How To Preserve Confidential Information In BVI Claims

• Published date: 28 March 2024
• Subject Matter: Litigation, Mediation & Arbitration, Disclosure & Electronic Discovery & Privilege, Arbitration & Dispute Resolution
• Law Firm: Harneys
• Author: Ms Claire Goldstein and Christopher Pease

How do litigants mitigate the risk of their confidential information becoming public during proceedings in the British Virgin Islands? The Eastern Caribbean Civil Procedure Rules, 2000 (as amended) (EC CPR) apply to proceedings before the BVI Supreme Court. The EC CPR is the primary source of the tools for preserving confidentiality in BVI proceedings.

Are all hearings held in public in the BVI?

Following the latest revisions to the EC CPR (effective from 31 July 2023), the Court retains its discretion to hear a matter either (i) in private or (ii) in public. The default position is that a hearing in the BVI Court will proceed in public under principles of open justice and transparency.

BVI proceedings may, therefore, be heard in private with the parties' consent. A hearing which takes place "in chambers" (ie without members of the public present), however, is treated as "a hearing that took place in public, unless the Court orders otherwise" (EC CPR 2.7(2)): matters heard in chambers are not, therefore, confidential by default.

EC CPR 2.7(4) contains the following mandatory circumstances in which a hearing will be deemed to have taken place in private, limited to hearings where:

• It is concerned with the welfare of a minor or a person under disability
• It is an application by a trustee or a court-appointed officer which is concerned with the administration of a trust, asset or an estate
• It is concerned with arbitration

Beyond these specific circumstances, there are limited further categories of hearing which may take place in private, including:

• In instances where publicity would defeat the object of the hearing
• Matters of national security
• Matters involving confidential information where publicity would damage that confidentiality
• Ex parte applications
• Where the Court considers such privacy necessary in the interests of justice

Which hearings can be held in private?

There are no BVI-specific provisions for which hearings should be held in private.

The leading English authority is Hodgson v Imperial Tobacco Ltd [1998] 1 WLR 1056 (Imperial Tobacco). At 1070E - G of Imperial Tobacco, the Court set out the limited circumstances where a hearing can be in private, including (i) issues involving children, (ii) national security, (iii) secret processes, and (iv) similarly sensitive situations.

Imperial Tobacco distinguishes that these are clearly "secret" proceedings; proceedings in chambers otherwise are not secret.

Does the BVI have a practice of hearing...