In a recent decision of the Honourable Justice Chivers of the Commercial Division of the BVI Court, the Court considered a strike out application based on Hunter v Chief Constable of the West Midlands Police  AC 529, and separately Henderson v Henderson (1843) 3 Hare 100, abuse of process. Justice Chivers held that the substance of the Aldi Stores Ltd v WSP Group plc 1 WLR 748 principles apply in the BVI.
The Judge considered that whilst the Aldi requirements, whereby a party who intends to bring a subsequent action against existing parties or their privies must raise the issue with the court, may not have been promulgated in this jurisdiction, there can be no doubt that the obligation of a litigant to put their cards on the table (i.e. before the other party and the court) at an early stage and that this is a requirement of parties to litigation in the BVI. A party who fails to do so is “at high risk” of being held to have abused the court’s process and no lawyer in this jurisdiction, reading the CPR, Aldi, and Stuart v Goldberg Linde  EWCA Civ 2 together could suppose otherwise.
The Defendants argued that the bringing of this claim fell afoul of both Hunter and Henderson abuse on the basis that the claims currently raised could and should have been raised in the previous proceedings brought in Hong Kong and the BVI and asserted, without opposition, that the Henderson principle applied regardless of whether the proceedings were in a different jurisdiction, notwithstanding that the previous proceedings did not result in a judgment on the merits, and even where the parties to the subsequent proceedings are not all the same as the parties to the previous proceedings.
The Claimants argued that there was no abuse on the basis that it was sensible for them to advance their claims one after the other, because this second claim turned upon the outcome of the first.
Chivers J was not convinced by this argument, and considering the conduct of the Claimants in withholding notice of their claim, granted the strike out.
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