BERMUDA Law and Practice Contributed by: Michael Hanson, Keith Robinson, Sam Stevens and Kyle Masters, Carey Olsen Bermuda Limited
Interim applications that are meant to be dis- positive of a matter, or are otherwise of mate- rial import to the action, usually attract an order for costs at the end of that application. A con- tested application concerning document disclo- sure, for example, which involves the exchange of evidence and a hearing before the court of a reasonable length could result in an order that the costs of the successful party be paid by the unsuccessful party. Such costs are not usually assessed or payable, however, until the end of the substantive proceedings. Orders that costs shall be paid “forthwith” (ie, immediately) are rare and only generally ordered where there is evidence of procedural impropriety on the part of a party. 4.7 Application/Motion Timeframe The timing for the hearing of an ordinary applica- tion can vary depending on the complexity and nature of the matter. Generally speaking, appli- cations are issued out of the Supreme Court Registry within ten days of filing unless there are exceptional circumstances. Applications on an urgent basis are possible. The Bermuda courts are generally responsive to such applications. There have been instances of urgent injunctions being granted by way of telephone hearing, for example. Provided there is good reason for the application to be heard on an urgent basis, provision will be made for the same.
mutually exchange a list of all documents relat- ing to matters in question in the action within 14 days of the date of the close of pleadings in the matter, though in practice this deadline is usually extended by consent. Although the Rules call for inspection of the documents in the list after the lists have been exchanged, generally speaking the modern approach is for each party to provide copies of the documents at the same time as exchanging lists. A party can ask the court to order the disclos- ing party to make an affidavit verifying that the list of documents complies with that party’s obligations under the Rules. The nature of the discovery is that a party is required to disclose the documents on which it relies for its case, as well as all documents that adversely affect its case. The parties are expected to be diligent in producing all documents that are or have been in their custody, possession or power and are relevant to the action, and they must conduct a reasonable search for such documents. Discov- ery includes not only documents such as emails, minutes, memos and letters, but also telephone recordings, photographs and anything else that is in a recordable form. Parties can limit the scope of discovery by agreement. 5.2 Discovery and Third Parties It is possible in certain circumstances to obtain discovery from third parties not named as a plaintiff or a defendant in the proceedings if the documents sought are likely to support one par- ty’s case or damage the case of their adversary. An application can be made for the issuance of a subpoena requiring the third party to produce
5. Discovery 5.1 Discovery and Civil Cases
Discovery is a fundamental part of the litigation process in Bermuda. Discovery is automatic in actions begun by writ. It is administered by the parties to the action. The parties are required to
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