BERMUDA Law and Practice Contributed by: Michael Hanson, Keith Robinson, Sam Stevens and Kyle Masters, Carey Olsen
8. Settlement 8.1 Court Approval
satory basis and can be calculated by reference to money due and owing to the plaintiff or the amount of money required to place the plaintiff in the position they would have been in had the breach not occurred. For personal injury, the court will refer to guidelines for general damages, which will allow the parties to cal- culate the amount to compensate an injured plaintiff by reference to the injuries suffered. Generally speaking, the full range of equitable rem- edies available in English common law are also availa- ble to a successful litigant in Bermuda. These include: • delivery up – an order requiring a party to hand over specific items to the plaintiff; • specific performance – an order requiring one party to perform its contractual obligations to the other; and • declaratory relief – a statement by the court as to the law or facts applicable to the parties (or gener- ally). The Supreme Court can also make orders granting statutory relief pursuant to actions taken under spe- cific statutes. For example, an application for judicial review can result in an order quashing an unlawful Damages are awarded to compensate a party for its loss. This means that the court will make an order for the payment of the amount of damages required to put the party into the same position it would have been in had the breach not occurred, or in the case of a tort, had the wrongful act (or omission) not taken place. There is no limit on the amount of damages that may be awarded, although parties are entitled to enter into contracts, the terms of which may limit the amount of damages. Punitive damages are available under Bermuda law in rare cases. Compensatory damages must be deemed an inadequate remedy and where a defendant’s actions can be interpreted as being wilful, wanton, reckless or malicious. decision made by a public authority. 9.2 Rules Regarding Damages
Parties are always able to settle an action without court permission. Commercial settlements are of course a feature of Bermuda litigation and can be effected in ways that suit both parties. A plaintiff in an action begun by a writ may, without the leave of the court, discontinue the action or with- draw any particular claim not later than 14 days after service of the defence. However, if a party wishes to discontinue an action, claim or counterclaim at a later stage (ie, after 14 days have passed) the leave of the court is required. The general rule is that a party that discontinues a claim after a defence has been filed must pay the defendant’s costs of the action. 8.2 Settlement of Lawsuits and Confidentiality Parties who wish to have the terms of their settlement of an action remain confidential may wish to obtain a Tomlin order, which is an order that simply refers to the fact that the proceedings have been withdrawn or settled in accordance with the terms of an agree- ment which is held by the parties, thereby keeping the precise terms out of the court record. 8.3 Enforcement of Settlement Agreements The terms of a settlement agreement will dictate how it will be enforced. A breach of an agreement to settle will be treated like a breach of an ordinary contract. For additional privacy, the parties to a settlement agreement may consider inserting a clause requiring that any dispute arising out of, or connected with, the settlement agreement be referred to arbitration. 8.4 Setting Aside Settlement Agreements A settlement agreement can be set aside on the same terms as any other contract. 9. Damages and Judgment 9.1 Awards Available to the Successful Litigant The courts can award a successful litigant monetary damages for losses suffered as a result of the actions of the defendant. These are awarded on a compen-
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