Progressing the case

Typical procedural steps

What is the typical sequence of procedural steps in commercial litigation in this country?

Commercial litigation in the BVI usually follows the following sequence.

First, proceedings in the Commercial Division of the High Court may proceed by way of claim form, fixed-date claim form or originating application. Originating applications are used most commonly in cases where the appointment of a liquidator is sought. The claim form is the most common type of originating process and is used in most contentious disputes. A fixed-date claim form must be used in cases concerning hire purchase or credit-sale agreements, proceedings for possession of land, whenever specifically required by the CPR, and where legislation requires proceedings be brought by originating summons or motion.

Depending on the particular proceedings, the action commences when the claim form, originating application or fixed-date claim form is filed. In cases proceeding by way of claim form, the claimant should also file a statement of claim setting out the grounds of the claim. In cases proceeding by way of originating application or fixed-date claim form, the claimant should also file and serve an affidavit setting out the grounds on which the application or fixed-date claim is brought.

The claim must then be served on the defendant or respondent.

If the claim is to be served on a defendant or respondent who is ordinarily resident or incorporated outside the jurisdiction, permission to serve that defendant out of the jurisdiction should be sought and obtained at this stage. If the court grants permission, the claim should be served together with a copy of the order permitting service out of the jurisdiction and the evidence relied on to obtain the permission; and the order permitting it should be served on that defendant or respondent, as he or she has a right to apply to have the order granting permission set aside.

Domestic defendants or respondents have 14 days from the date of service of the statement of claim (or the originating application or fixed-date claim form and affidavit) to file an acknowledgment of service. Defendants or respondents who have been served out of the jurisdiction in accordance with the court’s permission have 35 days from the date of service to file their acknowledgment (unless service is effected in one of a number of other Caribbean states, in which case the period is 28 days from service).

A defendant or respondent who wishes to challenge the court’s jurisdiction over him or her or to bring a forum challenge does not lose his or her right to do so by filing an acknowledgment of service. It is not necessary to indicate in the acknowledgment of service whether a jurisdiction or forum challenge will be brought, but some practitioners choose to do so.

Domestic defendants or respondents have 28 days from the date of service to file either a defence or a jurisdiction or forum challenge. Overseas defendants or respondents have 56 days from the date of service to file a defence, or a jurisdiction or forum challenge, or an application to set aside the order granting leave to serve proceedings on the defendant outside of the jurisdiction (unless service is effected in one of a number of other Caribbean states, in which case the period is 42 days from service).

If there is any jurisdiction, forum or service challenge, this will be determined before the matter proceeds. The time frame for filing a defence (or, in cases commenced by originating applications, evidence in response) for any defendant or respondent who brings such a challenge is paused. If there are other defendants or respondents, it is likely that the court will consider staying proceedings until the jurisdiction, forum or service challenges have been determined.

If the BVI court dismisses any jurisdiction, forum or service challenge, it must specify a date by which defences or evidence in response must be filed.

Once a defence or evidence in response has been filed, the claimant may wish to file a reply or evidence in reply, and if there is a counterclaim, a defence to the counterclaim may also be filed. There may also be further exchanges of pleadings, and parties may make requests for further information.

Within 14 days after the last of the defences or the last of the pleadings or affidavits in response have been filed, the claimant or applicant must file an agreed written statement of the parties’ best estimate of how long they think the trial will last. If the estimated trial length is greater than a day, the court will list a CMC.

Three days before the date of the CMC, the claimant or applicant must lodge a CMC bundle with the court.

In any case proceeding other than by way of originating application, at the CMC the court will give directions as to:

  • the nature, extent and timing of disclosure of documents;
  • whether witness statements are required, and if so, the timing of exchange of witness statements;
  • whether expert evidence is to be permitted, and if so, on what matters and to what extent;
  • whether any particular measures are needed at trial, such as the services of an interpreter or video-link facilities;
  • whether a pretrial review (PTR) should be held, and if so, when; and
  • when trial should be listed.

In cases proceeding by way of originating application, at the CMC the court will give directions as to:

  • whether any points of claim and defence should be served, and if so, when;
  • whether any disclosure should be given, and if so, when and how;
  • whether any witnesses should attend trial for cross-examination;
  • whether expert evidence is required, and if so, on what issues and how such evidence should be taken; and
  • when the trial should be listed.

If a PTR is listed, the claimant should file an updated CMC bundle three days before the listing, together with an agreed trial timetable. At the PTR, the court will give directions as to the trial timetable.

If no PTR is held, the parties must agree a trial timetable and file it no later than three weeks before the first day of trial. If parties cannot agree, they must file separate trial timetables. The judge will then decide what timetable is to be adopted.

Not less than six weeks before the first day of trial, the claimant or applicant must begin the process of agreeing what should be included in the trial bundles with the other parties. The claimant or applicant must serve the completed trial bundles on the other parties no later than two weeks before the first day of trial. Not less than 10 days before the first day of trial, the claimant or applicant must lodge copies of the trial bundles with the court.

Bringing in additional parties

Can additional parties be brought into a case after commencement?

The claimant may add a new defendant to proceedings without permission at any time before the CMC. To do so, the claimant must file an amended claim form and an amended statement of claim. If the new party is an overseas defendant, the claimant must obtain permission to serve the claim on the new defendant out of the jurisdiction as in every other case.

A defendant may add new parties to a claim by bringing an ancillary claim, which is:

  • a claim by a defendant against any person or persons (whether or not they are already party to the claim) for a contribution or indemnity or some other remedy;
  • a claim by an ancillary defendant against any other person or persons (whether or not they are already party to the claim); or
  • a counterclaim by a defendant against the claimant alone, or against the claimant and any other person or persons (whether or not they are already party to the claim).

Defendants may bring an ancillary claim in the following circumstances:

  • in the case of a counterclaim, by filing their counterclaim together with their defence;
  • in the case of a claim for a contribution or indemnity against a person who is already a defendant to the claim, by filing a notice containing a statement of the nature and grounds of the claim and serving the notice on the other defendants; and
  • in the case of any other type of ancillary claim, by filing and serving an ancillary claim form setting out the nature of the claim before the CMC; or
  • in the case of any ancillary claim that is not made in accordance with the any of the above reasons (eg, because the defendant has omitted to file his or her counterclaim at the same time as the defence, because the new ancillary claim is to be brought by another ancillary defendant; or because the CMC has already taken place), by applying to the court for permission to bring an ancillary claim.

The CPR applies to ancillary claims in the same way as to normal claims, with a small number of exceptions in relation to the time of service, default judgments and admissions. It follows, therefore, that the court’s permission is required to serve an ancillary claim on a person who is out of the jurisdiction.

The court may add a new party to the claim without there being an application by any person if it considers that it is desirable to add the new party to the claim so that it can resolve all the matters in dispute; or if there is an issue involving the new party that is connected to any matter or issue in dispute, and it is desirable to add the new party so that it can resolve that issue.

Generally, the court will make orders for the addition, removal or substitution of parties at the CMC. It will only do so after the CMC if it is satisfied that there has been a significant change in circumstances that only became known after the CMC.

Consolidating proceedings

Can proceedings be consolidated or split?

The court has very broad powers of case management and can:

  • direct the separate trial of any issue;
  • order that part of any proceedings (such as a counterclaim or other ancillary claim) be dealt with as separate proceedings;
  • exclude an issue from determination;
  • direct the trial of two or more claims on the same occasion; or
  • take any other step, give any other direction or make any other order for the purpose of managing the case and furthering the overriding objective.
Court decision making

How does a court decide if the claims or allegations are proven? What are the elements required to find in favour, and what is the burden of proof?

At trial, both parties generally get an opportunity to make an opening statement in which they will set out the nature of their case, summarise the legal principles on which they rely, and explain what the court will hear during the trial.

The claimant’s evidence will be heard first, and the defendant’s second. Evidence that has been given in the form of affidavits or witness statements will generally be accepted on the papers, and then the other party’s legal representative will have an opportunity to question his or her opponent’s witnesses in cross-examination.

The instance of the burden of proof depends on the issue in question. Generally, every element of the claim must be proved by the claimant on the balance of probabilities (ie, the court must be satisfied that it is more likely than not that the claimant’s case is correct). If the claimant fails to do this, the claim will fail. If the claimant manages to satisfy the judge that his or her case is probably true, the burden of proof passes to the defendant, who must then rebut the claim, again on the balance of probabilities.

The elements the claimant must prove will depend on the subject matter of the claim. If, for example, the claim is for breach of a contractual term, the claimant must prove the existence of the contract between the parties, the nature and scope of the contractual term, the fact that the defendant breached the term in question, and that he or she has suffered loss as a result of the defendant’s breach. The claimant must also establish that he or she is entitled to the remedy sought in respect of the loss.

How does a court decide what judgments, remedies and orders it will issue?

The nature of the remedy the court will order will depend on the nature of the claim that has been brought and the circumstances of the particular case. The court will refer to established rules of common law or equity to determine what remedies are available in relation to a particular claim.

In claims for most breaches of contract, the court will consider damages or specific performance, or both. In most tort claims, the court will award damages. In breach of trust cases, the court may order the taking of an account and the surcharge or falsification of trust accounts, restitutionary remedies, or declarations as to the ownership of certain property or funds. In unjust enrichment claims, the court will generally order that the party who is enriched make restitution of his or her gain to the claimant. If the claim is a statutory claim, the relevant legislation may indicate what remedies are available. In some cases, it may be appropriate for the court to order a party to do or refrain from doing a particular act or class of acts.

The claimant will generally indicate the remedies he or she seeks in the claim form, and will have to persuade the court that he or she is entitled to that remedy. Even if the defendant fails to persuade the court that he or she is not liable, he or she may be able to persuade the court either that the claimant is not entitled to the remedy sought or the claimant is not entitled to the remedy sought to the extent that it is sought.

For example, the claimant may seek specific performance of a contractual obligation that has been breached and seek a specific sum of damages in the alternative; although the defendant may fail to persuade the court that there has been no breach, the defendant may nevertheless be able to satisfy the court that it should not award specific performance, and that a lesser sum should be recovered in damages.

Evidence

How is witness, documentary and expert evidence dealt with?

For the most part, witnesses of fact are required to attend trial to give oral evidence, except in the case of proceedings commenced by way of originating application, in relation to which the court will consider whether oral evidence and cross-examination are required.

As stated above, witness statements or affidavits prepared by witnesses will generally stand as their evidence-in-chief, meaning that the oral evidence they give before the court will generally consist of what they say in cross-examination and reexamination (if there is any).

It is generally thought that the judge and counsel for the parties are better able to assess a witness’s honesty and reliability if that witness attends trial. This may have a bearing on whether a party wishes to rely on a witness’s evidence: if he or she considers that the witness may come across poorly at trial, this may be a factor in deciding whether his or her evidence is to be used.

It is open to the parties to narrow the scope of evidence that is required to be heard orally at trial by agreeing evidence or making admissions. This may be easier in relation to expert evidence; however, if no agreement can be reached, the witnesses in question must attend unless the court orders otherwise.

How does the court deal with large volumes of commercial or technical evidence?

The court relies on the parties and their witnesses (including expert witnesses) to present complex evidence in as useful a manner as possible. Cases in the Commercial Division of the BVI High Court frequently turn on complicated technical points, requiring judges to get to grips with large amounts of evidence. Sometimes documents can be exchanged or scrutinised electronically; however, this practice is relatively new to the BVI.

Can a witness in your jurisdiction be compelled to give evidence in or to a foreign court? And can a court in your jurisdiction compel a foreign witness to give evidence?

In cases where it is thought that a witness may refuse or otherwise fail to attend trial, the court may issue a witness summons, either on its own motion or on the application of a party. The witness summons may either require the witness to attend trial or to give evidence by deposition before an examiner. A deposition taken in such circumstances may be used as evidence at trial unless the court orders otherwise.

A failure to comply with such an order is subject to the court’s powers to make orders against people who are in contempt, although if the person is outside the court’s in personam jurisdiction, contempt proceedings may be difficult to enforce.

If the person to be examined is outside the jurisdiction, the court may direct that a letter of request be issued to the judicial authorities of a court in the jurisdiction where the person is located, seeking that the person’s evidence be taken by the foreign court. If the assistance sought is provided by the foreign court, the witness will be subject to that court’s jurisdiction, and failure to comply with its orders may result in sanctions under that court’s contempt jurisdiction.

It is open to foreign courts to send letters of request to the BVI courts for assistance in gathering evidence from witnesses who are subject to the in personam jurisdiction of the BVI court. This may result in the appointment of an examiner in the BVI to take evidence from a witness, though the BVI court is unlikely to require the attendance of a BVI witness at proceedings taking place in another jurisdiction.

How is witness and documentary evidence tested up to and during trial? Is cross-examination permitted?

Witness evidence is generally contained either in affidavits or witness statements. Any documentary or original evidence a party wishes to rely on must be exhibited to an affidavit or witness statement, unless it is attached to a statement of case.

Leading up to trial, witness statements will be exchanged and the parties will have an opportunity to reply to facts and matters alleged in other parties’ evidence.

At trial of a claim commenced by claim form or fixed-date claim form, the general rule is that witnesses must attend to give oral evidence unless the court orders otherwise. As stated above, witness statements or affidavits stand as evidence-in-chief and, after a witness has been sworn in, the other parties’ legal representatives are able to cross-examine the witness. The judge is also at liberty to ask any questions he or she thinks appropriate.

By contrast, in cases proceeding by way of originating application, the general rule is that witnesses do not attend to give oral evidence, although the court has the power to require witnesses to attend to undergo cross-examination.

Time frame

How long do the proceedings typically last, and in what circumstances can they be expedited?

The length of proceedings varies dramatically. Some matters may be very short, such as an application for a Norwich Pharmacal order, which (if urgent) may be filed and resolved in a matter of days, or an application for the appointment of a liquidator, which may be resolved within a few weeks of filing.

At the other end of the scale is a sophisticated and complex commercial trial involving multiple parties. As one would expect in most jurisdictions, this sort of dispute may take in excess of a year to progress from the first filing of the claim form to a decision on costs following trial.

In addition, parties to proceedings in which a final decision is made on the merits of the claim have a right of appeal to the Eastern Caribbean Court of Appeal. While this availability safeguards parties’ positions, it can mean that proceedings are extended beyond the determination of the first instance judge. Final decisions of the Court of Appeal are also subject to a right of appeal (where the value of the subject matter of the claim exceeds £300) to the Privy Council.

Gaining an advantage

What other steps can a party take during proceedings to achieve tactical advantage in a case?

If a defendant fails to acknowledge or defend the claim or bring a jurisdiction, forum or service challenge within the relevant periods, the claimant can enter default judgment against that defendant. If default judgment is ordered against a defendant, that defendant may have grounds for applying to the court to have the default judgment set aside.

The Commercial Court has jurisdiction to strike out a party’s statement of case if:

  • the party in question has failed to comply with a rule, practice direction, order or direction of the court in the proceedings; or
  • the statement of case:
    • fails to disclose any reasonable ground for bringing or defending the claim;
    • is an abuse of the court’s process;
    • is likely to obstruct the just disposal of the proceedings;
    • is prolix; or
    • does not comply with the formal requirements of the CPR as to form and contents of a claim form, statement of claim, fixed-date claim form or defence.

Because default judgment and strike-out are procedural decisions, there is no right of appeal, so any party wishing to appeal the court’s order must obtain leave either of the Commercial Court or the Court of Appeal. This is also true of any subsequent appeal from the Court of Appeal to the Privy Council.

Any party can apply for summary judgment at any time in proceedings, including at the time the claim is issued and before a defence is filed. In practice, litigants in the BVI often prefer to seek summary judgment instead of default judgment, because a summary judgment, being a final determination on the merits of the claim, is generally easier to enforce in other jurisdictions. Applications are generally made before or at the CMC. There is no provision for setting aside summary judgment in the same way as default judgment; however, because summary judgment is a final decision on the merits of the claim, a defendant against whom summary judgment is ordered has a right of appeal to the Court of Appeal.

In circumstances where default judgment, summary judgment or strike-out is ordered, the matter will not proceed to trial, unless there are issues between the parties that are unresolved, such as:

  • if there are other defendants against whom default judgment is not ordered;
  • if summary judgment is awarded as to liability but not as to quantum of damages; or
  • if a defence is struck out but a counterclaim survives.
Impact of third-party funding

If third parties are able to fund the costs of the litigation and pay adverse costs, what impact can this have on the case?

Third-party funding makes little discernible difference to the outcome of a case. It may provide otherwise unfunded or underfunded but meritorious cases with further durability and longevity, but there is no evidence that the availability of third-party funding affects the underlying merits of the case. Naturally, third-party funders will apply their own strict criteria to each stage and phase of the litigation in question. The availability of funds will generally turn on the ongoing and prospective success of the case, and BVI counsel are familiar with working to such budgetary vicissitudes.

Impact of technology

What impact is technology having on complex commercial litigation in your jurisdiction?

The introduction of the ECSC E-litigation Portal in both the Commercial Court and the Court of Appeal in late 2018 has been a notable technological development in the jurisdiction. The web-based portal, which integrates electronic filing and a number of case management features, has further streamlined the filing process as well as improving efficiency and access to court documents for practitioners.

Parallel proceedings

How are parallel proceedings dealt with? What steps can a party take to gain a tactical advantage in these circumstances, and may a party bring private prosecutions?

A private individual or legal person is able to file a complaint to commence criminal proceedings in the BVI, and generally speaking it is possible to privately prosecute those proceedings unless and until the Attorney General (AG) or the Director of Public Prosecutions (DPP) (or both) decide to take over or discontinue (or both) such proceedings should they consider it to be in the public interest to do so.

On the facts, it may be possible to commence criminal proceedings in the BVI, although further consideration will need to be given to whether the connection between the criminal wrongdoing and the BVI is sufficiently strong.

While conducting a private prosecution has certain advantages over criminal proceedings being progressed by public authorities, there is no provision by which private entities can compel defendants or witnesses to produce documents or evidence (whether in the BVI or overseas). Indeed, if information is sought from overseas, an application would need to be made by the AG or the DPP or as part of a financial crime investigation by a body such as the Financial Investigation Agency (FIA) pursuant to which documents could be obtained and shared by a foreign authority or public body.

The use of documents obtained pursuant to criminal investigations or proceedings will generally be restricted to use in the criminal investigation or proceedings unless and until the documents are referred to in open court. If an entity seeks to use them for a different purpose it will need the express consent of whichever body has obtained and disclosed them.

In light of the above, criminal proceedings do not necessarily provide an overly quick or convenient mechanism by which further evidence could be obtained to support civil proceedings. However, any criminal investigation or prosecution would present any defendants with additional obstacles to overcome and may stretch their resources more thinly. In practice and over time, it could also help to yield information and results that it would not be possible to obtain through civil proceedings alone, and there may be scope to cooperate with the AG, DPP or FIA in this regard.

It is important to note that the existence of parallel criminal and civil proceedings may present the defendants subject to both proceedings with an abuse of process argument that the existence of dual proceedings will seriously prejudice them and lead to an incurable injustice. While we do not consider that defendants will necessarily succeed in having any parallel civil proceedings stayed on this basis, one should anticipate that they will seek this relief and use it as an opportunity to make an application that may add some further delay to any parallel civil proceedings.

If the primary advantage of commencing criminal proceedings is to use them to obtain further evidence that cannot be obtained in civil proceedings, then consideration should be given to having an initial information discussion with the FIA to see if it would have interest in commencing an investigation.