Applicability Of Ancient English Statutes In Common Law Offshore Jurisdictions

Most offshore jurisdictions use every effort to ensure that the key statutes and laws relating to financial services business are updated regularly to keep pace with the changing landscape of cross-border commerce. However, outside of that statutory regime most lawyers are aware that in the British Dependent Territories like the British Virgin Islands (BVI) and the Cayman Islands there is also a substantial body of case law which fills in the gaps between statutes. That case law can be surprisingly helpful - after all, who would have thought that one could find case law supporting segregating the assets and liabilities of a segregated portfolio company in an 18th century case relating to a French Duke.1

But although most people are aware of the potential applicability of the old common law, what people tend to be less cognisant of is the effect of ancient English statutes. Whilst the common law continues to evolve through subsequent judicial decisions, ancient statutes are frozen in time, and have the power to reach out from the recesses of history like a zombie from the crypt, grabbing at the foot of an innocent commercial transaction passing nearby.

Most of the major British Dependant Territories (including the BVI and Cayman) are regarded as "settled territories" (meaning that the British Crown acquired dominion over them by settlement rather than conquest). In the case of the BVI at least that is a questionable historic assertion, but the case law is clear that once a territory is generally regarded as a settled territory no subsequent investigation of the historical facts will disturb the position.2

As a consequence the original British settlers were deemed to bring all of the laws of England with them when they first settled those places. This includes all statutes which were in force at the relevant time, subject to certain exceptions in relation to laws inapplicable to the nascent settlement.3 Notwithstanding that a law has been superseded in the United Kingdom, it would continue to apply as adopted in British Overseas Territories.4

In some jurisdictions there is a degree of ambiguity as to what is to be treated as the official date of establishing settlement. In the BVI no court has ever made a definitive pronouncement on this, but the most workable date is usually treated as 1665.5 In Cayman, unusually, there is the benefit of a case setting out definitively a date - 1734.6

In fairness, it should be noted that very few relevant...