Changes to the BVI Civil Procedure Rules with Effect From 31 July 2023Posted: 31 Jul 2023
This is just a reminder that various changes have been made to the Eastern Caribbean Supreme Court Civil Procedure Rules, that will take effect from 31 July 2023. For most clients in foreign jurisdictions, the below amendments are probably the most relevant.
Service Out of the Jurisdiction Without the Court’s Permission
Historically, it was necessary to go to the cost and expense of making a formal application for permission to serve BVI court proceedings out of the jurisdiction, where this was necessary. The Civil Procedure Rules have now been amended to permit service of Court process out of the jurisdiction without the Court’s permission:
- Where (i) service is effected through a foreign government; (ii) where process is served on a state; (iii) where service is in accordance with the laws of the foreign state; and (iv) where there is personal service by the claimant or the claimant’s agent
- Where the claim falls within one of the jurisdictional gateways for service out, including the following new gateways (i) where the claim relates to the insolvency of a BVI company; (ii) where an application is made for interim relief (including freezing injunctions) where proceedings have been or are about to be commenced in a foreign jurisdiction; and (iii) where a claim is made for a costs order against a non-party to BVI proceedings; and
- Where the Claimant or the Claimant‘s legal practitioner files a certificate, together with Court process, confirming the Claimant’s belief that (i) the case falls within one of the jurisdictional gateways for serving process out of the jurisdiction; (ii) the case is a proper one for the Court’s jurisdiction; (iii) the Claimant has a good arguable case; and (iv) the proposed method of service does not infringe the law of the foreign state.
Access to Documents
I have already prepared a ‘ready-reckoner’ summarising the documents and information that can be obtained from the BVI: see here. Before 31 July 2023, only the Claim Forms, Notices of Appeal, and judgments or orders made or given in Court were available for inspection on the Court file. From 31 July 2023, Statements of Claim (but not attached documents) and Notices of Application are also open to inspection.
Other changes include the introduction of judicial settlement conferences, the requirement to provide English translations of foreign documents, and the rules relating to the following: (i) public and private hearings; (ii) the Court’s discretion to give relief from sanction; (iii) the setting aside of default judgments; (iv) the enforcement of arbitration awards; and (v) appeals.
Application of the Amendments
If proceedings were commenced before 31 July 2023 and a trial date has been fixed, the new provisions will not apply unless the trial date is adjourned. Where a trial date has not been fixed, the new provisions apply from the date of the case management conference fixed by the Court.
Article written by:
Robert Foote is a Partner Barrister at Spencer West. He specialises in Corporate and commercial disputes, director and shareholder disputes, asset tracing claims, insolvency disputes, funds disputes, trust and probate disputes, formal corporate restructurings, contentious mergers, mediations and arbitrations.
Partner - Corporate/Commercial Disputes, Restructuring and Insolvency
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