On the 1st October 2011 a number of changes will come into force to the Civil Procedure Rules of the Eastern Caribbean Supreme Court (ECSC). The CPR of the ECSC are loosely derived from the English CPR, but with significant modifications. They regulate procedure in civil and commercial proceedings in all of the OECS States, namely Anguilla, Antigua & Barbuda, the Commonwealth of Dominica, Grenada, Montserrat, St. Lucia, St Kitts and Nevis, St Vincent & the Grenadines and the Virgin Islands.

Those changes take the form of extensive revisions to the CPR, together with the implementation of a total of 10 new Practice Directions. Amongst the key changes will be:-

  • Broader provisions allowing service out of the jurisdiction, and new provisions which permit the Court to dispense with service in an appropriately exceptional case, or to make an alternative order in relation to the "mode of service"
  • The abolition of the so-called "procedural appeal", and its replacement with an "interlocutory appeal." This creates some synthesis between the terminology used in the Eastern Caribbean Supreme Court (Virgin Islands) Act, Cap 80 and the CPR, and will hopefully eradicate a layer of the confusion which had arisen in relation to different types of appeal and the need to obtain leave.
  • The introduction of new "procedural default costs", a new device which entitles the Court to make orders on its own initiative against legal practitioners fixed in the sum of EC$5,000 in respect of procedural defaults by them. The Court may direct that these costs be paid either to the Court, or to the opposing litigant. This appears to be an adjunct to the existing power to make wasted costs orders, but it remains to be seen whether the legal practitioner will be entitled to the same procedural safeguards built into that process;
  • The effective abolition of the rule at CPR 20.1 that the Court should not permit the amendment of a Statement of Case after the case management conference, unless that party can satisfy the Court that the change is necessary because of some change of circumstances not known to the party at the time;
  • The implementation of new rules relating to cost capping orders at CPR 65.14.

In practice, it is likely to be the provisions in relation to service out of the jurisdiction which will be of greatest interest to those litigating in the BVI. It has been something of an anomaly in a jurisdiction home to over 800,000 companies, the overwhelming majority of which are managed by persons overseas, that service out of the jurisdiction upon their shareholders and directors has not been specifically provided for.

Similarly, the Insolvency Act 2003 provides for summary remedies against delinquent office holders, and the means by which preferences or transactions at undervalues might be impeached, yet there has been no obvious mechanism by which such claims might be served out of the jurisdiction.

Practitioners in the BVI had long lamented the absence of these provisions. During the course of his address marking the opening of the law year on 20th September 2011, the Honourable Chief Justice described the CPR as a living document, which would continue to be updated. In the revisions which come into force on 1st October 2011, an attempt has been made to address these issues:-

  • A claim may now be served out of the jurisdiction "if the subject matter of the claim relates to (a) the constitution, administration, management or conduct of the affairs; or (b) the ownership or control of a company incorporated within the jurisdiction."
  • Service out will be permitted where "a claim is made under an enactment which confers jurisdiction on the Court...." The need for such a provision was exposed in Pasig v. RWC BVI HC (COM) 24/2010. Nevertheless, there is clearly still scope for debate in relation to whether a particular enactment merely gives rise to a form of duty or liability, or whether it also imposes, expressly or by implication, jurisdiction upon the Court.
  • CPR 7.3(3) brings the provisions in relation to service out in contractual claims broadly into line with the equivalent provisions in the English CPR 6.20;
  • A claim for restitution may now be served out of the jurisdiction, where the defendant's alleged liability arises out of acts committed within the jurisdiction, or out of acts, wherever committed, which were to the detriment of a person domiciled within the jurisdiction.

The effect of these changes is that it is likely that there will be a number of would-be litigants, who would previously have been advised that they were unlikely to obtain permission to serve a claim form out of the jurisdiction, who will now find the doors of the BVI Courts open to them.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.