BRITISH VIRGIN ISLANDS Law and Practice Contributed by: Alex Hall Taylor KC, Richard Brown, Tim Wright and Simon Hall, Carey Olsen
ceedings other than for the purposes of giving effect to the settlement agreement. Proceedings come to an end so long as there is compliance with the terms of the settlement agreement. A recent addition to the EC CPR is the concept of “judicial settlement conferences” (Part 38A). The new rules contemplate judicial involvement in the settlement process (i) during the case manage- ment conference process and the stages leading up to a trial or the hearing of an appeal, and (ii) during the hearing or trial provided it is under- taken with the parties’ consent. This is intended to complement mediation as ADR for promot- ing the early disposition of cases. This method of judicial involvement in settlement is new and untested. It is unclear to what extent judges will feel it necessary or appropriate to intervene and/ or to what extent parties would welcome such involvement rather than, say, appoint an inde- The terms of settlement can remain confidential if agreed. The usual wording of a Tomlin order would refer to a confidential settlement agree- ment but would not exhibit the agreement itself. Therefore, the settlement agreement would not be on the file or be publicly accessible. The fact that the proceedings were settled by consent, however, would be publicly accessible, recorded in the court order. 8.3 Enforcement of Settlement Agreements Settlement agreements are usually enforced in the manner described in 8.1 Court Approval (ie, if a party requires compliance with a term of the pendent mediator to assist with ADR. 8.2 Settlement of Lawsuits and Confidentiality
settlement agreement, the stay may be lifted and an application made). If, however, the settlement is not embodied in a court order, then the settlement agreement may only be enforced by bringing a new action for breach of contract seeking the usual remedies, such as damages (or sometimes specific perfor- mance or an injunction). 8.4 Setting Aside Settlement Agreements An application to court is required to set aside a settlement agreement. There are circumstances in which a settlement agreement (like any con- tract) may be ineffectual 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 com- mence a new action to set aside the settlement agreement or declare it invalid. However, if all parties to the settlement 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 com- mon law and equitable jurisdictions are avail- able, including: • damages; • equitable compensation; • mandatory and prohibitive injunctions;
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