The AHR Act came into force in November 2015 and contained, among other things, provisions on the admission of lawyers to practise British Virgin Islands law. In John Shrimpton and Another v. Domonic Scriven and Others (“Shrimpton”), the Court of Appeal held that Garkusha was not per incuriam because he had not recognized that section 2(2) of the AHR Act was not in force. The Court held that the repeal of the common law could have been supported by an independent review of subsection 18(3). Consequently, the Court held that it would not have been obliged to reach a different conclusion in Garkusha if it had known that Article 2(2) was not in force. In terms of intrinsic value, the work of foreign lawyers not licensed in Shrimpton included assisting a British Virgin Islands firm with advice. The Court analyzed subsection 18(3) and held that “it is not simply a question of refusing to allow a person whose name is not on the list to recover fees for anything he has done as a lawyer, but of preventing someone from collecting in that way.” The Court found that subsection 18(3) largely provides for a prohibition on recovery, albeit without criminal penalties. In particular, in Sonera Holding B.V. v. Cukurova Holding A.S. and Others. (hereinafter “Sonera”), the High Court (Commercial Division) held that it was bound by Garkusha and Shrimpton, which meant that the common law concept of capacity to act had been abolished in McCullie v. Butler  2 QB 309 on the British Virgin Islands.
Accordingly, the Sonera court rejected all fees and expenses of the unlicensed foreign lawyers who assisted in advising and conducting the British Virgin Islands proceedings. The debate over the provisions of the AHR Act remains lively and it seems unlikely that the recent amendments to the AHR Act will be the last. In particular, the debate continues to rage over whether or not lawyers working outside the British Virgin Islands are a net benefit to the jurisdiction (as someone who has spent years promoting legal and fiduciary products for the jurisdiction in Asia, I have strong opinions on this particular issue). Unless otherwise amended, only lawyers with membership status or physically residing in the British Virgin Islands may be admitted after the expiry of the transitional provisions. Whatever lawyers` views on these issues, a measured approach that takes into account the views of all stakeholders is clearly preferable to rushed regulation without carefully considering its potential implications. Garkusha and Shrimpton clearly provide the authority that the fees of persons legally qualified and not authorized in the British Virgin Islands can no longer be claimed as common law expenses, with the exception of costs related to the provision of expert evidence under foreign law. Gany confirmed that work performed by unlicensed persons who are not legally qualified is subject to review to determine whether it is recoverable under subsection 18(3), as opposed to conduct that amounts to “acting as a lawyer.” The foreign qualification of these persons is not decisive. Kwok confirms that direct supervision of non-licensed persons who are legally qualified by a licensed person from the British Virgin Islands is not relevant to recoverability, so a detailed examination of the work performed by such persons is not necessary when performing legal work. The administrative tasks performed by these persons are considered ancillary to assistance in the conduct of disputes. “Advocate” means the practice of the profession of lawyer or the exercise of the functions of an advocate recognized by law before or after the coming into force of this Act; More recently, in The Matter of Summerfame Ltd. (In Liquidation), the Commercial Court held that the review of work performed (as required by Gany) applies to the work of paralegals based in the British Virgin Islands.
The Court also highlighted the risks of criminal sanctions for paralegals, articling students and unqualified employees working in the jurisdiction under applicable law. Given the role they play in promoting the administration of justice, there is a strong political case for urgent regulatory intervention to prevent unintended consequences. Ultimately, the effect of the current law on the eligibility of costs in cross-border litigation in the British Virgin Islands requires practitioners and litigants to be aware of the risks involved. Since the procedure for admitting suitably qualified persons to the British Virgin Islands remains relatively straightforward, it may be desirable to verify at an early stage whether admission from the British Virgin Islands is appropriate as part of the overall strategy of the process. The regulation of the legal profession in the British Virgin Islands has certainly been subject to seizure. A comprehensive law on legal professions (or “LPA”) for the judiciary was first discussed and considered in 2005, but it took 10 years of struggle before the law was written into the law books. However, shortly after the law came into force after its cumbersome passage, it was amended twice in a flash for two consecutive days, confusing some observers. Was it one step forward and two steps back? “role” means the register of lawyers kept by the registrar… Unlike most national bar associations, the British Virgin Islands Bar Association does not represent all legal professionals in the jurisdiction. It is a voluntary organisation and legal practitioners can only join after they have resided in the territory for at least one year (unless they have Belonger status). This is to prevent the association from being inundated with members of “temporary” lawyers who arrive by plane, are admitted and then leave the territory pretending to practice the British Virgin Islands directly from abroad.
From the association`s perspective, this has led to growing problems as more and more qualified lawyers in the British Virgin Islands working for Magic Circle offshore firms practice British Virgin Islands law outside the jurisdiction, meaning that the proportion of British Virgin Islands lawyers who are members of the British Virgin Islands Bar Association has decreased. Nevertheless, the association is generally understood to speak on behalf of the entire profession within the jurisdiction and often addresses the legislature of the territory on that basis. With a legal system based on English common law, the Virgin Islands (“BVI”) is a highly respected offshore jurisdiction with a proven track record of dispute resolution. Although the association is called the “bar” association for historical reasons, it has always been open to lawyers and lawyers. However, since 2015, the British Virgin Islands has had a merged profession and all lawyers in the jurisdiction are now officially referred to as “legal practitioners”. The Legal Profession Act 2015 of the Virgin Islands Code of Professional Conduct, listed in Appendix 4, governs the professional practice, etiquette, conduct and discipline of a lawyer. (b) intentionally claims to be a lawyer; or The reimbursement of foreign lawyers` fees was subsequently reviewed in Grand Pacific Holdings Limited v. Pacific China Holdings Limited (2010) BVIHCV2009/0399.
In this case, Justice Bannister stated that foreign lawyers` fees should be treated as remuneration and that, while such fees must be justified as reasonable costs, they could be “reasonable and reasonable.” The Grand Pacific case was seen by some as a break with Temujin`s restrictions and toward a more liberal approach to recovering foreign legal fees. The Act aims to protect and regulate the legal profession in the British Virgin Islands and to ensure that British Virgin Islands lawyers continue to provide high-quality work, thereby strengthening the British Virgin Islands` reputation as a leading offshore jurisdiction.