International litigation and asset recovery require the pursuit of defendants and their assets across borders; therefore, it is a routine aspect of BVI litigation for claimants to serve legal documents abroad. Two recent decisions should significantly decrease the delay in effecting service abroad and pave the way for a more efficient approach to service out in the future.
A recent BVI Court of Appeal judgment was issued on a point rarely taken: is leave required to file a counter notice to an existing appeal? The full court found that once an appeal has been commenced with leave, the court's jurisdiction is engaged and the party wishing to cross-appeal may do so by counter notice without bringing a separate leave application. The court described a counter notice as being by its nature "parasitical on a pending appeal".
A recent Court of Appeal decision serves as a useful reminder to keep an eye on the clock when seeking the appointment of liquidators to a company in the British Virgin Islands. The decision makes clear that any extension must be expressly granted and legal practitioners must therefore keep an eye on the clock to avoid a deemed dismissal under Section 168 of the Insolvency Act.
The Commercial Division of the BVI Court has granted a strike out application on the grounds that the Aldi Stores Ltd v WSP Group plc principles – whereby a party which intends to bring a subsequent action against existing parties must raise the issue with the court – apply in the British Virgin Islands. It held that while the principles may not have been promulgated in this jurisdiction, litigants must put their cards on the table at an early stage or risk being held to have abused the court's process.
The British Virgin Islands recently adopted new guidelines for communication and cooperation between courts in cross-border insolvency matters. The guidelines are designed primarily to enhance communication between courts, insolvency representatives and other parties in the context of global restructurings and insolvency. As a result of the increased efficiency, it is hoped that stakeholders will see a reduction in delays and costs.
The British Virgin Islands has long been hailed as a leading offshore jurisdiction for wealth management and asset protection among Latin American high-net-worth families and individuals. The outcome in a recent case augments the credibility of the British Virgin Islands as a jurisdiction in this regard. The case also highlights the strengths of the BVI-only Virgin Islands Special Trust Act trust structure.
There have recently been three judicial appointments to the Commercial Court designed to increase the capacity of the court in 2017. The appointments should provide further momentum and expertise to the BVI Commercial Division and enhance the court's ability to deal with complex cases promptly and effectively.
A BVI court recently issued an important judgment in relation to the obligations of a registered agent to provide third-party disclosure to assist a foreign judgment creditor to trace assets. The court held that Norwich Pharmacal relief post-judgment in aid of enforcement is, in principle, available where there is reasonable suspicion that a disclosure defendant is involved in the wilful evasion of another's judgment debt and to assist in securing compliance with freezing orders, both domestic and foreign.
The BVI Commercial Court recently considered a claim for costs of a discontinued strike-out application, which was brought by the defendants as part of an ongoing multi-jurisdictional family dispute. The claimant's substantive action in the British Virgin Islands involved derivative proceedings, which were brought on behalf of a foreign company, for the recovery of funds which the defendants were alleged to have wrongfully paid to another entity.
The BVI Commercial Court recently handed down new guidance which clarifies its position on the recoverability of foreign lawyers' costs and underlines its clear intent to accommodate and provide practical solutions for international litigation in the British Virgin Islands.
The Court of Appeal was recently asked to adjudicate on the costs of a foreign firm that had assisted BVI practitioners in an application for security for costs. The respondents objected to these costs being recovered, on the basis that the firm's lawyers were not licensed to practise BVI law under the Legal Profession Act. The court agreed. However, in seeking to settle the law in this area, the decision has opened up further questions.