BRITISH VIRGIN ISLANDS Law and Practice Contributed by: Alex Hall Taylor KC, Richard Brown, Tim Wright and Simon Hall, Carey Olsen
increasing number of solicitors are solicitor advo- cates, with the same rights as barristers. For high-value commercial cases it is common for parties to instruct King’s Counsel (KCs, senior spe- cialist advocates) from England. A number of English KCs are admitted to practice in the BVI.
funders insist on ATE insurance as a condition of fund- ing but may fund the cost of the upfront premium. 2.6 Contingency Fees The LPA makes provision for contingency fees for non-contentious business but not expressly for con- tentious business. The Code of Ethics under the LPA provides that legal practitioners can enter into a con- tingency fee agreement “provided that such fee is fair and reasonable”. Legal practitioners may be prepared to act on a contingent basis for litigation in appropri- ate cases in order to allow for access to justice. No guidance is available as to what is a fair and reason- able fee. 2.7 Time Limit for Obtaining Third-Party Funding There are no specific time limits for obtaining third- party funding. Generally, a party will seek funding prior to issuing, but a funder may be prepared to provide funding at a later stage. In December 2023, a Practice Direction was issued putting in place a set of pre-action protocols which apply to four categories of claims: • claims for a specified sum of money (defined as a claim for a sum of money that is ascertained or capable of being ascertained as a matter of arith- metic and is recoverable under a contract); • claims for motor vehicle accidents and personal injury claims; • defamation claims; and • administrative claims (eg, judicial review claims). The pre-action protocols specify the steps that should be taken prior to issuing proceedings in each category of case, including pre-action letters and disclosure of documents. Where a pre-action protocol applies but has not been complied with, and non-compliance has led to the commencement of proceedings which may not otherwise have been commenced, or has led to costs being incurred in the proceedings that may not otherwise have been incurred, the court may make 3. Initiating a Lawsuit 3.1 Rules on Pre-Action Conduct
2. Litigation Funding 2.1 Third-Party Litigation Funding
Litigation funding is permissible as a matter of BVI law so that third parties can fund litigation and other liquidation fees and expenses in appropriate cases and on appropriate terms. 2.2 Third-Party Funding: Lawsuits Please see 2.1 Third-Party Litigation Funding . 2.3 Third-Party Funding for Plaintiff and Defendant Third-party funding is usually available for plaintiffs, not defendants, except where a defendant has a counterclaim. Most funders will consider funding counterclaims, applying usual underwriting criteria. 2.4 Minimum and Maximum Amounts of Third-Party Funding Different funders take different approaches but most will be reluctant to consider a case where costs are likely to exceed 10% of recoveries. The market for funding litigation in the BVI is expand- ing and so a range of funding options is likely to be available. 2.5 Types of Costs Considered Under Third- Party Funding Funders will usually fund legal fees and disburse- ments. Many funders will fund investigatory costs (forensic accountants, etc). Funders may be willing to fund the costs and expenses of an insolvency office- holder. Separate arrangements usually cover risks of adverse costs, through after the event (ATE) insurance. Many
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