Knowledge

Lawyers in the British Virgin Islands (the "BVI") will have to brush up on their homework during their summer break as the forthcoming amendments to the Eastern Caribbean Supreme Court Civil Procedure Rules (the "new CPR"), come into effect on 31 July 2023 (subject to the transitional provisions contained in Part 75 of the new CPR). The new CPR, which was published in the Official Gazette on 25 April 2023, repeals the current rules, which have been in place for over 20 years. A copy of the new CPR can be found here.

Summary

The amendments to the CPR are substantial. In this briefing, we have endeavoured to summarise the most notable changes, which include the following:

• service out of the jurisdiction – will no longer require the Court's prior permission;
• relief from sanctions – the Court can now exercise a broad discretion in considering whether to grant relief from sanctions;
• disclosure and translations - parties will need to act more promptly in serving any supplemental disclosure lists as the time period for doing so has been halved from 14 days to seven days. Further, a party who discloses a document in a foreign language is obliged to produce a certified English translation;
• appeals - the timeframe and procedure for appealing any matters to the Court of Appeal will change under the new CPR; and
• costs - new rules in relation to the commencement of detailed assessment proceedings.

Unless otherwise stated, any reference to provisions of the CPR in this briefing are references to the new CPR.

Transitional provisions

The new CPR applies to all proceedings commenced in the jurisdiction on or after 31 July 20231.

The new CPR will not apply to proceedings commenced prior to that date in which a trial date has been fixed unless that date is adjourned.2 If proceedings were commenced before 31 July 2023, an application to adjourn a trial date is to be treated as a pre-trial review, and the new CPR will apply from the date that such application is heard.3

If a trial date has not been fixed in proceedings commenced before 31 July 2023:

• the BVI Court Registry must fix a date, time, and place for a case management conference ("CMC") after a defence has been filed and give all parties at least 28 days' notice of the conference; and
• the new CPR will apply from the date of the CMC.4

Service within the jurisdiction

The existing CPR has been in place and worked well for a couple of decades. The new CPR is intended to modernise and streamline the litigation process in the BVI to keep pace with evolving technology. Perhaps nothing reflects the modernisation of the CPR more than the new rules concerning service.

Under the existing CPR, fax is a means of communication for service of a claim form. Perhaps not surprisingly, the new CPR removes any explicit mention to fax as a means of service (although it remains a valid means for the traditionalists who have a fax machine gathering dust in their post room!).

Further, the new CPR has introduced a new Part - CPR Part 5A (Electronic Litigation Portal Filing and Service Procedure). This Part governs the use of the existing BVI Court's E-Litigation Portal for electronic filing and service of court documents through electronics means of communication. Under the new CPR, a document may be served by electronic means unless a rule or order of the Court provides that the document is to be served personally (or by other means).5 A party who furnishes an email address to register on the E-Litigation Portal is deemed to consent to accepting service by electronic means through the email address provided.6

Service out of the jurisdiction

Under the existing CPR, a claim form may be served out of the jurisdiction only if:

• the claim meets a relevant jurisdictional gateway; and
• the Court gives permission.

The new CPR abolishes the need to obtain leave to serve proceedings out of the jurisdiction. The Court process may be served out of the jurisdiction without leave, provided that7:

• service is affected in compliance with the rules stipulated;
• the claim falls under a relevant jurisdictional gateway; and
• the claimant or the claimant's legal practitioner files and serves a certificate of compliance with CPR Part 7.6.

It should be noted that the right to serve out of the jurisdiction with leave of the Court is maintained.

Default judgment

The provisions for default judgment remain largely the same in the new CPR, albeit the new CPR now contains a specific section outlining a defendant's right to enter judgment in the event that a claimant fails to defend a counterclaim.8
What is perhaps more interesting is that setting aside a default judgment under the new CPR appears to be easier than under the existing CPR. Currently the Court may set aside default judgment only if the defendant:

• applies to the Court as soon as reasonably practicable after finding out that the judgment has been entered;
• gives a good explanation for the failure to file an acknowledgement of service or a defence; and
• has a real prospect of successfully defending the claim.

Under the new CPR, the only requirement in setting aside a default judgment is that the defendant has a real prospect of successfully defending the claim.9 In doing so, the Court may consider discretionary factors such as whether a defendant:

•  applied to the Court as soon as reasonably practicable after finding out that judgment has been entered; and
•  gives a good explanation for the failure to file an acknowledgement of service or a defence.10

The simplification of setting aside a default judgment will no doubt be welcomed from a defendant's point of view.
Further, similar to the existing CPR, the new CPR retains the Court's power to set aside a default judgment in exceptional circumstances11 and to vary a default judgment.12

Relief from sanctions

At present, an application for relief from any sanction imposed for failure to comply with any rule, order, or direction must be made promptly and supported by evidence on affidavit. The Court may grant relief only if it is satisfied that:

• failure to comply was not intentional;
• there is a good explanation for the failure; and
• the defaulting party has generally complied with all other relevant rules, practice directions, orders and directions.

The new CPR greatly liberalises the Court's discretions in granting relief from sanction. Under the new CPR, the Court will be able to exercise a broad discretion in considering whether to grant relief from sanctions,13 with the three conditions set out above being relevant factors. The relaxation of the rules towards granting relief from sanction is a welcome comfort for parties who have slipped and inadvertently failed to comply with any rule, order, or direction.

Disclosure

Both the existing CPR and the new CPR provide that the duty of disclosure continues until the proceedings are concluded and that if documents to which that duty extends come to a party's notice at any time during the proceedings, that party must immediately notify every other party and serve a supplemental list of those documents.14 However, the new CPR provides that the supplemental list must be served not more than seven days after the documents to which that duty extends have come to the notice of the party required to serve it.15 This is a reduction from the 14 days stipulated in the existing CPR. Further, the new CPR also introduces the new requirement that the supplemental list must be accompanied by an affidavit evidencing compliance with CPR Part 28.12(2) and (3). This is not a requirement under the existing CPR.

Another change to the disclosure regime concerns the consequences of failing to disclose documents under an order for disclosure. The existing CPR provides that a party who fails to give disclosure by the date ordered, or to permit inspection, may not rely on or produce at the trial any document not so disclosed or made available for inspection. The new CPR confers explicitly on the defaulting party in this situation the right to apply to the Court for permission to rely on or produce at trial such document.16

Translation of documents

Under the new CPR, a party who discloses a document in a foreign language may not rely on that document unless they produce a certified English translation of the document.17 Even though, by convention, parties have provided certified English translations of documents in a foreign language in proceedings (or been ordered to do so by the Court), CPR Part 31.4 is the first time this has been expressly stated in the CPR.

Appeals

The procedure for appeals to the High Court remains largely similar under the new CPR. However, there are substantial changes to the process of further appeals up to the Court of Appeal.

Under the new CPR, where an appeal may be made only with the leave of the court or tribunal from which the appeal is brought (the "Court Below") or the Court of Appeal, a party wishing to appeal must apply for leave within 21 days of the order against which leave to appeal is sought.18 This is an additional seven days from the existing time limit.

Further, where an application for leave has been refused by the Court Below, an application for leave may now be made to the Court within seven days of such refusal or (as a new alternative) within 21 days of the date of the order against which leave to appeal is sought, whichever is later.19 The new alternative is a welcome addition as it provides a prospective appellant with more time to consider its position. The old rule caused problems where permission was sought and refused orally at the hand down hearing, leaving the potential appellant with only 7 days to make a decision. In turn, this may perhaps lead to more considered approaches to appeals generally without a party being rushed into an expensive decision.

Quantification of costs

The new CPR introduces several new rules relating to the quantification of costs regime. In particular, there are new rules regarding commencing detailed assessment proceedings (perhaps more commonly referred to as taxation by those who may still have a fax machine). Under the new CPR, detailed assessment proceedings are commenced by the receiving party serving on the paying party:

• a notice of commencement in the prescribed form; and
• a copy or copies of the bill of costs.20

In response, the paying party (and any other party to the detailed assessment proceedings) may dispute any item in the bill of costs by serving points of dispute on:

• the receiving party; and
• every other party to the detailed assessment proceedings.21

The paying party will have 21 days after the date of service of the notice of commencement to serve its points of dispute.22

It should be noted that there will be an administrative fee payable on the filing of a bill of costs (which shall be a percentage of the total amount claimed).23 There will also be an administrative fee payable on the assessment of a bill of costs (which shall be a percentage of the amount allowed). The Court shall assess costs according to the factors set out in CPR Part 65.2, which include the conduct of the parties in the proceedings as well as the complexity of the matter.

Conclusion

The new CPR demonstrates that the BVI remains consistent in offering a dynamic civil claims forum that has evolved to meet modern technology and working practices. The changes demonstrate that the BVI is constantly seeking to be a leading global jurisdiction in which parties can efficiently resolve disputes. A great deal of care and thought has been invested in the new CPR, and we await, we hope, a smooth transition process. We would not, of course, endorse what Pablo Picasso had to say on the topic – "Learn the rules like a pro, so you can break them like an artist".

For further details on the new CPR or any other BVI related litigation matter, please get in touch with one of the contacts listed.

1CPR Part 75.2, 2CPR Part 74.3(1), 3CPR Part 75.3(2), 4CPR Part 75.3(3), 5CPR Part 5A.12(1), 6CPR Part 5A.13(1), 7CPR Part 7.2, 8CPR Part 12.6, 9CPR Part 13.3(1), 10CPR Part 13.3(2), 11CPR Part 13.3(3), 12CPR Part 13.3(4), 13CPR Part 26.9(2), 14CPR Part 28.12(1) and (2), 15CPR Part 28.12(3), 16CPR Part 28.13(1), 17CPR part 31.4, 18CPR Part 62.2(1), 19CPR Part 62.2(3), 20CPR Part 65.13(1), 21CPR Part 65.14(1), 22CPR Part 65.14(2), 23CPR Part 65.16(1)(a)