CODE OF CIVIL PROCEDURE IN BERMUDA

This article will provide guidance on the Code of Civil Procedure in Bermuda. The Rules of the Supreme Court 1985 (Rules) do not mandate a strict pre-action process on parties like the current English Civil Procedural Rules. But under Order 1A of the Rules, parties must help the court (among other things) identify difficulties early on and save money since that is the overarching aim of the case. Therefore, parties will often converse and discuss the matter informally before formal procedures are issued, especially in civil processes.

The reasonableness of the parties' behavior throughout any action is a factor that the court may consider while deciding the question of costs. If a party does not do enough to help the court achieve its overriding goal, it may reduce the costs to which that party is entitled.

BACKGROUND

The Limitation Act of 1984 establishes the applicable limitation periods. There is a time restriction of six years on claims for contract and tortious breach. A claim based on a sealed contract must be filed within twenty years. Claims related to the recovery of land and the revenues from the sale of land, or cash secured by a mortgage or charge, are likewise subject to a twenty-year limitation period. The statute of limitations in contract law usually begins to run on the date of the breach. The clock to file a tort claim starts ticking on the day the injury was sustained. The clock on any potential defamation lawsuit begins ticking on the day the libelous statement was first made public.

There are two ways a Bermuda court may tell whether a potential defendant is subject to its jurisdiction: either the defendant can be lawfully served inside the Islands of Bermuda, or the defendant has submitted or consented to submit to the jurisdiction of the Bermuda courts (for example by contract or by taking steps in the litigation proceedings in Bermuda).

HOW ARE CIVIL PROCEDURES INITIATED IN BERMUDA

Civil procedures at the Supreme Court may be initiated by writ, originating summons, originating motion, or petition, subject to the terms of any Act and the Rules. The Rules specify the factors that must be considered when deciding which originating process to utilize.

The first step in initiating a civil action is to file a writ of summons with a generic endorsement. This writ will identify the parties involved and briefly describe the remedy sought. A statement of claim, in which the initiating party sets out the facts upon which it bases its action, must be attached to a generally endorsed writ if the defendant contests the claim.

In contrast, a creditor must file a petition to apply to have an insolvent corporation wound up. At any moment before service, a party may change its originating procedure; after service, changes may be made with the approval of the defendant or the court.

BERMUDA PROCESS SERVICE

The party filing the lawsuit is the one who has to serve it on the defendant. A copy of the proceedings in an action where the company is a defendant must be deposited at the company's registered office in Bermuda. To effectuate appropriate service, a copy of the proceedings against an individual must be personally delivered to that individual. An order for substituted service may be requested from the court when serving of process on a particular individual is impossible due to, for instance, the person's active avoidance of service.

The Supreme Court may be petitioned to issue an order for serving of process on a party outside the jurisdiction. An ‘application for service out’ is made by serving the defendant with a summons and an affidavit explaining why service should be performed outside of the jurisdiction under Order 11 Rules 1 and 2 of the Rules.

The Rules of Civil Procedure provide for the entry of a default judgment against a defendant who has been lawfully served with process but who fails to answer within the time frame specified in the complaint. To proceed with a lawsuit, a plaintiff must first submit an application showing that the service complied with Order 11 or a court order. The burden of proof is on the defendant, who seeks to set a default judgment aside because it was entered against them in error or because they have other valid defenses to the claim.

Collective or class actions are not recognized under Bermuda law and process; however, actions brought on behalf of others are. With the court's approval, plaintiffs may join a representative action.

Before a case is heard or tried on its merits, the Supreme Court might provide interlocutory relief to the parties involved. Applications of this kind are often made by summons and affidavits and are not restricted to case management matters. A party may seek to have all or part of the opposing party's case dismissed or resolved on an interim basis. Application for such relief may be made at any time before or even during the substantive hearing of the issue. Still, the court is more likely to reject such an application if it is filed after the facts and information on which it is based have become publicly known (or it appears to have been made for some ulterior purpose).

An application to strike an opposing party's case is made in accordance with Order 18, Rule 19 of the Rules. For the court to approve such an application, it must be convinced that the claim is without merit, is scandalous, frivolous, or vexatious, or may prejudice, embarrass, or delay a fair trial of the case. The burden of proof is on the defendant here to prove that the case prima facie satisfies the requirements of Order 18 Rule 19.

The court may also dismiss a claim upon a request for strike out or summary judgment if the moving party has failed to comply with a court order or has prolonged the case to the detriment of the nonmoving party.

OTHER FEATURES OF BERMUDA CIVIL PROCEDURE

A defendant may apply for security for its costs if it can show that the plaintiff is either not habitually located in Bermuda or is a notional person suing for the benefit of a third party and may be unable to satisfy an order to pay the defendant's costs if required to do so. Suppose the defendant has relocated or is taking other measures to prevent an adverse cost judgment. In that case, the requesting party may also seek the court to issue a security for costs order. Security for costs is typically restricted to the amount a defendant would be obliged to pay if enforcement action was launched due to an unsatisfied costs order.

The attorney representing the party subject to the order often assures that cash placed into their client account will be retained until after fulfillment of the order as security for costs.

The court has the last say on any cost orders. In Bermuda, the prevailing party must pay the other party's legal fees and expenses if they win at trial. Since the issue of the costs of that interim application will be dealt with as part of the general costs assessment at the end of the trial, an order for ‘costs in the cause’ will be included in any interim order addressing a case management application to advance the matter toward trial, unless an exception applies.

An expense order may be made after an interim application is intended to be dispositive of an issue or is otherwise of significant relevance to the action. A failed party may be ordered to pay the victorious party's legal fees in a case where, for example, document disclosure was challenged, and evidence was presented and discussed at length in court. However, such expenses are often not evaluated or due until the completion of the main proceedings.

TIME USUALLY TAKEN FOR A CLAIM IN BERMUDA

The length of time it takes to have a hearing on a routine application might vary based on the circumstances of the case. Without exception, petitions are processed and released from the Supreme Court Registry within ten days after filing. The application process may be expedited if necessary. Legal petitions of this kind tend to be granted by the Bermuda courts. Urgent injunctions, for instance, have been issued through telephone hearings. If there is a compelling cause, the application may be scheduled for a speedy hearing.

In Bermuda, discovery is a crucial aspect of any lawsuit. When a writ initiates a course of action, discovery occurs immediately. The case is being managed by the people directly involved in the litigation. Within fourteen days after the date of the completion of pleadings in the issue, the parties must mutually share a list of all documents relevant to disputed topics in action.

A party may file a motion asking the court to compel the party disclosing to provide an affidavit attesting to the list's accuracy. When making the discovery, each party must provide the supporting evidence for its case and any evidence that might hurt it. Any parties must make a reasonable effort to locate and produce all relevant documents that are or have been in their custody, possession, or authority. Emails, minutes, memoranda, letters, images, and anything else that can be recorded may be considered part of the discovery process.

If the papers requested are likely to help one party's argument or hurt their opponent's case, then the discovery may be obtained from a third person who is neither a plaintiff nor a defendant in the proceedings. A subpoena may compel the third party to provide the requested evidence or attend a court hearing.

Generally, all parties to an action must disclose any relevant papers in their possession, custody, or authority. This would include anything that might reasonably be expected to include material that would help the party entitled to the discovery either strengthen their case or weaken their opponent's, or anything that could reasonably lead them on a line of investigation that could have these effects.

Communications between the company and its in-house counsel, who are within the scope of the attorney-client privilege and are provided for in the rules of professional conduct for lawyers, will be protected.

OUR PROCESS

Documents can be faxed at (800) - 296-0115, emailed to ps@undisputedlegal.com, mailed to 590 Madison Avenue, 21 Floor, New York, New York 10022, or dropped off at any of our locations. We do require pre-payment and accept all major credit and debit cards. Once payment is processed, your sales receipt is immediately emailed for your records.

Drop-offs must call and make an appointment first to be added to building security to permit access to our office. Documents for service must be in a sealed envelope with payment in the form of a money order or attorney check (WE DO NOT ACCEPT CASH) payable to UNDISPUTED LEGAL INC.; Our receptionist receives all documents.

DOMESTIC COVERAGE AREAS:

INTERNATIONAL COVERAGE AREAS:

OFFICE LOCATIONS

New York: (212) 203-8001 – 590 Madison Avenue, 21st Floor, New York, New York 10022
Brooklyn: (347) 983-5436 – 300 Cadman Plaza West, 12th Floor, Brooklyn, New York 11201
Queens: (646) 357-3005 – 118-35 Queens Blvd, Suite 400, Forest Hills, New York 11375
Long Island: (516) 208-4577 – 626 RXR Plaza, 6th Floor, Uniondale, New York 11556
Westchester: (914) 414-0877 – 50 Main Street, 10th Floor, White Plains, New York 10606
Connecticut: (203) 489-2940 – 500 West Putnam Avenue, Suite 400, Greenwich, Connecticut 06830
New Jersey: (201) 630-0114 - 101 Hudson Street, 21 Floor, Jersey City, New Jersey 07302
Washington DC: (202) 655-4450 - 1101 Pennsylvania Avenue, Suite 300, Washington DC 20037

FOR ASSISTANCE SERVING LEGAL PAPERS IN BERMUDA

Simply pick up the phone and call Toll Free (800) 774-6922 or click the service you want to purchase. Our dedicated team of professionals is ready to assist you. We can handle all your Bermuda process service needs; no job is too small or too large!

Contact us for more information about our process-serving agency. We are ready to provide service of process to all our clients globally from our offices in New York, Brooklyn, Queens, Long Island, Westchester, New Jersey, Connecticut, and Washington, D.C.

"Quality is never an accident; it is always the result of high intention, sincere effort, intelligent direction, and skillful execution; it represents the wise choice of many alternatives" - Foster, William A

Sources

1. Latent faults are covered under the Limitation Act of 1984, as are situations where the legal wrongdoing could not have been uncovered in a timely manner despite reasonable inquiry.

A claim or recovery under it may still be brought even though the statute of limitations has expired. The defendant must make that claim in court to use the Limitation Act as a legal defense.

2. It may also consider whether or not the putative defendant is inside the jurisdiction's boundaries for purposes of service of process under Order 11 of the Rules.

3. In accordance with Rule 15 of the Rules, the court must be convinced that the rights to relief asserted in action are in respect of or grow out of the same transaction or series of transactions. A common issue of law or fact would arise in all the actions if they were filed separately by or against each applicant, as the case may be.

An action brought in a representative capacity requires the approval of all parties to the suit.

4. Under Order 14 of the Rules, a party may seek summary judgment on any or all disputed issues. Affidavit evidence that the defense is not a viable defense to the claim or the portion on which judgment is sought, other than with respect to the number of damages claimed, must accompany such an application.

5. Unless the applicant can prove they are indigent, they will be required to provide security for costs before their appeal may be heard by the Court of Appeal. The security amount is calculated as a percentage of anticipated respondent appeal expenses.

6. Even though the Rules require an examination of the documents in the list after the lists have been exchanged, the current practice is for both parties to give copies of the documents at the same time the lists are exchanged.

7. The courts in Bermuda have the authority to issue Norwich Pharmacal orders, which require non-parties to deliver documents if necessary to the proceedings. To get a Norwich Pharmacal Order in an interlocutory matter, a summons and affidavit are often filed.