BAHAMAS Law and Practice Contributed by: Adrian Hunt and Gabrielle Rahming, Graham Thompson
Jurisdiction of Foreign Court The Bahamian court has noted that, ordinarily, while foreign courts could make in personam orders, they could not make in rem orders (orders concerning the actual transfer of Bahamian property or proprietary rights); this can only be done by a Bahamian court. In rem judgments bind the whole world, whereas in personam judgments merely bind the parties in the litigation. 6. Privileges 6.1 Invoking the Privilege Against Self- Incrimination In The Bahamas, the privilege against self-incrimina - tion is protected in criminal proceedings under the Constitution of the Commonwealth of The Bahamas (“the Constitution of The Bahamas”), as well as by common law principles and statute. Pursuant to Article 20 (1) of the Constitution of The Bahamas, any person charged with a criminal offence, unless the charge is withdrawn, is guaranteed a fair hearing within a reasonable time by an independent and impartial court established by law. Furthermore, paragraph (7) of Article 20 of the Constitution of The Bahamas states that “No person who is tried for a criminal offence shall be compelled to give evidence at the trial.” The Bahamian courts have given a purposive inter - pretation to paragraphs (1) and (2) of Article 20 of the Constitution of The Bahamas, concluding that this Article does not simply encompass the right to refuse to testify in a court but must also apply to bod - ies endowed by the law with inquisitional power; and the right to refuse to answer questions that may open an incriminating line of enquiry (per Osadebay, JA, in The Attorney General v Financial Clearing Corporation , Civil Appeal No 70 of 2001). In addition, Sections 44 (b) and 138 of the Evidence Act (Chapter 65) provide that a witness shall not be compelled to produce any document in his or her possession or power nor answer any question where the production of the document or such answer may tend to expose that person or the husband or wife of
such person to a criminal charge or to any penalty or forfeiture. In civil proceedings, including fraud claims, no person can be compelled to self incriminate. A person may therefore refuse to answer any question, or produce any document or thing, if to do so would create a real risk of criminal prosecution. While a defendant may invoke this privilege, in cer - tain contexts, the court may draw an adverse infer - ence from the absence or silence of a witness who might be expected to have material evidence to give on an issue in an action. This adverse inference may strengthen the evidence adduced by the other party or weaken the evidence, if any, adduced by the defend - ant. Nevertheless, this cannot itself establish liability. The firm is not aware of any decisions on whether a defendant in a civil fraud claim may be able to invoke a right against self-incrimination in response to a court order. 6.2 Undermining the Privilege Over Communications Exempt From Discovery The Bahamas, like most jurisdictions, recognises that confidential communications between a lawyer and client are to be protected under the doctrine of legal professional privilege. There is a fraud exception to this privilege, typically seen in applications for discovery and inspection. The exception dictates that correspondence between a lawyer and client can be disclosed if the correspond - ence was in furtherance of a criminal purpose. The common law authority for this fraud exception, which has been recognised within The Bahamas, is the semi - nal decision of Kuwait Airways Corpn v Iraqi Airways Co (No 6) [2005] 1 WLR 2734, [2005] 1 WLR 2734. 7. Special Rules and Laws 7.1 Rules for Claiming Punitive or Exemplary Damages The CPR addresses exemplary or punitive damages at Part 8 of the CPR; specifically, this addresses the requirements for a claim form. In addition to setting
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