BERMUDA Law and Practice Contributed by: Michael Hanson, Keith Robinson, Sam Stevens and Kyle Masters, Carey Olsen Bermuda Limited
proceedings in Bermuda). It may also consider whether the proposed defendant can be validly served out of the jurisdiction pursuant to Order 11 of the Rules. 3.4 Initial Complaint Subject to the provisions of any enactment and the Rules, civil proceedings in the Supreme Court may be begun by writ, originating sum- mons, originating motion or petition. Which originating process must be used is proscribed by the Rules and depends on the facts and cir- cumstances of each case. A typical civil action is commenced by filing a generally endorsed writ of summons, which names the parties to the action and provides very brief details of the relief sought. If the defendant defends the claim, then a generally endorsed writ must be supplemented by a statement of claim in which the initiating party provides the facts upon which it relies to found its action. By contrast, an application by a creditor to wind up an insolvent company must be brought by way of a petition. A party is permitted to amend its initiating pro- cess at any time before service, and subsequent to service it can also be amended with the con- sent of the defendant or the court. 3.5 Rules of Service Service in Bermuda The party bringing the action is responsible for service of the lawsuit on the opposing party. In the case of an action in respect of which a com- pany is the defendant, a copy of the proceedings will be properly served if it is left at the registered office of the company in Bermuda. A copy of proceedings against an individual must be left directly with that individual in order for there to
be proper service. If, in the case of an individu- al, service is difficult because, for example, that individual is actively avoiding service, the court can be asked to grant an order for substituted service. Service Out With respect to parties outside of the jurisdic- tion, the Supreme Court can be asked to make an order for service outside of the jurisdiction. The “application for service out” is made by way of summons supported by an affidavit setting out why the defendant comes within the criteria of Order 11 Rules 1 and 2 of the Rules, and that it is therefore appropriate for service to be effected A defendant who is otherwise validly served with a lawsuit, and who fails to respond as required under the Rules, can have a default judgment entered against them. A plaintiff must file an application demonstrating that service was effected in accordance with Order 11 or in accordance with an order of the court. A default judgment can be set aside on application by a defendant, who must demonstrate to the court that the judgment was wrongly entered against them or that there is otherwise some good rea- son why they should be entitled to defend the claim. outside of the jurisdiction. 3.6 Failure to Respond 3.7 Representative or Collective Actions Bermuda law and procedure does not recognise the concept of collective or class actions but does recognise representative actions. Plaintiffs can participate in a representative action with the leave of the court. The court must be satis- fied, pursuant to Order 15 of the Rules, that: • if a separate action were brought by or against each applicant, as the case may be,
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