BVI Court of Appeal upholds landmark service out ruling

The Eastern Caribbean Court of Appeal has handed down its judgment in Joint Stock Company 'BTA Bank' v Saduakas Mamesh & 53 Others BVIHCMAP2024/0008. In a unanimous and emphatic decision, the Court of Appeal dismissed every ground of appeal raised by BTA Bank (BTA).

Our team acted for three of the foreign defendants who at first instance had successfully applied to set aside the service out order obtained by BTA ex parte. BTA had alleged that it was the victim of a $230 million international fraud involving various BVI companies and the foreign defendants. Following a lengthy hearing in the Commercial Court, Wallbank J found for the foreign defendants and held that BTA had failed to satisfy the relevant service-out gateways, had failed to show that the BVI was the appropriate forum for trial of the proceedings and had failed in its duty of full and frank disclosure at the ex parte hearing. 

BTA appealed the first instance judgment on grounds which included the judge's application of the English law principles in relation to the 'necessary and proper party' gateway (see Erste Group Bank AG, London Branch v JSC 'VMZ Red October' [2015] EWCA Civ 379 and Gunn v Diaz [2017] EWHC 157).

The Court of Appeal dismissed BTA's appeal on all grounds and affirmed the judge's decision in what is now the jurisdiction's leading decision on the necessary and proper party gateway for service out applications. 

Our multi-jurisdictional Insolvency and Dispute Resolution team advising on the matter included: Oliver Clifton, Andrew Chissick, Harry Oulton and Yegâne Güley. At first instance and on appeal, Walkers instructed Matthew Hardwick KC of 3 Verulam Buildings.