BRITISH VIRGIN ISLANDS Law and Practice Contributed by: Alex Hall Taylor KC, Richard Brown, Tim Wright and Simon Hall, Carey Olsen
The application will be heard after evidence exchange, on a date fixed by the court by refer- ence to the parties’ and the judge’s respective availability. The parties are able to agree varia- tions to this timetable and/or to seek bespoke directions. The time it will take for an application to be deter- mined by the court will depend on the length of the hearing required and the court’s availability. Discovery is available in civil cases. For matters proceeding to trial, at the case management conference the court is required to consider whether to give directions for standard disclo- sure. Parties are responsible for complying with their disclosure duties. Parties’ lawyers are also required to ensure that disclosure is conducted by their client properly. Disclosure is adminis- tered by the parties, not the court. However, where a party is not satisfied with disclosure by another party pursuant to standard disclosure, an application for specific disclosure of a docu- ment or class of documents may be made. 5. Discovery 5.1 Discovery and Civil Cases The scope of standard disclosure is defined by the question of the relevance of the docu- ment in question. On an application for specific disclosure, the court retains a discretion, and should take into account the overriding objec- tive, including to save expense and to admin- ister cases in a manner proportionate to their value and complexity, among other things. It may therefore be a defence to an application for specific disclosure that providing the disclo- sure requested is disproportionate in terms of
the costs incurred compared to the value of the dispute. Apart from orders for standard disclosure and specific disclosure, asset disclosure orders are often made when a freezing order is granted. 5.2 Discovery and Third Parties There is no provision in the EC CPR for third- party disclosure, although a witness summons can be issued to a witness in the jurisdiction to give testimony and produce documents. Oth- erwise, it may be possible to obtain disclosure from third parties in the BVI by Norwich Pharma- cal or Bankers Trust orders. To obtain disclosure from a third party out of the jurisdiction, a party may apply for a letter of request from the BVI to the local court. Norwich Pharmacal Orders For a Norwich Pharmacal order, the applicant must show that: • there is a good arguable case that a wrong has been committed; • the third party against whom disclosure is sought is mixed up in the wrongdoing, even if innocently; and • it is just and convenient in the circumstances to make such an order. A BVI company’s registered agent (RA), by act- ing as its RA, is considered to have been mixed up in the company’s wrongdoing for these pur- poses. In the case of a Norwich Pharmacal application against a BVI registered agent, which is relatively common, normally applicants apply ex parte for a gagging order preventing the RA from dis- closing the application to its client. The Norwich Pharmacal application is then dealt with on an
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