BAHAMAS Law and Practice Contributed by: Adrian Hunt and Gabrielle Rahming, Graham Thompson
an extant criminal complaint proceeding relating to fraud can provide a basis for an application to stay a parallel civil claim in respect of the fraud. 2.6 Judgment Without Trial Where a defendant is not participating in a matter, by failing to file either an acknowledgement of service or a defence, a default judgment may be obtained. The main prerequisites for both are: • proof of service of the claim form and statement of claim on the defendant; • the expiry of the period for filing an acknowledg - ment of service or defence; and • failure to satisfy the claim on which judgment is sought. Default judgments may be set aside if wrongly entered because any of the prerequisites were not satisfied, or if the defendant promptly applies, offers a good explanation for the default and has a real prospect of successfully defending the claim. Where a defence is wholly unmeritorious, judgment can be obtained without a trial by way of an applica - tion for summary judgment. To accede to an applica - tion for summary judgment, the court must be satis - fied that there is no prospect of successfully defending the claim. This is a discretionary exercise that does not entail the court conducting a mini-trial but rather reviewing the evidence to determine whether the pros - pects of success are realistic or fanciful. 2.7 Rules for Pleading Fraud The Bahamas has recognised the well-established common law position that allegations of fraud must be expressly pleaded and sufficiently particularised. This requirement has been interpreted as rendering it inadequate for a party to make a mere, bare or vague reference to fraud in their pleadings. Instead, there is an obligation on a party to set out, in their statements of case, all of the material facts and circumstances upon which they rely to assert fraud. To the extent that documents are critical to the allegations of fraud, they should be identified in the party’s pleadings. A party’s failure to provide sufficient particulars of fraud, or identify crucial documents in their state - ment of case, can have significant consequences. The
pleading may be susceptible to a strike-out challenge on the ground that it is frivolous and vexatious, or fail at trial, having only set out a mere reference to fraud. 2.8 Claims Against “Unknown” Fraudsters At common law, claims can be commenced in The Bahamas against unknown persons. If these unknown persons are anonymous but identifiable, issues such as the court’s jurisdiction and effecting service of the originating process can be readily addressed. In turn, the court may also be prepared to grant an interim order under Part 17 of the CPR. The considerations for the court in granting an interim order against unknown persons are that: • the class of unknown persons is properly defined; • the acts being restrained relate to the matters complained of; • the defendants must be identifiable and capable of service; and • the order must be clear and precise and not extend to acts that are lawful. 2.9 Compelling Witnesses to Give Evidence The court can issue a witness summons under Part 33 of the CPR to compel a witness to give evidence. This power can be invoked in respect of inferior courts or tribunal, provided there is no such power vested in that inferior court or tribunal. 3. Corporate Entities, Ultimate Beneficial Owners and Shareholders 3.1 Imposing Liability for Fraud on a Corporate Entity Liability for fraud may be imposed on a limited liability company or other corporate entity, in a civil context, where the fraudulent acts are committed by individu - als who, acting within the scope of their authority, control and represent the company’s decision-making and are therefore considered to have “directing mind and will” of the company itself. However, where the company is itself the victim of fraud, the fraudulent conduct will not be attributed to the company, and the company may pursue claims
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