Conyers' Matthew Brown and Jane Fedotova take a deep dive into the impact of the region's new civil procedure rules.
On 31 July 2023 a substantially amended version of the Eastern Caribbean Civil Procedure Rules (Amended CPR) came into force in the British Virgin Islands (BVI). The Amended CPR applies to all proceedings commenced on or after that date. As discussed below, the Amended CPR is also intended to apply in due course, on the basis of transitional provisions, to almost all proceedings that were commenced before 31 July 2023 and which remain ongoing.
As a result of the amendments, the CPR has undergone some significant changes. Some of those changes are of a fundamental nature.
Here we explain and summarise the key amendments and offer some critical evaluation of the new provisions.
WHEN DOES THE AMENDED CPR APPLY?
As explained above, the Amended CPR applies automatically to proceedings commenced on or after 31 July 2023. That much is clear. However, the position is more nuanced in respect of proceedings that were commenced prior to that date, and which remain ongoing. In relation to those proceedings, the application of the Amended CPR depends upon the effect of transitional provisions, which in turn differentiate between cases in which a trial has been fixed and cases in which a trial has not yet been fixed (or has been fixed but adjourned).
Where a trial date has been fixed, and remains in place, then the old rules will apply. However, where a trial has been fixed but has then been adjourned by way of an application, the Amended CPR will apply from the date of the hearing of that adjournment application.
Finally, where a trial date has not been fixed at all, then the transitional provisions mandate that a case management conference (CMC) shall be fixed by the Court Office, and the Amended CPR shall apply from the date of that CMC.
What remains unclear is how some aspects of the transitional provisions will apply in practice. In the first instance, it is unlikely that the Court Office will, itself, fix a CMC in respect of every set of proceedings that were commenced before 31 July 2023 and remain ongoing. Therefore, in practice, it is likely that the old rules will continue to apply in many cases for some time to come. Further, it is unclear at present how the transitional provisions will apply to proceedings that were commenced before 31 July 2023, but which do not, by their very nature, involve a trial. It is possible, but not certain, that the Courts will construe the words "trial date" to include, in this context, the final hearing of the relevant application.
Having explained when the Amended CPR is likely to apply, we now turn to the issue of what changes the Amended CPR has made to the previous version of the CPR.
AMENDMENTS TO THE SERVICE-OUT PROVISIONS
One of the most fundamental and arguably the most controversial changes introduced by the Amended CPR concerns the procedure for serving BVI process outside of the BVI. In short, under the new provisions, as long as certain conditions are met, there is no longer any requirement to seek the permission of the BVI Court before serving BVI proceedings outside the jurisdiction. The stated pre-conditions are: first, that service of the proceedings will be affected in compliance with CPR 7.9 or 7.17; second, that the court process is listed in CPR 7.3 (which contains the well-known gateways); and third, that the claimant has complied with CPR 7.6.
Although, the BVI Court's permission is still required in certain cases, such as where the conditions set out above are not met, or where the claimant/applicant intends to serve the foreign defendant/respondent by alternative means, the amendments now mean that in most cases the court's permission is not required before BVI claims/applications can be served on foreign persons. That is a significant – and perhaps controversial – change.
Given the possibility of the new provisions being open to abuse, the new CPR 7.6 is intended to provide a safety mechanism, in that in those cases in which permission to serve out is not said to be required, the claimant or its legal representative must now file a certificate of compliance stating first that the gateway(s) in CPR 7.3 that the claimant relies upon and, second, that in the belief of the person signing the certificate: (a) the case is a proper one for the court's jurisdiction; (b) the claimant has a good arguable case; and (c) the proposed method of service does not infringe law of that foreign state.
The effect of the amendments, however, is that in most cases there will now be, in effect, a presumption as to jurisdiction and service, and the burden of disproving that presumption will be on the foreign defendant/respondent, rather than the claimant/applicant. That is a significant volte-face.
Finally, and sensibly, the Amended CPR has clarified and confirmed that, first, the "court process" extends beyond a mere "claim form", and includes a notice of application and other documents; and second, that it is possible to serve out of the jurisdiction a freestanding application for interim relief in aid of proceedings that have been, or are about to be, commenced in a foreign jurisdiction. That latter clarification effectively removes the uncertainty that previously existed, and has been achieved by the inclusion of a further gateway in CPR 7.3.
INTRODUCTION OF JUDICIAL SETTLEMENT CONFERENCES
Another eye-catching amendment introduced by the Amended CPR is the concept of a "judicial settlement conference": a novel alternative dispute-resolution (ADR) mechanism that is intended to complement existing mediation provisions and promote early dispute resolution. The new procedure contemplates the involvement of a judge in a confidential settlement process, during either the case management conference process and stages leading up to trial or the hearing of an appeal, and/or the hearing or trial itself, as long as it is undertaken with the parties' consent. In conducting a judicial settlement conference, a judge may assist the parties in evaluating the merits of the dispute and may also provide an evaluation or an opinion on the likely outcome.
Although it is yet to be seen if or how this novel procedure will be utilised, and whether it will result in more ADR work within the region, it is certainly a welcome development and one that is intended to promote the early disposition of cases.
THE INSPECTION OF COURT RECORDS
Under the Amended CPR the rules relating to the inspection of court records have been altered. In particular, the amendments expand the categories of documents that non-parties can inspect and take a copy of. However, the amendments also explain the type of documents and proceedings that cannot be inspected, including settlement agreements and documents in respect of which disclosure and inspection is prohibited by statute. The Amended CPR now permits a person mentioned in a statement of case to apply to the Court for an order restricting inspection of the respective court file.
THE E-FILING PROCEDURE
Included within the new rules is a brand new Part 5A. This is intended to expressly address, within the body of the CPR itself, the filing and service of court documents through the E-Litigation Portal. Although lawyers practising in the BVI will be familiar with the contents of Part 5A, as it is based upon the Eastern Caribbean Supreme Court (Electronic Litigation Filing and Service Procedure) Rules, 2018 (as amended), the inclusion of Part 5A within the CPR itself is a sensible step.
AMENDMENTS CONCERNING ACKNOWLEDGEMENT OF SERVICE
Under the Amended CPR a defendant is now permitted to amend his acknowledgment of service once without permission of the court, so long as they do so before the expiry for the deadline for filing of a defence. The Amended CPR also confirms that a claimant who is served with a counterclaim is not required to file an acknowledgment of service.
AMENDMENTS TO PART 11 OF THE CPR
There are a few notable amendments to CPR Part 11, which deals generally with applications.
First, the Amended CPR now includes a formal requirement to file a certificate of urgency in support of an urgent application. Second, there is now a standalone requirement to serve an application as soon as practicable after it has been issued (without reference to a timeline related to any hearing dealing with the application). Third, Part 11 now incorporates the standard deadlines for serving a response to an application, and thereafter a reply. Those deadlines are 14 days from service in respect of a response, and seven days from service in respect of a reply. However, the Amended CPR has introduced a new requirement, namely that a respondent who wishes to oppose an application must now to file a notice of opposition within seven days, and must set out within that notice "the grounds on which the application is opposed". It is not clear why this concept has been introduced, or what the consequences are (if any) if it is not filed (but the application is in fact opposed).
Fourth, Part 11 now provides that an applicant may amend a notice of application once, without the permission of the Court, so long as they do so not less than seven days before the hearing fixed in relation to the application.
Fifth, and finally, the amendments to Part 11 include an express power to strike out an application if the applicant is unable to demonstrate reasonable grounds for bringing the application, if the application is an abuse of process, or if it is likely to obstruct the just disposal of the proceedings. That is a welcome development (albeit by way of codification in Part 11, rather than the introduction of a new power).
NEW DEFAULT JUDGMENT PROVISIONS
As a result of the amendments the procedure for applying for judgment in default has now been simplified. Further, the Amended CPR now provides that, once a request or application for default judgment has been made, the Court is not entitled to have regard to any steps taken by the defendant thereafter when determining the request. That could be an important provision in practice.
OTHER NOTABLE AMENDMENTS
Although a large number of further amendments have been made to the previous version of the CPR, some of the more notable ones are: (1) confirmation that a defendant does not need to file a defence before the hearing of a summary judgment application; (2) the stipulation that a party cannot rely on a disclosed foreign language document unless they also provide a translation; (3) the express reference to the Court's power to make a civil restraint order; (4) the introduction of an express power for the Court of Appeal to dispense with the timelines under Part 62 and hear an appeal on an expedited basis if it is satisfied that certain requirements are met; (5) formally recording that an application seeking leave to appeal may be made orally at the hearing at which the order or the judgment was made; (6) confirmation that enforcement proceedings in respect of an arbitral award should be commenced by a claim form.
CONCLUSION
Overall, we believe that the amendments introduced by the Amended CPR are likely to have a positive impact in practice and are, generally speaking, in keeping with the jurisdiction's reputation for determining high value and complex disputes in a fair, efficient and transparent manner.
Originally published by Commercial Dispute Resolution (CDR)
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