In QVT Fund V LP and ors v China Zenix Auto International Group Limited & ors, the BVI Court considered whether to grant time extensions for filing and exchanging witness statements pursuant to rule 26.8 of the Eastern Caribbean Civil Procedure Rules 2000 (CPR).
The 2nd to 4th Defendants (the Defendants) had not exchanged their witness statements by the deadline, and sought relief from sanctions and an extension of time to file the witness statements. The Plaintiffs sought to either strike out the Defendants’ Defence for failure to serve witness statements or in the alternative, certain “unless orders”. The Defendants’ reasons for the failure to exchange witness statement on time was that they were in the course of changing lawyers, their previous lawyers having terminated their retainer with the Defendants for the non-payment of fees.
In granting the Defendants’ application, the Court was satisfied that the requirements under CPR 26.8(2) was met and that (i) the failure to comply was not intentional; (ii) the change of lawyers, while not a very good reason, “scrapes by” as a good explanation for the failure to exchange witness statements. What will constitute a good reason for an extension has to be viewed against all the circumstances not simply by reference to the question of whether all was done that could have been done; and (iii) the Defendants have generally complied with relevant orders.
Turning to CPR 26.8(3), the Court weighed the interests of the administration of justice for parties to be able to put their whole case and evidence before the Court and compliance with procedural timetables to prevent wasting of court resources. Having considered, inter alia, the effect on the Defendants if relief from sanctions and an extension was not granted, that the default was remedied in reasonable time and did not affect the trial date, the Court found it appropriate to grant relief from sanction and the extension of time to the Defendants.