BERMUDA Law and Practice Contributed by: Michael Hanson, Keith Robinson, Sam Stevens and Kyle Masters, Carey Olsen Bermuda Limited
out on the basis that the party pursuing it has failed to comply with an order of the court or has delayed in progressing the matter such that it has caused prejudice to the other party. 4.4 Requirements for Interested Parties to Join a Lawsuit A third party can be joined in Supreme Court proceedings by a defendant. The defendant will have to have entered an appearance in the action and the third party can be joined in cir- cumstances where the defendant seeks a con- tribution or indemnity from that party. The leave of the court is required before issuing a third- party notice, unless the action was begun by a writ of summons and the defendant has issued the notice before serving their defence on the plaintiff. The court will allow a third party to be joined when it considers that it is appropriate to do so to allow for the resolution of all matters in dispute. The courts have also allowed interested parties to intervene in ongoing proceedings in which they have not been joined to allow them to make submissions. The relevant test for intervention is set out in Order 15 rule 6 of the Rules. This test was recently explored and confirmed in detail by the Chief Justice in Tatung Company v Chung- wha Picture Tubes Limited [2023] SC (Bda) Civ. 21 in which Carey Olsen appeared successfully for the intervening parties. 4.5 Applications for Security for Defendant’s Costs A defendant who can demonstrate that the plaintiff (i) is ordinarily resident outside of Ber- muda, or is a nominal person suing for the ben- efit of a third party; and (ii) may be unable to meet an order to pay the costs of the defendant if ordered to do so will be in a position to make an application for security for its costs. The court
can also be asked to make a security for costs order if it is apparent that the defendant has changed location or is otherwise taking steps to avoid the consequences of an adverse costs order. The amount of costs required to be paid as security is normally limited to the additional costs a defendant would incur if it was required to enforce an unsatisfied costs order in the event such an enforcement action was required to be taken. Such applications usually require the applicant to adduce expert evidence of foreign law and procedure to justify the costs claimed. Appeals to the Court of Appeal automatically require the provision of security for costs unless the applicant can establish that they are impe- cunious. The amount of security is based on an estimate of the costs of the respondent in the appeal. Security for costs is usually met by the attor- ney for the party subject to the order giving an undertaking that funds paid into their client account will be held until after the satisfaction of the order. 4.6 Costs of Interim Applications/ Motions Costs orders are at the discretion of the court. Bermuda operates a “loser pays” system, and costs are generally awarded and assessed at the conclusion of the trial of a matter. For this reason, save in exceptional circumstances, interim orders dealing with case management applications to move the matter toward trial will be accompanied by an order for “costs in the cause”, meaning the issue of the costs of that interim application will be dealt with as part of the general costs assessment at the end of the trial.
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