The BVI Commercial Court has today handed down new guidance which clarifies its position on the recoverability of foreign lawyers' costs and underlines the Court's clear intent to accommodate and provide practical solutions for international litigation in the BVI.
In the recent decision of
Garkusha v Yegiazaryan and Ors the Court of Appeal
created some doubt as to the recoverability and legality of
foreign lawyers working on matters being litigated before the
Courts in the BVI.
New guidance handed down on 21 July by the BVI Court goes some way
to answering the questions posed by the Garkusha judgment in light
of the Legal Profession Act 2015 (the
LPA).
Foreign lawyers' costs 'generally recoverable'
In today's decision the Judge wrote that the fees of overseas lawyers are "generally recoverable" as the disbursements of BVI legal practitioners. Fundamentally BVI legal practitioners should retain "ultimate responsibility" and "ultimate supervision" for the matter. Such functions will include settling pleadings and providing formal advice on BVI law and will only be recoverable by BVI practitioners. Foreign lawyers' fees however will be recoverable (subject to reasonableness) for non-core functions that assist with the BVI case.
The Judge went on to provide further examples of what work could be undertaken and recovered by foreign lawyers in BVI matters. The list is non-exhaustive and for guidance only, however the examples provided are broad and largely reflect the position prior to the LPA coming into force.
Recoverable tasks for foreign lawyers:
- Client liaison
- Strategy and tactics
- Drafting
- Interacting with BVI lawyers and giving instructions
- Document review
- Legal research
- General work under the supervision of a BVI lawyer
The question as to whether practising law outside of the BVI which had seemed to hinge on an application of a defunct provision is also answered.
Today's BVI Court decision will therefore give considerable comfort to those foreign lawyers already engaged in matters before the BVI Commercial Court and to those advising on launching proceedings in the BVI. It also provides a clear statement of the importance of BVI and foreign lawyers working together whilst conducting complex international litigation.
The issue in Garkusha is also being appealed in a different matter by Harneys on behalf of one of its clients.
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