BERMUDA Law and Practice Contributed by: Michael Hanson, Keith Robinson, Sam Stevens and Kyle Masters, Carey Olsen
5.4 Alternatives to Discovery Mechanisms This is not applicable, as discovery is a fundamental part of the litigation process in Bermuda. 5.5 Legal Privilege between a lawyer and their client, attract legal privi- lege. Although they must be included in the list of documents exchanged in discovery, they are exempt from inspection as a result of such privilege. Such documents would include: • letters and other communications passing between a party and its lawyers; • communications between the lawyer and a third party, which are created in contemplation of litiga- tion or for the purpose of obtaining or giving advice connected to that litigation; or • communications regarding the collection of evi- dence to be used in such litigation. In-House Counsel Legal professional privilege will extend to communi- cations to and from in-house counsel acting in their capacity as a lawyer and not otherwise generally advising the business. 5.6 Rules Disallowing Disclosure of a Document A party cannot be required to disclose a document that would incriminate or expose them to proceedings that would involve a criminal penalty. 6. Injunctive Relief 6.1 Circumstances of Injunctive Relief The court has a broad jurisdiction to grant injunctive relief. Orders can be made on an interlocutory basis to maintain the status quo until a party’s substantive rights can be ascertained. Orders can also be made on a substantive or final basis. An application for an injunction can be made prior to the commencement of proceedings, after proceed- ings have started or after trial. Injunctions can also be granted in aid of execution of a money judgment (for
example, to support the work of a court-appointed receiver by way of equitable execution). Interim injunctions can be granted on an ex parte basis, but on making such an application the apply- ing party has the burden of full and frank disclosure. The failure to give full and frank disclosure can itself be a basis for discharging the injunction in due course. The Bermuda courts can order: • freezing injunctions and worldwide freezing orders (Mareva injunctions) preventing the movement or dissipation of assets; • prohibitory injunctions requiring a party to refrain from doing something (including anti-suit injunc- tions); and • mandatory injunctions requiring a party to do a thing. Orders can also be made requiring that a party provide information or allowing for a property to be searched. 6.2 Arrangements for Obtaining Urgent Injunctive Relief Within hours, appointments for the hearing of an application for urgent injunctive relief can be made by contacting the Supreme Court Registry and informing the staff of the urgency while seeking an appointment. The papers in support of the application, including any summons and affidavit, can be transmitted to the court electronically in advance of the hearing or, in cases of extreme urgency, the papers can be passed to the court at the hearing. Out-of-hours hearings for injunctive relief are possible and are usually conduct- ed by telephone. In both instances, a draft of the order being sought is sent directly to the judge hearing the application so that, upon making any orders, it can be immediately signed and served where necessary. 6.3 Availability of Injunctive Relief on an Ex Parte Basis Ex parte applications for injunctive relief are possi- ble. They should only be made where there is real basis for believing that notifying the respondent would undermine the effectiveness of the relief sought. Oth-
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