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Jonathan Addo
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Avoiding evasion: BVI court takes refreshingly pragmatic approach to avoid delays in serving uncooperative defendants located abroad

International litigation and asset recovery will inevitably require pursuing defendants and their assets across borders and it is therefore a routine aspect of BVI litigation that a claimant will need to serve legal documents abroad.

Harneys has recently obtained important decisions for its clients that should significantly decrease the delay in effecting service abroad and pave the way for a more efficient approach to service out going forward.

Delays in serving out

In certain countries, such as Russia, the general rule is that service of legal documents can only be effected in accordance with the Hague Convention process. This will often be a time-consuming process and, in the case of Russia, gives no guarantee that physical service will actually take place.

Even for those countries where service via Hague is not required, the tendency of many claimants since the Court of Appeal decision in VTB Bank v Katunin[1] has been to attempt service via all possible permitted methods and, only once those methods have proved to be unsuccessful, to then return to court to seek permission to serve by alternative methods.

The procedural landscape has historically allowed uncooperative defendants to delay service of legal proceedings by many months.

The court’s recent approach to service

Earlier this year, Justice Adderley held[2] that a claim form was deemed served on a defendant in Russia, who had been duly notified of a hearing at which service of the claim would have been effected in accordance with Hague but which the defendant had not attended. In addition, Adderley J allowed for all future documents in the proceedings to be served at the registered address of a BVI company beneficially owned by the defendant.

In separate proceedings, Justice Chivers granted permission to a claimant to serve defendants located in the UAE by alternative methods where the claimant had attempted, unsuccessfully, to serve the defendants personally and through the public notary department in the UAE but where no steps had been taken to serve via the UAE Government.[3] In doing so, the court took into account that there was no formal method for effecting service via government channels and that, even if there were, service via such a method would likely be impracticable in any event.

The court’s approach indicates a willingness to reduce the delays that can be brought about by service out and suggests the court may be open to relatively innovate approaches in seeking permission to serve by alternative methods.

 

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