BRITISH VIRGIN ISLANDS Law and Practice Contributed by: Alex Hall Taylor KC, Richard Brown, Tim Wright and Simon Hall, Carey Olsen
quantum of the costs, the receiving party may then apply to have costs assessed. On an assessment, the court will allow recovery of such costs as are fair and reasonable and take into account the amount of work reasonably required to have been done, the complexity of the dispute, the value of the claim, etc. There are restrictions on recov- erability of costs of lawyers not admitted as BVI legal practitioners. There is also provision in Commercial Court proceed- ings for costs to be summarily assessed at the end of a hearing, rather than having to proceed to a detailed assessment. Where a detailed assessment is to take place, the receiving party may make an application for a pay- ment on account of costs pending that assessment. 11.2 Factors Considered When Awarding Costs The general rule is that the court will order the unsuc- cessful party to pay the costs of the successful party. The court may award only part of a party’s costs or make no order. In deciding who should be liable to pay costs, the court must have regard to all of the circumstances, including: • the conduct of the parties before and during the proceedings; • the manner in which a party has pursued a particu- lar allegation, a particular issue or the case. • whether a party has succeeded on particular issues, even if that party has not been successful in the whole of the proceedings; • whether it was reasonable for a party to pursue a particular issue or raise a particular allegation; and • whether the claimant gave reasonable notice of intention to issue a claim. The general rule does not apply in certain situations, such as: • applications to amend a statement of case; • requests for an extension of time; • applications for relief from sanctions; or
• applications that could have been made at a case management conference or pre-trial review. In those cases, the court must order the applicant to pay the costs of the respondent unless there are special circumstances. 11.3 Interest Awarded on Costs Once assessed, an order for costs will be an order to pay a specific sum and will become a judgment debt. Interest is payable on judgment debts at a rate of 5% per annum from the date of judgment. The BVI courts have ruled that interest may run on costs from the date that the order to pay costs was made, even if the costs are assessed at a later date. 12. Alternative Dispute Resolution (ADR) 12.1 Views of ADR Within the Country The BVI has sought to increase the popularity of arbi- tration as a form of ADR through the BVI Arbitration Act 2013 and the launch of the BVI International Arbi- tration Centre (BVI IAC) (see 13. Arbitration ). However, the BVI remains a largely court-focused “front line” litigation jurisdiction in which ADR plays less of a role than elsewhere. A BVI court cannot compel ADR; however, under Rule 27.7 of the EC CPR, it may adjourn a case manage- ment conference to enable settlement discussions or a form of ADR procedure to continue. Mediation is often considered and has led to settle- ment of major cases, but the court has no specific power to require parties to mediate. The BVI has a number of qualified mediators who can be instructed locally. However, due to the international nature of BVI disputes, mediations often take place elsewhere. 12.2 ADR Within the Legal System Until recently, there has been no formal requirement for parties to take part in ADR and no specific sanction for refusing to do so. However, general conduct and
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