BERMUDA Law and Practice Contributed by: Michael Hanson, Keith Robinson, Sam Stevens and Kyle Masters, Carey Olsen Bermuda Limited
11. Costs 11.1 Responsibility for Paying the Costs of Litigation Bermuda operates a loser pays system where, in the ordinary course, the costs incurred in the trial of a matter are ordered to be paid by the loser, save in exceptional circumstances. All costs reasonably incurred can be claimed by the party to whose benefit a costs order is made. If costs are not agreed between the parties, the Registrar of the Supreme Court is empowered to determine the amount of costs a party is entitled to be paid by way of a taxation hearing, which can be applied for by either party to an action. As a rule of thumb, a party who is the beneficiary of a costs order can expect to recover about 60-75% of its legal and expert costs, plus court fees and expenses incurred if they are taxed on a standard basis. In circumstances where the behaviour of the losing party has been outside of the norm, or the facts of the claim itself are such that the court considers them to be outside of the norm, an order for indemnity costs can be made, in which case the percentage of costs awarded to a successful party on taxation can increase to 80–100% of the costs claimed. As mentioned above, the primary mechanism for challenging the reasonableness of the other party’s costs bill is by the taxation hearing before the Registrar of the Supreme Court. An appli- cation for an award of costs must be made by the filing of a bill of costs with the Registry not less than six months after the conclusion of any matter.
The appellate court can also consider whether there have been procedural errors as a basis of an appeal. A party will usually only be entitled to raise new evidence if they can establish that such evi- dence was not available at the time of the trial, or could not have been obtained with reasonable diligence, and that it would have had a material impact on the outcome of the case. The appellate court can allow new arguments on the law at its discretion. 10.5 Court-Imposed Conditions on Granting an Appeal The court can impose conditions on the grant- ing of an appeal. In addition to the payment of security for costs, which is the usual condition, the court can also require the payment of money due and owing to a party or that such money be paid into court. 10.6 Powers of the Appellate Court After an Appeal Hearing An appellate court can confirm, set aside, or vary the judgment of a lower court. If an appellate court finds that a matter was wrongly decided as a result of matters not raised or determined before the trial judge, or which were determined in such a way that the appellate court does not feel it is appropriate – or that it is unable – to substitute its own judgment for that of the trial judge, the appellate court can also refer the mat- ter back to the trial court for decision. The appellate court also has the power to make orders as to costs in respect of the appeal and at the trial court level, superseding orders made as to costs at the courts below.
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