BRITISH VIRGIN ISLANDS Law and Practice Contributed by: Andrew Emery and Mary-Frances Morris, Emery Cooke
7.2 Standing Requirements There are no rules of standing regarding class actions in the BVI. 7.3 Relief There are no types of relief available for class actions in the BVI. 7.4 Class Actions, Mass Claims and Arbitration Class actions and mass claims in arbitration are not applicable in the BVI. 7.5 Trends There are no particular trends in class actions and mass claims in the BVI. Disclosure in the BVI is a mandatory, court-supervised process governed by EC CPR Part 28. Each party must disclose directly relevant documents within its control, verified by a sworn list and a solicitor’s cer- tificate. The obligation is ongoing, begins from the point litigation is contemplated, and continues until proceedings conclude. The scope is deliberately narrower than US-style discovery “train of enquiry” documents, which need not be disclosed. Documents subject to various forms of privilege are protected from disclosure, though privilege can be overridden in cases of fraud. There is no pre-action disclosure procedure, and third-party disclosure relies on Nor- wich Pharmacal and Bankers Trust orders rather than any general statutory right. 8.2 Privilege 8. Evidence 8.1 Disclosure Not all relevant documents need to be disclosed. Several forms of privilege protect documents from disclosure. • Legal advice privilege – recognised in the BVI, it applies to confidential communications between a client and their lawyer which have come into exist- ence for the dominant purpose of giving or receiv- ing legal advice.
• Litigation privilege – protects any documents or communications between a lawyer and their client or a third party that were created for the dominant purpose of preparing for existing or anticipated litigation. • Without prejudice privilege – covers communica- tions created for the purpose of settlement of the dispute. Such communications may not be relied upon or disclosed in court proceedings without the consent of all parties to those communications. • Common-interest privilege – covers documents that are disclosed to a third party with a com- mon interest in the subject matter of the privileged document, or in litigation in connection with which the document was created. • The iniquity exception – privilege can be defeated by fraud. That does not mean that if a privileged document discusses or relates to fraud the privi- lege is overcome; the document must itself be used in furtherance of the fraud to defeat privilege. • Public-interest immunity – a party may apply to court on a “without notice” basis for that party not to disclose a document on the grounds that dis- closing the existence of it would damage the public interest. 8.3 Confidentiality The BVI recognises confidentiality as a genuine value and supports it through legal professional privilege, the “without prejudice” rule, common interest privilege, public interest immunity, and procedural tools such as sealed files, in camera hearings and gag orders. However, confidentiality is not absolute. Courts can override it by order, particularly through Norwich Phar- macal and Bankers Trust applications and it yields to statutory obligations in the areas of anti-money laun- dering, financial crime, and mutual legal assistance. The crime fraud exception also ensures that privilege and confidentiality cannot be used as a shield for wrongdoing itself. 8.4 Witness Evidence There are no pre-trial depositions in the BVI. Instead, evidence is given by way of witness statements (or affidavits) at the pre-trial stage and then can be cross- examined by the opposing party at trial. The witness statements stand as evidence in chief.
88 CHAMBERS.COM
Powered by FlippingBook