The BVI Business Companies Act, 2004 contains, at section 43,
provision allowing any person who is aggrieved by an omission,
inaccuracy or delay in the register of an issue or transfer of
shares to apply to court for an order that the register be
rectified. There has been a longstanding, albeit not
universal, practice of adding the registered agent of the relevant
company as a defendant to rectification proceedings brought under
this section. The reason for this is that the directors and
shareholders of British Virgin Islands
("BVI") business companies are typically
outside the jurisdiction and obtaining an order against the
registered agent within the jurisdiction has previously been seen
as a useful shortcut, enabling the enforcement of any order for
rectification without involving the company itself.
In a recent unreported decision, the Commercial Court Judge (Mr
Justice Bannister QC) refused to make such an order and found that
the registered agent should not have been made party to the
rectification proceedings. In this case the claimant alleged
that it held security over shares in the defendant company and that
the security had become enforceable, entitling it to transfer the
shares into its own name using the blank share transfer forms it
held and (effectively, although the case was not put this way)
become a mortgagee in possession. Before issuing proceedings
the claimant had demanded that the registered agent give effect to
the transfer. However, because there was a dispute between
the company and its shareholder on the one hand, and the claimant
on the other, about whether the security was enforceable, the
company instructed the registered agent not to comply with the
Although the judge made a rectification order in the
claimant's favour, he refused to make an order compelling the
registered agent to update the register, and awarded the registered
agent its costs of the proceedings.
The historic practice has been convenient for claimants but
there is in truth no cause of action against the registered agent
per se in a standard rectification action. If a company is
ordered to rectify its register and then fails to comply with that
order, the proper course is for the claimant to return to court for
further relief against the company in order to enforce the
order. Where an order that a document be executed has not
been complied with, the West Indies Associated States Supreme Court
Act allows the court to nominate a particular person to execute the
document. This appears to be the most obvious way to enforce
an order that a register of members be rectified. It remains
to be seen who, practically speaking, the court would nominate and
how the court's nominee would go about updating the
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