BRITISH VIRGIN ISLANDS Law and Practice Contributed by: Alex Hall Taylor KC, Richard Brown, Tim Wright and Simon Hall, Carey Olsen
A certificate of urgency must be filed along with the application papers explaining why the matter is urgent. During any court vacation period, a judge will be available to hear matters certified as suitable for vacation or urgent business. 6.3 Availability of Injunctive Relief on an Ex Parte Basis As a matter of principle, orders will not generally be made against a person without that person having had an opportunity to be heard. There are some excep- tions, including extreme urgency where notice is not possible. An application may proceed without notice where giving notice may defeat the purpose of the application. Given the nature of freezing orders, and the requirement to prove a real risk of dissipation, they are commonly made without notice. 6.4 Liability for Damages for the Applicant The applicant for an injunction will normally be required to give an undertaking in damages to compensate the respondent if it is subsequently determined that the respondent has suffered loss as a result of the injunc- tion and that the respondent should be compensated for that loss. The applicant may also be required to give such an undertaking in relation to losses suffered by third parties affected by the injunction. The court has a discretion to require fortification of the undertaking, for example, by a payment into court. When making an application without notice, there is a duty of full and frank disclosure. The applicant must disclose all matters that may be material to the court in deciding whether or not to grant the order and its terms. This duty normally requires the offer of an undertaking in damages and to question whether fortification ought to be required. 6.5 Respondent’s Worldwide Assets and Injunctive Relief In appropriate cases, the court may grant a freezing order against a respondent’s worldwide assets. 6.6 Third Parties and Injunctive Relief In the case of a freezing order, in appropriate circum- stances, it is possible to obtain relief against a third party against whom the applicant does not have a
claim where that third party appears to hold assets on behalf of the defendant and if there is reason to suppose that the assets which are ostensibly those of the third party are, in truth, those of the defendant against whom the freezing order has been made (ie, the so-called Chabra jurisdiction). It is also possible to obtain Norwich Pharmacal and Bankers Trust orders against third parties. 6.7 Consequences of a Respondent’s Non- Compliance Failure to comply with the terms of an injunction may be contempt of court. A person held in contempt may be imprisoned, fined and/or have their assets seized. A company in contempt may be fined and/or have its assets seized and the directors may also be impris- oned, fined and/or have their assets seized. The BVI is a sophisticated jurisdiction and its courts have great experience in handling major trials. Trials of significant commercial matters take place in the Commercial Court, established in 2009. Civil trials of lesser value or (for instance) relating to constitutional issues take place in the High Court. Trials are conducted similarly to most other common law jurisdictions. The trial involves advocacy by BVI legal practitioners. Oral argument and examination of witnesses of fact and experts take place before a sin- gle judge at first instance. 7. Trials and Hearings 7.1 Trial Proceedings Witnesses and experts may also appear via video link where the BVI court gives permission for them to do so. The BVI courts also regularly adjust their sitting hours to take into account parties, witnesses and experts in different time zones. The judge hands down a final judgment, usually in written form. 7.2 Case Management Hearings Shorter hearings in relation to interim motions or appli- cations are also conducted by oral argument before a
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