BERMUDA Law and Practice Contributed by: Michael Hanson, Keith Robinson, Sam Stevens and Kyle Masters, Carey Olsen
Parties who wish to keep proceedings, or the court file in those proceedings, confidential can apply for an order that the proceedings be held in private, and that the court file be sealed prior to commencing an action. When considering an application for privacy, the court will balance the rights of “open justice” and the public interests against the specific factual circumstances in which the order for privacy is being sought. Typically, where an application is made to protect the interests of minors or certain matters or information relating to a trust, provided the court concludes that the pub- lic interest is not served by the hearing being held in public, the courts will grant a confidentiality order. The same applies to a request that the court file be sealed. 1.4 Legal Representation in Court Natural persons can represent themselves in court proceedings but unnatural persons (such as limited liability companies and partnerships) must be repre- sented by an attorney. The Bermuda Bar is made up of legally qualified people referred to as “barristers and attorneys” who are admitted to practice at all levels of Bermuda’s courts. Barristers and attorneys called to the Bermuda Bar may also act as Commissioners of Oaths. Pursuant to Section 51 of the Supreme Court Act 1905, to be admitted to the Bermuda Bar, a per- son must, amongst other things: • have passed the final examinations required for a person to qualify to practise as a barrister or solici- tor in England (or the equivalent); • have completed a period of practical training of not less than 12 months; • be resident in Bermuda; and • be either a Bermudian or have the right to work in Bermuda (typically by way of a work permit). Foreign Attorneys A foreign attorney who meets all of the requirements under Section 51 of the Supreme Court Act 1905, apart from residency, can be admitted to practice law in Bermuda on a temporary basis if it can be demon- strated that they possess a particular expertise not available in Bermuda or that the matter involves ques- tions of law or practice of considerable complexity or public importance. An application for approval for a foreign attorney to be admitted to the Bermuda Bar must be made to the Supreme Court. An application
for a work permit for that attorney must be made to the Department of Immigration on behalf of the attor- ney by a Bermuda law firm. The Minister responsible for labour will consult the Bermuda Bar Council, which is the governing body for barristers and attorneys in Bermuda, as a part of the consideration process. The Bar Council has significant input into the application but the ultimate decision rests with the Minister.
2. Litigation Funding 2.1 Third-Party Litigation Funding
Bermuda has yet to enact legislation relating to third- party funding, but in recent years such arrangements have been blessed by the courts, which have rejected arguments that such arrangements are unlawful. 2.2 Third-Party Funding: Lawsuits This firm has seen no examples of restrictions being imposed on the type of litigation that can be funded by a third party. Often, parties to restructuring and insolvency proceedings will enter into funding agree- ments with the liquidators in order to support actions to recover assets from third parties as well as actions against former directors for breaches of fiduciary duties. 2.3 Third-Party Funding for Plaintiff and Defendant Third-party funding is available for both the plaintiff and the defendant. 2.4 Minimum and Maximum Amounts of Third-Party Funding There are no minimum or maximum amounts a third party will fund. 2.5 Types of Costs Considered Under Third- Party Funding The costs a third-party funder will consider funding are entirely a matter between the funder and the party accepting the funding. 2.6 Contingency Fees Contingency fees are prohibited by the Barristers’ Code of Professional Conduct 1981, Rule 96.
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