of legal fees incurred arising from such a retainer, such arrangements are not commonplace in the BVI but some practitioners may be willing to act on a contingency basis in certain cases.

Third-party funding arrangements, whereby independent parties fund a party's costs in litigation, are also not yet common and have yet to be tested in a contested case in the British Virgin Islands where most litigation is privately funded. There is no BVI legislation in this area (as the LPA did not expressly clarify the position as to whether third-party funding is permissible), the ECSC CPR is silent on this and there is only one reported case directly on this issue in the context of insolvency proceedings; in the 2020 judgment in Crumpler v Exential Investments Inc, Claim No. BVIHC (COM) 81 of 2020, the Commercial Court approved a third-party funding agreement between BVI liquidators and a third-party funder. There are also a small number of earlier BVI cases where the involvement of third-party funders was acknowledged by the BVI Judge, which would infer that the BVI Commercial Court is open to the use of third-party funding within certain parameters.

DISCLSOURE/DISCOVERY OF DOCUMENTS

Part 28 of the ECSC CPR contains provision on disclosure and inspection broadly modelled on the English CPR whereby disclosure is made by service of a List of Documents. However, in the British Virgin Islands the test for document production in the context of standard disclosure is whether a document is "directly relevant" to the issues (rather than simply relevant). The ECSC CPR expressly excludes the application of "the rule in Peruvian Guano". A document is "directly relevant" if (i) the party with control of the document intends to rely upon it, (ii) it tends to adversely affect that party's case, or (iii) it tends to support another party's case. A document means "anything on or in which information of any description is recorded" so would include all electronic and hard copy data, including audio and video files.

The legal practitioner must certify, on the List of Documents, that it has adequately advised the party of the necessity to make full disclosure in accordance with the ECSC CPR and the consequences of not doing so.

A party has a continuing obligation to disclose those documents that are, or have been, in their control until the conclusion of the proceedings. If a further document falls to be disclosed in accordance with this continuing duty, a Supplemental List of Documents must be served within 14 days of the party becoming aware of that document. This 14-day timeframe will be reduced to 7 days in proceedings to which the 2023 CPR apply and the Supplemental List of Documents will need to be accompanied by an Affidavit evidencing compliance with this rule.

A party has a right to inspect any document that has been disclosed in the List of Documents, except where the party who has disclosed the document claims a right to withhold disclosure (e.g., due to the document being privileged) or that the document is no longer in the party's control. In practice, often all documents listed in the List of Documents are produced electronically alongside service of the List of Documents.

PRIVILEGE

The common law principle of privilege permits parties to withhold disclosure on the grounds of privilege as recognised by the common law. Privilege attaches principally to (i) documents that have been prepared, or confidential communication exchanged, by the party or by his/her legal advisers for the dominant purpose of seeking or providing legal advice, and (ii) documents that have been prepared, and confidential correspondence exchanged, between a lawyer and his client, his professional agent or a third party for the dominant purpose of seeking evidence for, or providing advice in relation to, litigation that has started or is contemplated. There is also the privilege that relates to public interest immunity and without prejudice communications.

In most cases (other than those involving public interest immunity), a party may waive its right to privilege over a document. However it is not permissible to "cherry pick" documents to selectively make disclosure of helpful documents and typically voluntary disclosure of a privileged document will result in a collateral waiver resulting in the obligation to disclose related documents. There is also a risk that privilege attaching to a document can be unintentionally lost, for example by sharing documentation with third parties which could result in it losing its 'confidential' status. If privilege is waived, either intentionally or unintentionally, the document should be disclosed and may be used against that party in proceedings.

SPECIFIC DISCLOSURE

EMPTY HEADING

Any party may apply for an order of court for specific disclosure of specified documents / classes of documents, or an order requiring specific searches to be conducted and production of documents located as a result of those searches. The Court may also make such an order of its own volition.

A party may defend an application for specific disclosure or inspection on the grounds including (i) a right to withhold disclosure or inspection under ECSC CPR 28.14 is claimed, (ii) the document is not within their control, (iii) disclosure or inspection would be disproportionate to the issues in the claim, and (iv) the applicant is shown to be 'fishing'.

When deciding whether to make an order for specific disclosure, the court must consider whether specific disclosure is necessary in order to dispose fairly of the claim or to save costs. In that regard, the court must have regard to (i) the likely benefits of specific disclosure, (ii) the likely cost of specific disclosure, and (iii) whether it is satisfied that the financial resources of the party against whom the order would be made are likely to be sufficient to enable that party to comply with any such order.

THIRD-PARTY DISCLSOURE

The ECSC CPR does not include provisions for the making of orders for disclosure against persons other than the parties to a claim. However, the parties to a claim have an obligation to disclose documents which may be held by third parties where the party to the claim has 'control' over such documents, which arises where they have, or have had, a right to inspect or have possession of such documents held by third parties. Furthermore ECSC CPR Part 33 provides a mechanism for the issuing of a witness summons to a non-party compelling that party to give evidence and/or to produce documents for the trial.

The British Virgin Islands does not have any recognised form of application for pre-action disclosure. While there is nothing within the ECSC CPR that regulates such applications, an argument can possibly be made that British Virgin Islands law does (or should) possess jurisdiction to order pre-action disclosure by virtue of section 11 of the West Indies Associated States Supreme Court (Virgin Islands) Act (CAP 80) which provides that "the jurisdiction vested in the High Court in civil proceedings ... shall be exercised in accordance with the provisions of this Ordinance and any other law in operation in the Territory and rules of court, and where no special provision is therein contained such jurisdiction shall be exercised as nearly as may be in conformity with the law and practice administered for the time being in the High Court of Justice in England". The English High Court of Justice recognises jurisdiction to make orders for pre-action disclosure. That derives from the Supreme Court Act 1981.

Furthermore, pre-action disclosure of sorts is available within certain parameters under the Norwich Pharmacal jurisdiction where the third party is mixed up in the wrongdoing complained of and has documents which are necessary to identify the appropriate defendants to a claim and to plead out that claim.

6 Since the 1997 Criminal Code, there is no criminal liability for champerty and maintenance in the BVI however they have yet to be abolished as a civil wrong / tort.

ALTERNATIVE DISPUTE RESOLUTION (ADR)

Arbitration is the main form of ADR in the British Virgin Islands. The British Virgin Islands has enacted a modern and commercial Arbitration Act 2013 (as amended) (Arbitration Act), which is based heavily on the UNCITRAL Model Law on International Commercial Arbitration, but modified slightly for application under British Virgin Islands' law. Where the parties have agreed in writing that disputes between them are to be resolved by arbitration, the Courts must stay any court proceedings (unless the court finds that the agreement to arbitrate is void). The Courts have shown a willingness to enforce and adhere to the doctrine of primacy of arbitration proceedings.

The Arbitration Act introduced provisions for the creation of a new statutory body – the BVI International Arbitration Centre, an independent not-for-profit institution which opened in the BVI in 2015. Its establishment is aimed to promote and encourage arbitration as an alternative to litigation.

The BVI acceded to the UN Convention on Recognition and Enforcement of Foreign Arbitral Awards (New York Convention) in May 2014, meaning that BVI arbitral awards are enforceable in other convention member states, and any convention award can be enforced in the BVI:

by instituting an action in the BVI Courts via Fixed Date Claim Form supported by Affidavit evidence; or
pursuant to section 85 of the Arbitration Act 2022 – with leave of the High Court judge, in the same manner as a judgment or order of the High Court. Where leave is given, judgment may be entered in the terms of the award.

The only grounds upon which Enforcement of a convention award may be refused are where:

a party to the award, under the law applicable to him or her, was under some incapacity;
the arbitration agreement was not valid under the law governing the agreement or, failing any indication of the governing law, under the law of the country where the award was made;
a party was not given proper notice of the appointment of the arbitrator or of the arbitration proceedings or was otherwise unable to present his or her case;
the award deals with a difference not contemplated by or not falling within the terms of the submission to arbitration or contains decisions on matters beyond the scope of the submission to arbitration;
the composition of the arbitral authority or procedure was not in accordance with the agreement of the parties or, failing agreement, with the law of the country where it took place;
the award has not yet become binding on the parties or has been set aside or suspended by a competent authority of the country in which, or under the law of which, it was made;
the award is in respect of a matter which is not capable of settlement by arbitration under the laws of the Virgin Islands; or
it would be contrary to public policy to enforce the award.

The BVI Business Companies (Amendment) Act 2015 (as amended) permits an arbitration clause to be included in a company's memorandum and articles of association to govern disputes involving the company, or the company and its members, or the members inter se. Increased use of this provision may result in a corresponding increase in the number of company disputes being dealt with via arbitration.

While there is no formal requirement in the BVI for parties to take part in ADR prior to instituting court proceedings, the 2023 CPR contain a number of amendments which show an increasing appetite to encourage ADR in appropriate matters.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

British Virgin Islands: Legal And Court Systems In The British Virgin Islands