BERMUDA Law and Practice Contributed by: Michael Hanson, Keith Robinson, Sam Stevens and Kyle Masters, Carey Olsen
ant, a copy of the proceedings will be properly served if it is left at the registered office of the company in Bermuda. A copy of proceedings against an individual must be left directly with that individual in order for there to be proper service. If, in the case of an indi- vidual, service is difficult because, for example, that individual is actively avoiding service, the court can be asked to grant an order for substituted service. Service Out With respect to parties outside of the jurisdiction, the Supreme Court can be asked to make an order for service outside of the jurisdiction. The “application for service out” is made by way of summons supported by an affidavit setting out why the defendant comes within the criteria of Order 11 Rules 1 and 2 of the Rules, and that it is therefore appropriate for service to be effected outside of the jurisdiction. 3.6 Failure to Respond A defendant who is otherwise validly served with a lawsuit, and who fails to respond as required under the Rules, can have a default judgment entered against them. A plaintiff must file an application demonstrating that service was effected in accordance with Order 11 or in accordance with an order of the court. A default judgment can be set aside on application by a defend- ant, who must demonstrate to the court that the judg- ment was wrongly entered against them or that there is otherwise some good reason why they should be entitled to defend the claim. 3.7 Representative or Collective Actions Bermuda law and procedure does not recognise the concept of collective or class actions but does recog- nise representative actions. Plaintiffs can participate in a representative action with the leave of the court. The court must be satisfied, pursuant to Order 15 of the Rules, that: • if a separate action were brought by or against each applicant, as the case may be, some com- mon question of law or fact would arise in all the actions; and • all rights to relief claimed in the action are in respect of or arise out of the same transaction or series of transactions.
The parties to a representative action must each con- sent to such an action being carried on in a repre- sentative capacity. 3.8 Requirements for Cost Estimate There is no requirement to provide clients with a cost estimate at the outset of any potential litigation. How- ever, pursuant to Rule 92 of the Barristers’ Code of Professional Conduct 1981, if a client requests one, the barrister should provide a fair estimate of their fees. Parties to substantive proceedings in the Supreme Court have the ability to seek interlocutory relief prior to the substantive hearing or trial of the action. Such applications are ordinarily made by summons, sup- ported by affidavit, and are not limited to case man- agement issues. Common interlocutory applications include, but are not limited to: • applications for additional or specific disclosure; • interim injunctions; • summary judgment; and • strike out of frivolous or vexatious claims (although 4. Pre-Trial Proceedings 4.1 Interim Applications/Motions the Bermuda court has repeatedly confirmed in recent judgments that the legal bar for a strike out Parties can apply for part or all of their adversary’s case to be determined on an interim basis or be struck out. Such applications can be made at any point before the substantive hearing of the matter (or in some cases at the substantive hearing itself) although the court is likely to criticise an application for such relief in circumstances where it is made well after the facts and information founding the application were apparent (or it appears to have been made for some ulterior purpose). Summary Judgment An application for summary judgment on some or all of the issues in dispute can be made under Order 14 of the Rules. Such an application must be supported application to succeed is a high one). 4.2 Early Judgment Applications
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