BERMUDA Law and Practice Contributed by: Michael Hanson, Keith Robinson, Sam Stevens and Kyle Masters, Carey Olsen
2.7 Time Limit for Obtaining Third-Party Funding There are no time limits with regard to when a party to litigation should obtain third-party funding.
Limitation is not an automatic bar to an action or recovery under it. A defendant must raise the Limita- tion Act 1984 as a defence and specifically plead the same. 3.3 Jurisdictional Requirements for a Defendant When determining whether or not a proposed defend- ant is subject to its jurisdiction, the Bermuda court will consider whether the proposed defendant can be val- idly served within the Islands of Bermuda or whether a defendant has submitted, or has agreed to submit, to the jurisdiction of the Bermuda courts (for example by contract or by taking steps in the litigation proceed- ings in Bermuda). It may also consider whether the proposed defendant can be validly served out of the jurisdiction pursuant to Order 11 of the Rules. 3.4 Initial Complaint Subject to the provisions of any enactment and the Rules, civil proceedings in the Supreme Court may be begun by writ, originating summons, originating motion or petition. Which originating process must be used is proscribed by the Rules and depends on the facts and circumstances of each case. A typical civil action is commenced by filing a gener- ally endorsed writ of summons, which names the par- ties to the action and provides very brief details of the relief sought. If the defendant defends the claim, then a generally endorsed writ must be supplemented by a statement of claim in which the initiating party pro- vides the facts upon which it relies to found its action. By contrast, an application by a creditor to wind up an insolvent company must be brought by way of a petition. A party is permitted to amend its initiating process at any time before service, and subsequent to service it can also be amended with the consent of the defend- ant or the court. 3.5 Rules of Service Service in Bermuda The party bringing the action is responsible for service of the lawsuit on the opposing party. In the case of an action in respect of which a company is the defend-
3. Initiating a Lawsuit 3.1 Rules on Pre-Action Conduct
Unlike the modern English Civil Procedural Rules, the Rules of the Supreme Court 1985 (the “Rules”) do not impose a rigid pre-action protocol on parties. How- ever, parties to litigation are required, pursuant to the overriding objective set out in Order 1A of the Rules, to assist the court to (among other things) identify issues at an early stage and save expense. To this end, particularly in civil proceedings, parties will typi- cally engage in pre-action correspondence and dis- cussions prior to the issuance of proceedings. Ultimately, the court is entitled to take into account the reasonableness of the conduct of the parties to any action when determining the issue of costs. Par- ties who have failed to assist the court in discharging the overriding objective may be at risk of having their Applicable limitation periods are set out in the Limita- tion Act 1984. Claims for breach of a contract and in tort are subject to a limitation period of six years. A party bringing a claim based on a contract under seal must do so within 20 years. A 20-year limitation period also applies to claims concerning the recovery of land and the proceeds of the sale of land, or monies secured by a mortgage or a charge. In contract law, the limitation period typically runs from the date on which the contract was breached. For a tort, the limitation period commences on the date the damage occurred. For claims in defamation, the start of the limitation period is the date of publication. The Limitation Act 1984 makes provision for latent defects, as well as for cases where the cause of action could not, with reasonable investigation, have been discovered sooner. entitlement to costs discounted. 3.2 Statutes of Limitations
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