BAHAMAS Law and Practice Contributed by: Adrian Hunt and Gabrielle Rahming, Graham Thompson
company may pursue the company’s cause of action where the holding company was itself subject to the same wrongdoer control as the company. Common law has therefore permitted an extended form of deriv - ative claim where a shareholder of a parent company wants to pursue a claim vested in a subsidiary of that parent company (a double derivative claim), or in sub - sidiaries of the subsidiary (a triple derivative claim). The test to be applied by the court is that of a common law derivative action. Common law recognises double derivative actions where: • the wrong lies in a subsidiary company; • the parent company, whose members include the claimant, will not act because it is controlled by the wrongdoer; and • justice requires intervention. 4. Overseas Parties in Fraud Claims 4.1 Joining Overseas Parties to Fraud Claims A claimant may add a new defendant to proceedings without the court’s permission at any time before the case management conference by filing, at the court office, an amended claim form and statement of claim. An application for permission to add a party may be made by: • an existing party; or • a person who wishes to become a party. The Computer Misuse Act 2003 (CMA) provides an example in which the Bahamian courts are empow - ered to exercise extraterritorial jurisdiction. By virtue of Section 11 of the CMA, the Bahamian courts are empowered to try offences under the CMA that are committed outside of The Bahamas. 4.2 Service of Proceedings out of the Jurisdiction The service of proceedings on parties out of the jurisdiction is governed by Part 7 of the CPR, which has streamlined the process surrounding the service of court process out of the jurisdiction, making the
involvement of foreign parties more efficient than pre - vious procedural requirements. Part 7 of the CPR sets out instances where a par - ty may be served out of the jurisdiction without the court’s permission, that is “without leave”, and where the court’s permission is required. In cases that fall within CPR Rule 7.2, a claim form may be served out of The Bahamas without leave of the court. However, where service is not allowed under CPR Rule 7.2, a claim form may be served outside of The Bahamas, with the court’s permission. An application for leave under CPR Rule 7.3 must be made on notice to every party to the proceedings, other the party intended to be served. Typically, such an application is made by way of notice of applica - tion, with a supporting affidavit stating any facts or matters related to the desirability of the court assum - ing jurisdiction, including the grounds on which the application is made, the place or country in which the person to be served is or possibly may be found, whether or not the person to be served is a citizen of The Bahamas and a statement that, in the deponent’s view, there is a serious issue to be tried on the merits. The court will consider whether the applicant estab - lishes: • that the claim has a real and substantial connection with The Bahamas; • that there is a serious issue to be tried on the merits; • that The Bahamas is the appropriate forum for the trial; and • any other relevant circumstances to support an assumption of jurisdiction. Alternate Service There is an availability of alternative service proce - dures that address difficulties where traditional service methods are not feasible and provide for expedience. Where service on a defendant who is to be served out of The Bahamas is impracticable, the claimant may apply to the court for an order under CPR Rule 7.12 that the claim form be served by an alternative meth - od. This order must specify the date on which service
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