The Commercial Division of the BVI Court has considered a strike out application based on Hunter v Chief Constable of the West Midlands Police(1) and Henderson v Henderson(2) abuse of process. The court held that the substance of the Aldi Stores Ltd v WSP Group plc(3) principles apply in the British Virgin Islands.

The court considered that while the Aldi requirements – whereby a party which intends to bring a subsequent action against existing parties or their privies must raise the issue with the court – may not have been promulgated in this jurisdiction, there can be no doubt that the obligation of a litigant is to put its cards on the table (ie, before the other party and the court) at an early stage and that this is a requirement of parties to litigation in the British Virgin Islands. Parties which fails to do so are "at high risk" of being held to have abused the court's process and no lawyer in this jurisdiction reading the Civil Procedure Rules, Aldi and Stuart v Goldberg Linde(4) together could suppose otherwise.

The defendants argued that the bringing of this claim fell afoul of both Hunter and Henderson abuse on the basis that the claims could and should have been raised in the previous proceedings brought in Hong Kong and the British Virgin Islands. They asserted, without opposition, that the Henderson principle applied regardless of whether the proceedings were in a different jurisdiction, notwithstanding that the previous proceedings did not result in a judgment on the merits, and even where the parties to the subsequent proceedings are not all the same as the parties to the previous proceedings.

The claimants argued that there was no abuse on the basis that it was sensible for them to advance their claims one after the other, because the second claim turned upon the outcome of the first.

The court was unconvinced by this argument and, considering the conduct of the claimants in withholding notice of their claim, granted the strike out.

For further information on this topic please contact Ian Mann or Lucy Hickmet at Harney Westwood & Riegels' Hong Kong office by telephone (+852 5806 7800) or email (ian.mann@harneys.com or lucy.hickmet@harneys.com). Alternatively, contact Kimberly K Crabbe-Adams at Harney Westwood and Riegels' Tortola office by telephone (+1 284 494 2233) or email (kimberly.crabbe-adams@harneys.com). The Harneys website can be accessed at www.harneys.com.

Endnotes

(1) [1982] AC 529.

(2) (1843) 3 Hare 100.

(3) [2008] 1 WLR 748.

(4) [2008] EWCA Civ 2.

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