Jun 2023
Our second piece on the updated Civil Procedure Rules (the “Amended CPR”) focuses on some of the Court’s case management powers regarding conducting a hearing in public or private, inspection of documents, and the Electronic Litigation Portal Filing and Service Procedure, all of which have been revised.
Public v Private Hearings
Under the current regime, the Court has discretion to determine whether any matter (except for a trial) may be conducted “in chambers”, meaning a private hearing or in open court, accessible to the public. Any proceeding can be heard in private with the consent of the parties.
Under the Amended CPR, the Court retains its discretion to hear a matter in private or public, but with the express clarification that any hearing which takes place in chambers will be treated as a hearing that took place in public, unless the court orders otherwise. The Amended CPR 2.7 lists mandatory circumstances in which a hearing is deemed to have taken place in private, including matters concerning the welfare of a minor or a person affected by a disability, or those concerning arbitration or the administration of a trust. These are all sensible and uncontroversial. Outside of those specified matters, the Court may decide to hold a hearing in private in instances where publicity would defeat the object of the hearing, such as matters of national security, those involving confidential information where publicity would damage that confidentiality, ex-parte applications and of course where the court considers privacy to be necessary in the interests of justice.
Inspection
Inspection under the current CPR Rules allowed any person upon payment of the prescribed fee to inspect and take copies of a claim form, notice of appeal, judgment, court order or any other document with the leave of the court. Under the Amended CPR, that list has been expanded and non-parties may now inspect copies of any notice of application made under rule 8.1 (6) or any statement of case, but not the documents attached to the statement. Applications made under CPR 8.1 (6) are those made before proceedings have been started or in relation to proceedings taking place in another jurisdiction. Under the Amended CPR, applications under CPR 8.1 (6) expressly include those seeking relief before proceedings have started, in the form of disclosure orders against a non-party (also known as Norwich Pharmacal Orders) or the enforcement of an arbitration award, although the latter will be subject to confidentiality. Statements of case will include the statement of claim, defence, counter claim, ancillary claim or ancillary defence, and any reply or replies made to a request for further information made voluntarily or by order of the Court.
The express provisions outlining what a non-party is entitled to inspect is of course a welcome feature. However parties should proceed accordingly if there is any confidential information which needs to be preserved and in such circumstances submit an application to the Court to seal the relevant court document or file as may be necessary.
Electronic Litigation Portal Filing and Service Procedure
Practitioners in the BVI have been using the Electronic Litigation Portal (the “ELP”) since 2018 and have generally found the platform to be efficient and effective. Guidance on use of the ELP has been made available in the form of the Eastern Caribbean Supreme Court (Electronic Litigation Filing and Service Procedure) Rules, 2018, as amended in 2019 with the relevant Practice Directions. It is therefore timely that the provisions on the use of the ELP are now solidified in the Amended CPR for ease of reference.
The two fundamental concepts of particular importance to practitioners are as follows:
- Filing on the ELP must be made within business hours or from 8:30 am to 4:00 pm Monday to Friday and this excludes weekends and holidays. For example, if there is a deadline for filing on Friday 12 May, the document should be filed before 4:00 pm that day to receive a submitted and filing stamped date of Friday 12 May. However, if the document is filed at 4:00 pm or later, the submitted date will be Friday 12 May at 4:00 pm but the filed date will be Monday 15 May.
- With respect to service, if a new claim is being commenced on the ELP, the filing party must together with the relevant documents serve the authorisation code generated by the ELP (which give opposing counsel access to the filings) as prescribed and in accordance with the applicable rules of court. If the authorisation code is not served as prescribed, service is deemed not to have been effected until such authorisation code is served. After proceedings have been commenced, any other document filed on the ELP is deemed served on the date and time that the document is filed on the ELP. In practice, however, the custom has been to still serve the relevant documents to the email address provided by the legal practitioners when registering for use of the ELP.