BRITISH VIRGIN ISLANDS Law and Practice Contributed by: Andrew Emery and Mary-Frances Morris, Emery Cooke
8.5 Expert Evidence Expert evidence is permitted in the BVI but it can only be given with the permission of the court. The duty of any expert appointed is to objectively assist the court. Like witnesses of fact, expert witnesses are subject to cross-examination at trial. The court will frequently seek to manage expert evidence tightly and in many cases order that it be given by a single joint expert.
An application for registration of a foreign judgment under the 1922 Act is made according to Part 74 of the EC CPR. The application may be made without notice and must be supported by affidavit evidence, includ- ing the necessary statements regarding the judgment (such as the amount of interest that has become due), along with a certified copy of the foreign judgment and a certified translation into English if necessary. Once registered, such judgments may be enforced by the BVI court without re-examining the underlying claim. From the date of registration, the judgment has the same force and effect as if it had originally been obtained in the BVI and proceedings may be taken on it as such. The reasonable costs of registration are recoverable as if they were sums payable under the judgment. 2. Judgments Not Covered by the 1922 Act (Including China, the USA and Most of Europe): Enforcement Must Proceed by Way of a Common Law Debt Claim The judgment creditor must bring a claim in the BVI court on the judgment debt as a cause of action under common law. This involves commencing proceedings under CPR Part 8 and serving the judgment debtor. The judgment debtor must reply or acknowledge ser- vice within 14 days if served within the jurisdiction or 28 days if served outside the jurisdiction. If the judg- ment debtor does not acknowledge service, the judg- ment creditor can apply for default judgment. Once the claim is issued, the judgment creditor will usually apply for summary judgment on the basis that the underlying liability has already been determined and the defendant has no real prospect of defending the claim. 9.2 Enforcement of Arbitral Awards The Arbitration Act 2013 governs the enforcement of arbitral awards in the BVI. It does not differentiate between domestic and foreign awards, but it does between “Convention awards” under the UN Conven- tion on the Recognition and Enforcement of Foreign Arbitral Awards 1958 (the New York Convention), and “non-Convention awards”.
9. Enforcement 9.1 Enforcement of Judgments
The BVI is considered very much to be a pro-enforce- ment jurisdiction. The BVI recognises confidentiality as a genuine value and supports it through legal pro- fessional privilege, the “without prejudice” rule, and common-interest privilege. There are two principal routes to enforcement, depending on the jurisdic- tion in which the original judgment was obtained: the statutory registration procedure under the Reciprocal Enforcement of Judgments Act 1922 (the “1922 Act”), and the common law debt claim route for all other jurisdictions. 1. Statutory Registration Under the 1922 Act The Reciprocal Enforcement of Judgments Act 1922 provides a simplified registration procedure for judg- ments obtained in the High Court in England and Wales, Northern Ireland, the Court of Session in Scot- land, Barbados, the Bahamas, Bermuda, Belize, Guy - ana, Grenada, Jamaica, New South Wales (Australia), Nigeria, St Lucia, St Vincent, and Trinidad & Tobago. There are four principal requirements for recognition and registration of a judgment under the 1922 Act: • the judgment or order must have been given by a court in civil proceedings, and must be final and conclusive and for a fixed judgment sum; • the application must be made within 12 months of the judgment being handed down (or such longer period as the court may allow); • the judgment debtor must not have appealed the judgment, or have the right or have expressed an intention to appeal; and • it must be just and convenient to register the judg- ment.
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