Disclosure orders constitute a very powerful weapon for the tracking down and recovery of assets. Given the strict statutory and regulatory requirements for keeping records of beneficial ownership and other data there is a seam of information available in the BVI.
Norwich Pharmacal orders
Much of this information is kept by the Registered Agent of the company. These regulated bodies provide a physical presence for the company in the BVI, act as a point of contact for the Companies Registry, and retain responsibility for filing and compliance activities. Given their importance, the BVI has advanced case law and procedure focusing on Norwich Pharmacal disclosure relief, in order that parties who have been the victim of wrongdoing can access the vital information held by the registered agent.
Norwich Pharmacal relief is available before action against third parties who have become involved in or facilitated wrongdoing by the intended defendant, however innocent their involvement may be. The information sought must be relevant to and necessary for the claimant to pursue the wrongdoers. These orders are relevant in the BVI and are frequently used to obtain information from registered agents relating to companies they administer. The BVI Court of Appeal in BTA Bank v Fidelity Corporate Services Limited HCVAP 2010/035 held that the mere provision of basic registered agent services is sufficient involvement to impose upon the registered agent a duty to disclose information which could assist the victim in discovering the true wrongdoers. Evidence of involvement in the actual wrongdoing is not necessary.
Bankers Trust orders
Bankers Trust order is a remedy available against third parties in circumstances where a prima facie case of fraud or breach of trust has been made out and the information is required to recover, trace, or preserve assets that are the subject of a proprietary claim. This remedy requires a third party (usually a bank) to provide information which might ordinarily be protected by the duty of confidentiality. Bankers Trust orders are similar to Norwich Pharmacal orders except that:
- There is no requirement to prove any involvement in the alleged wrongdoing by the respondent
- The remedy is only available where the claimant is tracing assets that he claims belong to him but have been taken by the defendant. It is not available where the claimant has no proprietary interest in the relevant assets
In Bankers Trust v Shapira  1 WLR 1274, the order was granted in relation to bank records and was ancillary to the applicant’s right to trace the missing monies. The applicant had no right against the bank itself. To succeed in an application for Bankers Trust relief, there must be strong evidence of fraud. The applicant will need to demonstrate there is a good ground for thinking that the money is his money, and a need for urgent action (for example, through risk of dissipation of assets). The court will balance the interests of the intrusion into the privacy of the respondent against the potential detriment to the applicant if the information is not provided. Once a suitable case is demonstrated, the court is willing to grant wide orders.
The BVI courts have an inherent jurisdiction to grant gagging orders to restrain a respondent against whom an ex parte disclosure order is made from communicating with the intended defendant regarding the disclosure order. This relief is generally granted in conjunction with Norwich Pharmacal and Bankers Trust orders. Any breach of a gagging order can result in contempt proceedings.
BVI Evidence Act 2006
Section 135(7) of the Evidence Act 2006 provides that on the application of any party to legal or administrative proceedings, the court may order that that party be at liberty to inspect and take copies of any entries in the records of any financial institution for the purposes of the legal or administrative proceedings. Such an application is usually ancillary to a Norwich Pharmacal or Bankers Trust order.
Anton Pillar orders
Anton Pillar orders are effectively search orders, and may be granted by the court before substantive proceedings are issued. Such relief would allow persons to enter the respondent’s premises to search for and remove property and preserve it as evidence pending trial. An application for an Anton Pillar order is made ex parte. Due to the extreme nature of the remedy, such an order is only granted where absolutely necessary and the court will ensure that the order contains sufficient safeguards to protect the person on whom the order is to be served, such as the appointment of independent lawyers to supervise the search and to specify the limits on the parameters of the search.
Letters of request
The BVI court has the power to grant relief pursuant to a letter of request from a foreign court in furtherance of civil proceedings, with a view to taking or obtaining evidence in the BVI in aid of those proceedings.