The BVI Company Registry is the only major source of publicly available information and records, other than by recourse to litigation. However, a search of the public register will only likely reveal the following: the Certificate of Incorporation; the Memorandum and Articles of Association; the identity of the Registered Agent and the location of its registered office; and possibly details of directors. A search will not normally reveal the names of the shareholders or details of assets.
Although confidentiality in BVI companies is still paramount, in limited circumstances Court actions under the principle in Norwich Pharmacal v Customs and Excise Commissioners  AC 133 (House of Lords) can be successfully brought pre-action against third parties to identify, for example, who the shareholders of BVI companies are. Given the BVI’s success in incorporating Business Companies (over 800,000 at present), this is most usually in the form of an application against trust companies and registered agents (“RAs”) where the wrongdoer is a company.
A Norwich Pharmacal disclosure and production order is available to obtain documents from third parties who have become innocently mixed up in the wrongdoing, through no fault of their own.
Under traditional Norwich Pharmacal principles, the court will normally require the following:
- A wrong must have been carried out, or arguably carried out, by an ultimate wrongdoer;
- There must be a need for an order to enable an action to be brought against the ultimate wrongdoer;
The person against whom the order is sought must:
- be mixed up in so as to have facilitated the wrongdoing; and
- be able to likely to be able to provide the information necessary for the wrongdoer to be sued.
- The ‘innocent’ third party in the BVI is often the RA or the banker of the company who has been passively involved, rather than having actively facilitated the fraudster’s wrongdoing.
- A registered agent will typically hold additional useful company formation documents, including the share register, register of directors, and minutes of any shareholders’ or directors’ meetings.
- The RA may have some correspondence showing the source of instructions, which can be extremely valuable.
- Increasingly, meta-data unwittingly held by the RA is becoming a fruitful source of information.
A Flexible Remedy
Although rare, the BVI Courts have demonstrated their willingness to recognize Norwich Pharmacal relief as a flexible and adaptable remedy. Recent cases have led to relief in areas as diverse as:
- matrimonial litigation, where a husband in foreign matrimonial proceedings was seeking to conceal martial assets;
- against RAs where the companies were alleged to have been the recipients of funds fraudulently advanced by the applicant’s former owner; and
- to obtain information on trustees and beneficiaries of trusts.