BERMUDA Law and Practice Contributed by: Michael Hanson, Keith Robinson, Sam Stevens and Kyle Masters, Carey Olsen Bermuda Limited
The Supreme Court can also make orders grant- ing statutory relief pursuant to actions taken under specific statutes. For example, an appli- cation for judicial review can result in an order quashing an unlawful decision made by a public authority. 9.2 Rules Regarding Damages Damages are awarded to compensate a party for its loss. This means that the court will make an order for the payment of the amount of damages required to put the party into the same position it would have been in had the breach not occurred, or in the case of a tort, had the wrongful act (or omission) not taken place. There is no limit on the amount of damages that may be awarded, although parties are entitled to enter into con- tracts, the terms of which may limit the amount of damages. Punitive damages are available under Bermuda law in rare cases. Compensatory damages must be deemed an inadequate remedy and where a defendant’s actions can be interpreted as being wilful, wanton, reckless or malicious. 9.3 Pre-judgment and Post-judgment Interest A Bermuda court will award both pre- and post- judgment interest. Pre-judgment interest is normally awarded on a simple basis and is calculated by reference to the date the cause of action arose (as the starting point) and the date of judgment (as the ending point). Parties to litigation in Bermuda may be awarded post-judgment interest at the rate of 3.5% per annum under the Interest and Credit Charges (Regulation) Act 1975. Such interest can be awarded at the discretion of the court, on a sim-
ple or compound basis, and it normally accrues from the date of judgment until payment of the judgment sum. 9.4 Enforcement Mechanisms of a Domestic Judgment Writ of Fieri Facias There are various ways in which a domestic judg- ment can be enforced provided the judgment is for a sum of money payable on a certain date. One method is by way of a writ of fieri facias, which is a direction to the court-appointed bailiff to seize the property of the judgment debtor in execution of the judgment to satisfy the sum of the judgment debt, together with interest and the costs of execution. This will include the bail- iff’s fees and costs. The Rules expressly pro- vide that all writs of execution, including a writ of fieri facias, are enforceable as against choses in action. Charge Over Property A money judgment entered against a party in the Supreme Court may be entered as a charge over that party’s real property. An application for the appointment of a receiver over that property can be made. Provided the court is satisfied that it is reasonable to make such an appointment, taking into account the amount of the judgment debt owed and the costs of appointing the receiver, upon such an order all debts due to the judg- ment debtor would be paid to the receiver. Sequestration of Property There is also the option of sequestration of the property of a non-compliant judgment debtor on the basis that failure to comply with a judg- ment is a contempt of court. Where the judg- ment debtor is a body corporate, an order can be made against a director.
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