May 2014
BRITISH VIRGIN ISLANDS
COURT OF APPEAL
INTERLOCUTORY APPEAL – JOINER OF PARTIES – APPLICATION MADE BY APPELLANTS IN COURT BELOW TO BE JOINED AS PARTIES TO FIRST RESPONDENT’S APPLICATION FOR LEAVE TO BRING DERIVATIVE ACTION IN NAME AND ON BEHALF OF SECOND RESPONDENT – WHETHER LEARNED JUDGE ERRED IN DISMISSING APPELLANTS’ APPLICATION – SECTION 184C BVI BUSINESS COMPANIES ACT, 2004 – RULE 19.3 CIVIL PROCEDURE RULES 2000
The Appellants in this matter, directors of the Respondent company (Accufit), sought to be joined to the First Respondent’s (Basab Inc, the sole shareholder of Accufit) application for leave to bring a derivative application in the name and on behalf of Accufit. The Judge in the Court below dismissed the Appellants’ application to be joined as parties to the leave application.
The Appellants appealed the dismissal on the basis that the Judge at first instance failed to take into account the wording of Section 184C of the BVI Business Companies Act, 2004, which implies that evidence from the directors of the company should be heard at the hearing of the application for leave to bring the derivative action and that denying the Appellants the opportunity to be joined as parties and adduce evidence would result in there being no evidence from the company or any of its officers. The Appellants also claimed that the Judge failed to take into account the scope of CPR 19.3(2) in relation to the Appellants’ entitlement to be joined as parties.