BRITISH VIRGIN ISLANDS Law and Practice Contributed by: Alex Hall Taylor KC, Richard Brown, Tim Wright and Simon Hall, Carey Olsen
Service of BVI proceedings outside the jurisdic- tion is governed by Part 7 of the EC CPR. Prior to 31 July 2023, Part 7 of the EC CPR allowed a claimant to serve a claim outside the jurisdiction only with the leave of the court. Permission to serve a BVI claim on defendants located out- side the jurisdiction was generally sought at an ex parte hearing soon after the claim had been issued, and was an additional procedural step which the claimant had to factor into its costs of bringing proceedings against a foreign party or parties. The amendments to Part 7, which apply to all cases except those where a trial has already been listed from 31 July 2023, have added to the jurisdictional gateways, expanding the scope of the rules to all court processes (including notices of application and orders for interim remedies before a claim has been filed), and largely remov- ing the requirement to seek the permission of the court to serve out of the jurisdiction. The amended Rule 7.2 now permits service of court processes without the court’s permission where: • service is effected in compliance with the methods of service provided by Rule 7.9 (ie, by service through foreign governments, service on a state, service in accordance with the laws of the foreign country or personal service by the claimant or the claimant’s agent); • the court process falls within one of the juris- dictional gateways listed in Rule 7.3; and • the claimant, at the same time as filing the court process, also files and serves a certifi- cate signed by the claimant or the claimant’s legal practitioner confirming their belief that: (a) the case falls within one of the jurisdic- tional gateways;
(b) the case is a proper one for the BVI court’s jurisdiction; (c) the claimant has a good arguable case; and (d) the proposed method of serving the for- eign defendant does not infringe the law of the foreign state. The new rules also expanded the jurisdiction- al gateways for service out. 7.3(7)(c) has been added, expressly providing for service out of the jurisdiction of a claim relating to the insol- vency of a BVI company. Rule 7.3(11) is a new provision that expressly permits service out of the jurisdiction where an application is made for interim relief where proceedings have been or are about to be commenced in a foreign jurisdic- tion. Finally, a new gateway has been introduced by Rule 7.3(12) where a claim is made for a costs order against a person who is not a party to the BVI proceedings. The new rules preserve the procedure to seek leave of the court to serve court processes abroad. Leave of the court is required where service outside the jurisdiction is not otherwise permitted under the new Rule 7.2. This will prin- cipally be the case where the claimant is seeking leave to serve by an “alternative method” under what is now Rule 7.10. A party who is served out of the jurisdiction under the new rules may apply to the court for an order setting aside the service of the court process on the basis that (i) the court process does not fall within a jurisdictional gateway; (ii) the claimant does not have a good arguable case; or (iii) the case is not a proper one for the court’s jurisdiction.
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