In the case of UVW v XYZ (27 October 2016) brought before the BVI Commercial Court, a judgment creditor was seeking court orders for the disclosure by a third party to the proceedings of information relating to a BVI company owned by the judgment debtor. The third party disclosure orders were brought against the registered agent of the BVI Company. The applicant creditor argued that there had been a pattern of behaviour by which the debtor had concealed assets using the BVI vehicle. The disclosure order was sought to obtain information about which assets were available for enforcement against the judgment debtor.
The court had to consider whether so-called “Norwich Pharmacal relief” was available against the registered agent. This allows an applicant to seek disclosure of certain information from a third party to court proceedings if that third party is mixed up in the actions. In this case, the court had to decide whether such disclosure order could be granted (1) pre-judgment to assist in the compliance and policing of freezing orders and (2) post-judgment to aid enforcement of judgment.
In terms of post-judgment disclosure orders, the English Court of Appeal has previously questioned whether such jurisdiction exists (see NML Capital Ltd v Chapman Freeborn Holdings  1 CLC 968). However, the BVI Commercial Court confirmed that there was jurisdiction post-judgment and arguably takes a broader approach to the use of Norwich Pharmacal orders than the English courts.
The court held that merely not paying a judgment debt was not sufficient for the court to grant an order. However, if there was a “reasonable suspicion of wilful evasion” and “reasonable suspicion that the third party had been mixed up in the wrongdoing” then the court would be prepared to grant a disclosure order. Importantly, the applicant in this case did not have any “direct evidence that the judgment debtor was using the BVI vehicle to conceal assets [from enforcement]”. The general evasive conduct by the judgment debtor was enough evidence for a third party disclosure order to be granted in this case.
As registered agent for the BVI Company, the relevant third party was deemed to be sufficiently “mixed up” in the company’s affairs despite not necessarily knowing what the company was used for and having not set up the company for an evasive purpose.
This case demonstrates the desire of the BVI courts to assist in the enforcement of judgments for the benefit of foreign creditors. It may be welcome news for those who transact with BVI entities and individuals. It should also remind those that rely on the BVI’s corporate confidentiality regime (which prevents detailed information about BVI companies being accessed) that this will not prevent judgment creditors obtaining information about a company’s BVI assets to aid enforcement.
Finally, the decision also shows the problem that a registered agent faces when he is caught between the BVI’s corporate confidentiality regime and a duty of disclosure. The BVI Commercial Court has made it clear that a registered agent can be subject to a Norwich Pharmacal order despite being unaware of what the relevant company was doing.