BAHAMAS Law and Practice Contributed by: Adrian Hunt and Gabrielle Rahming, Graham Thompson
ignored, third parties run the same risk of committal proceedings faced by defendants who defy the order. Fees Filing fees are payable on the commencement of all actions. The fee structure is tiered and increases with the value of the claim.
would be constrained to use any information for that purpose. This constraint would likely be underpinned by an undertaking given to the court as to the purpose for which the obtained information would be used, warranting an application to the court to make any use of the information for any other purpose. Post-Commencement Once proceedings are commenced, obtaining docu - ments from third parties is possible by way of a wit - ness summons. This procedure is under Part 33 of the CPR, and enables a party to seek the issuance of a witness summons to produce documents to the court (as opposed to any of the parties). The leave of the court is required for the issuance of a witness summons: • less than 21 days before the hearing; or • requiring a party to give evidence or produce docu - ments on any date other than one fixed for trial, or the hearing of an application. 2.4 Procedural Orders Whether an application for any of the relief under Part 17 of the CPR proceeds on ex parte basis is entirely up to the discretion of the judge hearing the matter. While permissible, ex parte applications are the exception and should only be allowed by the judge where: • the relief being sought would be defeated by notice; or • the urgency of the application makes it impossible to provide notice. On obtaining an order on an ex parte basis, the appli - cant must provide the respondent with a copy of the application, all supporting evidence and any written submissions relied upon at the hearing. The applicant must also provide a copy of the transcript of the ex parte hearing, or if none exists, the attorney’s notes of the hearing. 2.5 Criminal Redress Victims of fraud typically lodge fraud complaints with the Financial Crimes Unit of the Royal Bahamas Police Force. The prosecution of a criminal complaint does not automatically preclude the prosecution of a civil fraud claim. However, the courts have recognised that
2. Procedures and Trials 2.1 Disclosure of Defendants’ Assets
There is no mechanism under the CPR to compel a defendant to disclose his or her assets prior to a judg - ment. Post-judgment, Part 44 of the CPR provides for information to be obtained from a judgment debtor, including the disclosure of assets. 2.2 Preserving Evidence Preservation of evidence is possible via Part 17 of the CPR, which governs interim remedies. This part of the CPR allows, among other things, for the grant of an interim injunction, freezing and search orders, and orders for the detention, custody, preservation and procuring a sample of “relevant property”. An applicant for a search order is required to give an undertaking in damages. If the assets that the appli - cant has are deemed insufficient to satisfy the under - taking, the court may require the application to fortify the undertaking by providing security. The form and amount of the security is to be fixed by the judge. 2.3 Obtaining Disclosure of Documents and Evidence From Third Parties Prior to commencing a claim, the ability to obtain doc - uments from third parties is limited. Recourse may be had to a Norwich Pharmacal Order (NPO), which is invoked to seek a court-ordered disclosure from third parties, who may have become caught up, unwittingly, in acts of wrongdoing by other parties. The restrictions on the use of information obtained via an NPO will depend on the information relayed to the court in the course of the application, and any specific purpose identified. If for example, the NPO was sought to assist in identifying a fraudster, against whom proceedings would be brought, the applicant
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