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.