British Virgin Islands: How To Get An Injunction In The BVI (Podcast)

Episode Description

This guide sets out answers to frequently asked questions on obtaining injunctive relief in the British Virgin Islands.

What is an injunction?

An injunction is a court order prohibiting a person from doing something (a prohibitory injunction) or requiring a person to do something (a mandatory injunction). Specific injunctions include search orders, Norwich Pharmacal (third party disclosure) orders and freezing orders (or Mareva injunctions).

Injunctions can be final (permanent), interlocutory (until the final hearing or trial) or interim (until further order, which may be before the final hearing).

Injunction applications are frequently sought in the BVI, with the BVI courts readily granting them in appropriate circumstances.

Do I have a right to an injunction?

An injunction is granted at the court's discretion: it is not available as a remedy as of right. An injunction will usually be granted where it appears to be just and convenient to the court. The BVI court derives its power to grant injunctions from section 24 of the Eastern Caribbean Supreme Court (Virgin Islands) Act (SCA).

Whether the court will exercise its discretion to grant an injunction will depend on several factors, including delay, whether the injunction can be appropriately monitored, and whether the applicant has "clean hands", ie, no misconduct or illegality is linked to the relief sought. There must also be an actual or threatened breach of the applicant's rights.

When considering the grant of an interim injunction, the court must exercise its discretion under guidelines set down in the seminal case of American Cyanamid Co v Ethicon Limited.

What are the American Cyanamid guidelines?

The court's primary objective is to follow the course which presents the lowest risk of irreparable prejudice if, after a trial, the decision to grant an interim injunction is subsequently found to be incorrect. In American Cyanamid, the House of Lords set out a three-stage test for granting an interim injunction.

Serious question to be tried: The court must be satisfied that there is a serious question to be tried; ie the underlying claim itself must not be frivolous or vexatious.

Adequacy of damages: The court must consider the adequacy of damages. This involves two steps:

If the claimant were to succeed at trial, from the claimant's point of view, would damages be an adequate remedy? If so, and the defendant would be financially able to pay them, no interim injunction would typically be granted.

If the defendant were to succeed at trial, would they be adequately compensated by the claimant's undertaking in damages for the loss caused by applying the interim injunction? If they would be adequately compensated, then an interim injunction should be granted.

Balance of convenience: If there is doubt about the adequacy of damages to the claimant or the defendant, the court must consider the "balance of convenience". This involves the court assessing all factors and taking the course of action which presents the lowest risk of injustice; ie whether it would do more significant damage to the applicant if the injunction were wrongly refused than it would do to the respondent if the injunction were improperly granted. In performing this exercise, the court will consider any factors relevant to the facts of the case, which will necessarily be case-specific. If the factors are evenly balanced, then the court should act to preserve the status quo.

The courts typically exercise the discretion to grant an interim mandatory injunction more sparingly than an interim prohibitory injunction since, given that it is an order which requires a party to do something, there is generally a higher risk of injustice and irredeemable harm to the respondent if the decision is subsequently found to be incorrect.

When can I apply for an interim injunction?

Part 17 of the Eastern Caribbean Supreme Court Civil Procedure Rules (Revised Edition) 2023 (EC CPR) sets out the procedure for interim remedies, ...

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.