BVI Norwich Pharmacal Relief: An International Problem Resolved

The BVI Commercial Court has just delivered a judgment that answers the question raised in the BVI as a result of two English decisions questioning the availability of Norwich Pharmacal relief for the purposes of overseas proceedings.

In the first written judgment on the issue delivered on 10 March 2020, Wallbank J declined to follow the recent English decisions and confirmed the availability of this relief in the BVI.

The issue

In Ramilos Trading Ltd v Buyanovsky [2016] EWHC 3175 (Comm) Flaux J in the English Commercial Court found that the existence of the statutory regime to obtain evidence for foreign proceedings contained in the UK's Evidence (Proceedings in Other Jurisdictions) Act 1975 excludes the availability of Norwich Pharmacal relief for the purposes of foreign proceedings. Ramilos followed the earlier English Court of Appeal decision in R (Omar) v Secretary of State for Foreign Affairs [2013] EWCA Civ 118 that had reached the same conclusion in the context of the UK's Crime (International Co-operation) Act 2003.

Since the BVI's own Evidence (Proceedings in Foreign Jurisdictions) Act 1988 is in the same terms as the UK's 1975 Act, there arose an obvious concern that the BVI would adopt the same statutory interpretation as the English courts and find that the Court did not have jurisdiction to make Norwich Pharmacal orders for the purposes of foreign proceedings.

This is an important issue. The ownership and accounts of BVI companies are not available on public searches. These details are held by BVI registered agents and kept confidentially save for compliance with the BVI's scheme for providing assistance to specific foreign law enforcement agencies. Accordingly, adopting the English approach would have severely restricted the assistance that the BVI Courts could provide in identifying assets of defendants to foreign proceedings.

The BVI conclusion

In K&S v Z&Z BVIHCM(COM) 2020/0016 Wallbank J delivered a detailed judgment on an ex parte application for Norwich Pharmacal relief that answered the question and declined to follow the English approach.

Analysis

In K&S the applicants were each seeking disclosure from two BVI registered agents who between them acted for a number of BVI companies that were said to be being used by an individual to hide his assets. The individual was being pursued by the applicants in separate proceedings: K had brought legal proceedings in a foreign country, and S had brought arbitral proceedings. K...