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Jonathan Addo
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Andrew Thorp
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Jessica Williams
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Jayson Wood
Jayson Wood
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A third party can be added to a restoration claim under the BVIBCA – but how?

In a recent restoration claim before the BVI High Court, the Crown Prosecution Service of the United Kingdom (CPS), without going through the proper channels of being added to proceedings already on foot before the BVI court, sought to request the presiding judge (if the judge was minded to grant the order for restoration), to make the restoration order subject to the payment by the claimant of its fees.

The fees it claimed were incurred by it in administering property of the company, the subject of the restoration proceedings, which fell to be administered by the Crown Estate in the United Kingdom on the company’s dissolution.

The CPS sought to argue that it had no option but to administer the property on the company’s dissolution and that as such, the BVI court should exercise its discretion in ordering the restoration of the company subject to the payment of the CPS’s fees.

While the CPS might have had a very good argument, the presiding judge rejected the intervener’s attempt to circumvent the provisions of Part 19 of the CPR by indicating that in order for the Court to be in a position to hear any arguments of the CPS, it first had to be made a party to the proceedings. The court further explained that it is at the point of application to be joined that the court would need to satisfy itself (as to the provisions of CPR 19.4(3)) either that the:

  • “claim cannot properly be carried on by or against an existing party unless the new party is added or substituted as claimant or defendant;
  • interest or liability of a former party has passed to the new party; or
  • new party is to be substituted for a party who was named in the claim form in mistake for the new party”.

 

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