Obtaining information about a BVI company by Court order

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[author: Ian Mann]
The BVI Company Registry is the only major source of publicly available information and records, other than by recourse to litigation.  However, a search of the public register will only likely reveal the following: the Certificate of Incorporation; the Memorandum and Articles of Association; the identity of the Registered Agent and the location of its registered office; and possibly details of directors. A search will not normally reveal the names of the shareholders or details of assets.

Although confidentiality in BVI companies is still paramount, in limited circumstances Court actions under the principle in Norwich Pharmacal v Customs and Excise Commissioners [1974] AC 133 (House of Lords) can be successfully brought pre-action against third parties to identify, for example, who the shareholders of BVI companies are. Given the BVI’s success in incorporating Business Companies (over 800,000 at present), this is most usually in the form of an application against trust companies and registered agents (“RAs”) where the wrongdoer is a company.

The Requirements

A Norwich Pharmacal disclosure and production order is available to obtain documents from third parties who have become innocently mixed up in the wrongdoing, through no fault of their own.

Under traditional Norwich Pharmacal principles, the court will normally require the following:

1.   A wrong must have been carried out, or
      arguably carried out, by an ultimate
      wrongdoer;


2.   There must be a need for an order to
      enable an action to be brought against
      the ultimate wrongdoer;


3.   The person against whom the order is
      sought must:


  (a) be mixed up in so as to have facilitated
        the wrongdoing; and


  (b) be able to likely to be able to provide
        the information necessary for the
        wrongdoer to be sued.


BVI Factors

•    The ‘innocent’ third party in the BVI
      is often the RA or the banker of the
      company who has been passively
      involved, rather than having actively
      facilitated the fraudster’s wrongdoing.


•    A registered agent will typically hold
      additional useful company formation
      documents, including the share register,
      register of directors, and minutes of any
      shareholders’ or directors’ meetings.


•    The RA may have some correspondence
      showing the source of instructions, which
      can be extremely valuable.


•    Increasingly, meta-data unwittingly held
      by the RA is becoming a fruitful source
      of information.


A Flexible Remedy

Although rare, the BVI Courts have demonstrated their willingness to recognize Norwich Pharmacal relief as a flexible and adaptable remedy. Recent cases have led to relief in areas as diverse as:

•    matrimonial litigation, where a husband in
      foreign matrimonial proceedings was
      seeking to conceal martial assets;


•    against RAs where the companies were
      alleged to have been the recipients of
      funds fraudulently advanced by the
      applicant’s former owner; and


•    to obtain information on trustees and
      beneficiaries of trusts.


For further information please contact Ian Mann, Partner, Head of BVI and Cayman Litigation, Harneys, Hong Kong.