The British Virgin Islands Court of Appeal has rejected three of the appellants’ appeals in Lau Man Sang, James v King Bun Limited in two separate judgments handed down in recent weeks, upholding three procedural orders made by the judge.

James Bailey (led by Jern-Fei Ng KC of 7BR) represented the successful respondents.

The appeals primarily concerned (1) the timing of election between inconsistent remedies; (2) the scope of disclosure to enable an informed election; and (3) whether the judge was entitled to award the costs of the liability phase to the claimants prior to the quantum trial. James made the oral submissions in the appeal relating to the third issue.

On the first and second issues, addressed in a judgment handed down on 15 February 2024 (BVIHCMAP 2022/0006), the BVI Court of Appeal held that although a claimant must elect between inconsistent remedies, the doctrine of election is not rigid and unbending. A claimant should not be forced to make an election until he or she is able to make an informed choice. Thus, the defendant should disclose such documents that the court considers fair in the circumstances of the particular case, to enable the claimant to make an informed election. The orders made by the judge in this case were consistent with these principles.

On the third issue, which was addressed in an earlier judgment handed down on 17 January 2024 (BVIHCMAP 2022/0019), the BVI Court of Appeal held that under Rule 69B.12 of the Eastern Caribbean Supreme Court Civil Procedure Rules, the judge was entitled to award the claimant the costs of the liability phase prior to the quantum trial.

The respondents were also successful in a fourth appeal which was handed down on 7 July 2023 (BVIHCMAP 2021/0034). This was a broad challenge to the judgment on liability. The BVI Court of Appeal unanimously rejected all 26 grounds of appeal.

James Bailey and Jern-Fei Ng KC were instructed by Jerry Samuel, Norman Hau, Alecia Johns, and Catherine Wong of Conyers.