Coming of Age: Amendments to CPR

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1 BERMUDA BRITISH VIRGIN ISLANDS CAYMAN ISLANDS CYPRUS DUBAI HONG KONG LONDON MAURITIUS MOSCOW SÃO PAULO SINGAPORE conyersdill.com Coming of Age: Amendments to CPR Introduction Enactment of the Eastern Caribbean Supreme Court, Civil Procedure (Amendment) Rules 2011 (the Amended Rules ) on 1 October 2011 was largely welcomed by BVI commercial practitioners, not least because it introduced long awaited revisions to the service out regime under Part 7 of the CPR. However, the Amended Rules should be welcome generally, since they represent the most extensive amendments to the CPR since initial enactment in 2000, effecting long awaited changes to some 16 Parts of the CPR. The amendments touch on a wide range of provisions, from the mundane to the complex. This article aims to give a brief overview of the changes with some focus on those changes affecting commercial practice. The Amended Rules - Overview The main changes introduced by the Amended Rules may be summarized as follows. Interpretation and vacation time Under Part 2, Rule 2.2 has been amended to apply Part 62 (on appeals to the Court of Appeal) to family proceedings and insolvency. The Amended Rules also repeal Rule 2.7 and introduce a revised codification of the Court s practice hitherto. In short, the new Rule 2.7 now provides that applications must be heard in chambers while claims, motions and petitions must be heard in open Court. However, except in the case of trials, the Court has discretion to direct that any hearing be conducted in chambers. The new Rule 2.7 now stipulates that any proceedings may be heard in private with the consent of the parties and expressly provides that orders in chambers have the same force and effect as orders made in open court. Finally, the

2 new Rule 2.7 expressly provides that the court sitting in chambers has the same powers to enforce, vary and deal with orders as it does in open court. Under Part 3, Rule 3.5 has been amended to codify and remove any doubt about the effect of the decision of Barrow, J. sitting as single Justice of Appeal in Claim No. HCVAP 2007/023 between Mitchell v Noel, by stipulating that time does not run during the long vacation with respect to filing or serving any statement of case (other than a statement of claim), unless the court orders or directs otherwise. Service Out of the Jurisdiction Under Part 7, Rule 7.3 relating to service of a claim form out of the jurisdiction has been repealed and substituted with updated provisions enacting 9 gateways, which may be summarized as follows: (a) The general gateway remains the same save that the second limb has been amended to accurately reflect application of the rule in practice hitherto, that the non BVI defendant must be a necessary or (rather than and ) proper party to the claim. (b) The gateway relating to service out of claims about contracts are now clearly stipulated as alternatives and the second alternative under that gateway has been amended to simplify and tidy up drafting, so that it clearly applies to claims in respect of contracts generally. (c) The gateway relating to tort claims remains the same such that the act causing damage must be committed within the jurisdiction or the damage must have been sustained within the jurisdiction. (d) The gateway relating to service out of claims made to enforce judgments or arbitration awards made within the jurisdiction has been extended to apply alternatively to judgments or arbitration awards made by a foreign court or tribunal and registered in the High Court under Part 72. (e) The gateway relating to service out of claims about real property within the jurisdiction has been broadened to apply to claims where the whole subject matter of the claim relates to property (apparently generally) within the jurisdiction. (f) A new gateway relating to companies has been introduced, to allow for service out of claims where the subject matter of the claim relates to: (a) the constitution, Page 2 of 6

3 administration, management or conduct of the affairs; or (b) the ownership or control of a company incorporated within the jurisdiction. (g) The gateway relating to claims about trusts remains the same, applying to: (a) remedies sought against constructive trustees where liability arises out of acts committed within the jurisdiction; (b) claims for remedies that may be obtained in proceedings related to administration of estates or probate proceedings under Part 68, where the deceased died domiciled within the jurisdiction; or (c) claims for remedies in proceedings to execute trusts of a written instrument, where the trust ought to be executed according to the law of any Member State or Territory and is to be served on the trustee. (h) A new gateway now allows service out of claims made for restitution, where liability arises out of acts committed within the jurisdiction or acts which, wherever committed, were to the detriment of a person domiciled within the jurisdiction. (i) The final gateway is a sweep up provision which applies to claims made under an enactment which confers jurisdiction on the Court and the proceedings are not covered by any of the other grounds referred to in the Rule. Another significant amendment under Part 7 is that made to Rule 7.8 on the mode of service out of the jurisdiction, which introduces substituted service out of the jurisdiction as alternative procedure for service out. This important enactment overturns the 2005 High Court decision of Barrow, J. in Claim No. BVIHCV 2003/0179 between Trans World Metals SA (Bahamas) and Others v Bluzwed Metals Limited (BVI). In short, where service under Rule 7.8 is impracticable, Rule 7.8A(1) allows the claimant to apply for an order that the claim form be served by a method specified by the court. Further, Rule 7.8 has also been amended to introduce Rule 7.8B, which permits the court to dispense with service of a claim form in exceptional circumstances. This provision was recently tested in an application made by this firm and all indications from the court are that the requisite exceptional circumstances will be applied restrictively. Duty to set out case and Disputing Jurisdiction Under Part 8, with regard to the claimant s duty to set out his or her case, Rule 8.7(3) has been repealed and amended to exclude the alternative of annexing any document (to the claim form or statement of claim) the claimant considers necessary Page 3 of 6

4 to his or her case. A new Rule 8.7A has been introduced to prevent the claimant from relying on any allegation or factual argument not set out in the claim, but which could have been set out, unless the court gives permission or the parties agree. Under Part 9, Rule 9.7 has been repealed and amended, so that Rule 9.7 deals with the procedure for a defendant to dispute the court s jurisdiction and obtain a declaration, while Rule 9.7A deals with the procedure for a defendant who contends that the court should not exercise its jurisdiction to obtain a stay and a declaration to that effect. In addition to stipulating that an application to dispute the court s jurisdiction must be made within the period for filing a defence, the new Rule 9.7(3) further stipulates that the period for making such an application includes any period by which the time for filing a defence has been extended by the court or agreed between the parties. Under Part 10, Rule 10.7 has been repealed and amended, to allow a defendant to rely on any allegation or factual argument not set out in the claim exceptionally by agreement, in addition to by way of permission from the court. Rule 10.9 has been repealed and substituted by a new Rule 10.9, which expressly provides that where the defence contains a counterclaim Part 18 of the CPR on ancillary claims applies. Setting aside Default Judgment and Judgment on Admissions With regard to setting aside and varying default judgments, under Part 13, Rule 13.3 has been repealed and substituted to include a new Rule 13.3(2), which provides an additional ground for setting aside judgment in default, being on the basis that the court is satisfied that there are exceptional circumstances. For judgments on admission under Part 14, Rule 14.2 has been amended to streamline the procedure, such that if a claim is satisfied and the claimant fails to file and serve a notice of discontinuance within 7 days of payment, the defendant may now file and serve a standard form notice requesting that the claim be recorded as satisfied. Furthermore, Rule 14.7 has been amended and substituted in its entirety with significant revisions to the procedure for admitting part of a claim for money only. Interim Remedies and Amendments to Statements of Case The evidential requirements for making applications for an interim remedy have been relaxed to permit evidence by witness statements in certain circumstances. Under Part 17, Rule 17.3 has been amended to introduce Rule 17.3(1A) which provides that where it is not practicable to produce evidence on affidavit, an application for an interim remedy may by supported by evidence given by witness Page 4 of 6

5 statement and the court may give such directions it thinks fit in relation to filing of evidence by affidavit. This flexible approach to evidence will certainly accommodate provision of evidence in applications for interim relief before the commercial court, where time differences between jurisdictions invariably impacts clients ability to obtain timely sworn evidence from witnesses. The rules relating to a party s ability to amend its statements of case have also been made less restrictive. Under Part 20, Rule 20.1 has been repealed and substituted with provision to allow one amendment without the court s permission at any time prior to the date fixed by the court for the first CMC. The new Rule 20.1(2) now gives the court broader powers that allow it to give permission to amend a statement of case at a CMC or at any time once an application has been made. Prior to this amendment, the court could not grant permission to amend after the first CMC, unless a change of circumstances became known after the date of the CMC. The new Rule 20.5 now provides that the Chief Justice may by practice direction set out those factors to which the court must have regard when considering an application under this rule. The new Rule 20.3 now addresses the procedure for filing an amended statement of case, which now requires filing of an original and an amended version prior to service on all parties. The old requirement for endorsement of the filed version with a certificate of service no longer applies. Court s powers in cases of failure to comply with rules Under Part 26, Rule 26.7 has been amended to introduce a new rule 26.7(4), which broadens the scope of the court s powers to impose cost orders against practitioners on its own initiative, in circumstances where a party/legal practitioner fails to: (a) file a pre trial memorandum or a bundle under Rule 39.1(5) 1 or (b) file a core bundle in accordance with Rule 62.12(4) or (c) to comply with a Rule, Court Order, practice direction or practice guide, which has caused another party to incur costs or a hearing to be vacated. Practitioners should be mindful of these provisions, since under 26.7(5) any sum ordered to be paid under this new rule may be in addition to wasted costs ordered under Rule 64.8 or Under Part 44, Rule 44.3 dealing with orders for oral examination has been repealed and substituted in its entirety, with significant revisions which clarify the procedure that applies where permission is not required and where permission is required. 1 This is not relevant to commercial court practice given the disapplication of this provision implemented under Part 69B.9(1). Page 5 of 6

6 Appeals to the Court of Appeal The procedure for appeals to the Court of Appeal under Part 62 has been significantly revised, replacing procedural appeals with interlocutory appeals and introducing four new rules being, 62.25, 62.26, and Interlocutory appeals are defined under Rule 62.1(2) as appeals from an interlocutory judgment or order. Rule sets out the substantive rules as they now relate to interlocutory appeals. Rule 62.1(3) stipulates that determination of whether an order or judgment is final or interlocutory is made on the application test, which codifies the well known decisions of the Court of Appeal in cases such as Civil Appeal No. 10 of 1992 between Sylvester v Singh. Rule 62.1(3) also confirms that an order on an application for disclosure against a person who is not a party is a final order. This is an important clarification for determining the relevant procedure in appeal of Norwich Pharmacal Orders. Other notable amendments are that Rule and introduce a specific procedure for withdrawal or discontinuance of appeals and the cost related thereto. Prior to this amendment there may have been uncertainty about some aspects of the application of Part 37, which deals with discontinuance of claims generally. Rule deals with quantification of costs on withdrawal or discontinuance and provides a regime for judicial review appeals. Jerry Samuel Associate +1 (284) jerry.samuel@conyersdill.com This article is not intended to be a substitute for legal advice or a legal opinion. It deals in broad terms only and is intended to merely provide a brief overview and give general information. About Conyers Dill & Pearman Conyers Dill & Pearman advises on the laws of Bermuda, British Virgin Islands, Cayman Islands, Cyprus and Mauritius. Conyers lawyers specialise in company and commercial law, commercial litigation and private client matters. Conyers structure, culture and expertise enable responsive, timely and thorough service. Conyers provides clients with the highest quality legal advice from strategic global locations including offices in the world s leading financial centres in Europe, Asia, the Middle East and South America. Founded in 1928, Conyers comprises 550 staff including 150 lawyers. Affiliated companies (Codan) provide a range of trust, corporate secretarial, accounting and management services. For more information please contact: Naomi Little +1 (441) naomi.little@conyersdill.com Page 6 of 6