The British Virgin Islands’ legal system is governed by the Eastern Caribbean Supreme Court (ECSC), which is based in St. Lucia, as is the case with other Caribbean countries and territories. The BVI’s High Court is run by the territory’s local registries. European Commission Civil Procedure Rules 2000 and practice guidelines (EC CPR) govern the process.
There is little difference between serving papers in the British Virgin Islands and in England and Wales since the Hague Service Convention governs service in both jurisdictions.
The Convention’s jurisdiction has been expanded to cover the archipelago, even if it is still an overseas territory. However, there is an important point to be made. This archipelago is located on the boundary between the United Kingdom and the United States of America. ‘ The British Virgin Islands are on one side, while the US Virgin Islands are on the other.
Process Service in a US territory is the same as serving in either Puerto Rico or Washington, D.C.
HOW THE BRITISH VIRGIN ISLANDS’ COURT SYSTEM WORKS
Disputes that fall outside of the Commercial Court’s jurisdiction are handled by the High Court. For business issues, there are two judges on the High Court.
The Business Court, which was established in 2009. Subject matter and value are the most important considerations in assessing whether a case is fit for the Commercial Court. The High Court still handles some business disputes, but the Commercial Court handles the vast majority of foreign cases. Insolvency proceedings involving corporations are only handled in the Commercial Court.
The Eastern Caribbean Court of Appeal hears appeals from the High Court and the Commercial Court (“EC Court of Appeal”). The EC Court of Appeal is based in St. Lucia, although it travels to other countries and territories to hear appeals. Three times a year, it spends one week in the British Virgin Islands. When the Court is not in session, British Virgin Island appeals may be reviewed.
For the British Virgin Islands, the Judicial Committee of the Privy Council functions as the last appeals court for appeals from the European Court of Appeal (ECA). Supreme Court justices serve on the Privy Council, which is situated in London.
FILING OF CLAIM IN THE BRITISH VIRGIN ISLANDS
There are no clear laws governing pre-action behavior, and there is no necessity to write a letter prior to filing a claim.
The European Commission Civil Procedure Rules require that litigation be handled in accordance with the “Overriding Objective,” which mandates that matters be resolved equitably and proportionally.
This establishes an expectation that parties would make reasonable efforts to settle a disagreement prior to filing a claim. If a party’s pre-action behavior is inconsistent with the Overriding Objective, the Court may employ its case management authority to discipline that party (often in the form of costs).
STATUTES OF LIMITATIONS in the British virgin islands
Claims may be brought within the time limits laid forth in the BVI Limitation Ordinance 1961. A full defense will be based on limiting one’s options.
Six years from the date the cause of action accrued under the contract is the timeframe for conducting the claim. For torts, a statute of limitations of six years applies.
Other types of claims have specific limitation periods, and there are procedures for suspension or extension of such limits (e.g. concealment or fraud). When there is a possibility of a restriction, it is best to get specific guidance.
JURISDICTION FOR A CLAIM
Process Service in the British Virgin Islands confers jurisdiction. In the British Virgin Islands, a defendant is served with legal proceedings as a matter of course.
An out-of-jurisdiction defendant must have the Court’s permission to be served outside the British Virgin Islands. However, there are exceptions where a foreign party has legally agreed to accept service in the British Virgin Islands and has established an agent in the British Virgin Islands to take service.
If one wants to serve beyond the jurisdiction, they need to pass through one or more “gateways” established under EC CPR Part 7. British Virgin Islands courts have jurisdiction in cases where the foreign defendant is an essential or proper party to a claim against a person who has received process service in the British Virgin Islands. Where the claim is related to a contract conferring the British Virgin Islands courts with exclusive jurisdiction or to a contract governed by British Virgin Islands law or to a contract made within the jurisdiction, or where a breach of contract was committed in the British Virgin Islands, a claim is to be brought under a law that gives the court authority.
Applicants who believe their claim fits under one of these categories may request authorization to serve it out. To be granted, the Court must be convinced that the British Virgin Islands is a proper venue for determining the claim and that it has a strong plausible basis for the claim.
Application for a stay on jurisdictional grounds by a defendant who has been served outside of the jurisdiction is permitted. The defendant is not considered to be submitting to the jurisdiction by filing such an application.
HOW IS AN ACTION INITIATED IN THE BRITISH VIRGIN ISLANDS
Part 8 of the EC CPR provides for the use of a Claim Form and a Statement of Claim to begin proceedings. In order to begin a lawsuit, a Claim Form must be submitted and served to the defendant. It is common practice to serve the claim form and statement of claim together.
The Claim Form provides a succinct overview of the claim and the remedies sought, making it easy to understand. Statement of Claim details the facts and things relied upon by the Claimant in support of its claim in a succinct manner.
Before the first case management meeting, a statement of claim might be changed once without the authorization of the Court. The Court may grant authorization for further alterations to be made.
This form is used for cases that can be decided summarily, without a trial in its entirety, as well as certain types of claims that fall under its purview. An affidavit is required to support a Fixed Date Claim.
All defendants in the jurisdiction must be served with a claim form and statement of claim, according to EC CPR Part 5. If the defendant is a natural or legal person, the mode of serving is different. Companies may be served by leaving the Claim Form at the company’s registered office, but it’s also possible to serve the company’s directors or officers or submit the Claim Form by fax or prepaid mail. Alternative means of service may be employed in certain situations. Companies are normally served via delivery to the registered office.
Via the agreement, or in accordance with court rules or practice guidelines, electronic service (e.g. by email) is permitted. Court permission is often required for service on defendants outside the jurisdiction and is controlled by the European Convention on Civil Procedure (EC CPR) Part 7.
It is up to the relevant jurisdiction and international conventions to determine what manner of service may be used after a request for permission to proceed has been granted. The British Virgin Islands has ratified the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters.
WHAT HAPPENS IF A DEFENDANT DOES NOT RESPOND
Within fourteen days of serving of the Claim Form, a defendant must submit an acknowledgment of service and defense within twenty-eight days after service. When the service is performed outside of the jurisdiction’s borders, the time frames are extended.
If the defendant fails to answer, a default judgment may be entered against them. It is up to the court to determine whether or not the defendant has failed to acknowledge service or offer a defense in accordance with EC CPR Part 12, which governs the process of imposing default judgment.
No collective or class actions are covered under the EC CPR.
Only when there are at least five parties with comparable interests may the Court order that one or more of those parties be designated as a representative party (whether as a claimant or as a defendant).
Part 21 of the European Court of Justice’s CPR governs the conduct of Representative Parties. Intrust and other legal actions, there is a provision for the representation of unidentified beneficiaries.
There are very few collective or class actions in the British Virgin Islands.
THE HAGUE SERVICE CONVENTION AND THE BRITISH VIRGIN ISLANDS
Civil and commercial lawsuits must be served by the British Virgin Islands Process Service under the Hague Service Convention, a multilateral convention adopted by Hague Conference on Private International Law member states on November 15, 1965, in the Netherlands. Plaintiffs now have the ability to serve documents on abroad parties who are reliably and effectively situated, operating, or based. The agreement covers the service of process for civil and commercial proceedings, but not criminal ones. Furthermore, if they do not know to whom they are serving the paper based on the recipient’s address, this rule cannot be applicable.
HOW TO SERVE legal papers VIA THE HAGUE CONVENTION
Central Authority of the State addressed must serve or arrange for an appropriate British Virgin Island Process Service to serve the document either [A.] in accordance with its internal law for the service of documents in domestic actions on persons within its territory, or [B.] in accordance with the applicant’s request, unless such a method is incompatible with the law of the State addressed.
If the receiver of the document willingly accepts the document, the document may be provided. Written or translated documents in one of the official languages of the British Virgin Islands (BVI) are required to be served by the Central Authority.
It was made easier for parties to serve each other in other countries thanks to the Hague Service Convention. State governments must appoint a central authority to receive requests for assistance under the treaty. The central authority of the state where service is to be made may be contacted immediately by a judicial officer authorized to serve process in the state of origin. Requests for service in the receiving state are handled by the receiving state’s centralized authority, generally via a local court. A certificate of service is sent to the court officer who requested it after service has been completed.
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1. With an eye toward cost savings whenever feasible
An application for permission to serve out of the jurisdiction may be made without notice but must be supported by evidence on affidavit stating –
the grounds on which the application is made;
that in the deponent’s belief the claimant has a claim with a realistic prospect of success;
in what place, within what country, the defendant may probably be found; and
if the application is made under rule 7.3 (2) (a), the grounds for the deponent’s belief that the conditions are satisfied.
An order granting permission to serve the claim form out of the jurisdiction must state the periods within which the defendant must –
file an acknowledgment of service in accordance with Part 9; and
file a defense in accordance with Part 10.
The periods for filing a document under paragraph (2) are to be determined by reference to a relevant practice direction.
3. A claimant starts proceedings by filing in the court office the original and one copy (for sealing) of –
the claim form; and (subject to rule 8.2)
the statement of claim; or
if any rule or practice direction so requires – an affidavit or other document.
A claim is issued on the date entered on the claim form by the court office.
For the purpose of any enactment relating to the limitation of proceedings, a claim is brought on the day on which the claim form is filed at the court office.
Rule 3.7(2) defines when a document is filed.
A claim form must be in Form 1 except in the circumstances set out in paragraph (5).
Form 2 (fixed date claim form) must be used –
in claims arising out of hire-purchase or credit sale agreements;
in proceedings for possession of land;
whenever its use is required by a rule or practice direction; and
where by any enactment proceedings are required to be commenced by originating summons or motion.
Rule 27.2 deals with the procedure under a fixed date claim.
A person who seeks a remedy –
before proceedings have been started; or
in relation to proceedings which are taking place, or will take place, in another jurisdiction; must seek that remedy by an application under Part 11.