On 19 February 2019, in Commercial Bank of Dubai v Abdalla Juma Majid Al-Sari & Ors, Justice Adderley confirmed that the BVI Court has the power to grant charging orders over shares in a BVI company.
This decision is a sharp departure from Justice Adderley's own judgment in Stichting Nems v Gitlin, where the Judge concluded (erroneously) that the BVI Court lacked jurisdiction to make such orders. Given the significance of such a conclusion on the practice of law in the BVI, Justice Adderley had stayed the Stichting decision for 120 days to allow the legislature an opportunity to respond.
In Stichting, Justice Adderley referred to, among others, the Privy Council’s decision in Levy v Sales. In Levy, Lord Scott observed that the Jamaican Court was unable to grant charging orders prior to the commencement of the Judicature (Supreme Court) Act on the basis that there is no jurisdiction to do so independent of the provisions in that Act. In the absence of specific charging order legislation in the BVI, Justice Adderley applied these remarks in Stichting.
Justice Adderley has now ruled his previous decision was per incuriam. While a written judgment is to follow, the submissions focussed on the fact that relevant authority and legislation relating to the position in England prior to 1940 was not drawn to his attention in Stichting and that it was appropriate to hold his previous decision per incuriam.
The Judge's decision is a welcomed development, given the utility of charging orders in the enforcement of judgment debts and to protect against the dissipation of shares. Nevertheless, the implementation of specific charging order legislation would further assist judgment creditors taking enforcement steps in the BVI.
Harneys acted for the successful applicant in Commercial Bank of Dubai.