BERMUDA Law and Practice Contributed by: Michael Hanson, Keith Robinson, Sam Stevens and Kyle Masters, Carey Olsen
Preliminary applications on issues such as docu- ment discovery in complex commercial litigation, for example, can take the form of longer hearings. Such applications are typically supported by affidavit evi- dence and skeleton arguments filed in advance of the hearing. 7.3 Jury Trials in Civil Cases Jury trials are still available in some civil cases but are very rare. For example, in claims for defamation, parties have the choice to proceed by way of trial by jury or before a single judge. When deciding whether or not a matter should be decided by jury, the court will consider, in accordance with Order 33 of the Rules, whether or not the determination of the issues requires any prolonged examination of documents or accounts, or any scientific or local investigation which cannot conveniently be made with or by a jury. 7.4 Rules That Govern Admission of Evidence The Evidence Act 1905 and the Rules provide guide- lines as to the manner in which evidence is admitted in civil actions in Bermuda. As a general rule, apart from opinion evidence (which is dealt with in 7.5 Expert Testimony ), the court will, as a matter of practice, allow evidence that is not prejudicial to the other side. The court will determine for itself what weight, if any, it gives to evidence submitted. Hearsay evidence can also be admitted, subject to the service of the requisite notices under the Rules. Ultimately, however, the court will determine whether to allow hearsay evidence should it arise at trial. 7.5 Expert Testimony Expert testimony is permitted at trial with leave of the court, usually pursuant to a direction given in advance of trial as to the scope of the expert evidence to be adduced and the qualifications of the expert them- selves. Order 38 of the Rules governs the right of par- ties to submit and rely upon expert testimony. Expert statements should be exchanged well before trial. An expert must be sufficiently qualified to give expert evidence on the matters in respect of which they are intending to opine. An expert witness is expected to provide evidence on an objective and independent basis with a view to assisting the court, not the party
that has engaged them. Expert evidence that is parti- san is likely to be disregarded by the court. 7.6 Extent to Which Hearings Are Open to the Public As noted in 1.3 Court Filings and Proceedings , the default position is that hearings are open to the public. Bermuda courts do not create transcripts of hearings under ordinary circumstances. The Court (Records) Act 1955, however, gives any person the right to request to inspect and take copies of any of the records on the court file, including any transcripts produced, subject to the payment of the requisite fee and other stated exceptions. 7.7 Level of Intervention by a Judge Judges are entitled to raise questions and intervene in the proceedings to address matters of case man- agement where it is appropriate and required for the achievement of a fair hearing or otherwise in further- ance of the overriding objective. Judges can also ask questions of witnesses and counsel during a trial in order to clarify or otherwise attempt to narrow or understand the issues before them. Whether final or interim, judgments and rulings can be given at the time of the hearing. Judges may also reserve judgment for a later time. Whether or not a judgment is given immediately or reserved often depends on the complexity of the issues raised in the case, as well as the urgency required for such a ruling to be provided. When rulings are reserved to a later date, they are ordinarily provided to the parties within six weeks of the hearing. 7.8 General Timeframes for Proceedings The speed to trial depends on the attentiveness of the parties and the calendar of the court. Trials can move from originating proceedings through to trial in under a year if there are no large or complex interlocu- tory applications and the court calendar permits. The ordinary scenario, however, is that the trial of a writ action can take longer than a year from inception to final judgment.
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