HOW THE CENTRAL AUTHORITY WORKS IN THE BRITISH VIRGIN ISLANDS

This article will provide guidance on How The Central Authority Works in the British Virgin Islands.  In Volkswagenwerk, A.G. v. Schlunk, the landmark judgment established that the Hague Service Convention is binding. Regardless of the criteria of the forum, a ruling will be more likely to be enforced if service is conducted in accordance with the local regulations of the receiving nation. For the British Virgin Islands, this is especially important. A private process service agency like Undisputed Legal may make all the difference. Click here for a video on International Process Service.

The British Virgin Islands are governed as a parliamentary democracy, with the Queen as the ultimate executive power, represented by the Governor. The governor is appointed by the Queen on the recommendation of the British government. The United Kingdom is still responsible for defense and most international affairs. The King of the British Virgin Islands has ultimate executive power, delegated to the Governor of the British Virgin Islands. The King appoints the governor with the approval of the British Cabinet. The United Kingdom continues to handle defense and most international affairs. Click Here for Frequently Asked Questions About Process Servers!

Regarding the Hague Service Convention, the British Virgin Islands has certain very particular service obligations. Hague Service Requests may be difficult to implement, but Undisputed Legal’s local process servers may be able to assist. Professionalism and expertise characterize our team of process servers. We want to guarantee that you have the simplest experience in service of process, no matter where you may be. 

Background

The Eastern Caribbean Supreme Court (ECSC) is the highest in the British Virgin Islands. It should be known that the ECSC is also the Superior Court of Record for Anguilla and Montserrat, two additional British Overseas Territories, and the six independent member nations of the Organisation of Eastern Caribbean Nations. While the ECSC’s headquarters are in Saint Lucia, the British Virgin Islands (BVI) have an independent High Court Registry and Judiciary. As the highest court in the Virgin Islands, the Supreme Court has the authority to examine all judgments, decisions, and some interlocutory orders issued by the Superior Court. It is preferable to hire a private process service agency like Undisputed Legal to serve papers per the specific legal requirements of the British Virgin Islands. Being so intrinsically connected with the United Kingdom, service of papers can be difficult. Our experience serving international papers at Undisputed Legal can be of help here.

When the Legislative Council was dissolved before the 2007 election, the most current constitution went into effect. The head of government under the constitution is the Premier (before the new constitution, the post was known as Chief Minister), who is chosen in a general election together with the other members of the prevailing government as well as the members of the opposition. If you found this article helpful, kindly consider leaving us a review. Click the link to share your feedback, and we would greatly appreciate a five-star review.

Pre Action procedures in the British Virgin Islands

It takes six months to a year to get to trial after filing a lawsuit in court.  A party must file a claim form (accompanied by a statement of claim), a fixed-date claim form (accompanied by an affidavit), or an originating application (accompanied by an affidavit) to initiate a case before the Commercial Court. The defendant receives the originating process thereinafter. Domestic defendants have twenty-eight days from the date of service to file a defense, evidence in reply, or a challenge to jurisdiction after the date of service of the statement of claim. Out-of-court defendants have thirty-five days from the date of service to submit an acknowledgment of service (or twenty-eight days if service was made in a Caribbean member state.) 

 Any jurisdictional dispute must be decided before the action progresses. There is no deadline for submitting a defense or evidence in reply unless the court orders otherwise. The claimant can file a reply which may include a defence to any counterclaim once the defence or evidence in reply has been submitted. Security for costs, directions for future pleadings, disclosure, and requests for information are all interlocutory procedures that might be used at this stage.

A claim may be dismissed in its whole or part by a BVI court before trial by [A.]   a motion for summary judgment if the court determines that the claimant (or defendant) has no reasonable chance of success in the litigation; [B.] the court’s inherent authority to handle disputes in the interests of justice; or  [C.]if the statement of the case is an abuse of process. Any party may make these applications at any time throughout the proceedings. The application must be backed up with evidence, and the reply may do the same. 

Approaching a private process server like those at Undisputed Legal can be helpful to serve papers in accordance with the regulations of the various courts in the British Virgin Islands. If a foreign language document is disclosed, the disclosing party must provide a certified English translation before it may be relied upon. A party may apply for particular disclosure of a document or class of documents if it is dissatisfied with the disclosure provided by another party pursuant to standard disclosure. Consequently, a private process service agency like Undisputed Legal can help ensure your papers adhere to the jurisdiction requirement in the BVI.

Central Authority in the British Virgin Islands

The Registrar of the Supreme Court is responsible for transmitting papers for service under the Hague Service Convention to the Central Authority of the receiving state in the British Virgin Islands. Since some Defendants live in countries that are not signatories to the Hague Service Convention, service in these countries usually adheres to the requirements for Letters of Requests.  Even if the service is completed successfully, it might take many months since waiting for service to be accomplished (or not, as is regrettably frequently the case)can delay the timely pursuit of valid claims, especially if there are several Defendants. Consequently, utilizing a private process service agency like Undisputed Legal can be helpful. Our servers are highly experienced and retain connections with the Central Authority or other judicial authorities that may help service in the BVI.

The ‘competent’ authority or ‘judicial officer’ in the requesting state will forward the documents to the Central Authority in the receiving state in accordance with the Hague Service Convention. Article 3 of the Convention states, ‘The authority or judicial officer competent under the law of the State from which the documents originate shall forward to the Central Authority of the State addressed a request conforming to the model annexed to the present Convention, without any requirement of legalization or other equivalent formality.’ The original or a copy of the document to be served must be included in the request. The request and the document should both be given in triplicate.’

According to Article 5 of the Convention, once the papers have been received, the Central Authority of the receiving state will serve the documents on the party to be served. Each Contracting State may choose authorities other than the Central Authority to receive and send papers.  However, the applicant can always go straight to the Central Authority with a request. A number of Federal States can serve as the Central Authority jointly.

Typically, the procedure for service with the registrar will require the papers to be served to be sent from the [British Overseas Territory/Crown Dependency] Authority to the Foreign Process Section in London. Upon processing, the paperwork will be sent from the British Embassy to the Ministry of Foreign Affairs (MFA) or other competent authority (CA) in the destination country, who will then coordinate local service. 

The papers and certificate of service or non-service will be sent back to the Foreign Process Section via international mail after they have been returned to the Ministry of Foreign Affairs or other competent authority from the requesting British Overseas Territory or Crown Dependency and the FCDO in London. The complexity of service in the British Virgin Islands indicates the requirement for the involvement of a private process service agency like Undisputed Legal. 

British Virgin Islands and the Hague Service Convention

Before being delivered to the Central Authority of the requesting State, Letters of Request are forwarded to the Central Authority of the requesting State. Letters of Request, the service of process required to compel a person’s appearance to give evidence, the costs of attendance of such persons, and the costs of any transcript of the evidence are not subject to any constitutional limitations on the reimbursement of fees and costs.

To serve a claim form on a foreign defendant outside of the BVI, a plaintiff in a lawsuit must first get the court’s authority to do so. The Hague Service Convention has become the standard means of serving legal documents. Our Undisputed Legal servers are also local to the area being served and experienced with the requirements of international service. We ensure that your papers are taken care of.  

There is a problem if the claim form has not been served and the twelve-month deadline is approaching. An additional six-month extension may be requested by the claimant under the Eastern Caribbean Supreme Court Civil Procedural Rules 2000 (‘ECSC CPR’), but it will only be granted if there is evidence that the defendant is deliberately avoiding service or if there is ‘some other compelling reason’ the extension should be granted. 

A question can come in as to whether, under given conditions, the court may consider service to have been done and proceed to render a judgment against a foreign defendant. The claimant in Punjab National Bank (International) Limited v. Boris Shipping Limited & Ors sought summary judgment against many defendants, including three Indian nationals, in an English court. Through the Foreign Process Section of the Royal Courts of Justice (‘FPS’), the claimant obtained service of the English proceedings on three defendants in accordance with the Hague Service Convention. The Court considered Article 15 of the Hague Service Convention as part of its deliberations.

Our Undisputed Legal process servers are also aware of what happens if the foreign authority responsible for issuing certificates of service or delivery fails to respond and what to do thereafter. A Contracting State may declare that a judge may render a decision even if no certificate of service or delivery has been received if [A.] the document was transmitted by one of the methods provided for in this Convention; [B.] not less than six months have elapsed since the document was transmitted; and [C.] the document was transmitted by one of the methods provided for in this Convention.

The Central Authority and service under the Hague Convention in the British Virgin Islands

Mutual Legal Assistance is a process by which the Attorney General, as the Central Authority for the Territory of the Virgin Islands, with respect to Law Enforcement, assists Foreign Jurisdictions in gathering information and evidence for use in civil and criminal matters. Typically, the Attorney General requires that the requesting state submit a request from the Central Authority to the Attorney General of the Virgin Islands. Thereinafter, the client must await a response from the Attorney General’s Chambers. A certified translation of the original Request must be provided in English where the original request is in another language.

If the claimant had attempted to serve the defendant in accordance with the Hague Service Convention and also taken steps to bring the application to the defendant’s attention in a manner other than service, they would have been able to apply to the court for judgment six months after the transmission of the application. To begin with, Article 15 of the ECSC CPR does not have a defined procedure for its implementation. Our private process servers at Undisputed Legal can serve legal papers in the British Virgin Islands per international and domestic legal requirements. This is exceedingly important, especially since failure to show that the foreign defendant was served with the proceedings is grounds for dismissal of the motion for default judgment. 

If the Hague Service Convention’s alternative means of service are permitted, the claimant may seek authority to execute service by such means whether service under the Hague Convention cannot be made. However, the Court may allow alternative services. The judicial discretion involved in deciding the merits of an alternate service application varies from court to court. Although there is no rule against collateral petitions that seek the court’s remedy on a first come, first served basis, this is a very costly method of litigating before ever reaping the benefits of enforcement. Consequently, it is important to involve a private process service agency like Undisputed Legal in order to reduce further hassle and potential mistakes. 

If the claim form is not served outside of the court’s jurisdiction on a foreign defendant within twelve months of the date of issue, the claim’s validity will expire, and the claimant will need to obtain an extension under the ECSC CPR. Even if the extension is granted, the claimant is only allowed to request so many more months of benefits. If the foreign defendant is evading service and no certificate of service has been given despite the claimant’s reasonable attempts to acquire one, the claimant may seek a judgment from the court under Article 15 of the Hague Service Convention. 

Notarization in the British Virgin Islands

It is common practice for foreign jurisdictions to request notarized and/or legalized copies of papers from companies headquartered in the British Virgin Islands. The major role of a notary is the acknowledgment of documents in the British Virgin Islands. A notary public authenticates papers in the British Virgin Islands. A notary public has the power to notarize papers in their native language, as well as documents written in other languages, foreign language documents, and copies of documents executed in front of them.

A document may be legalized once it has been notarized. A document’s ‘legalization’ refers to the steps taken to ensure it is recognized as legitimate in a jurisdiction other than where it was originally performed. The British Virgin Islands (and other signatory nations to the Hague Apostille Convention) recognize apostilling as an acceptable method of legalization. An Apostille may be used to legalize documents issued by a corporation based in the British Virgin Islands and presented to a foreign authority that is a party to the Convention. The document must first be notarised by a BVI notary public (unless the document bears the original signature of a BVI government official, for example, a certificate of good standing or a certificate of incorporation of a BVI company); and an apostille must be affixed to the document, confirming the authenticity of the signature of the BVI notary public or the BVI government official. 

 Our Undisputed Legal process servers can help ensure that your documents are sound in law in order to prevent them from being rejected by the Central Authority. If a document is presented early in the morning in the British Virgin Islands, it may be authenticated and apostilled the same day. Delivery in the afternoon usually means the documents may be picked up the next business day.

Power of Attorney

A power of attorney lets clients choose an agent to act on their behalf. This document serves its purpose while the client is still living and may be invaluable in crisis or incapacity.  The donee of a power of attorney has the authority of the donor of the power to execute and do any assurance, instrument, or thing in and with his name and signature and his seal where sealing is required. Any such assurance, instrument, or thing is as effectual in law as if it had been executed or done by the donee in the name of the donor of the power of attorney.

Where a deed is not required, parties may choose to use electronic signatures instead. A company may designate another individual to act as its attorney subject to the company’s memorandum and articles of incorporation. The authority conferred to an attorney under powers of attorney will terminate on the donor’s death or incapacity. The legislation of the British Virgin Islands does not presently provide provisions for broad, durable powers of attorney. 

A corporation may designate someone to act as its attorney either generally or in connection with a particular case by means of a written document, subject to the provisions of the company’s memorandum and articles. It should be known that an act of an attorney appointed in conformity with the document under which they were appointed binds the company. A power of attorney document issued may be performed as a deed or signed by an individual with the explicit or implicit authority of the company.

We ensure that we keep your documents safe at Undisputed Legal, regardless of what they are. We can help you every step of the way with the service of legal papers in the British Virgin Islands. Because of our expertise with the logistical limits of international service, we are able to carry out the operation more quickly and efficiently than an individual or non-specialized service provider. However, we never compromise on quality of service, and we undertake our due diligence for your papers. We understand the difficulties inherent in serving legal documents internationally and promise always to be completely responsive to your needs. 

OUR PROCESS

Documents can be faxed to (800)-296-0115, emailed to 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

New York: (212) 203-8001 – 590 Madison Avenue, 21st Floor, New York, New York 10022
Brooklyn: (347) 983-5436 – 300 Cadman Plaza West, 12th Floor, Brooklyn, New York 11201
Queens: (646) 357-3005 – 118-35 Queens Blvd, Suite 400, Forest Hills, New York 11375
Long Island: (516) 208-4577 – 626 RXR Plaza, 6th Floor, Uniondale, New York 11556
Westchester: (914) 414-0877 – 50 Main Street, 10th Floor, White Plains, New York 10606
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, N.W. Suite 300, Washington DC 20004

FOR ASSISTANCE SERVING LEGAL PAPERS IN THE BRITISH VIRGIN ISLANDS

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 our clients globally from our offices in New York, Brooklyn, Queens, Long Island, Westchester, New Jersey, Connecticut, and Washington, D.C.

“Quality is never an accident; it is always the result of high intention, sincere effort, intelligent direction, and skillful execution; it represents the wise choice of many alternatives” – Foster, William A

Sources

1. Volkswagen Aktiengesellschaft v. Schlunk, 486 U.S. 694 (1988)

2. Convention on the service abroad of judicial and extrajudicial documents in civil or commercial matters

3. The claimant no longer needs court permission if they follow the steps outlined in CPR Part 7.2(1).

4. Or the originating application/fixed-date claim form and affidavit

5. A defense, evidence-in-reply, or challenge to jurisdiction must be filed within fifty-six days after service (or forty-two days if service is conducted in a Caribbean member state).

6. After that, the court may schedule a Pre-Trial Review (PTR) to provide trial scheduling instructions. If no PTR is available, the trial date shall be set by mutual agreement between the parties (or the court, if necessary).

7. After the parties have filed their responses and/or evidence in response, the court may schedule a case management conference (CMC) at which time they may be issued instructions about disclosure (if not previously done), witnesses, expert evidence, and trial listing.

8. Part 15 of the CPR

9. The parties, not the court, are responsible for handling disclosure.

10. In addition to the Central Authority, each Contracting State may nominate additional authorities and decide the scope of their competence, as stated in Article 18.

11. Service of Judicial and Extrajudicial Documents in Civil or Commercial Matters Abroad Convention, 1965, Article 2 

12. Punjab National Bank (International) Limited v. Boris Shipping Limited[2019] EWHC 1280 (QB) & Ors

13. The bailiff made three failed attempts to serve three different people on 6 July 2017, 7 July 2017, and 9 November 2017. The FPS informed the Claimant of this. The Claimant then resubmitted the paperwork to the FPS on March 23, 2018, stating that the deadline for filing the claim had been extended to June 1, 2019. On November 23, 2018, the FPS acknowledged the claimant’s situation again via letter. The claimant did not get any more information about the status of that service

14. The court took notice of the United Kingdom’s ratification of Article 15, paragraph 2, of the Convention. He concluded that the FPS had received the claim form and that the claim form’s condition that it be delivered using one of the means authorized under the Hague Convention had been fulfilled. Twelve months have passed after the claim form was sent to the FPS, and the claimant has made all reasonable attempts to secure a certificate of service but has been unsuccessful. 

Court findings: (i. ) the claim form had been served, and (ii) the claimant may seek summary judgment against three defendants supported by the evidence.

[2019] EWHC 1280 (QB)

15. Attorney General Chambers

P.O. Box 242
Road Town, Tortola
Virgin Islands (British) VG1110

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