British Virgin Islands: BVI Civil Procedure Reforms

The landscape of litigation will be radically changed

New Civil Procedure Rules will be adopted by the Eastern Caribbean Supreme Court on 31.12.2000. The jurisdiction of the Court extends to the BVI, as well as a number of other Caribbean Member States or Territories (Anguilla, Montserrat, Antigua & Barbuda, St Lucia, St Vincent and the Grenadines, Dominica, St Kitts and Nevis) and, with the introduction of the Rules within these territories, the landscape of litigation will be radically changed.

Much of the form and content of the Rules will be very familiar to lawyers and recent litigants in England and Wales, being broadly similar to many of the civil procedure reforms introduced there by Lord Woolf in April 1999. Canadian lawyers and litigants will also see some similarity however, as in their formulation, regard was also had to the nature and operation of recent procedural reforms in Canada.

One major difference with England & Wales however, will be that the Rules in the BVI and other islands are wider in ambit, dealing in addition, for example, with judicial review, certain criminal matters such as bail and habeas corpus, defamation and admiralty proceedings.

The overriding objective of the Rules is to enable the Court to deal with cases justly. "Dealing justly" with a case includes:

• ensuring that the parties are on an "equal footing"
• reducing costs
• dealing with cases in ways which are proportionate to the:

• amount of money involved
• importance and complexity of the litigation
• financial position of each party

• ensuring that it is dealt with expeditiously
• allotting to it an appropriate share of the courts resources

Whenever it exercises any discretion, the Court must seek to give effect to the overriding objective and, at the same time, the parties will also be under a duty to help the Court here.

In an effort to ensure that the objective is achieved, the Court will take an active role in "case management". In this respect, a new post of "Master" has been created which will be familiar to those in England & Wales, Canada and other jurisdictions, but is new to the Eastern Caribbean.

Masters will be judicial officers appointed by the Judicial & Legal Services Commission and ranking between Magistrates and Judges of the High Court, who will hear all matters which a Judge is entitled to hear in Chambers. Based in St Lucia, they will travel from island to island within the jurisdiction of the Court and it is anticipated that one Master will sit in the BVI Court for one week each month.

As well as the Master being able to deal with applications made by the parties for specific Court Orders, as soon as the defence is served the Court will fix a date for the parties to attend before him/her (in person or by telephone) for a "Case Management Conference". The function of this will essentially be to:

• set the future timetable of the case to trial
• consider directions required
• consider discovery and evidential matters
• fix the date for trial
• explore the possibility of settlement

Whilst he/she will be able to consider and give effect to requests for directions and orders made by the parties, it is anticipated that the Master will also make orders of his/her own volition to move matters forward.

Urgent applications will, when the Master is not sitting, be made to the Judge of the High Court and decisions of the Master will be appealable to the Court of Appeal.

In an effort to bring litigation up to date, there has been a modernisation of legal terminology. Plaintiff, for example, will now be Claimant and Action will be Claim. Pleadings such as the Statement of Claim and Defence will need to be certified by the parties themselves as to their contents being true and Lists of Documents will likewise need to be certified to the effect that the duty of disclosure has been complied with.

An equally new provision is the ability for the Court to order disclosure of witness statements in advance of trial. This will allow an early assessment of the strengths and weaknesses of the case and may assist with early settlement.

Additionally, the Rules provide for both parties to be able to make formal offers to settle a case up to the beginning of trial. In the event that an offer is not accepted and ultimately, the Court decides that the rejection was unreasonable, cost and interest penalties may result. This may prove to be a powerful weapon and lead to cases being compromised at a far earlier stage.

Heralding the beginning of a new period of co-operation and openness in litigation, it will be interesting to see whether the current volume of BVI litigation decreases with the introduction of the Rules and interest in alternative dispute resolute increases, as has been experienced elsewhere.

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.