BERMUDA Law and Practice Contributed by: Michael Hanson, Keith Robinson, Sam Stevens and Kyle Masters, Carey Olsen Bermuda Limited
the required documents and, if necessary, to attend court. Norwich Pharmacal orders are also available in Bermuda, by which the court has the power to order that third parties provide documents where such documents are relevant to the pro- ceedings. A Norwich Pharmacal Order is sought by way of summons supported by affidavit on an interlocutory basis. 5.3 Discovery in This Jurisdiction The general rule is that parties to an action are required to disclose all documents relating to matters in question in the action that are or have been in their possession, custody or power. This would include any documents which, it is reasonable to suppose, contain information that may enable the party entitled to the discovery either to advance their own case or to damage that of their adversary – or any document that may fairly lead them on to a train of inquiry which may have either of these two consequences. 5.4 Alternatives to Discovery Mechanisms This is not applicable, as discovery is a funda- mental part of the litigation process in Bermuda. 5.5 Legal Privilege Documents created in the contemplation of liti- gation, or otherwise created in the context of advice between a lawyer and their client, attract legal privilege. Although they must be included in the list of documents exchanged in discovery, they are exempt from inspection as a result of such privilege. Such documents would include: • letters and other communications passing between a party and its lawyers;
• communications between the lawyer and a third party, which are created in contempla- tion of litigation or for the purpose of obtain- ing or giving advice connected to that litiga- tion; or • communications regarding the collection of evidence to be used in such litigation. In-House Counsel Legal professional privilege will extend to com- munications to and from in-house counsel acting in their capacity as a lawyer and not otherwise generally advising the business. 5.6 Rules Disallowing Disclosure of a Document A party cannot be required to disclose a docu- ment that would incriminate or expose them to proceedings that would involve a criminal pen- alty. 6. Injunctive Relief 6.1 Circumstances of Injunctive Relief The court has a broad jurisdiction to grant injunc- tive relief. Orders can be made on an interlocuto- ry basis to maintain the status quo until a party’s substantive rights can be ascertained. Orders can also be made on a substantive or final basis. An application for an injunction can be made pri- or to the commencement of proceedings, after proceedings have started or after trial. Injunc- tions can also be granted in aid of execution of a money judgment (for example, to support the work of a court-appointed receiver by way of equitable execution). Interim injunctions can be granted on an ex parte basis, but on making such an application the applying party has the burden of full and frank
130 CHAMBERS.COM
Powered by FlippingBook