British Virgin Islands: How The Court System Works In The BVI

We have created this guide to cover frequently asked questions on how the courts here in the British Virgin Islands operate.

How are the courts in the BVI structured?

The British Virgin Islands is a member state of the Eastern Caribbean Supreme Court (ECSC), based in St Lucia. Within the BVI, the High Court is managed by local registries. The procedure is governed by the ECSC Civil Procedure Rules 2023 (EC CPR 2023) and practice directions.

The key components of the BVI's civil court system include (i) the High Court (Civil Division), (ii) the High Court (Commercial Division), (iii) the Eastern Caribbean Supreme Court, Court of Appeal and (iv) the Judicial Committee of the Privy Council.

How are proceedings commenced in the BVI?

The following five points cover the most sought-after answers to how proceedings are commenced in the BVI.

Are there any pre-action protocols that need to be followed?

There are no specific rules relating to pre-action conduct, and there is no requirement to send a letter before action before issuing a claim.

However, litigation must be conducted per the "Overriding Objective" outlined in the EC CPR 2023 stipulating that cases must be dealt with justly. This includes considering cost efficiency and proportionality in dealing with legal matters.

Can you file online?

Most filings are made using the ECSC's e-filing portal, which is accessible to BVI legal practitioners. The Court Registry handles allocating matters to judges, scheduling hearings and issuing court orders once approved.

How do you start a claim?

Depending on the type of dispute, it is possible to initiate proceedings by filing either a Part 8 claim or a fixed-date claim form.

Part 8 claims

EC CPR 2023 Part 8 deals with the initiation of the legal process. According to EC CPR 2023 8.1(1), a claim is started when the claimant submits the original and one copy of the following documents to the court office:

• the claim form; and
• the statement of claim; or
• if any other rule or practice direction requires it, an affidavit or other document.

Suppose a claimant wishes for their claim to be on the Commercial List in the Commercial Division of the High Court. In that case, it must file a certificate that the claim is appropriate to be treated as a commercial claim within the meaning of EC CPR 2023 69.1(2). The certificate should outline the relevant facts about the claim that demonstrate its commercial nature (EC CPR 2023 69.1(4)).

The claim is issued on the date entered on the claim form by the court office (EC CPR 2023 8.1(2)).

Fixed dates claims

Fixed-date claim forms are intended to have a "fixed date" set at the time of issue for the first hearing of the claim (EC CPR 2023 27.2(1)). This first hearing of a fixed-date claim may be treated by the Court as the trial of the claim if it is not defended or if it considers that the claim can be dealt with summarily (EC CPR 2023 27.2(3)).

A fixed-date claim must be explicitly used for the following matters:

• Appeal to the Court under EC CPR 2023 60.2(1)
• Admission to practice (general practice)
• Application for an administrative order under EC CPR 2023 56.7(1)
• Restoration of a company according to section 218 of the Business Companies Act 2004
• Rectification of register of members according to section 43 of the Business Companies Act 2004
• Beddoe and Public Trustee v Cooper applications
• Schemes of arrangement

Is it possible to get interim relief in the BVI?

Yes, interim applications are frequently utilised in litigation in the BVI, and a wide range of provisional remedies, including injunctive or other protective relief, is available.

In appropriate circumstances, such as situations where giving notice may defeat the purpose of the application, these applications can be made without notice to the respondent (ex parte).

The legislative framework for interim applications is established by EC CPR 2023 Part 17 and supplemented by a significant body of common law and equitable principles emanating from decisions of both the BVI and English Court.

Injunctive/protective relief which may be awarded includes, in particular, the following:

• Freezing orders restraining a respondent from (i) dealing with any asset, whether located within the jurisdiction or not, and (ii) removing from the jurisdiction assets located there. To succeed, the applicant will need to show (a) a good arguable case against the respondent, (b) that the refusal of an injunction would involve a real risk that a judgment or award in favour of the claimant would remain unsatisfied, and (c) that it is just and convenient for the injunction to be granted. Before 2010, freezing injunctions in the BVI were only available ancillary to a substantive domestic cause of action against the respondent. However, following the judgment in Convoy Collateral Ltd v Broad Idea International Ltd [2021] UKPC 24, in appropriate circumstances, it is now possible to obtain a standalone freezing injunction in support of foreign proceedings.
• Anti-suit injunctions restrain from starting or pursuing proceedings, including in another jurisdiction where it is convenient to do so, with the Court weighing various factors depending on the circumstances of the case.
• Prohibitory injunctions restraining a respondent from acting in a particular way where it is shown (i) that there is a serious question to be tried on the merits of its underlying claim against the respondent, (ii) that an award of damages would not be an adequate remedy, and (iii) that on the balance of convenience, it is just and convenient to grant the relief sought.
• Proprietary injunctions protect property and trust assets, applying the same principles as those applicable to granting a prohibitory injunction and where the applicant has a proprietary interest in the relevant asset.

How long does it take for claims to get to trial?

The timeframe for progressing claims to trial varies significantly depending on the nature of the claims.

Some urgent applications, if issued with certificates of urgency specifying why the ordinary course of listing cannot be followed, may be resolved within days or weeks.

More complex claims may require over a year to progress from initial filing to trial, although trials can also be listed expeditiously in some instances.

Trials in the BVI are conducted like other common law jurisdictions. The trial involves advocacy by BVI legal practitioners. Oral argument and examination of witnesses of fact and experts take place before a single judge at first instance.

Is it possible for hearings to be dealt with remotely in the BVI?

From the onset of the Coronavirus (COVID-19) Pandemic (Pandemic) until very recently, the BVI courts had been conducting hearings remotely. However, starting from 18 September 2023, all hearings in the Commercial Division of the High Court have been resumed in person. Nonetheless, parties still have the option to request a virtual hearing from the Court. If a party wishes to make such a request, they should contact the Court and explain why an exception is necessary. This request should be made no later than seven days before the scheduled hearing date.

It is important to note that unless the party receives confirmation from the Court that the request for virtual attendance has been granted, they should assume that the hearing will be conducted in person.

Is it possible to appeal a judgment in the BVI?

Yes, decisions of the High Court are appealed to the ECSC Court of Appeal.

Before the Pandemic, the ECSC Court of Appeal operated in an itinerant manner, travelling between the various countries and territories within its jurisdiction. In the BVI, it typically convened three times a year for a week-long session. Since the onset of the Pandemic, the ECSC Court of Appeal has transitioned to conducting virtual hearings; presently, all hearings continue to be held remotely. It continues to sit for BVI hearings three times per year.

Is leave to appeal required?

Leave to appeal may be required in different circumstances. We cover the following two events.

Final decisions

There is an automatic right of appeal to the Court of Appeal from the High Court in the case of final decisions in civil proceedings. No leave to appeal is therefore required.

To determine whether a decision is considered final, the Court utilises the "application test", which assesses whether the resolution of the application before the High Court would have conclusively determined the litigation, regardless of the outcome of the decision made by the Court.

Similarly, there is a right to appeal the final decisions of the Court of Appeal to the Judicial Committee of the Privy Council, the final Court of Appeal for the BVI. This right is applicable when the disputed matter is valued at a minimum of £300 or where the appeal, either directly or indirectly, involves a claim to or question regarding property or a right of the value of at least GBP300 or higher.

Interlocutory decisions

Leave to appeal is not required from decisions of the High Court in the following categories of cases:

• Cases concerning the liberty of the subject or the custody of infants
• Cases where an injunction or appointment of a receiver is granted or refused
• Decree nisi in a matrimonial cause or a judgment or order in an admiralty action determining liability

Otherwise, leave to appeal to the Court of Appeal is required for interlocutory decisions. The grant of leave is discretionary, and a prospective appellant must demonstrate reasonable prospects of success or other compelling reasons for withdrawal to be granted. Public interest reasons, such as instances where the law is unclear or a new point of law arises, may warrant the grant of leave.

If a decision of the Court of Appeal on an interlocutory decision of the High Court is challenged, leave to appeal to the Privy Council is required. Leave will be granted if the question in the appeal is of great general or public importance or if there are other compelling reasons to submit the case to the Privy Council.

Appeal – timelines and procedure

We cover the following three scenarios, timelines and procedures to follow with appeals.

High Court to the Court of Appeal – where leave is required

Application for leave to appeal must be submitted to the High Court within 14 days of the order being appealed. If the High Court refuses, there is an option to apply to the Court of Appeal within seven days of the High Court's refusal. Once leave is granted, the notice of appeal must be filed within 21 days.

High Court to the Court of Appeal – where leave is not required

In interlocutory appeals where leave is not required, such as in cases seeking to discharge an injunction, the notice of appeal must be filed within 21 days of the decision.

For final appeals, the notice of appeal must be filed within 42 days of the decision.

From the Court of Appeal to the Privy Council

To appeal from the Court of Appeal to the Privy Council, the following steps need to be taken:

1. Within 21 days of the Court of Appeal's decision, an application for conditional leave should be submitted to the Court of Appeal.
2. If the Court of Appeal grants conditional leave, the appellant must fulfil the specified conditions, which typically include security payments and record preparation.
3. Once the conditions are met, an application for final leave is made to the Court of Appeal.
4. If the Court of Appeal grants the final leave, the appellant can appeal to the Privy Council.

In cases where leave to appeal to the Privy Council is required but refused by the Court of Appeal, a prospective appellant may apply directly to the Privy Council for "special leave". It is important to note that the Privy Council has discretion in granting special leave; in practice, such grants are limited in civil cases.

Conclusion

We hope this guide helps you understand how the courts in the BVI operate.