Vol 9 (2012) - Issue 4

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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 summarised 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 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Under Part 7, Rule 7.3 relating to service of a claim form out of the jurisdiction has been repealed and substituted with updated provisions enacting 9 gateways, which may be summarised as follows: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.