Jun 2016
BRITISH VIRGIN ISLANDS
COURT OF APPEAL
WHETHER JUDGE ERRED IN REFUSING APPLICATION TO SET ASIDE ALTERNATIVE SERVICE – SUBMISSION TO JURISDICTION – WHETHER JUDGE ERRED IN FINDING THAT THE APPELLANT HAD SUBMITTED TO THE COURT’S JURISDICTION – WHETHER THE LEARNED JUDGE ERRED IN HIS INTERPRETATION OF CIVIL PROCEDURE RULES (“CPR”) 7.8A IN MAKING THE ORDER FOR ALTERNATIVE SERVICE
This was an Appeal by Alexander Katunin (the “Appellant”) against the refusal by the First Instance Judge to set aside alternative service on him, his finding that the Appellant had submitted to the jurisdiction by applying for an extension of time in which to file his defence (the “jurisdiction point”), and the Learned Judge’s refusal to grant a stay of the BVI proceedings alternatively to decline to exercise the Court’s jurisdiction under Rule 9.7A of the ECSC CPR. The Appellant also contended that the Respondent, JSC VTB Bank (the “Respondent”) waived the right to raise the jurisdiction point by not doing so earlier in the proceedings and particularly at the time when the Appellant made its application for an extension of time to file its defence.
In allowing the Appeal, the Court of Appeal held that for conduct to amount to a waiver, the conduct must be inconsistent with the right which is said to be waived. The failure on the part of the Respondent to raise the jurisdiction point earlier in the proceedings, did not amount to waiver or estoppel on those facts since that conduct of the Bank was not inconsistent with the right to take the submission point.