Two recent judgments broaden the Norwich Pharmacal
jurisdiction in the BVI, each by the two incumbent Commercial Court
justices: the Honourable Justice Malcolm Davis-White [Ag] and the
Honourable Justice Gerhard Wallbank [Ag].
In recent years the BVI Commercial Court showed reluctance to
grant Norwich Pharmacal orders. Bannister J expressed his view in
no uncertain terms that these applications to provide third party
disclosure to assist foreign parties, always against
registered agents, were highly onerous. Bannister J's decision
in JSC BTA Bank v Fidelity Corporate Services
Limited BVI HC (Com) 2010/137 illustrates this,
ruling that the activities of a registered agent were not
sufficient to meet the threshold test of being "mixed up in
the wrongdoing" and that the applicant had to establish
"necessity". On appeal in JSC BTA Bank
HCVAP 2010/035, the Court of Appeal overturned this
decision, finding that registered agents were not mere onlookers
and that the necessity requirement will vary with the circumstances
of the case. However, despite this ruling, the BVI Commercial Court
remained reluctant to grant the orders and did not make a further
decision expanding the jurisdiction.
The landscape for these orders has changed, as shown in two
recent decisions in aid of foreign proceedings:
In UVW v
XYZ (unreported decision of 27 October 2016),
Wallbank J held that an applicant can, without evidence that a
judgment debtor has misused a BVI company but where a judgment
creditor is able to show some evasive conduct by the judgment
debtor (as opposed to a mere non-payment), obtain a Norwich
Pharmacal order to support asset tracing. This goes further that
NML Capital Ltd v Chapman Freeborn Holdings et al
 1 CLC 968, where the court doubted there was
post-judgment jurisdiction and where more evidence of wilful
evasion was needed.
In a separate case (in which Ogier
appeared for the Applicant), Davis-White J granted an order on 24
October 2016 against a registered agent where three of its
companies were alleged to be involved in fraudulently contriving a
debt. Importantly, one of these companies was involved in
concurrent proceedings in Hong Kong in which the subject was the
same debt. This is an extension beyond the case of
Mitsui & Co Limited v Nexen Petroleum UK
Limited  EWHC 625 (Ch), where an English
application was dismissed because the existence of concurrent
proceedings provided the opportunity for other disclosure relief to
This change in landscape provides a much wider set of
opportunities to seek Norwich Pharmacal relief in aid of foreign
proceedings in the BVI and, likely, suggests the form of relief
will continue to be available for an expanding range of
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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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