BRITISH VIRGIN ISLANDS Law and Practice Contributed by: Alex Hall Taylor KC, Richard Brown, Tim Wright and Simon Hall, Carey Olsen
such orders for costs as it sees fit with a view to plac- ing the party not at fault in no worse a position than they would have been in if the pre-action protocol had been complied with. In addition to the specific pre-action protocols, the Practice Direction introduces an express expecta- tion in other categories of claim on parties to follow a reasonable procedure suitable to their particular cir- cumstances, which is intended to avoid litigation, and should “normally include” the parties corresponding and conducting “genuine and reasonable negotiations with a view to settling the claim economically and without court proceedings”. The court may penalise a claimant in costs if a claim is commenced before allowing the defendant sufficient time to engage in pre-action correspondence. In addition, the court retains its general case man- agement powers under the principles of the Overrid- ing Objective to deal with cases fairly and efficiently, therefore there remains a general expectation on par- ties to act reasonably both before and during court proceedings to avoid unnecessary litigation and to The BVI Limitation Ordinance 1961 sets out the limita- tion periods for commencing particular claims. Limita- tion will be a complete defence. Key limitation periods are: • contract – six years from the date the cause of action accrued; and • tort – six years from the date the cause of action accrued. minimise costs where possible. 3.2 Statutes of Limitations Specific limitation periods are set for other categories of claim, and there are provisions for suspension or extension (eg, concealment or fraud). Specific advice should be sought where limitation may be an issue. 3.3 Jurisdictional Requirements for a Defendant A defendant domiciled in the BVI can be served with proceedings as of right.
Service of BVI proceedings outside the jurisdiction is governed by Part 7 of the EC CPR. Prior to 31 July 2023, Part 7 of the EC CPR allowed a claimant to serve a claim outside the jurisdiction only with the leave of the court. Permission to serve a BVI claim on defendants located outside the jurisdiction was generally sought at an ex parte hearing soon after the claim had been issued, and was an additional pro- cedural step which the claimant had to factor into its costs of bringing proceedings against a foreign party or parties. The amendments to Part 7, which apply to all cases except those where a trial has already been listed from 31 July 2023, have added to the jurisdictional gate- ways, expanding the scope of the rules to all court processes (including notices of application and orders for interim remedies before a claim has been filed), and largely removing the requirement to seek the per- mission of the court to serve out of the jurisdiction. The amended Rule 7.2 now permits service of court processes without the court’s permission where: • service is effected in compliance with the meth- ods of service provided by Rule 7.9 (ie, by service through foreign governments, service on a state, service in accordance with the laws of the foreign country or personal service by the claimant or the claimant’s agent); • the court process falls within one of the jurisdic- tional gateways listed in Rule 7.3; and • the claimant, at the same time as filing the court process, also files and serves a certificate signed by the claimant or the claimant’s legal practitioner confirming their belief that: (a) the case falls within one of the jurisdictional gateways; (b) the case is a proper one for the BVI court’s jurisdiction; (c) the claimant has a good arguable case; and (d) the proposed method of serving the foreign defendant does not infringe the law of the foreign state. The new rules also expanded the jurisdictional gate- ways for service out. 7.3 (7)(c) has been added, expressly providing for service out of the jurisdiction
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