Articles

BVI Commercial Litigation In The Digital Age: Responding to COVID-19 And Beyond

October 2020 Alecia JohnsAndrew Hay

The Covid-19 pandemic is the single most globally impactful event for decades. It is no surprise that, as in most fields, the functioning of courts has warranted urgent and necessary adaptation in its wake. The pandemic has accelerated modernisation towards electronic filings and virtual hearings across the world. The BVI Commercial Court is no exception.

Asian users and the BVI courts

A considerable proportion of the BVI court’s users are based in Asia. Given the geographical separation and difference in time zone, this can present logistical difficulties for parties, their lawyers and witnesses. The BVI court’s move towards digital and remote processes provide great promise for the future involvement of Asian parties and their lawyers in BVI commercial litigation.

Previous modernisation efforts

The BVI Commercial Court launched its e-Litigation Portal (ELP) in November 2018, and electronic filing and service was possible for all court documents in claims initiated after the ELP went live. However, hard copy filing and physical service was still necessary for claims filed before launch of the ELP. Before the pandemic, all hearings were still held in person by default, and special permission was required for counsel to appear virtually.

Covid-19 Emergency Measures

The Covid-19 Emergency Measures Practice Direction (issued in March 2020) revolutionised the position overnight. Key measures include:

Electronic filing and service of all court documents as necessary (including those initiated before launch of the ELP);
Remote hearings (on Zoom) as the default position, with in-person hearings expressly discouraged;
Provision for electronic court bundles; and
Video hearings for applications for admission as a BVI legal practitioner.

The court, and its legal practitioners, adapted swiftly and seamlessly to these changes. Several hearings, including trials, were conducted entirely remotely between March and July 2020. The Conyers Hong Kong and BVI offices have acted in trials and applications conducted remotely.

The court’s decision on e-litigation issues

In July 2020, the court was asked to rule on several e-litigation issues in respect of one such remote trial. In PT Ventures SGPS SA v Vidatel Ltd (BVIHC(Com) 2015/117 and 2019/067; 27 July 2020), the court was asked to determine the following issues.

Could a third party’s Zoom platform be used for the trial?
The court ruled that a third party’s Zoom platform would not be allowed given that the court’s Zoom service had operated satisfactorily since 2017. The court noted further the need to ensure the security and control of its proceedings. The main advantage of the external system was its ability to display relevant pages of the electronic bundles as and when they arose. However, the court held that physical bundles had been provided and that these were, in general, easier to navigate than electronic bundles where multiple screens were unavailable.

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