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Retrospectively Extending Time for Service of a Claim Form

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Retrospectively Extending Time for Service of a Claim Form APRIL 2018 Retrospectively Extending Time for UPDATE Service of a Claim Form Update prepared by Shane Donovan (Counsel, British Virgin Islands) and Eleanor Morgan (Partner, British Virgin Islands) The Eastern Caribbean Court of Appeal has confirmed that the court has the power to retrospectively extend the life of an expired claim form notwithstanding the express requirement in the Civil Procedure Rules that any application for an extension be made during the life of the claim form. Although the court cannot rely upon its general power to extend the time for compliance with any rule, it may nevertheless dispense with the requirement that the application be made during the life of the claim form in 'special circumstances'. Introduction Under Part 8 of the Eastern Caribbean Civil Procedure Rules (the CPR), a claim form to be served outside the jurisdiction of the British Virgin Islands must be served within 12 months of its date of issue. A claimant may apply for an extension of time of up to 6 months of the period within which the claim form may be served. However, the CPR expressly requires that any such application be made within the period for serving the claim form, or that period as extended. In JSC VTB Bank v Katunin1, the Eastern Caribbean Court of Appeal considered whether it was possible to retrospectively extend the life of a claim form that had expired without any application having been made for an extension of time within which to serve it. Background On 23 May 2014, the claimant, JSC VTB Bank (VTB), a major Russian bank, commenced a claim before the BVI court (the 2014 Claim) against the defendant, Mr Katunin, seeking recognition and enforcement of a judgment obtained against him in Russia in the sum of about US$30 million, and obtained a worldwide freezing order (WFO) against him in support of those proceedings. On 26 May 2014, VTB obtained an ex parte order for permission to serve the claim form on Mr Katunin out of the jurisdiction. This meant that Mr Katunin would need to be served in Russia in accordance with the requirements of the Hague Service Convention. VTB did not, however, attempt to effect service on Mr Katunin in accordance with the Hague Service Convention. Instead, on 8 July 2014, it obtained a further ex parte order permitting service on him by an alternative method, namely by delivering the claim form to some BVI registered companies alleged to be owned or controlled by him (the Alternative Service Order), on the basis that service in accordance with the Hague Service Convention was impracticable. 1 Appeal Nos BVIHCMAP2016/0047 and BVIHCMAP2017/0006, 18 April 2018. 2021934/73119857/1 BVI | CAYMAN ISLANDS | GUERNSEY | HONG KONG | JERSEY | LONDON mourant.com On 3 November 2014, Mr Katunin applied to set aside the Alternative Service Order. On 28 January 2015, that application was dismissed on the basis that Mr Katunin was found to have submitted to the jurisdiction and that there was, in any event, valid grounds for the Alternative Service Order. Mr Katunin appealed the dismissal of his application, and on 20 June 2016, the Alternative Service Order was set aside by the Court of Appeal which held that there had not been a submission to jurisdiction, and the court had erred in granting the Alternative Service Order. VTB had not made any protective application for an extension of time within which to serve the claim form pending the determination of the appeal, and the claim form had expired on 22 May 2015. On 4 July 2016, Mr Katunin applied for an order discharging the WFO (the Discharge Application) on the ground that the claim in which it was made had expired without service having been validly effected. Further or alternatively, he contended that there was no real or continuing risk of dissipation and/or the WFO had been obtained as a result of material non-disclosures. On 14 July 2016, VTB applied to extend the period for service of the claim form. In so doing, VTB relied upon the power of the court under CPR 26.1(2)(k) to extend time for compliance with the rules and/or the power under r. 26.1(6) to dispense with compliance with the rules. VTB also made a rare application under r. 7.8B for an order dispensing with the need to serve the claim form altogether (together, the Claim Form Relief Application). In dismissing the Claim Form Relief Application, the BVI court held that: (a) the requirement under r 8.13(3)(a) that any application for an extension be made within the period for service of a claim form, or that period as previously extended, was one of strict application, and r. 26.1(2)(k) could not be used to extend the time for making the application; (b) CPR 26.1(6) did confer upon the court 'in special circumstances' a power to disapply time limits otherwise imposed by the rules. Although this rule could in principle be used to retrospectively extend time for service of a claim form where no timely application had been made, the circumstances in which the court would do so must 'surely, truly be exceptional, and then only if to do otherwise would wreak an injustice'. On the facts of this case, the court was far from satisfied that special circumstances sufficient to justify the use of the power existed; and (c) the alternative of dispensing with service of the claim form altogether under r. 7.8B was not available. As the claim form had not been served within the period of its validity, the Discharge Application was granted. However, on 3 November 2016, VTB commenced a second claim (the 2016 Claim) against Mr Katunin seeking the recognition and enforcement of the first Russian judgment and a second Russian judgment (also in a sum of about US$30 million), such claim being brought without prejudice to the 2014 Claim. VTB made an ex parte application for and obtained a WFO against Mr Katunin in the 2016 Claim which took effect at the same time that the WFO in the 2014 Claim was discharged. In so ordering, the court accepted that there was a real and continuing risk of dissipation, and that there had not been material non- disclosures when the original WFO was granted. VTB appealed the court's decision dismissing the Claim Form Relief Application and Granting the Discharge Application. The Relevant Provisions of the CPR The relevant provisions of the CPR are as follows: 7.8B (1) The court may dispense with service of a claim form in exceptional circumstances. (2) An application for an order to dispense with service may be made at any time and – (a) must be supported by evidence on affidavit; and (b) may be made without notice. … 8.13 (1) The claimant may apply for an order extending the period within which a claim form may be served. (2) The period by which the time for serving a claim form is extended may not be longer than 6 months on any one application. 2021934/73119857/1 BVI | CAYMAN ISLANDS | GUERNSEY | HONG KONG | JERSEY | LONDON 2 mourant.com (3) An application under paragraph (1) – (a) must be made within the period – (i) for serving a claim form specified by rule 8.12; or (ii) of any subsequent extension permitted by the court; and (b) may be made without notice but must be supported by evidence on affidavit. (4) The court may make an order under paragraph (1) only if it is satisfied that - (a) the claimant has taken all reasonable steps to – (i) trace the defendant; and (ii) serve the claim form; but has been unable to do so; or (b) there is some other special reason for extending the period. … 26.1 (1) The list of powers in this rule is in addition to any powers given to the court by any other rule, practice directions or any enactment. (2) Except where these rules provide otherwise, the court may – … (k) extend or shorten the time for compliance with any rule, practice direction, order or direction of the court even if the application for an extension is made after the time for compliance has passed; … (6) In special circumstances on the application of a party the court may dispense with compliance with any of these rules. The Court of Appeal's Decision The Power to Extend Time under Rule 26.1(2)(k) VTB argued that the BVI court had erred in finding that it had no power under r. 26.1(2)(k) to extend time to apply for an extension under r. 8.13. In dismissing this ground of appeal, the Court of Appeal approved a first instance decision of the High Court of St Kitts and Nevis2 in which it had been held that: (a) the requirements of r. 8.13 must be strictly complied with since, unlike the position in England and Wales, the Eastern Caribbean CPR does not empower the court to grant an extension of time where permission is sought after the expiry of the period for service of the claim form; (b) the policy behind r. 8.13 would be defeated if the conditions for obtaining an extension of time could be sidestepped by appealing to the court's discretionary powers under r. 26.1(2)(k); and (c) general discretionary powers cannot be used to achieve something that is prohibited under another rule. In that respect, r. 8.13 constituted an exhaustive arrangement for dealing with extensions of time to serve a claim form and displaced the general discretion to extend time under r.
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