BRITISH VIRGIN ISLANDS Law and Practice Contributed by: Alex Hall Taylor KC, Richard Brown, Tim Wright and Simon Hall, Carey Olsen
• applications for conditional and final leave to the Privy Council; • stays of execution; or • continuing interim relief, such as an injunc- tion, pending determination of any further appeal. 11. Costs 11.1 Responsibility for Paying the Costs of Litigation The general rule is that the unsuccessful party will be ordered to pay the costs of the success- ful party in any particular application or at trial, although the court retains a discretion, and the award of costs will depend on the conduct of the respective parties. The court has a power to award costs against third parties but this is only exercised in exceptional cases. Where costs are to be assessed, the receiving party will serve the paying party with a schedule setting out the costs claimed including lawyers’ fees, court fees, expenses, disbursements, etc. If unable to agree on quantum of the costs, the receiving party may then apply to have costs assessed. On an assessment, the court will allow recov- ery 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 recoverability of costs of lawyers not admitted as BVI legal practitioners. There is also provision in Commercial Court pro- ceedings 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 payment on account of costs pending that assessment. 11.2 Factors Considered When Awarding Costs The general rule is that the court will order the unsuccessful party to pay the costs of the suc- cessful 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, includ- ing: • the conduct of the parties before and during the proceedings; • the manner in which a party has pursued a particular allegation, a particular issue or the case. • whether a party has succeeded on particular issues, even if that party has not been suc- cessful 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 situ- ations, 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 appli- cant to pay the costs of the respondent unless there are special circumstances.
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