BVI Court Strikes Out Witness Statement Of Fact For Trial

• Published date: 10 August 2023
• Law Firm: Maples Group
• Author: Mr Matthew Freeman and Stuart Rau

In a recent decision in Petroci Holding v Masirah Oil Limited & Ors,¹ the British Virgin Islands ("BVI") Commercial Court struck out materially the whole of a witness statement of fact for trial on the basis that it was not made from personal knowledge.

The proceedings arise out of share issuances in Masirah Oil Limited (the "Company") which Petroci alleges diluted its shareholding in an unfairly prejudicial manner. The defendants deny the claim.

Background

Petroci's representative who served on the Board of Directors of the Company and was involved in the share issuances in question had unfortunately passed away. Petroci instead filed a statement by a current employee of the Company which commented on disclosure documents, mostly consisting of board meetings and emails relating to the share issuances. However, the witness did not personally attend those meetings nor had they been a party to the emails.

Justice Mangatal held that materially the whole of the witness statement should be struck out. She cited the 2013 English High Court decision in JD Wetherspoon plc v Harris,² in which a witness statement constituting "a recitation of facts based on the documents, commentary on...