BERMUDA Law and Practice Contributed by: Michael Hanson, Keith Robinson, Sam Stevens and Kyle Masters, Carey Olsen
erwise, notice of an ex parte application for an injunc- tion should be given to the defendant. It is important to be aware that an applicant in an ex parte application, whether on notice or not, is obliged to provide the court with full and frank disclosure and to provide the respondent with a note of the hearing as soon as practicable after the order is granted. Full and frank disclosure includes a requirement that points that would have been made against the applicant are brought to the court’s attention, as well as any infor- mation that is adverse to the application. Failure to make full and frank disclosure can be a ground upon which an injunction can be discharged, and an award of costs made against the applicant or their attorneys, or both. 6.4 Liability for Damages for the Applicant An applicant for injunctive relief can be held liable for damages suffered by the respondent or a third party if the injunction is discharged at a later date on the grounds that it ought not to have been granted in the first instance. In respect of freezing orders, for example, the court will usually require that the party to whose benefit the order is granted provides an undertaking to meet any such damages incurred if the injunction is later discharged. Although the court retains a discretion to require the payment of security in respect of any such damages (“fortification of an undertaking”), in the ordinary course an undertaking as to damages will be sufficient. 6.5 Respondent’s Worldwide Assets and Injunctive Relief The court can grant injunctive relief against the world- wide assets of a respondent. The court can be per- suaded to do so in circumstances where the defend- ant is within the jurisdiction and therefore subject to sanction should the order be breached. A party apply- ing for a worldwide Mareva injunction must demon- strate (among other things) that there is a real risk of dissipation of assets if the order is not granted. 6.6 Third Parties and Injunctive Relief While the general rule is that injunctive relief can only be obtained against a party to an action, in principle, injunctive relief can be granted against third parties in certain limited circumstances, if, for example, there is
evidence that a third party is threatening to aid and abet a contempt of court, or (in Mareva cases) where a third party is shown to be in possession/control of or dealing with the assets of a party already subject to a Mareva injunction. 6.7 Consequences of a Respondent’s Non- Compliance In addition to contempt of court, an injunction affixed with a penal notice notifying those upon whom it is served that a breach of the order will be the subject of sanction can be enforced by way of further order of the court, including the process of execution, compel- ling a non-compliant respondent to abide by its terms. The adversarial process is the norm for the trial of a writ action. Witnesses for both parties attend on the scheduled day(s). The parties will have already filed written witness statements with the court and exchanged them with the other side. The plaintiff’s witnesses are usually tendered for cross-examination first followed by re-examination, with the witnesses for the defendant following thereafter. The written witness statement of a witness is taken to be their evidence in chief. After the cross-examination of witnesses, the parties can then address the court on the law either in 7. Trials and Hearings 7.1 Trial Proceedings Case management hearings are normally very short and heard in chambers before a single judge. Oral argument is usually led by the applicant, supported by a skeleton argument where there are particular issues of law for consideration, followed by a response from the respondent and, finally, the applicant is entitled to a final opportunity to respond. The court is obliged to ensure that matters before it are conducted with reference to the overriding objec- tive as set out in Order 1A/1 of the Rules (see 3.1 Rules on Pre-action Conduct ). The overriding objec- tive is designed to ensure, as much as possible, that the court deals with the case justly. written submissions or orally, or both. 7.2 Case Management Hearings
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