BRITISH VIRGIN ISLANDS Law and Practice Contributed by: Alex Hall Taylor KC, Richard Brown, Tim Wright and Simon Hall, Carey Olsen
disclosure, an application for specific disclosure of a document or class of documents may be made. The scope of standard disclosure is defined by the question of the relevance of the document in question. On an application for specific disclosure, the court retains a discretion, and should take into account the overriding objective, including to save expense and to administer cases in a manner proportionate to their value and complexity, among other things. It may therefore be a defence to an application for specific disclosure that providing the disclosure requested is disproportionate in terms of the costs incurred com- pared to the value of the dispute. Apart from orders for standard disclosure and specific disclosure, asset disclosure orders are often made There is no provision in the EC CPR for third-party dis- closure, although a witness summons can be issued to a witness in the jurisdiction to give testimony and produce documents. Otherwise, it may be possible to obtain disclosure from third parties in the BVI by Norwich Pharmacal or Bankers Trust orders. To obtain disclosure from a third party out of the jurisdiction, a party may apply for a letter of request from the BVI to the local court. Norwich Pharmacal Orders For a Norwich Pharmacal order, the applicant must show that: • there is a good arguable case that a wrong has been committed; • the third party against whom disclosure is sought is mixed up in the wrongdoing, even if innocently; and • it is just and convenient in the circumstances to make such an order. A BVI company’s registered agent (RA), by acting as its RA, is considered to have been mixed up in the company’s wrongdoing for these purposes. In the case of a Norwich Pharmacal application against a BVI-registered agent, which is relatively common, when a freezing order is granted. 5.2 Discovery and Third Parties
normally applicants apply ex parte for a gagging order preventing the RA from disclosing the application to its client. The Norwich Pharmacal application is then dealt with on an inter partes basis between the appli- cant and registered agent. Bankers Trust Orders A Bankers Trust order is potentially available where: • there is a clear-cut case that the applicant has been the victim of a fraud; • funds belonging to the claimant have passed through, or are held by, the respondent bank; and • there is a real prospect that disclosure might lead to the location or preservation of assets to which EC CPR Part 28 sets out rules governing disclosure and inspection. Where an order for standard disclo- sure is made, a party must disclose all documents directly relevant to the matters in question in the pro- ceedings. A document is directly relevant if the party with control of the document intends to rely on it, if it tends to adversely affect that party’s case or it tends to support the other party’s case. The rule in Peruvian Guano, requiring the disclosure of so-called train of enquiry documents, is expressly disapplied. The duty of disclosure is limited to documents that are, or have been, in a party’s possession or control. A party gives disclosure by producing a list identifying the documents that a party is disclosing. The list must identify which documents are no longer in a party’s control, what has happened to them and where they are. If a party seeks to withhold disclosure or inspec- tion, including on grounds of privilege, then it should say so in its list or in writing, including the grounds upon which it is claimed. the claimant has a proprietary claim. 5.3 Discovery in This Jurisdiction Once the list of documents has been served, a party wishing to inspect any documents contained in the list is required to give the party who served the list written notice of the wish to inspect documents on the list. 5.4 Alternatives to Discovery Mechanisms This is not applicable in this jurisdiction.
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