BRITISH VIRGIN ISLANDS Law and Practice Contributed by: Alex Hall Taylor KC, Richard Brown, Tim Wright and Simon Hall, Carey Olsen
tract seeking the usual remedies, such as damages (or sometimes specific performance or an injunction). 8.4 Setting Aside Settlement Agreements An application to court is required to set aside a settle- ment agreement. There are circumstances in which a settlement agreement (like any contract) may be inef- fectual and set aside, such as if one of the parties lacked capacity, if a mistake has been made about a fundamental matter or it is impossible to perform. If one party to the settlement agreement wishes to challenge it, it is usually necessary to commence a new action to set aside the settlement agreement or declare it invalid. However, if all parties to the set- tlement agree that it should be set aside, and it is embodied in a court order, then the court can set it aside in the existing proceedings with the consent of all parties. The stay would be lifted and the existing proceedings would resume. 9. Damages and Judgment 9.1 Awards Available to the Successful Litigant The wide remedies generally available in common law and equitable jurisdictions are available, including: • damages; • equitable compensation; • mandatory and prohibitive injunctions; • proprietary injunctions and property preservation orders; • restitution and rectification remedies; • declarations and other orders including as to status or transfer of ownership; • valuation orders; • property or share transfer or buyout orders; and • those relating to the management of companies and personal or corporate insolvency proceedings or receiverships. 9.2 Rules Regarding Damages Damages are generally compensatory, to meet or compensate for a particular identifiable loss caused by wrongdoing complained of and subject to concepts of mitigation, contributory negligence and remoteness.
Exemplary or aggravated damages are only avail- able in limited circumstances. Exemplary damages (beyond compensation for loss suffered) tend only to be available for specific torts such as defamation or deceit where there has been deliberate oppres- sion or calculation that the damage caused is lesser than profit gained. They are not generally available in breach of contract, negligence or inadvertent tort claims. Aggravated damages are compensatory and reflect the aggravation of injury to a claimant by the manner or motive for a tort or conduct since its com- mission. There is no maximum monetary limit. 9.3 Pre-Judgment and Post-Judgment Interest The court has a discretion to award pre-judgment interest at such rate as it considers appropriate. In considering whether or not to grant interest, and the appropriate rate, the court will consider all the circum- stances of the case, for example, whether the pay- ment of interest was contemplated or contractually agreed. Post-judgment interest is provided for under the Judg- ments Act at 5% per year from judgment until pay- ment. 9.4 Enforcement Mechanisms of a Domestic Judgment Domestic judgments must be complied with imme- diately and are enforceable as soon as made: an enforcement order should be applied for in the event of non-compliance by the judgment debtor. Modes of enforcement include: • charging orders; • attachment orders; • injunctions; • a judgment summons; • orders for seizure and sale of goods or property; and • appointment of liquidators or receivers. 9.5 Enforcement of a Judgment From a Foreign Country Certain foreign judgments covered by the Recipro- cal Enforcement of Judgments Act are enforceable through simple registration. The judgment has to be
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