Most Read Contributor in British Virgin Islands, January 2017
The BVI Commercial Court has today handed down new guidance
which clarifies its position on the recoverability of foreign
lawyers' costs and underlines the Court's clear intent to
accommodate and provide practical solutions for international
litigation in the BVI.
In the recent decision of
Garkusha v Yegiazaryan and Ors the Court of Appeal
created some doubt as to the recoverability and legality of
foreign lawyers working on matters being litigated before the
Courts in the BVI.
New guidance handed down on 21 July by the BVI Court goes some way
to answering the questions posed by the Garkusha judgment in light
of the Legal Profession Act 2015 (the
Foreign lawyers' costs 'generally
In today's decision the Judge wrote that the fees of
overseas lawyers are "generally recoverable" as
the disbursements of BVI legal practitioners. Fundamentally BVI
legal practitioners should retain "ultimate
responsibility" and "ultimate
supervision" for the matter. Such functions will include
settling pleadings and providing formal advice on BVI law and will
only be recoverable by BVI practitioners. Foreign lawyers'
fees however will be recoverable (subject to reasonableness) for
non-core functions that assist with the BVI case.
The Judge went on to provide further examples of what work could
be undertaken and recovered by foreign lawyers in BVI matters. The
list is non-exhaustive and for guidance only, however the examples
provided are broad and largely reflect the position prior to the
LPA coming into force.
Recoverable tasks for foreign lawyers:
Strategy and tactics
Interacting with BVI lawyers and giving instructions
General work under the supervision of a BVI lawyer
The question as to whether practising law outside of the BVI
which had seemed to hinge on an application of a defunct provision
is also answered.
Today's BVI Court decision will therefore give considerable
comfort to those foreign lawyers already engaged in matters before
the BVI Commercial Court and to those advising on launching
proceedings in the BVI. It also provides a clear statement of the
importance of BVI and foreign lawyers working together whilst
conducting complex international litigation.
The issue in Garkusha is also being appealed in a different
matter by Harneys on behalf of one of its clients.
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.
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There are a number of issues regarding this nascent Tribunal and its procedures on which the Decree is silent and which will need to be answered and clarified for litigators and practitioners in due course.
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