Black Swan – Resuscitated

The Act is also important in one further respect: it  confers a statutory basis for the Court’s power to grant Norwich Pharmacal relief in cases where disclosure might have been obtained pursuant to the provisions of the Evidence (Proceedings in Foreign Jurisdictions) Ordinance.  In a series of decisions, such as UVW v XYZ BVIHCM 2016/108 and K&S v Z&Z BVIHCM(COM) 2020/0016 the BVI Court had already departed from the approach taken in recent English authorities which have held that Norwich Pharmacal relief is not available in cases where there is an alternative statutory route to obtaining the disclosure (as in Ramilos Trading Ltd v Buyanovsky [2016] EWHC 3175 (Comm)).

In bringing the Act into force, the legislature has followed the tradition in England and in a number of other offshore financial centers, such as the Cayman Islands, to address the inability of the Court to grant freestanding relief as a result of the decision in The Siskina ([1979] AC 210 and the majority decision in Mercedes Benz AG v Leiduck [1996] 1 AC 284.  For a time, such relief appeared to be available in the BVI following the decision of Bannister J in Black Swan Investment ISA v Harvest View Limited BVIHC (Com) 2009/ 399 (Black Swan), until the recent decision of the Court of Appeal in Broad Idea v Convoy Collateral BVIHCMAP 2019/002 (Convoy 2) held that Black Swan had been wrongly decided.  The decision in Convoy 2 followed the altogether less remarkable decision of the Court of Appeal in the same case in Convoy Collateral v Cho BVIHCMAP 2016/0030 (Convoy 1) in which the Court of Appeal held that so called Black Swan relief was only available against persons subject to the territorial jurisdiction of the Court.

Exceptionally, a seven member panel of the Privy Council will hear argument in the consolidated appeals brought by Convoy Collateral on an expedited basis on 16 and 17 February 2021.