CODE OF CIVIL PROCEDURE IN THE BRITISH VIRGIN ISLANDS

This article will provide guidance on the British Virgin Islands. The British Virgin Islands (BVI) are a self-governing British Overseas Territory with a legal system based on English common law and equitable principles, as well as local legislation and certain statutes and instruments passed by the UK Parliament that have been historically or more recently extended to the territory by Order in Council.

In 2007, the present constitution was drafted and put into effect. The Virgin Islands (Constitution) Order (SI 1976/2145) and the Virgin Islands (Constitution) Order in Council (SI 1967/471) both constitute earlier constitutions.

BACKGROUND

The ability to create laws in the British Virgin Islands rests with the House of Assembly (formerly the Legislative Council) since adopting a new constitution in 2007. There is only one chamber of government in place, and each of the fifteen seats in the House of Assembly has equal weight. Thirteen of the senators are chosen by the people alone. The Attorney General and the Speaker are the two remaining non-voting members. It is also the Governor's responsibility to sign into law any new laws (as the representative of the UK monarch).

Since the British Virgin Islands is a British Overseas Territory, laws passed by the British Parliament may also apply there. Suppose a law is meant to apply to the British Virgin Islands (BVI). In that case, it must either say so explicitly or be extended to the territory by an Order in Council or direct subsidiary legislation in the UK.

THE JUDICIAL SYSTEM OF THE BRITISH VIRGIN ISLANDS

The judicial system in the Virgin Islands is based on that of the U.K. The courts are organized at four levels. The court of lowest jurisdiction is the Magistrates Court, which deals mainly with criminal matters, minor civil claims, and some family law matters.

The Eastern Caribbean Supreme Court is the superior court of record for the British Virgin Islands. Commonly referred to as the High Court, its proper name is the Supreme Court. The Commercial Division of the Supreme Court sits in the BVI. The Court of Appeal hears appeals from the Magistrates and Supreme Court. Appeals from the Court of Appeal are to the Judicial Committee of the Privy Council in London, the highest court of appeal for the BVI.

The BVI's high volume of business matters necessitated the creation of the Legal Supreme Court (Commercial Division)in 2009. It is often referred to as the Commercial Court. Many are unique to the British Virgin Islands, while others are referenced from other ECSC countries. In general, a case's subject matter and value are the most important considerations in determining whether or not it belongs in the Commercial Court. The Commercial Court is the primary venue for all cross-border business transactions matters. Cases involving corporate bankruptcy may only be heard in the Commercial Court. At present, the Commercial Court has two judges.

The highest court of appeal in the Eastern Caribbean (ECSC Court of Appeal) To appeal a decision made by the High Court or the Commercial Court, a party must go to the ECSC Court of Appeal.

The Privy Council's Judicial Committee hears appeals from the EC Court of Appeal and is the highest court in the British Virgin Islands system. The Privy Council comprises Supreme Court judges from the United Kingdom and meets in London.

CONDUCT OF LITIGATION IN BRITISH COLUMBIA

The BVI judicial system is adversarial, with a single judge presiding over the proceedings. The judge hears all sides of the case and judges based on the law and the facts presented. For civil cases, juries are never utilized. In rare cases, judges may rule solely based on written submissions without holding a hearing.

The precedent is binding on the courts. The subordinate courts must adhere to the decisions made by the higher courts. English court rulings are often quoted in debate, and absent compelling reasons to the contrary, they are typically obeyed.

The Eastern Caribbean Supreme Court (ECSC), headquartered in St. Lucia, oversees the judicial system in the BVI and the rest of the Caribbean. Local registries are responsible for running the High Court in the BVI. The ECSC Civil Procedure Rules 2000 and associated practice guidelines regulate the conduct of proceedings (EC CPR).

When a civil case cannot be heard in the Commercial Court, it is sent to the High Court's Civil Division. In the Civil Division, there is a single judge. Most court sessions are open to the public; however, the Commercial Court and the Civil Division hold most of their proceedings behind closed doors. Although the parties and their lawyers may be present for the chamber hearing, the general public is not.

PRE-SUIT PROCEDURES IN THE BRITISH VIRGIN ISLANDS

Pre-suit procedures are not governed by law, nor is it necessary to serve a ‘letter before action’ before filing a lawsuit. The EC CPR mandates that litigation be handled in a way compatible with the ‘Overriding Objective,’ which states that cases must be dealt with fairly, which includes minimizing costs and ensuring that each case is given appropriate attention.

This establishes the presumption that parties will try to settle a disagreement via negotiation before filing a lawsuit. If a party's pre-action behavior is inconsistent with the Overriding Objective, the court may use its case management powers to discipline that party (typically in costs). The time limits within which certain claims must be filed are specified in the BVI Limitation Ordinance, 1961. Because of this, the limitation will serve as an adequate defense.

The legal process may be served on a defendant who maintains a residence in the British Virgin Islands. Any defendant who is not a citizen nor a permanent resident of the British Virgin Islands will need the permission of the court in order to be served outside of the BVI. A foreign defendant may submit to jurisdiction in the British Virgin Islands if he or she agrees to accept service in the BVI and designates an agent in the BVI to receive service.

The ‘gateways’ that must be met to acquire permission to serve out are outlined in EC CPR Part 7, which specifies the situations under which service may be conducted outside the jurisdiction.

. The court has the last say on whether or not to issue it, and must be convinced that the British Virgin Islands (BVI) is the best place to decide the claim and that the plaintiff has raised a substantial question of law or fact for trial.

A defendant served outside the jurisdiction may ask the court to dismiss the case or issue a stay based on the lack of personal jurisdiction. Making such an application does not constitute an admission of jurisdiction on the defendant's part. A defendant with a BVI address may also raise the issue of jurisdiction.

REQUIREMENTS FOR A CLAIM

Claim forms, accompanied by a statement of claim, are often used to initiate proceedings. Filing and serving the defendant with the claim form is the first step in initiating a claim. Typically, a claim form and a statement of claim will be served simultaneously.

A brief statement of the claim and the relief sought is included in the claim form. The claimant has provided a thorough statement of its claim, outlining in brief detail the facts and grounds on which it relies. Before the first case management meeting, a statement of claim may be changed once without the court's approval. With the court's approval, more alterations may be made.

A ‘set date claim form’ may be used to initiate a certain kind of procedure. Affidavit evidence is presented in support of a claim with a specific date. At the first hearing, the court may make a summary decision or provide orders regarding how the case should proceed.

As per EC CPR Part 5, the claimant is responsible for serving the claim form and statement of claim on all defendants within the jurisdiction. Whether the defendant is a person or an entity determines the permissible service forms. However, service on a business may also be made by leaving the claim form at the company's registered office, serving directors or officers, or sending the claim form by fax or prepaid post.

The legal process may be served electronically (for example, by email) if both parties agree or the court orders.

JURISDICTIONAL SERVICE

After granting leave, the service mode will be governed by the country's laws where the claim is to be served and any applicable international treaties. The British Virgin Islands is a member of the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters.

If it is impossible to serve a defendant in one of the ways allowed by law, the court may allow service in another way. In rare circumstances, the court may even dismiss the need for service.

Within fourteen days of receiving the claim form, the defendant must submit an acknowledgment of service, and within twenty-eight days, the defense must be filed. These deadlines become more generous when service is performed outside of the applicable jurisdiction.

If the defendant does not answer, the court might enter a default judgment against them. Whether or whether the defendant has failed to acknowledge service or submit a defense affects the process for issuing default judgment under EC CPR Part 12.

DISCLOSURE IN LEGAL PROCEEDINGS

In a civil action, the right to discovery is accessible. At the case management meeting before a trial, the court must decide whether to issue directions for routine disclosure.

Each party is responsible for fulfilling its disclosure obligations. The attorneys on both sides must ensure their clients are truthful and transparent in their disclosures. The parties themselves are responsible for handling disclosure rather than the court.

To what extent a document is covered by standard disclosure is determined by whether or not it is relevant to the matter at hand. The court maintains discretion on an application for particular disclosure. It should consider the overarching purpose, which may include but is not limited to reducing costs and ensuring that cases are handled commensurate with their worth and complexity.

Asset disclosure orders and basic and particular disclosure orders are often imposed when a freezing order is issued. Although the EC CPR does not include a provision for third-party disclosure, a witness in the jurisdiction may be subpoenaed to appear for testimony and submit documents. A Norwich Pharmacal or Bankers Trust order may be necessary to get information from third parties in the BVI. A party may apply to the local court in the BVI for a letter of request authorizing the party to seek disclosure from a third party located outside of the jurisdiction.

CHANGES OCCURRING IN THE CIVIL PROCEDURE OF THE BRITISH VIRGIN ISLANDS

Various amendments to the EC CPR are under consideration following the establishment a Rules Review Committee in 2019. Amendments under consideration include whether to remove the requirement for permission to serve a claim out of the jurisdiction. The BVI has passed legislation to give statutory footing to the so-called Black Swan jurisdiction so that the BVI courts have jurisdiction to grant injunctive relief in support of foreign proceedings.

The impact of COVID-19 within the BVI has been less severe than in other countries. After a short hiatus in March/April 2020, when anything other than urgent hearings was put off, the High Court and Commercial Court began operating remotely almost as normal and have since conducted all hearings, including urgent injunction hearings and full trials, by video link with appearances of counsel and witnesses from within the territory and outside it. Normal service continued through ‘lockdowns’ in late 2020 and mid-2021.

The BVI courts now operate an e-filing portal for the filing of court documents, the operation of which was unaffected by COVID-19. Service rules have been relaxed to permit service by email. There has been no exceptional suspension of limitation periods and no moratorium on insolvency proceedings.

OUR PROCESS

Documents can be faxed (800)-296-0115, emailed ps@undisputedlegal.com, mailed to 590 Madison Avenue, 21 Floor, New York, New York 10022, or dropped off at any of our locations. We do require pre-payment and accept all major credit and debit cards. Once payment is processed, your sales receipt is immediately emailed for your records.

Drop-offs must call and make an appointment ﬁrst to be added to building security to permit access to our ofﬁce. Documents for service must be in a sealed envelope with payment in the form of a money order or attorney check (WE DO NOT ACCEPT CASH) payable to UNDISPUTED LEGAL INC.; All documents are received by our receptionist.

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OFFICE LOCATIONS

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Connecticut: (203) 489-2940 – 500 West Putnam Avenue, Suite 400, Greenwich, Connecticut 06830
New Jersey: (201) 630-0114 - 101 Hudson Street, 21 Floor, Jersey City, New Jersey 07302
Washington DC: (202) 655-4450 - 1101 Pennsylvania Avenue, Suite 300, Washington DC 20004

FOR ASSISTANCE SERVING LEGAL PAPERS IN BRITISH VIRGIN ISLANDS

Simply pick up the phone and call Toll-Free (800) 774-6922 or click the service you want to purchase. Our dedicated team of professionals is ready to assist you. We can handle all your British Virgin Islands process service needs; no job is too small or too large!

Contact us for more information about our process serving agency. We are ready to provide service of process to all of our clients globally from our offices in New York, Brooklyn, Queens, Long Island, Westchester, New Jersey, Connecticut, and Washington D.C.

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Sources

1. Only the following portions of the court file are open to inspection by parties who are not involved in the case: Proof of Claim Form, Notice of Appeal, Judgment or Order, and any Other Document Permitted by the Court Unless specifically mentioned in open court, all additional materials will be held in strictest confidence.

2. Potential Service:

Where the foreign defendant is a necessary or proper party to an action against a person who has been served within the jurisdiction;
Where the claim relates to a contract conferring the bvi courts with exclusive jurisdiction;
Where a contract is made within the jurisdiction;
Where a breach of contract is committed in the bvi;
Where a claim in tort is made and the act causing the damage was committed within the jurisdiction; where a claim in breach of contract is committed in the bvi;
Where a claim in breach of contract

Anyone with a plausible argument that their claim fits inside one of the aforementioned exceptions may submit an application for permission to serve.

3. Under Part 8 of the EC CPR

4. However, an application for special disclosure of a document or class of documents may be submitted if a party is not satisfied with disclosure by another party pursuant to ordinary disclosure.

5. If the expenses of providing the desired information are out of proportion to the value of the dispute, the court may reject the application for particular disclosure.