How do litigants mitigate the risk of their confidential information becoming public during proceedings in the British Virgin Islands? The Eastern Caribbean Civil Procedure Rules, 2000 (as amended) (EC CPR) apply to proceedings before the BVI Supreme Court. The EC CPR is the primary source of the tools for preserving confidentiality in BVI proceedings.

Are all hearings held in public in the BVI?

Following the latest revisions to the EC CPR (effective from 31 July 2023), the Court retains its discretion to hear a matter either (i) in private or (ii) in public. The default position is that a hearing in the BVI Court will proceed in public under principles of open justice and transparency.

BVI proceedings may, therefore, be heard in private with the parties' consent. A hearing which takes place "in chambers" (ie without members of the public present), however, is treated as "a hearing that took place in public, unless the Court orders otherwise" (EC CPR 2.7(2)): matters heard in chambers are not, therefore, confidential by default.

EC CPR 2.7(4) contains the following mandatory circumstances in which a hearing will be deemed to have taken place in private, limited to hearings where:

  • It is concerned with the welfare of a minor or a person under disability
  • It is an application by a trustee or a court-appointed officer which is concerned with the administration of a trust, asset or an estate
  • It is concerned with arbitration

Beyond these specific circumstances, there are limited further categories of hearing which may take place in private, including:

  • In instances where publicity would defeat the object of the hearing
  • Matters of national security
  • Matters involving confidential information where publicity would damage that confidentiality
  • Ex parte applications
  • Where the Court considers such privacy necessary in the interests of justice

Which hearings can be held in private?

There are no BVI-specific provisions for which hearings should be held in private.

The leading English authority is Hodgson v Imperial Tobacco Ltd [1998] 1 WLR 1056 (Imperial Tobacco). At 1070E – G of Imperial Tobacco, the Court set out the limited circumstances where a hearing can be in private, including (i) issues involving children, (ii) national security, (iii) secret processes, and (iv) similarly sensitive situations.

Imperial Tobacco distinguishes that these are clearly "secret" proceedings; proceedings in chambers otherwise are not secret.

Does the BVI have a practice of hearing proceedings in chambers?

A hearing which takes place "in chambers" (ie without members of the public present) is not necessarily private. If (i) a matter comes onto the list, and (ii) your client has an interest, then you can join a chambers hearing and ask to be allowed to stay.

It is common for hearings to take place in chambers in the BVI; it is also possible to request that a public hearing be heard in chambers.

When do hearings generally take place in chambers in the BVI?

The BVI Court can hear a matter in open court or chambers. Directions hearings or case management hearings might typically proceed in chambers, but no categories of hearings must proceed in chambers by default.

What documents filed in court in the BVI are publicly available?

By default, documents in BVI proceedings remain confidential unless referred to in open court. However, certain court documents can be obtained by persons not party to the proceedings upon payment of a fee prescribed by the EC CPR.

These include:

  • Claim forms (ie the originating process)
  • Notices of appeal
  • Any other document, with the leave of the court

Is it possible to obtain access to any other court documents?

Leave of the court is obtained by making an application (supported by evidence), typically followed by a hearing (an applicant may ask for the application to be considered on the papers).

An application for leave of the court to obtain documents in BVI proceedings can be made without notice to any of the parties, and the grant of permission is entirely discretionary.

Any judgment or order made in proceedings conducted in chambers may be obtained by the public, again on payment of the relevant fee prescribed by the EC CPR.

EC CPR 8.1(6) expressly provides what a non-party is entitled to inspect from the court record, subject to paying the prescribed fee. If confidentiality needs to be preserved, a party should apply to the Court to seal the relevant court document or file, as the situation requires.

Is there any other way to get court proceedings dealt with in private?

In situations where interim relief is being sought, particularly in cases where there is a risk of dissipation of assets, it is possible to make an application on an ex parte basis: this means that the counter-party will receive no notice of the application and an application can be granted without hearing from the other side. There is a consequential duty to give full and frank disclosure, essentially presenting the other side's case for them, failing which any order obtained can be set aside.

"Sealing" proceedings

As an alternative to seeking the other side's consent to proceed in private, a BVI litigant can apply to "seal" a court file and make it inaccessible to non-parties. All hearings in sealed BVI proceedings are held in private.

The grant of a sealing application is at the Court's discretion. It requires that the Court be satisfied that the (i) sensitivity and (ii) confidentiality of the matter merits such sealing.

Following the grant of a sealing application, the Court will typically anonymise the parties' names to protect their confidentiality. The parties' names would not be permitted to appear on any list of hearings to be held before the Court other than in anonymised form.

What if the parties want to keep a settlement secret?

Should the parties, by consent, wish to keep the terms of a court-ordered settlement confidential, it is possible to do so via the use of a "Tomlin" order: such an order would typically refer to the existence of a confidential settlement agreement but not exhibit the agreement itself.

The use of a Tomlin order, therefore, would prevent a confidential settlement agreement from being publicly accessible. It should be noted that the fact of the settlement itself would still be publicly accessible information indicated in the court order.

If parties want to avoid public court proceedings, are there other dispute resolution mechanisms that can be used?

Proceedings started according to the BVI Arbitration Act 2013 will proceed confidentially. Whether the parties have an automatic recourse to arbitration and the preferred (i) seat, and (ii) law of the arbitration are likely to be determined by the underlying document that governs their legal relationship.

Privilege

Privilege attaches to certain documents in BVI proceedings. The following two types of privilege may be relied upon to preserve confidentiality:

  • Legal advice privilege. This covers confidential communications between a litigant and their legal practitioners made to give and receive legal advice.
  • Litigation privilege. This privilege is broader in practice and covers confidential communications between a litigant and their legal practitioners, professional advisers, and other third parties when the dominant purpose of such communications is actual or reasonably contemplated litigation.

Conclusion

There are several ways in which a BVI litigant can preserve confidentiality during BVI proceedings. One of the most effective ways to preserve confidentiality is to apply to "seal" the court file and prevent public inspection of the court file and attendance at court hearings.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.