An extract from The Dispute Resolution Review, 12th Edition
Court procedurei Overview of court procedure
The rules governing civil procedure in the BVI are set out in the Eastern Caribbean Supreme Court Civil Procedure Rules, often referred to simply as the EC CPR or the CPR. These rules apply to civil proceedings in all jurisdictions of the Eastern Caribbean Supreme Court and as such there is a healthy body of case law from these jurisdictions that aids the interpretation of the rules.
For cases proceeding in the Commercial Division of the High Court there is a specialised procedure set out in dedicated parts of the EC CPR to ensure these cases are dealt with appropriately and expeditiously.ii Procedures and time frames
Broadly speaking, there are four types of proceeding in the BVI: (1) standard claims; (2) fixed-date claims; (3) originating applications; and (4) ordinary applications.Proceedings commenced by claim form
Standard claims are commenced by the filing of a claim form. A standard claim form must be accompanied by a statement of claim either at the time the claim form is filed or shortly thereafter and that document should contain the material facts upon which the claim is brought and set out the causes of action and relief that is being sought.
For claims that are commenced against defendants located within the BVI the defendants will have up to 14 days to acknowledge service and up to 28 days to file a defence from the time the claim form and statement of claim have been served on them. Where a defendant is located outside the BVI the claimant will need to seek permission from the court to serve out of the jurisdiction before service can be effected, an application which will ordinarily take between two and four weeks to be determined. If and when permission to serve out is granted, the claimant will then need to effect service by certain specified methods (what is permitted will depend on the laws of the country where the defendant is located). Once a defendant located outside the BVI has been served they will have between 28 and 35 days to acknowledge service and 42 and 56 days to file a defence based upon where they are located (for most jurisdictions outside the BVI the longer period applies). A defendant may file a counterclaim alongside their defence.
A claimant may file and serve a reply to a defence and will ordinarily have 14 days to do so after the defence has been served. If a counterclaim has been filed, there will be an opportunity for the claimant to file and serve a defence to the counterclaim and for the defendant to file and serve a reply to that defence.
Once pleadings close there will ordinarily be a case management conference at which the court will set down directions to trial and set a trial date. The directions will generally provide for a disclosure (discovery) process and for the parties to adduce witness evidence. Some cases may also require the parties to adduce expert evidence. The time between close of pleadings to trial will depend on the size and complexity of the case, how much documentary evidence there is, how many witnesses there are and whether expert evidence is required.Fixed-date claim forms
Fixed-date claim forms must be used for certain types of dispute. Fixed-date claims are intended for cases that will require minimal evidence and the procedure is therefore designed to bring the claim on for trial more quickly than a standard claim.
When commencing proceedings by way of a fixed-date claim form the claimant will generally file and serve an affidavit instead of a statement of claim and a defendant will have the opportunity to put in responsive evidence by way of affidavit. A hearing date will be set at the time the fixed-date claim form is filed. The first hearing will normally be used by the court to give directions for the trial of the matter but in situations where there is no defence or where the case can be dealt with summarily, the court can treat the first hearing as the trial.Originating applications
Originating applications are used to commence certain actions within the regime laid out by the Insolvency Act and the Insolvency Rules. This will usually be related to applications to appoint liquidators or other insolvency-related applications.
The originating application procedure is similar to that commenced by fixed-date claim form – an originating application must be supported by affidavit evidence and a hearing will be fixed at the time the application is filed. The respondent(s) and/or interested parties will have an opportunity to file evidence in response and to be heard at the hearing.Ordinary applications
Ordinary applications will usually be made within proceedings that have been, or will be, commenced through one of the originating procedures described above. However, there are limited circumstances in which ordinary applications can be used to commence free-standing proceedings in the BVI, including where interim relief is sought in support of foreign arbitral proceedings and where Black Swan injunctive relief is sought in support of foreign court proceedings.
Applications can be made on an urgent basis, in which case underlying proceedings do not need to be on foot at the time the application is made even if the applicant intends for the application to be in support of anticipated proceedings in the BVI. In such a situation a claim can be commenced by way of a claim form following the grant of the urgent interim relief. Urgent applications are generally heard at very short notice by the court and, when necessary, on the same date the application is filed.iii Class actions
The EC CPR allows groups of five or more persons who have a similar interest to be represented by a single claimant or defendant and as such class actions are theoretically permitted. However, such actions are not common in the BVI.iv Representation in proceedings
Natural persons are able to represent themselves in legal proceedings in the BVI. For corporations, a duly authorised director or other officer may conduct the proceedings on behalf of the corporation, although the court's permission is required for the corporation to be represented at any hearing in open court by anyone other than a BVI legal practitioner.v Service out of the jurisdiction
For the BVI court to permit service of a claim form on a defendant located outside the jurisdiction the following three-stage test must be satisfied: (1) that in relation to the foreign defendant there is a serious issue to be tried on the merits; (2) that there is a good arguable case that the claim falls within one of the jurisdictional 'gateways' for service out, as set out at EC CPR 7.3; and (3) that the BVI is clearly and distinctly the appropriate forum for the trial of the dispute.
Where permission to serve out has been granted, a claimant must ordinarily serve a claim form by one of three methods: (1) through diplomatic channels or foreign governments (e.g., in accordance with the provisions of the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters); (2) in accordance with the law of the country in which the document is to be served; or (3) personal service by the claimant or the claimant's agent. While personal service is expressly permitted as a method of service, this is only insofar as it is not contrary to the law of the country where service is to take place.
In circumstances where the 'ordinary' methods of service are demonstrably impracticable the court may permit the claimant to serve by alternative methods.
Where the court has granted permission to serve a claim form on a defendant out of the jurisdiction a claimant may serve other documents relating to the proceedings on the same defendant without the need to obtain further permission.vi Enforcement of foreign judgments
There are different methods of enforcing foreign judgments in the BVI depending on: (1) the jurisdiction from which the judgment originates; (2) the nature of the relief granted in the judgment; and (3) whether the judgment was issued by a court or arbitral tribunal (although the latter is generally referred to as an 'award' rather than a 'judgment').
Generally speaking, there are four methods by which foreign judgments may be enforced in the BVI:
- Money judgments issued by certain courts in certain jurisdictions can be enforced in accordance with the Reciprocal Enforcement of Judgments Act. This includes money judgments issued by the High Court in England and Wales, the High Court in Northern Ireland, the Court of Session in Scotland, and courts in the Bahamas, Barbados, Bermuda, Belize, Trinidad and Tobago, Guyana, St Lucia, St Vincent and the Grenadines, Grenada, Jamaica, New South Wales (Australia) and certain courts within Nigeria. The procedure for registration of such a judgment is relatively straightforward and is set out within the EC CPR. Once registered, the judgment shall be of the same force and effect as a judgment of the High Court in the BVI and will be enforceable as such.
- Money judgments from other jurisdictions can be enforced by way of a common law debt claim brought in the BVI as a free-standing claim. Although this entails commencing a new claim in the BVI, such a claim will usually be dealt with on a summary basis.
- Foreign non-money judgments can be enforced in the BVI, although this requires the claimant to commence a new claim in the BVI and rely on issue estoppel to prevent the defendant from raising any of the same arguments that it has already relied upon in the foreign proceedings in which the judgment was issued. The relief awarded in the foreign jurisdiction must also be available in the BVI for the judgment to be effectively replicated.
- Foreign arbitral awards are enforceable in accordance with the provisions of the Arbitration Act, and there is a summary procedure provided for in the EC CPR which means that registration of foreign arbitral awards, particularly awards from countries that are signatories to the New York Convention, will be quick and relatively straightforward absent any irregularity.
One of the ways in which the BVI courts are able to provide assistance to foreign courts is to compel entities within the BVI to produce information or documentation. There are various ways in which a foreign court, or foreign litigants, may seek the assistance of the BVI courts in obtaining information and documentation. This includes the power of the BVI courts to grant Norwich Pharmacal relief in support of foreign proceedings and a statutory power to order an entity in the BVI to produce documentation for use in foreign legal proceedings, pursuant to the BVI receiving a letter of request from that foreign court.
In addition to the provision of information and documentation, the BVI courts are also able to assist foreign courts by granting injunctive relief, or other forms of interim relief, in support of foreign court proceedings. The most prominent way in which assistance can be provided is through the granting of injunctive relief to hold the ring pending determination of foreign proceedings. The Black Swan jurisdiction has evolved in the BVI which allows freezing injunctions to be granted over assets located in the BVI to assist foreign proceedings even if the parties to the proceedings are not domiciled in the BVI. In addition, the BVI courts have taken a liberal approach to the granting of interim relief in support of foreign arbitration proceedings.viii Access to court files
Members of the public are entitled, upon paying the prescribed fee, to search for, inspect and take copies of the following documents that have been filed in proceedings: a claim form; a notice of appeal; judgments and orders. For a non-party to obtain any other document they will need to make an application to the court for leave to obtain such further documents, which will not generally be made available without good grounds.
The parties to any proceedings may search for, inspect and take copies of all documents on the court file (except anything that has been placed under seal).ix Litigation funding
Although there is not currently any legislation in the BVI governing third-party funding of litigation, a 2011 decision of the Commercial Court suggests that third-party funding is not unlawful and that a third-party funder will be entitled to share in any award or profits of litigation. Despite this decision, third-party funding has historically not been commonly used in the BVI.
As to the use of contingency fees, while these are explicitly allowed in respect of non-contentious work provided that the fee is fair and reasonable, there is no such provision in respect of contentious work. As such, the common law rules relating to champerty and maintenance have not been expressly modified and it remains unclear whether CFAs would be permitted in respect of litigation.