Introduction

On July 21 2016 the BVI Commercial Court 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 British Virgin Islands.

In Garkusha v Yegiazaryan 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 British Virgin Islands.

The new guidance goes some way to answering the questions posed by the Garkusha judgment in light of the Legal Profession Act 2015.

Decision

The court held 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 are recoverable by BVI practitioners only.

However, foreign lawyers' fees will be recoverable (subject to reasonableness) for non-core functions that assist with the BVI case.

The court provided further examples of the work that can be undertaken and recovered by foreign lawyers in BVI matters. The list is non-exhaustive and for guidance only. However, the examples are broad and largely reflect the position prior to the Legal Profession Act coming into force.

Recoverable tasks for foreign lawyers include:

  • client liaison;
  • strategy and tactics;
  • drafting;
  • interaction with BVI lawyers and provision of instructions;
  • document review;
  • legal research; and
  • general work under the supervision of a BVI lawyer

The question as to whether practising law outside of the British Virgin Islands ? which had seemed to hinge on an application of a defunct provision ? was also answered.

Comment

The decision will 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 British Virgin Islands. It also provides a clear statement of the importance of the British Virgin Islands and foreign lawyers working together while conducting complex international litigation.

For further information on this topic please contact Claire Goldstein, Phillip Kite or Andrew Thorp at Harney Westwood & Riegels' Tortola office by telephone (+1 284 494 2233) or email (claire.goldstein@harneys.com, phillip.kite@harneys.com or andrew.thorp@harneys.com ). Alternatively contact Ian Mann at Harney Westwood & Riegels' Hong Kong office by telephone (+852 3195 7200) or email (ian.mann@harneys.com). The Harney Westwood & Riegels website can be accessed at www.harneys.com.

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