The Eastern Caribbean Supreme Court (Virgin Islands) (Amendment) Act 2020 (the ECSC (amendment) act) came into force on 7 January 2021.
The two areas that this amendment affects are:
- interim injunctions and receivership orders; and
- Norwich Pharmacal orders.
In Broad Idea International Limited v Convoy Collateral Limited [BVICMAP 2019/0026], the court found that section 24 of the Eastern Caribbean Supreme Court Act (the ECSC act) was inadequate to provide injunctive relief if it was not in support of ongoing proceedings in the British Virgin Islands. The result was:
- the formation of a committee to produce a new statute because this also affected "Norwich Pharmacal relief" (a type of disclosure); and
- a grant of interim relief in support of foreign proceedings.
When a court is considering whether to provide injunction relief, the first stage will be the court determining whether the facts warrant the relief sought. If the substantive proceedings have been brought in the British Virgin Islands, stage two will consist of the consideration of whether the fact that the court has no jurisdiction apart from section 24 of the ECSC act makes it inexpedient to grant the relief.
The new statute provides for claims that it has been possible to bring in the British Virgin Islands for a while, but this gives them a much more stable footing.
The other part of the ECSC (amendment) act deals with Norwich Pharmacal relief. "Norwich Pharmacal disclosure" is the obligation of an innocent third party involuntarily associated in the wrongdoing of another to provide information and documents to the victim. In K and S v Z and Z [BVIHCM(COM) 2020/0016], it was determined that under common law, the British Virgin Islands could provide Norwich Pharmacal relief for the purpose of foreign proceedings.
As this was a decision that could easily be challenged, the opportunity was taken to give the disclosure obligations statutory protection.(1)
For further information on this topic please contact Nicholas Burkill or Nicholas Brookes at Ogier by telephone (+1 284 852 7300) or email ([email protected] or [email protected]). The Ogier website can be accessed at www.ogier.com.
(1) For further information please see here.