BERMUDA Law and Practice Contributed by: Michael Hanson, Keith Robinson, Sam Stevens and Kyle Masters, Carey Olsen Bermuda Limited
to trial in under a year if there are no large or complex interlocutory applications and the court calendar permits. The ordinary scenario, howev- er, is that the trial of a writ action can take longer than a year from inception to final judgment.
an ordinary contract. For additional privacy, the parties to a settlement agreement may consid- er inserting a clause requiring that any dispute arising out of, or connected with, the settlement agreement be referred to arbitration. 8.4 Setting Aside Settlement Agreements A settlement agreement can be set aside on the same terms as any other contract. 9. Damages and Judgment 9.1 Awards Available to the Successful Litigant The courts can award a successful litigant mon- etary damages for losses suffered as a result of the actions of the defendant. These are awarded on a compensatory basis and can be calcu- lated by reference to money due and owing to the plaintiff or the amount of money required to place the plaintiff in the position they would have been in had the breach not occurred. For per- sonal injury, the court will refer to guidelines for general damages, which will allow the parties to calculate the amount to compensate an injured plaintiff by reference to the injuries suffered. Generally speaking, the full range of equitable remedies available in English common law are also available to a successful litigant in Bermu- da. These include: • delivery up – an order requiring a party to hand over specific items to the plaintiff; • specific performance – an order requiring one party to perform its contractual obligations to the other; and • declaratory relief – a statement by the court as to the law or facts applicable to the parties (or generally).
8. Settlement 8.1 Court Approval
Parties are always able to settle an action with- out court permission. Commercial settlements are of course a feature of Bermuda litigation and can be effected in ways that suit both parties. A plaintiff in an action begun by a writ may, with- out the leave of the court, discontinue the action or withdraw any particular claim not later than 14 days after service of the defence. However, if a party wishes to discontinue an action, claim or counterclaim at a later stage (ie, after 14 days have passed) the leave of the court is required. The general rule is that a party that discontinues a claim after a defence has been filed must pay Parties who wish to have the terms of their set - tlement of an action remain confidential may wish to obtain a Tomlin order, which is an order that simply refers to the fact that the proceed- ings have been withdrawn or settled in accord- ance with the terms of an agreement which is held by the parties, thereby keeping the precise terms out of the court record. 8.3 Enforcement of Settlement Agreements The terms of a settlement agreement will dictate how it will be enforced. A breach of an agree- ment to settle will be treated like a breach of the defendant’s costs of the action. 8.2 Settlement of Lawsuits and Confidentiality
134 CHAMBERS.COM
Powered by FlippingBook