The BVI Business Companies Act, Revised Edition 2020 (BCA) expressly provides that where a company has been struck off and dissolved, a creditor may make a “claim” against the company and pursue the claim through to judgment or execution. Whilst the Court was comfortable that the BCA enabled, for example, a monetary claim to be commenced and pursued by a creditor against a struck off and dissolved company, it was concerned that winding up proceedings, commenced by way of Originating Application, were not a “claim” within the meaning of the BCA.

To address the Court’s concerns, Harneys took a deep dive into various legislation. In particular, rule 13(3) of the BVI Insolvency Rules, Revised Edition 2020 states that for the purposes of applying the Eastern Caribbean Supreme Court Civil Procedure Rules (CPR) to insolvency proceedings, an application in insolvency proceedings, whether originating or ordinary, is to be regarded as a fixed date claim. Once it was established that a winding-up application was to be treated as a “claim” under the CPR, the Court was satisfied that a winding up application was a claim for the purposes of the enabling provisions under the BCA, and the creditor was entitled to pursue its claim against the company by way of insolvency proceedings, even after the company had been struck off and dissolved. The winding up order was granted.

In our earlier blog on the same case, the Court briefly addressed the English Court of Appeal’s decision in Drelle. It is yet to be seen how Drelle  may be applied by the BVI court in cases with similar facts.