Will The BVI Follow The DIFC, USA And New Zealand?

• Published date: 15 September 2020
• Subject Matter: Litigation, Mediation & Arbitration, Trials & Appeals & Compensation
• Law Firm: Ogier
• Author: Mr Nicholas Brookes and Nicholas Burkill

Civil Procedure Rules Review

The Eastern Caribbean Supreme Court, including the BVI, is conducting its most wide-ranging review of its Civil Procedure Rules in 20 years.

Towards the end of 2019 the Chief Justice appointed Justice of Appeal Webster to chair a Rules Review Committee which included a representative of each of the bar associations in the ECSC jurisdiction and a number of appointees. The recommendations of the Committee were outlined last week by Webster JA and Ventose J, who also served on the Committee, to a conference organised by the ECSC Bar Association, the OECS.

Service out of the jurisdiction

One of the recommendations that is most likely to affect the BVI Commercial Court is the recommendation for the removal of the requirement in CPR Part 7 that the court's permission is required before a claim form can be served out of the jurisdiction. Since so much of the BVI's Commercial Court caseload involves service out of the jurisdiction, such a move would make the commencement of proceedings before the BVI Commercial Court significantly simpler.

Other jurisdictions

The removal of leave to serve out would represent a departure from the English practice, although a different approach is identifiable now in England. As Lord Sumption observed in Abela v Baadarani¹:

"It should no longer necessary to resort to the kind of muscular presumptions against service out which are implicit in adjectives like 'exorbitant'. The decision is generally a pragmatic one in the interests of the efficient conduct of litigation in an appropriate forum"

The ECSC would be far from the first jurisdiction to adopt this approach. Obvious examples that have adopted this approach are the Dubai International Financial Centre, New Zealand and the United States. The New Zealand Court of Appeal recently endorsed the approach in Commerce Commission v Viagogo AG² :

"The High Court Rules in relation to service out of New Zealand are designed to achieve a balance between the need for practical justice to be done in a world where cross-border dealings are ever more common, and the burden on a foreign defendant of being required to defend proceedings in New Zealand."

The approach that jurisdictions have taken to the removal of the permission stage differs. For example, both the US Federal Rules of Civil Procedure and the DIFC Rules simply enable a defendant to challenge jurisdiction or forum after service. The DIFC Rules provide simply:

"9.53 Given the international nature...