BRITISH VIRGIN ISLANDS Law and Practice Contributed by: Alex Hall Taylor KC, Richard Brown, Tim Wright and Simon Hall, Carey Olsen
inter partes basis between applicant and regis- tered agent. Bankers Trust Orders A Bankers Trust order is potentially available where: • there is a clear-cut case that the applicant has been the victim of a fraud; • funds belonging to the claimant have passed through, or are held by, the respondent bank; and • there is a real prospect that disclosure might lead to the location or preservation of assets to which the claimant has a proprietary claim. 5.3 Discovery in This Jurisdiction EC CPR Part 28 sets out rules governing disclo- sure and inspection. Where an order for stand- ard disclosure is made, a party must disclose all documents directly relevant to the matters in question in the proceedings. A document is directly relevant if the party with control of the document intends to rely on it, if it tends to adversely affect that party’s case or it tends to support the other party’s case. The rule in Peruvian Guano, requiring the disclosure of so- called train of enquiry documents, is expressly disapplied. The duty of disclosure is limited to documents that are, or have been, in a party’s possession or control. A party gives disclosure by producing a list iden- tifying the documents that a party is disclosing. The list must identify which documents are no longer in a party’s control, what has happened to them and where they are. If a party seeks to withhold disclosure or inspection, including on grounds of privilege, then it should say so in its list or in writing, including the grounds upon which it is claimed.
Once the list of documents has been served, a party wishing to inspect any documents con- tained in the list is required to give the party who served the list written notice of the wish to inspect documents on the list. 5.4 Alternatives to Discovery Mechanisms This is not applicable in this jurisdiction. 5.5 Legal Privilege Legal advice privilege is recognised in the BVI. It applies to confidential communications between a client and their lawyer which have come into existence for the dominant purpose of giving or receiving legal advice. Privilege may extend to material evidencing the substance of legally privileged communications. Privilege can extend to all members of the legal profession, including in-house lawyers. Legally privileged communications are privileged unless that privilege is waived or inadvertently lost. In addition, confidential communications between a lawyer and client, or between either of them and a third party, made for the dominant purpose of litigation that is pending, reasonably contemplated or existing, will be subject to liti- gation privilege. 5.6 Rules Disallowing Disclosure of a Document A party need not disclose documents outside of the limits of standard disclosure. A party may apply to court on a without notice basis for that party not to disclose a document on the grounds that disclosing the existence of it would damage the public interest.
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