BERMUDA Law and Practice Contributed by: Michael Hanson, Keith Robinson, Sam Stevens and Kyle Masters, Carey Olsen
action, usually attract an order for costs at the end of that application. A contested application concerning document disclosure, for example, which involves the exchange of evidence and a hearing before the court of a reasonable length could result in an order that the costs of the successful party be paid by the unsuc- cessful party. Such costs are not usually assessed or payable, however, until the end of the substantive pro- ceedings. Orders that costs shall be paid “forthwith” (ie, immediately) are rare and only generally ordered where there is evidence of procedural impropriety on the part of a party. 4.7 Application/Motion Timeframe The timing for the hearing of an ordinary application can vary depending on the complexity and nature of the matter. Generally speaking, applications are issued out of the Supreme Court Registry within ten days of filing unless there are exceptional circumstances. Applications on an urgent basis are possible. The Ber- muda courts are generally responsive to such applica- tions. There have been instances of urgent injunctions being granted by way of telephone hearing, for exam- ple. Provided there is good reason for the application to be heard on an urgent basis, provision will be made for the same. Discovery is a fundamental part of the litigation pro- cess in Bermuda. Discovery is automatic in actions begun by writ. It is administered by the parties to the action. The parties are required to mutually exchange a list of all documents relating to matters in question in the action within 14 days of the date of the close of pleadings in the matter, though in practice this dead- line is usually extended by consent. Although the Rules call for inspection of the docu- ments in the list after the lists have been exchanged, generally speaking the modern approach is for each party to provide copies of the documents at the same time as exchanging lists. 5. Discovery 5.1 Discovery and Civil Cases
A party can ask the court to order the disclosing party to make an affidavit verifying that the list of docu- ments complies with that party’s obligations under the Rules. The nature of the discovery is that a party is required to disclose the documents on which it relies for its case, as well as all documents that adversely affect its case. The parties are expected to be diligent in producing all documents that are or have been in their custody, possession or power and are relevant to the action, and they must conduct a reasonable search for such documents. Discovery includes not only documents such as emails, minutes, memos and letters, but also telephone recordings, photographs and anything else that is in a recordable form. Parties can limit the scope of discovery by agreement. 5.2 Discovery and Third Parties It is possible in certain circumstances to obtain dis- covery from third parties not named as a plaintiff or a defendant in the proceedings if the documents sought are likely to support one party’s case or damage the case of their adversary. An application can be made for the issuance of a subpoena requiring the third party to produce the required documents and, if nec- essary, to attend court. Norwich Pharmacal orders are also available in Ber- muda, by which the court has the power to order that third parties provide documents where such docu- ments are relevant to the proceedings. A Norwich Pharmacal Order is sought by way of summons sup- ported by affidavit on an interlocutory basis. 5.3 Discovery in This Jurisdiction The general rule is that parties to an action are required to disclose all documents relating to matters in ques- tion in the action that are or have been in their pos- session, custody or power. This would include any documents which, it is reasonable to suppose, con- tain information that may enable the party entitled to the discovery either to advance their own case or to damage that of their adversary – or any document that may fairly lead them on to a train of inquiry which may have either of these two consequences.
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