Offshore Litigation

Blog

Offshore Litigation

Contributors

Jonathan Addo
Jonathan Addo
  • Jonathan Addo

  • Partner
  • British Virgin Islands
Ian Mann
Ian Mann
  • Ian Mann

  • Partner
  • Hong Kong
Nick Hoffman
Nick Hoffman
  • Nick Hoffman

  • Partner
  • Cayman Islands
Vicky Lord
Vicky Lord
  • Vicky Lord

  • Partner
  • Shanghai
Chai Ridgers
Chai Ridgers
  • Chai Ridgers

  • Partner
  • Hong Kong
William Peake
William Peake
  • William Peake

  • Partner
  • London
Peter Ferrer
Peter Ferrer
  • Peter Ferrer

  • Partner
  • British Virgin Islands
Jeremy Child
Jeremy Child
  • Jeremy Child

  • Partner
  • London
Claire Goldstein
Claire Goldstein
  • Claire Goldstein

  • Partner
  • British Virgin Islands
Jayson Wood
Jayson Wood
  • Jayson Wood

  • Partner
  • Cayman Islands
Phillip Kite
Phillip Kite
  • Phillip Kite

  • Partner
  • London
Stuart Cullen
Stuart Cullen
  • Stuart Cullen

  • Partner
  • British Virgin Islands
Lorinda Peasland
Lorinda Peasland
  • Lorinda Peasland

  • Consultant
  • Hong Kong
Paul Madden
Paul Madden
  • Paul Madden

  • Partner
  • Cayman Islands
Jessica Williams
Jessica Williams
  • Jessica Williams

  • Partner
  • Cayman Islands
Paula Kay
Paula Kay
  • Paula Kay

  • Partner
  • Hong Kong
Andrew Thorp
Andrew Thorp
  • Andrew Thorp

  • Partner
  • British Virgin Islands
Henry Mander
Henry Mander
  • Henry Mander

  • Partner
  • Cayman Islands
Andrew Johnstone
Andrew Johnstone
  • Andrew Johnstone

  • Partner
  • Hong Kong
Nicola Roberts
Nicola Roberts
  • Nicola Roberts

  • Partner
  • Hong Kong
  • Singapore
Julie Engwirda
Julie Engwirda
  • Julie Engwirda

  • Partner
  • Hong Kong
Paul Smith
Paul Smith
  • Paul Smith

  • Partner
  • Cayman Islands

BVI Commercial Court provides welcome guidance on Norwich Pharmacal Relief in aid of foreign proceedings

In a recent ex tempore judgment, in the case Q v R Corp & ors, Justice Wallbank provided clarification of the BVI Court’s power to grant Norwich Pharmacal disclosure orders in support of foreign proceedings. The judgment was given on a successful application by Harneys for Norwich Pharmacal relief to assist Brazilian clients to bring claims for the recovery of misappropriated assets.

The Court’s power to grant Norwich Pharmacal disclosure orders in support of foreign proceedings had been brought into question by the decision of Mr Justice Flaux in the English High Court case of Ramilos Trading v Buyanovsky. In that case, it was held that inter alia the Evidence (Proceedings in Other Jurisdictions) Act 1975 excluded the Court’s power to grant a Norwich Pharmacal disclosure order to assist with foreign proceedings.

In his judgment Mr Justice Flaux had also cited an excerpt from the original Norwich Pharmacal case stating that the duty which obliged disclosure by a party innocently caught up in the wrongdoing of another was, in fact, a duty that lay “on the Court to make an order necessary to the administration of justice [rather] than on the respondent to satisfy some right existing in the plaintiff”.

Justice Wallbank held that the BVI Courts would not follow the Ramilos decision as it construes the Norwich Pharmacal jurisdiction too narrowly. He also parted ways from the HOL decision in Norwich Pharmacal and Lord Kilbrandon‘s approval of Colonial Government v Tatham and held that an innocent party does come under a duty to assist before the Court is involved, but he has the right to seek confirmation from the Court before doing so, especially in a jurisdiction such as BVI where the respondent is often a Registered Agent who is under a duty of confidentiality. Additionally Wallbank expressly ordered, unusually, that the ratio for his decision be unsealed and circulated to provide guidance in respect of the issues raised in Ramilos.

Justice Wallbank’s guidance is to be welcomed, as the Ramilos decision had the potential to restrict the availability of Norwich Pharmacal relief, an important tool in the fight against international fraud and a force for transparency in BVI: for obvious reasons, a sizeable proportion of all Norwich Pharmacal applications before the BVI Commercial Court are made in support of proceedings intended to be brought in other jurisdictions. The decision confirms the BVI as particularly helpful jurisdiction in the fight against international fraud and the recovery of misappropriated assets.

BVI Commercial Court provides welcome guidance on Norwich Pharmacal Relief in aid of foreign proceedings

Leave A Comment