BRITISH VIRGIN ISLANDS Law and Practice Contributed by: Alex Hall Taylor KC, Richard Brown, Tim Wright and Simon Hall, Carey Olsen
5.5 Legal Privilege Legal advice privilege is recognised in the BVI. It applies to confidential communications between a cli- ent and their lawyer which have come into existence for the dominant purpose of giving or receiving legal advice. Privilege may extend to material evidencing the substance of legally privileged communications. Privilege can extend to all members of the legal pro- fession, including in-house lawyers. Legally privileged communications are privileged unless that privilege is waived or inadvertently lost. In addition, confidential communications between a lawyer and client, or between either of them and a third party, made for the dominant purpose of litigation that is pending, reasonably contemplated or existing, will be subject to litigation privilege. 5.6 Rules Disallowing Disclosure of a Document A party need not disclose documents outside of the limits of standard disclosure. A party may apply to court on a without notice basis for that party not to disclose a document on the grounds that disclosing the existence of it would damage the public interest. A party will have to disclose, but may withhold inspec- tion of, documents over which privilege or confiden- tiality is claimed or which are no longer in that party’s control. 6. Injunctive Relief 6.1 Circumstances of Injunctive Relief The BVI courts have a broad jurisdiction to grant injunctive relief when it is just and convenient to do so. That includes cases where injunctions are sought in support of foreign proceedings where there is no substantive claim in the jurisdiction. It is impossible to develop a full list of the types of injunctive relief avail- able or the precise circumstances in which the courts will grant any particular form of such relief.
The types of injunctive relief that may be awarded include the following: • freezing orders restraining a respondent from dis- posing or dealing with its assets where an appli- cant can show: (a) that it has a good arguable case on the merits of its underlying claim against the respondent; (b) that there is a real risk that, unless restrained, the respondent will take steps to dissipate its assets to avoid the enforcement of any judg- ment against it; and (c) that it is just and convenient to grant the relief sought; orders may direct provision of informa- tion about the location of property or assets. • prohibitory injunctions restraining a respondent from acting in a particular way where it is shown: (a) that there is a serious question to be tried on the merits of its underlying claim against the respondent; (b) that an award of damages would not be an adequate remedy; and (c) that, on the balance of convenience, it is just and convenient to grant the relief sought. • proprietary injunctions protecting property and trust assets, applying the same principles as those applicable to the granting of a prohibitory injunc- tion and where the applicant has a proprietary interest in the relevant asset; and • anti-suit injunctions restraining proceedings, including where parallel proceedings have been commenced in another jurisdiction where it is just and convenient to do so, with the court weighing various factors depending on the circumstances of the case. The BVI courts may grant injunctive relief on an interim or final basis. 6.2 Arrangements for Obtaining Urgent Injunctive Relief The BVI Commercial Court, in particular, is used to dealing with applications for injunctive relief on an urgent basis. The Registry provides BVI legal practi- tioners with contact details for out-of-hours applica- tions so that urgent applications can be dealt with as required.
132 CHAMBERS.COM
Powered by FlippingBook