The Rules of Civil Procedure in the BVI were subject to extensive change in 2000. Further significant amendments to those Rules took place by virtue of the Eastern Caribbean Supreme Court, Civil Procedure (Amendment) Rules 2011. This brief note sets out a broad summary of some of the key changes introduced by those Amendment Rules.
AN OVERVIEW OF THE AMENDED RULES
Part 2 Application and interpretation of rules
Under Part 2, Rule 2.2 has been amended to so that in now incorporates Part 62 (on appeals to the Court of Appeal) to family proceedings and insolvency.
Chambers/open court
The Amendent Rules 2011 also repeal Rule 2.7, which sets out where, when and how it deals with cases, and instead provide a revised codification of the Court's practice. In essence, Rule 2.7 now provides that applications must be heard in chambers while claims, motions and motions and petitions must be heard in open Court. However, except in the case of trials, the Court has discretion to direct that any hearing be conducted in chambers.
In addition, the new Rule 2.7 now provides that any proceedings may be heard in private with the consent of the parties and expressly declares that orders in chambers have the same force and effect as orders made in open court.
Finally, the new Rule 2.7 expressly provides that the court sitting in chambers has the same powers to enforce, vary and deal with orders as it does in open court.
Part 3 Time and documents
Under Part 3, Rule 3.5, time does not run during the long vacation with respect to 'filing or serving' any statement of case (other than statement of claim), unless the court orders or directs otherwise.
Part 7 Service out of jurisdiction
Rule 7.3 provides that a claim form may be served out of jurisdiction if a claim is made (a) against someone who on whom the claim form has been or will be served, and (i) there is between the claimant and that person a real issue which it is reasonable for the court to try; and (ii) the claimant now wishes to serve the claim form on another person who is a necessary and proper party to that claim.
Of particular significance is the change to Rule 7.3 which now includes a provision specifically covering 'claims about companies', and enables the court to give permission to serve a party out of the jurisdiction if the subject matter of a claim relates to: (a) the constitution, administration, management or conduct of the affair; or (b) the ownership or control of a company incorporated within the jurisdiction.
In addition, Rule 7.3 extends the Court's powers in relation to Contract claims, and introduces a fresh cause of action relating to claims of restitution.
Changes to Rules 7.8A and B
Service
A further significant amendment to Part 7 is rule 7.8, which provides alternative modes of service for claim forms, and a power for the court to dispense with claim forms.
Rule 7.8A (1) states that where service under Rule 7.8 is impracticable, the claimant may apply for an order under this Rule that the claim form be served by a method specified by the court. It has been reported that this enactment overturns the 2005 High Court decision of Barrow, J in Trans-World Metals SA (Bahamas) and Others v Bluzwed Metals Limited (BVI). Therefore, where service under Rule 7.8 is impracticable, Rule 7.8A(1) allows the claimant to apply for an order that the claim form be served by a method specified by the court.
7.8B (1) provides that, the court may dispense with the service of a claim form in "exceptional circumstances". All indications thus are that the "exceptional circumstances" test will be applied restrictively.
Changes to Part 8 - Duty to set out case
Rule 8.7(3) has been altered to exclude annexing any document (to the claim form or statement of claim) unless a claimant considers this necessary to their case.
Rule 8.7A now prevents a claimant from relying on an allegation or factual argument, which is not set out in the claim, but which could have been set out, unless the court grants them permission or the parties agree to it.
Changes to Part 9 - Disputing jurisdiction
Rule 9.7 now includes a procedure for a defendant to dispute the court's jurisdiction and obtain a declaration.
9.7A deals with the procedure for a defendant who contends that the court should not exercise its jurisdiction to obtain a stay of proceedings. Rule 9.7(3) provides that the period for making such an application includes any period by which the time for filing a defence has been extended by the court or agreed between the parties.
Changes to Part 10
Pleading Allegations
Rule 10.7 now points a defendant to rely on any allegation or factual argument not set out in their claim exceptionally by agreement, in addition to by way of permission from the court. Rule 10.9 has been replaced by an updated section, which provides that where the defence contains a counterclaim Part 18 of the CPR on ancillary claims applies.
Changes to Part 13 – Setting aside default judgment
Rule 13.3 has been modified to include a new provision, which sets out an additional ground for setting aside a judgment in default.
Changes to Part 14 – Judgment on admissions
Part 14 looks to improve the efficiency of the procedure for dealing with judgments on admissions.
Rule 14.2 provides that if a claim is satisfied and the claimant fails to file and serve a notice of discontinuance within 7 days of payment, the defendant may now file and serve a standard form notice requesting that the claim be recorded as satisfied.
Rule 14.7 now includes a new procedure for admitting part of a claim, for money only.
Changes to Part 17 – Interim remedies
The evidential requirements for making applications for seeking an interim remedy have been altered to permit evidence by witness statements in certain circumstances.
Rule 17.3(1A) provides that where it is not practicable to produce evidence on affidavit, an application for an interim remedy may by supported by evidence given by witness statement, and the court may give such directions it thinks fit in relation to filing of evidence by affidavit.
Changes to Part 20 – Amendments to statements of case
Rule 20 now permits one amendment to a statement of case, without the court's permission, at any time prior to the date fixed by the court for the first Case Management Conference.
Rule 20.3 includes a procedure for filing an amended statement of case. This Rule requires filing of an original and an amended version prior to service on all parties. The old requirement for approval of the filed version with a certificate of service no longer applies.
Part 26 - Case management
Rule 26.7(4) enables the court to impose cost orders against practitioners on its own initiative, in circumstances where a party/legal practitioner fails to: (a) file a pre-trial memorandum or a bundle under Rule 39.1(5) or (b) file a court bundle in accordance with Rule 62.12(4) or (c) to comply with a Rule, Court Order, practice direction or practice guide, which has caused another party to incur costs or a hearing to be vacated.
Rule 26.7(5) provides that any cost order under Rule 26 may be made in addition to any wasted costs orders.
Appeals
The procedure for appeals to the Court of Appeal under Part 62 has been significantly revised, replacing procedural appeals with interlocutory appeals and introducing four new rules being, 62.25, 62.26, 62.27 and 62.28
Interlocutory appeals are defined under Rule 62.1(2) as appeals from an interlocutory judgement or order. Rule 62.10 sets out the substantive rules as they now relate to interlocutory appeals. Rule 62.1(3) states that determination of whether an order is final or interlocutory is made on the "application test". However, Rule 62.1 (3) provides that an order on an application for disclosure against a person who is not a party is a final order.
Other notable amendments are that Rule 62.25 and 62.26 introduce a specific procedure for withdrawal or discontinuance of appeals and the cost related to and the cost related thereto.
Prior to this amendment there may have been uncertainty about some aspects of the application of Part 37, which deals with discontinuance of claims generally. Rule 62.27 deals with quantification of costs on withdrawal or discontinuance and 62.28 provides a regime for judicial review appeals.
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.
