An aggrieved party which has started proceedings in the BVI must seek court permission to serve the claim form out of the jurisdiction on a foreign defendant. The most common method of service is via the Hague Service Convention1.
An issue arises when the service has not yet taken place, but the twelve month time period for service of the claim form is about to expire. Although under the Eastern Caribbean Supreme Court Civil Procedural Rules 2000 (“ECSC CPR”) the claimant may seek an extension of six months, any second extension may only be granted if there is evidence that the defendant is deliberately avoiding the service or there is “some other compelling reason” why the extension should be granted. The number of extensions that the claimant may get is not indefinite even if there exists no prescribed limit, as the question of abuse of process must arise at some point. This is particularly the case if there is some supporting interim relief granted in the meantime and the issuing Court is keen to know progress of the underlying claim. The question is whether in those circumstances the court may consider service effected and go on to give a judgment against a foreign defendant? We discuss the application of Article 15 of the Hague Service Convention which deals with circumstances when the defendant is avoiding the service and/or the service is taking excessive time.
1The Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters 1965