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Litigation 2019 – Bermuda

February 2019 Jeffrey P. Elkinson

1.1 General Characteristics of Legal System

Bermuda is a self-governing colony; its head of state is the head of state of the United Kingdom. Bermuda has a written constitution which has been in operation since 21 February 1968. The Bermuda Constitution Order 1968 is an Order made by Her Majesty in Council under the Bermuda Constitutional Act 1967, an enactment of the UK Parliament. The majority of local laws are enacted by the Bermuda Parliament. The Bermuda legal system is based on English common law, the doctrines of equity and the Acts of Parliament of England of general application which were in force in England as of 11 July 1612, along with such further Acts as have been made applicable to Bermuda and the local laws enacted by the Bermuda Parliament. The courts hear cases based primarily on the adversarial model, and cases are conducted through a combination of written submissions and oral argument.

1.2 Structure of Country’s Court System

Bermuda’s superior court of record is the Supreme Court, established under the Supreme Court Act 1905. The Chief Justice and three puisne judges, together with designated assistant judges, make up the judges of the Supreme Court, which possesses and exercises all of the jurisdictions formerly (ie, before 1905) exercised by the English courts of general assize, chancery, exchequer, probate, ordinary, bankruptcy and admiralty. There are presently two puisne judges assigned to the Commercial Court, where commercial and arbitration matters are dealt with. Appeals from the Supreme Court are made to the Court of Appeal, which is made up of three Justices of Appeal drawn from among senior judges who will have sat either in the United Kingdom or the Caribbean area. The Court of Appeal is in session three times a year, in March, June and November, with each session lasting between three and four weeks. Appeals from the Court of Appeal go to the Judicial Committee of the Privy Council pursuant to the Appeals Act 1911. The Bermuda Supreme Court has been operating continually since it first sat on 15 June 1616. Below the Supreme Court lies the Magistrates’ Court, a court with jurisdiction limited to matters in controversy with a value of up to BMD25,000. Appeals from this court, which exercises both civil and criminal jurisdiction are made to the Supreme Court.

1.3 Court Filings and Proceedings

The general rule in Bermuda is that litigation is conducted in public and that all proceedings are available for the public to observe. There are some circumstances in which certain civil actions may be held in camera and the public excluded – for example, matters concerning national security, minors and other persons with a disability, certain matters concerning trusts and other matters involving confidential information where the court determines that the public interest is not served by an open court hearing. An application can be made to seal the court file where the court thinks it appropriate, so that the public will not have the access they would otherwise have had to review the court file under the Supreme Court (Records) Act 1955.

1.4 Legal Representation in Court

Parties can represent themselves in the Bermuda courts, although a corporate entity must be represented by an attorney. The Bermuda Bar comprises lawyers who are described as ‘barristers and attorneys’ and are admitted on application to the Supreme Court under Section 51 of the Supreme Court Act 1905. The primary qualification is that the person who seeks to be admitted as a barrister and attorney in Bermuda has rights of audience before the Courts of England or one of Her Majesty’s dominions. For admission on the permanent roll of barristers, the applicant must be a resident of Bermuda and be either a Bermudian or have rights to work in Bermuda, which can include holding a valid work permit. Foreign attorneys who otherwise fulfil the requirements of Section 51 can be admitted on a temporary basis where it is demonstrated that they have a level of expertise that is not available on the Island, or that the matter in dispute involves a point of great public significance or otherwise warrants the services of that foreign attorney. Foreign attorneys require a work permit, the application for which would be made on their behalf by the local law firm which engages their services. The Bermuda Bar Council, the governing body of barristers and attorneys, is consulted by the Minister of Labour regarding this application and expresses its view as to the appropriateness of the application, having received representations from the applicant and any other interested parties. A work permit or Bar admission is not required for work involving international commercial arbitration.

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This article was originally published in Chambers and Partners, Global Practice Guides.

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