INTRODUCTION
The Eastern Caribbean Supreme Court (ECSC) was established by The West Indies Associated States Supreme Court Order 1967 (UK) (the Supreme Court Order), which gave effect to Section 6 of the West Indies Act 1967 (UK). The ECSC has High Court and Court of Appeal jurisdiction over matters from the Organization of Eastern Caribbean States, namely, Antigua, Dominica, Grenada, Saint Christopher, Nevis and Anguilla, Saint Lucia, and Saint Vincent.1 Section 10 of the Supreme Court Order provided explicitly for the ECSC to have jurisdiction with respect to the Territories of Montserrat and the British Virgin Islands (BVI).
The BVI incorporated the Supreme Court Order by enacting the West Indies Associated States Supreme Court (Virgin Islands) Ordinance 1969. However, the Judicial Committee of the Privy Council remains the final appellate court.2
For over two decades, the ECSC Procedure Rules 2000 (Civil Procedure Rules 2000), which superseded its predecessor, the Civil Procedure Code, governed the legal framework for civil practice and procedure in the ECSC. Following years of consultation, the Civil Procedure Rules 2000 gave way to the revamped and refreshed ECSC Civil Procedure Rules, Revised Edition 2023 (Civil Procedure Rules, Revised 2023), which came into effect on 31 July 2023. The Civil Procedure Rules, Revised 2023, brought sweeping and significant changes to civil practice and procedure, particularly in the areas of service out of the jurisdiction, relief from sanctions, and costs. The Civil Procedure Rules, Revised 2023, gave birth to a novel alternative dispute resolution mechanism, the Judicial Settlement Conference, intended to complement the well-established out-of-court arrangement of court-ordered mediations.
This article aims to provide a helpful summary of the essential changes made by the Civil Procedure Rules, Revised 2023, and provide a general view of how those changes will likely impact civil practice.
SERVICE OUT OF THE JURISDICTION
The old regime
The most anticipated and controversial change relates to the provisions on service of a court process out of the jurisdiction. Under the Civil Procedure Rules 2000, a party was required to seek the permission of the court in order to serve a claim outside of the jurisdiction.3 The process would involve a litigant establishing in an ex parte application that their claim fell within one of the recognized gateways. The gateways included injunctions, claims for contracts, claims in tort, enforcement claims, claims about property within the jurisdiction, claims about companies, claims about trusts, claims of restitution, and claims under an enactment conferring jurisdiction on the court.4
A litigant was further tasked with showing that his claim had a realistic prospect of success and the probable location of the party, who is the intended recipient of service.5
Though applications to serve out were routinely moved and granted, the natural and quite obvious difficulty that besets a litigant related to the time it took for the entire process to be resolved before an attempt to serve a foreign defendant could occur. Time to serve out was lost in listing the application, and depending on the court's calendar, listings could take weeks. Further delays potentially occurred in receiving the perfected order, which was required to be served with the court documents for service to be deemed valid.
In reality, even though litigants experienced some delay before being in a position to serve out correctly, the risk of a claim becoming stale was very remote due to the provisions that extended the validity of a claim from the usual 6–12 months for actions against foreign parties.6
Another albeit non-legal concern with the Civil Procedure Rules 2000 was the increased legal and court fees incurred by the litigant in securing an order to serve out.
On more a technical point, an issue that rarely led to complications but was, however, an unwelcomed wrinkle is the reference by the Civil Procedure Rules 2000 to service of 'claim form' the inference here being that applications to serve out were limited to service of Claim Forms and Fixed Date Claim Forms as opposed to other types of proceedings. This inference does not appear to have caused the court any concerns.
The new regime
The Civil Procedure Rules, Revised 2023 has removed the requirement on a party to seek permission to serve a court process out of the jurisdiction, subject to the conditions that7:
- service is effected in compliance with Rule 7.9 or pursuant to Rule 7.17;
- the court process is listed in Rule 7.3; and
- the claimant complies with Rule 7.6.
Changing the reference from a claim form to a court process was a welcomed clarification. Even more so, the term court process was defined to specifically include a claim form and statement of claim, notice of applications, affidavits in support of a claim, orders for an interim remedy before a claim has been made under Rule 17.2, and a copy of the order if permission is granted to serve a claim without the statement of claim.8
The Civil Procedure Rules, Revised 2023 has retained the provisions relating to the approved methods of service. Those provisions include service through foreign governments,9 on a State,10 in accordance with the law of the country in which it is to be served11 or personally by the claimant or the claimant's agent.12
Applications, orders, or notices issued in proceedings where the court process was served out pursuant to Rule 7.2 may be served out without permission except for applications originating a claim under Rule 8.1(6)).13
A litigant is still required to establish that the court process falls within the recognized gateways provided by Rule 7.3. The new rules expanded the gateways to include two additional grounds: relief in aid of foreign proceedings14 and claims for cost orders against a non-party.15
Procedure
The Civil Procedure Rules, Revised 2023 has dramatically simplified the procedure, which now requires a litigant to certify at the time of filing the court process16:
- the applicable gateway;
- a belief that the case is a proper one for the court's jurisdiction;
- a belief that the claimant has a good arguable case; and
- a belief that the proposed method of service does not infringe the law of the foreign state.
The procedure for setting aside service of the court process is mainly untouched. However, the court was given specific guidance on how to approach such an application. The provisions require that the court adopt a two-stage approach when considering whether to set aside service of the court process. The first stage requires the court to determine whether or not the party who has served out complied or satisfied the matters set out at (i)–(iv) above. If the court is so satisfied, the burden shifts to the party disputing service to satisfy the court on why the case is not a proper one for the court's jurisdiction.17
A litigant who is not able to show that the court process falls within the recognized gateways will require the leave of the court to serve out. The party must set out any facts or matters relating to the desirability of the court assuming jurisdiction, where the person is to be served, and whether the case is a proper one for the court's jurisdiction.18
The changes to the provisions on service out of the jurisdiction promote a sensible approach to the access and administration of justice. Litigants now enjoy an efficient and uncomplicated method to commence proceedings against foreign defendants. This advantage will likely be keenly felt by parties to commercial proceedings in the BVI, as such parties typically reside outside the Territory. A foreign defendant's right to contest service or jurisdiction remains intact and unaffected by the changes.
JUDICIAL SETTLEMENT CONFERENCE
An exciting new arrangement to civil practice sees the judiciary taking a more prominent role in settlement discussions. The Civil Procedure Rules, Revised 2023 has introduced the novel Judicial Settlement Conference, which authorizes a judge or master to assist parties in negotiating a settlement of the proceedings or any of the issues in the proceedings.19
During a Judicial Settlement Conference hearing, a judge or master is entitled to advise the parties on the merits of their case and may issue an opinion on the likely outcome of the dispute.20 Any opinion given to the parties is not legally binding; however, it is envisioned to have a persuasive effect on the basis that the opinion is held by a member of the judiciary.
The judge or master who has presided over a conference is barred from taking part in the proceedings going forward unless the parties consent and the judge or master is satisfied that there are no circumstances that would make it inappropriate to continue.21
Similar to court-ordered mediations, judicial settlement conferences are confidential. Parties are required to comply with the court's standard directions, which may range from preparing a joint memorandum of the issues and completing summaries of the case to preparing 'will say' statements of potential witnesses and any other directions the court deems necessary in the circumstances.
A failure to comply, attend, or participate in a conference may lead to cost orders being made against the defaulting party. The judge or master may also refer the conduct of the defaulting party to the court for a determination of cost consequences if the matter is not resolved and proceeds to trial.22
Despite its relatively short life, the Judicial Settlement Conference has been celebrated by legal practitioners as an excellent addition to the tools available to the judiciary in the administration of justice, already boasting a high success rate in settling matters.
Relief from sanctions and setting aside default judgments
The Civil Procedure Rules, Revised 2023 has shifted the court's approach to parties in default and their resulting applications for relief from sanctions. Under the old regime, a party was required to meet the threshold of satisfying the court that the application was made promptly23 in addition to establishing that the failure to comply was not intentional, providing a good explanation for the failure, and showing that the party has otherwise been in general compliance with the rules, orders, and directions.24 A court was only entitled to consider the factors listed in Rule 26.8 (3) after being satisfied with the above requirements.25
This restrictive approach translated to a high bar for litigants who fell into default, with the attendant risk of being unable to rely on documents or, even worse, being entirely shut out of the proceedings. The Civil Procedure Rules, Revised 2023 has lowered the bar by empowering the judiciary with greater flexibility in determining whether relief should be granted. The new regime has stripped away the old threshold requirement for an approach that allows a judge or master to exercise their discretion to grant relief after considering several factors, which include those already highlighted under the old regime.26
A similar approach can be seen for applications to set aside a default judgment. A party who has had a judgment entered against him is no longer required to satisfy the court that he has applied to the court as soon as reasonably practicable and provide a good explanation for the failure to file an acknowledgement of service or defence. These are now considerations, albeit important ones, which affect the exercise of a court's discretion in the event that a defendant shows that he has a real prospect of successfully defending the claim.27
The changes to the provisions on relief from sanctions and setting aside default judgments underpin a shift from the draconian-like approach to defaulting parties. The relaxation affords litigants greater access to due process as instances of default can be assessed by reference to a range of factors, as opposed to any single factor. The greater flexibility of the judiciary should result in more proportional outcomes for these types of issues.
Appeals
Parties will be happy to have more time to review and consider a decision when deciding whether to appeal. The time to request leave to appeal was extended from 14 days to 21 days.28
Litigants have also received more flexibility in the event their application for leave to appeal before the c below is refused. Under the previous regime, an applicant was entitled to request leave from the Court of Appeal within 7 days from the date of the refusal of his application for leave before the court below. The Civil Procedure Rules, Revised 2023 now allows an applicant to file in accordance with that previous rule or to file a request for leave within 21 days of the date of the order against which the leave is sought, whichever is later.29
A new provision was added to authorize the Court of Appeal to dispense with the timelines and determine that an appeal is to be heard on an expedited basis.30
Applications for recognition and enforcement
The new rules have clarified the appropriate method of commencing applications for recognition and enforcement. Such applications must now be commenced using the Fixed Date Claim Form.31 The old rules did not address the commencement process, which led to legal practitioners adopting to begin matters by Fixed Date Claim Form or Originating Applications.
Translations of documents
The old regime was silent on the status of documents submitted in a foreign language; however, in practice, it was customary for legal practitioners to provide certified English copies of the documents being specifically or generally relied on. This practice has now been codified by the new regime, which states that documents in a foreign language may only be relied on by a party if that party produces a certified English translation of the document.32
Costs
The Civil Procedure Rules, Revised 2023 made a slight but impactful change to the assessment considerations for costs of applications. The controversial and much-maligned cap for costs of procedural applications was the subject of several authorities. The cap on costs for procedural applications is now removed, which carried with it the school of arguments on what factors constituted "special circumstances" in order to allow costs to be assessed at more reasonable sums.
Noteworthy changes were made to the procedure for having costs assessed. The procedure now requires the paying party to respond to the receiving party's bill of costs and notice of commencement by filing his points of dispute no later than 21 days following service to avoid being severely limited at the ensuing assessment hearing33 or worse, being faced with a default costs certificate.34
Finally, the rules have introduced new fees that apply to cost proceedings. An administrative fee is due on the filing of a bill of costs and on the assessment of the bill of costs.35
The changes to the provisions on costs bring the procedure closer to modern civil practice while simultaneously ushering out a vexed and highly contentious area of law.
Transitional provisions
The Civil Procedure Rules, Revised 2023 rules do not apply to the proceedings commenced prior to 31 July 2023, in which a trial date has been fixed.36 The court, however, has the authority to, in the exercise of its discretion in a proceeding commenced before 31 July 2023, consider the principles set out in the new rules.37
CONCLUSION
The changes made to the procedural rules will almost certainly be viewed as a step in the right direction. The new provisions on service out of the jurisdiction have addressed the unnecessary hurdle to the service of claims and applications on foreign defendants and, in the process, reduced costs and the tax on the court's resources.
Judges have been granted greater flexibility to deal with cases of default, which should, in practice, lead to matters receiving more proportional outcomes procedurally.
The new Judicial Settlement Conference gives litigants more paths to conclude their matters out-of-court, reducing the fees and costs associated with litigation.
The amendments to the rules on costs of procedural applications and costs procedure should see a marked decrease in conflicting positions on the principles of entitlement, promoting timely and efficient resolution of matters.
Footnotes
1 . Brief History of the Court. https://www.eccourts.org/brief-history-of-the-court
2 . Judicial Committee Act 1833 (UK).
3 . CPR 2000 Rule 7.2 (b).
4 . CPR 2000 Rule 7.3 (2)–(10).
5 . CPR 2000 Rule 7.5 (1).
6 . CPR 2000 Rule 8.12 (2) (a).
7 . CPR 2023 Rule 7.2 (1).
8 . CPR 2023 Rule 7.1 (2).
9 . CPR 2023 Rule 7.9 (1) (a) (i).
10 . CPR 2023 Rule (1) (a) (ii).
11 . CPR 2023 Rule 7.9 (1) (b).
12 . CPR 2023 Rule 7.9 (1) (c).
13 . CPR 2023 Rule 7.17 (1).
14 . CPR 2023 Rule 7.3 (11).
15 . CPR 2023 Rule 7.3 (12).
16 . CPR 2023 Rule 7.6.
17 . CPR 2023 Rule 7.8.
18 . CPR 2023 Rule 7.4.
19 . CPR 2023 Rule 38A.11 (2).
20 . CPR 2023 Rule 38A.11 (4).
21 . CPR 2023 Rule 38A.3 (2).
22 . CPR 2023 Rule 38A.10.
23 . CPR 2000 Rule 26.8 (1).
24 . CPR 2000 Rule 26.8 (2).
25 . CPR 2000 Rule 26.8 (3).
26 . CPR 2023 Rule 26.8 (2).
27 . CPR 2023 Rule 13.3.
28 . CPR 2023 Rule 62.2 (1).
29 . CPR 2023 Rule 62.2 (2).
30 . CPR 2023 Rule 62.8.
31 . CPR 2023 Rule 43.12 (1).
32 . CPR 2023 Rule 31.4.
33 . CPR 2023 Rule 65.14 (3).
34 . CPR 2023 Rule 65.14 (4).
35 . CPR 2023 Rule 65.16 (1).
36 . CPR 2023 Rule 75.3.
37 . CPR 2023 rule 75.4.
Originally Published by Oxford University Press
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.
