BERMUDA Law and Practice Contributed by: Michael Hanson, Keith Robinson, Sam Stevens and Kyle Masters, Carey Olsen Bermuda Limited
6.3 Availability of Injunctive Relief on an Ex Parte Basis Ex parte applications for injunctive relief are possible. They should only be made where there is real basis for believing that notifying the respondent would undermine the effectiveness of the relief sought. Otherwise, notice of an ex parte application for an injunction should be given to the defendant. It is important to be aware that an applicant in an ex parte application, whether on notice or not, is obliged to provide the court with full and frank disclosure and to provide the respondent with a note of the hearing as soon as practica- ble after the order is granted. Full and frank dis- closure includes a requirement that points that would have been made against the applicant are brought to the court’s attention, as well as any information that is adverse to the application. Failure to make full and frank disclosure can be a ground upon which an injunction can be dis- charged, and an award of costs made against the applicant or their attorneys, or both. 6.4 Liability for Damages for the Applicant An applicant for injunctive relief can be held lia- ble for damages suffered by the respondent or a third party if the injunction is discharged at a lat- er date on the grounds that it ought not to have been granted in the first instance. In respect of freezing orders, for example, the court will usu- ally require that the party to whose benefit the order is granted provides an undertaking to meet any such damages incurred if the injunction is later discharged. Although the court retains a discretion to require the payment of security in respect of any such damages (“fortification of an undertaking”), in the ordinary course an under- taking as to damages will be sufficient.
disclosure. The failure to give full and frank dis- closure can itself be a basis for discharging the injunction in due course. The Bermuda courts can order: • freezing injunctions and worldwide freezing orders (Mareva injunctions) preventing the movement or dissipation of assets; • prohibitory injunctions requiring a party to refrain from doing something (including anti- suit injunctions); and • mandatory injunctions requiring a party to do a thing. Orders can also be made requiring that a party provide information or allowing for a property to be searched. 6.2 Arrangements for Obtaining Urgent Injunctive Relief Within hours, appointments for the hearing of an application for urgent injunctive relief can be made by contacting the Supreme Court Regis- try and informing the staff of the urgency while seeking an appointment. The papers in support of the application, including any summons and affidavit, can be transmitted to the court elec- tronically in advance of the hearing or, in cases of extreme urgency, the papers can be passed to the court at the hearing. Out-of-hours hearings for injunctive relief are possible and are usually conducted by telephone. In both instances, a draft of the order being sought is sent directly to the judge hearing the application so that, upon making any orders, it can be immediately signed and served where necessary.
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