This country-specific Q&A provides an overview of Enforcement of Judgments in Civil and Commercial Matters laws and regulations applicable in British Virgin Islands.
What international conventions, treaties or other arrangements apply to the enforcement of foreign judgments in your jurisdiction and in what circumstances do they apply?
Foreign judgments may be enforced in in the British Virgin Islands (the BVI) in one of two main ways:
Pursuant to the Reciprocal Enforcement Judgments Act 1922 (the 1922 Act). This is limited to final judgments for a debt or for a definite sum of money made by superior courts in an exhaustive list of jurisdictions; or
Pursuant to the common law. This will be available in respect of any final judgment for a debt or definite sum of money. The BVI courts treat such a judgment as a cause of action for the debt in itself, such that it can be sued upon without a retrial.
Differently, non-money judgments are not directly enforceable in the same way. However, subject to the cause of action being one recognised in the BVI and the BVI having jurisdiction over the defendant, a claimant may issue a new claim. The claimant may rely on the foreign judgment and the principles of estoppel to prevent a retrial of either the cause of action or the issues.
What, if any, reservations has your jurisdiction made to such treaties?
Can foreign judgments be enforced in your jurisdiction where there is not a convention or treaty or other arrangement, e.g. under the general law?
Final foreign judgments for a debt or definite sum of money may be enforced pursuant to the common law. The BVI courts treat such a judgment a cause of action for debt in itself, such that it can be sued upon without a retrial. This will apply to all such judgments, including those that fall outside of the scope of the 1922 Act. It is usual practice for an application for summary judgment to be made by the claimant following issue, on the basis that the debtor does not have a defence.
What basic criteria does a foreign judgment have to satisfy before it can be enforced in your jurisdiction? Is it limited to money judgments or does it extend to other forms of relief?
As set out above, the 1922 Act applies to judgments made by superior courts in specified jurisdictions. Enforcement at common law will apply to judgments made by all courts in all jurisdictions. However, both the 1922 Act and common law routes require the foreign judgment to be:
For a debt or definite sum of money (not being a sum payable in respect of taxes or other charges of like nature, or in respect of a fine or penalty);
Final and conclusive. At common law, a foreign judgment is final and conclusive even if it is subject to an appeal;
From a foreign court with jurisdiction to give the judgment; and
Not impeachable. A judgment will be impeachable if there was fraud on the part of the person in whose favour the judgment was given or on the part of the court; where recognition or enforcement is contrary to public policy in the BVI; or where the proceedings pursuant to which the judgment was obtained is contrary to natural justice.
As set out above, non-money judgments are not directly enforceable, so a new claim may be issued and the claimant may rely on cause of action and issue estoppel to prevent a retrial. Issue estoppel will only arise where the judgment is:
From a court of competent jurisdiction;
Final and conclusive; and
Made on the merits of the case.
What is the procedure for enforcement of foreign judgments pursuant to such conventions, treaties or arrangements in your jurisdiction?
To enforce a judgment within the scope of the 1922 Act, the claimant will be required to apply to the BVI court to register that judgment. Once registered, the judgment is treated as having been originally made by the courts of the BVI.
If applicable, what is the procedure for enforcement of foreign judgments under the general law in your jurisdiction?
As set out above, enforcement pursuant to the common law requires a claim to be issued on the basis of the debt in the BVI, pursuant to the Eastern Caribbean Supreme Court Civil Procedure Rules, as applicable in the BVI. It is usual for an application for summary judgment to be made following issue on the basis that there is no defence available to the debtor. As this judgment will be made by the BVI court, there is no need for registration.
What, if any, formal requirements do the courts of your jurisdiction impose upon foreign judgments before they can be enforced? For example, must the judgment be apostilled?
Under the 1922 Act, a judgment may be registered within 12 months of the date of the judgment or longer period permitted by the BVI court if, in all the circumstances, the BVI court considers it is just and convenient to do so.
The judgment will not be registered if any of the conditions specified by section 3(2) of the 1922 Act exist, namely:
If the original court acted without jurisdiction;
If a judgment debtor who neither carried out business nor was ordinarily resident in the original jurisdiction, did not voluntarily appear or otherwise submit or agree to submit to that jurisdiction;
The judgment debtor was not duly served with the process of the original court and did not appear, notwithstanding that he was ordinarily resident or carried on business within or agreed to submit to that jurisdiction;
The judgment was obtained by fraud;
The judgment debtor satisfies the BVI courts that an appeal is pending, or that he is entitled and intends to appeal against the judgment in the case that registration is sought under the 1922 Act; or
The judgment was in respect of a cause of action which, for reasons of public policy or similar reason, would not have been considered by a BVI court.
The above criteria mirror the common law position, save for in regards 7(v) above.
How long does it usually take to enforce or register a foreign judgment in your jurisdiction? Is there a summary procedure available?
In practice, enforcement under both the 1922 Act and the common law routes are summary procedures (as enforcement under the common law will often involve the making of an application for summary judgment). However, enforcement under the 1922 Act is likely to be much quicker than issuing a new claim to enforce under the common law.
Under the 1922 Act, an application for registration may be determined within a month while the timeframe for the common law procedure may be 3 months. However, the actual timing will often depend on how expeditiously the claim or application can be served on the debtor, and whether enforcement is opposed. It is noted that permission must be obtained by application to serve a party out of the jurisdiction.
Is it possible to obtain interim relief (e.g. an injunction to restrain disposal of assets) while the enforcement or registration procedure takes place?
Yes, interim relief is available and is frequently sought and obtained in the BVI.
What is the limitation period for enforcing a foreign judgment in your jurisdiction?
In the absence of fraud, a claim in respect of a judgment debt is barred after 12 years from the date of the judgment. Furthermore, interest accrued on a judgment debt is not recoverable after 6 years from the date on which it became due.
As indicated above, enforcement by registration under the 1922 Act requires an application be made within 12 months of the foreign judgment becoming effective. However, there is judicial discretion in this regard.
On what grounds can the enforcement of foreign judgments be challenged in your jurisdiction?
Typically, and in line with the general criteria set out above, enforcement may be challenged on the following grounds:
The original court did not have jurisdiction;
The debtor was not served with the process of the original court and did not appear;
the judgment is not final and conclusive; and/or
the judgment was obtained by fraud, relates to a cause of action which is contrary to public policy or for some similar reason would not be heard by the BVI court or the proceedings which the judgment was obtained was contrary to natural justice.
Will the courts in your jurisdiction reconsider the merits of the judgment to be enforced?
Will the courts in your jurisdiction examine whether the foreign court had jurisdiction over the defendant? If so, what criteria will they apply to this?
In order to be enforceable, either under the 1922 Act or at common law, the foreign court must have had jurisdiction over the defendant in the proceedings giving rise to the judgment sought to be enforced in the BVI. A foreign court is treated as having jurisdiction capable of enforcement in the BVI in the following circumstances where the judgment debtor:
was, at the time of the commencement of those proceedings, present in the foreign jurisdiction;
was the claimant or counterclaimed in the foreign proceedings;
as defendant, voluntarily appeared in the original proceedings; or
as defendant, agreed to submit to the jurisdiction of the foreign court in respect of the subject matter of those proceedings prior to commencement of the proceedings.
Do the courts in your jurisdiction impose any requirements on the way in which the defendant was served with the proceedings? Can foreign judgments in default be enforced?
It is a requirement of enforcement under the 1922 Act or pursuant to the common law that the judgment debtor was duly served with the process of the original court who made the foreign judgment sought to be enforced.
In theory, default judgments in foreign jurisdictions are capable of being enforced. However, difficulties may arise:
the party seeking to enforce will have to show that the default judgment debtor had been properly served with the documents in sufficient time to be able to arrange a defence; or
the party seeking to enforce will have to show that that the foreign court had jurisdiction over the default judgment debtor.
Do the courts in your jurisdiction have a discretion over whether or not to recognise foreign judgments?
The BVI Court will only recognise a foreign judgment under the 1922 Act where it considers it is ‘just and convenient’ that the judgment should be enforced in the BVI. Judicial discretion is therefore a feature of the enforcement regime in the BVI.
Are there any types of foreign judgment which cannot be enforced in your jurisdiction? For example can foreign judgments for punitive or multiple damages be enforced?
Foreign judgments failing to meet the criteria set out above will not be enforceable in the BVI, but the law does not expressly state certain categories of foreign judgments that will not be enforceable. However, the following categories are noted as unlikely to be enforceable in the BVI:
Judgments which relate to taxes, fines or penalties;
Judgments which are contrary to public policy, natural justice or an existing BVI judgment; and/or
Judgments relating to a cause of action not recognised in the BVI.
Can enforcement procedures be started in your jurisdiction if there is a pending appeal in the foreign jurisdiction?
The common law procedure can still be utilised if the original foreign judgment is subject to appeal in the foreign jurisdiction. By contrast, a judgment will not be registrable under the 1922 Act if there is a pending appeal.
Can you appeal a decision recognising or enforcing a foreign judgment in your jurisdiction?
The decision to recognise or enforce a foreign judgment can be appealed through the normal channels of appeal in the BVI courts.
Can interest be claimed on the judgment sum in your jurisdiction? If so on what basis and at what rate?
Interest may be claimed on a foreign judgment debt at the time of seeking enforcement. At the point of seeking enforcement, the interest will have accrued under and pursuant to the laws of the foreign jurisdiction. The amount and basis for the accrued interest must be specified. After registration or enforcement of the foreign judgment, every judgment debt shall carry interest at the rate of 5% per annum.
Do the courts of your jurisdiction require a foreign judgment to be converted into local currency for the purposes of enforcement?
The BVI court does not require a foreign judgment to be converted into local currency for the purposes of enforcement. However, the judgment debt and interest should be noted in both the original currency and the USD equivalent, as well as the exchange rate used and source of the same. Furthermore if the BVI court gives judgment for a sum in a currency other than that used in the territory of enforcement, the judgment creditor must file a certificate stating the exchange rate in the that territory when commencing enforcement proceedings.
Can the costs of enforcement (e.g. court costs, as well as the parties’ costs of instructing lawyers and other professionals) be recovered from the judgment debtor in your jurisdiction?
Are third parties allowed to fund enforcement action in your jurisdiction? If so, are there any restrictions on this and can third party funders be made liable for the costs incurred by the other side?
Historically, third party funding risked falling foul of laws against maintenance and champerty. However, in a move away from the position in England and Wales, the BVI abolished these offences and does not expressly maintain a public policy provision against them in respect to litigation funding arrangements.
The permissibility of third party funding arrangements has been made clear by two first instance decisions in the BVI Courts.
Although it has not been determined by the BVI courts, in principle, costs orders can be made against third parties funding enforcement actions. The position under English law, which is likely to be applicable in the BVI, is that pure funders with no personal interest in or control over the litigation are not held liable for costs. However, the discretion to order costs against a non-party will be extended to funders who control or benefit from the proceedings.
What do you think will be the most significant developments in the enforcement process in your jurisdiction in the next 5 years?
It is likely that the most significant development in this area will be the BVI’s consideration of moving to a self-certification approach to service out of the jurisdiction. Currently, claimants are required to obtain permission from the courts ahead of service. If this change is effected, it will have a significant impact on the timeline for enforcement in the BVI.
Has your country ratified the Hague Choice of Courts Convention 2005? If not, do you expect it to in the foreseeable future?
Has your country ratified the Hague Judgments Convention 2019? If not, do you expect it to in the foreseeable future?
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