Apr 2026
In a recent judgment, the BVI Court took a pragmatic approach to the question of service when facing failed Hague Convention service. The Court also demonstrated its pro-enforcement approach in finding that, when seeking recognition of a foreign judgment, it is not necessary to prove the location of every asset, nor to particularize each enforcement step in advance. The judgment Tung Fai v Wei Dong (BVIHC(COM)0025 of 2024, 5 March 2026), in which Conyers represented the successful Claimant, can be accessed here.
Background
Between 2018 and 2020, the Claimant in Tung Fai v Wei Dong was awarded a number of costs orders against the Defendant by the Hong Kong Court. In 2024, the Claimant commenced a claim in the BVI Court to have the costs orders recognised. As the Defendant was resident in the PRC, the Claimant attempted to have the claim documents served on the Defendant under the Hague Convention. Such attempt was unsuccessful.
In March 2025, the Claimant obtained an order for alternative service permitting the claim documents to be served at the offices of the BVI attorneys of the Defendant’s wife. The Claimant and the Defendant’s wives have been embroiled in longstanding litigation in the BVI.
In May 2025, the Defendant applied to set aside the alternative service order and to challenge the Court’s jurisdiction.
Defendant’s Arguments
In support of his application to set aside the alternative service order, the Defendant argued that there was an absence of special circumstances justifying departure from service under the Hague Convention. The Defendant submitted that the Claimant’s evidence amounted to no more than a complaint about a slow-moving process and delay.
To challenge the Court’s jurisdiction, the Defendant asserted that there was a lack of assets in the BVI against which to enforce the Hong Kong costs orders.
The Court’s Ruling
The Court ordered that the alternative service order shall stand and refused to decline jurisdiction.
Alternative Service
The Court noted that it is appropriate for the Court to take a pragmatic approach to the question of service, and to bear in mind the overriding objective of dealing with cases justly.
The Court found that there is a good reason for alternative service for the following reasons:
- Prior to the attempted Hague Convention service, the Claimant had exhausted the other means of service known and available to him.
- At the time of the application for alternative service, almost a year had passed since the attempted Hague Convention service at the Defendant’s last known address in Shanghai.
- The Claimant made reasonable efforts to ascertain the Defendant’s correct address.
The Court also found that it was plain that the Defendant knew what was involved in the proceedings, having filed an Acknowledgement of Service indicating that he had received the claim documents in March 2025. The Court accepted that the Court’s focus on whether the mode of service was functional or effective is especially apt where the Hague Convention service destination state (e.g. Russia and the PRC) mandates service via only the Central Authority whose timelines are unpredictable.
Jurisdiction
The Court found that, even if one were to prefer the Defendant’s case that he has no assets in the BVI, in the context of recognising a final and conclusive foreign judgment for the purposes of enforcement, there are a variety of other substantive and practical reasons to conclude that the court has jurisdiction to make orders in relation to enforcement.
The threshold is whether the claim is to enforce a foreign judgment amenable to be enforced in the BVI and whether the BVI is an appropriate forum to facilitate that outcome. The Court found that the Claimant has satisfied both elements. The Court accepted that it is not necessary to prove the location of every asset for the time being, nor to particularize each enforcement step in advance.
Takeaway
A successful party is naturally keen to realise the fruits of litigation. This judgment is a welcome reminder of the BVI Court’s pro-enforcement approach. Nonetheless, careful planning of enforcement is needed to ensure the fruits of success do not go to waste.
This publication should not be construed as legal advice and is not intended to be relied upon in relation to any specific matter. It deals in broad terms only and is intended merely to provide a brief overview and give general information.