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This article first appeared in the 8th Edition of the Legal 500: Litigation Comparative Guide. The aim of this guide is to provide its readers with a pragmatic overview of the law and practice of litigation and dispute resolution across a variety of jurisdictions.
1. What are the main methods of resolving disputes in your jurisdiction?
Most commercial disputes in Bermuda are resolved by litigation, or else by other means of alternative dispute resolution, such as mediation or arbitration. Indeed, the vast amount of insurance written out of Bermuda has given rise to a specific type of arbitration: the “Bermuda Form” arbitration, whereby insurance policies, typically subject to New York law, provide for resolution by arbitration in Bermuda or London.
2. What are the main procedural rules governing litigation in your jurisdiction?
First instance disputes in the Supreme Court are governed by the Rules of the Supreme Court 1985 (“RSC”), which broadly mirror the pre-CPR position in England and Wales with some amendments, including the addition of the overriding objective at Order 1A.
The Court of Appeal for Bermuda also has its own procedural rules – the Rules of the Court of Appeal for Bermuda 1965 – which deal with the procedural aspects of any appeal.
In addition, the courts issue ad hoc practice directions that often deal with procedural matters, for example standard directions to trial (addressed further below).
3. What is the structure and organisation of local courts dealing with claims in your jurisdiction? What is the final court of appeal?
Bermuda has two courts with first instance jurisdiction in relation to civil matters: the Magistrates Court (for cases up to $25,000) and the Supreme Court. In reality, most (if not all) commercial matters start life in the Supreme Court, which will be the focus here. Indeed, the Supreme Court has a dedicated commercial court where cases are heard by designated commercial judges, including the Chief Justice. Following a recent fee reform, there are separate (higher) fees payable in commercial court matters.
Decisions of the Supreme Court are appealed to the Court of Appeal for Bermuda, which sits three times a year (normally in March, June and November). Thereafter, any appeal lies to the Judicial Committee of the Privy Council as Bermuda’s final court of appeal.
4. How long does it typically take from commencing proceedings to get to trial in your jurisdiction?
The time taken to get to trial in the Supreme Court very much depends on the matters in issue in the case in question. The Supreme Court is able to move swiftly when needed – for example, in order to resolve urgent injunction applications or matters that justify an expedited trial timetable – but ordinarily, it takes approximately 12-18 months to get to trial. Some cases can take far longer, however, especially if they are particularly complex and/or there are numerous contested interlocutory applications.
5. Are hearings held in public and are documents filed at court available to the public in your jurisdiction? Are there any exceptions?
Trials in the Supreme Court are generally held in public, although the Supreme Court has the power to direct that any hearing or part of a hearing (including a trial) should be held in private if the interests of justice require, for example, in relation to highly confidential proceedings or commercially sensitive information. Insolvency matters are generally heard privately in chambers, as are many interlocutory applications.
While a case is pending, documents on the court file are not generally available to the public, with the exception of the originating process and any court orders, which can be accessed by anyone at any time unless the court file has been sealed. Members of the public may also be able to access documents that are referred to in hearings in open court, although they will have to make an application in relation to the same. Once the proceedings have concluded, members of the public may make an application for access to more of the documents on the court file.
Judgments and rulings are published online.
6. What, if any, are the relevant limitation periods in your jurisdiction?
The relevant limitation periods are set out in the Limitation Act 1984. The usual limitation periods for the most common types of claim are as follows:
- Contract: 6 years
- Tort: 6 years
- Breach of trust: 6 years
- Actions on a specialty: 20 years
- Enforcement of judgments or arbitration awards: 20 years
There are some exceptions to these limitation periods. For example, fraud or concealment can effectively extend limitation, with time only starting to run when the fraud or concealment was discovered, or could with reasonable diligence have been discovered.
7. What, if any, are the pre-action conduct requirements in your jurisdiction and what, if any, are the consequences of non-compliance?
There is no pre-action protocol for commercial matters in Bermuda, nor are there any express requirements for the parties to engage with one another prior to commencing proceedings. That said, it is standard practice for the parties to exchange pre-action correspondence before a claim is filed. This is consistent with the overriding objective, which requires parties (and the court) to identify the issues at an early stage of the proceedings and to deal with cases proportionately and expeditiously.
8. How are proceedings commenced in your jurisdiction? Is service necessary and, if so, is this done by the court (or its agent) or by the parties?
Proceedings in the Supreme Court are commenced by writ, originating summons, petition or originating motion. The nature of the relief sought will generally dictate the choice of originating process.
Service is effected by the plaintiff, not the court. Unless provision is made for an alternative method, individuals in Bermuda must ordinarily be served personally and Bermudian companies must ordinarily be served at their registered office. If the defendant has an attorney in Bermuda, s/he may accept service on the defendant’s behalf.
If the defendant is outside the jurisdiction, an application must be made to the Supreme Court for leave to serve out. Such application is often accompanied by an application for substituted service, enabling the plaintiff to serve by email or recorded mail, for example. Service outside the jurisdiction will generally be permitted by any means that is not contrary to the law of the country in which service is to be effected.
9. How does the court determine whether it has jurisdiction over a claim in your jurisdiction?
Broadly speaking, the Bermuda court will have jurisdiction if the defendant could be validly served in Bermuda, and/or if the defendant has submitted, or has agreed to submit, to the jurisdiction by way of a contract or by taking unconditional steps in proceedings in Bermuda.
If the defendant cannot be served in Bermuda, the Supreme Court may nevertheless determine that it has jurisdiction based on one of the grounds listed in RSC Order 11. These include claims in tort where the damage was suffered or the tortious act occurred in Bermuda and claims to enforce contracts made in Bermuda or governed by Bermuda law.
10. How does the court determine which law governs the claims in your jurisdiction?
Bermuda’s conflict of law rules follow the English common law as it applied before the UK joined the EU.
In relation to claims based in tort, the court will consider where the tortious act was committed. If the tort was committed outside Bermuda, the court will apply the double actionability rule, meaning that the wrongful act complained of must be actionable both as a matter of Bermuda law and as a matter of the law of the place in which the act was committed.
In relation to claims based in contract, the court will give effect to any express choice of law. In the absence of any express provision, the court will consider whether any choice of law is to be implied, failing which it will seek to identify the jurisdiction with which the contract has the closest connection.
11. In what circumstances, if any, can claims be disposed of without a full trial in your jurisdiction?
In a claim for liquidated damages, the plaintiff can enter judgment in default if the defendant fails to file a defence. In a claim for unliquidated damages, the plaintiff can still enter judgment in default but damages will need to be assessed.
Subject to certain exceptions (including claims based on libel/slander or fraud), if the defendant files a defence, the plaintiff may make an application for summary judgment on the basis that the defendant has no defence to the claim, or part of the claim, or has no defence save as to the amount of any damages claimed.
The Supreme Court also has the power to strike out a pleading (whether claim or defence), both under its inherent jurisdiction and under RSC Order 18, rule 19, if it is satisfied that the pleading: discloses no cause of action or defence (as applicable); is scandalous, frivolous or vexatious; may prejudice, embarrass or delay the fair trial of the action; or is otherwise an abuse of process.
The Supreme Court can also direct the determination of a preliminary issue. It will generally do so if determination of that issue is likely to be dispositive of the entire matter.
12. What, if any, are the main types of interim remedies available in your jurisdiction?
The Supreme Court has jurisdiction to grant various interim remedies, including orders in relation to the preservation or inspection of property and interim payments. Perhaps the most commonly used interim remedy is the interim injunction. In cases of urgency, an interim injunction can even be sought, usually ex parte, before a writ or originating summons has been issued.
13. After a claim has been commenced, what written documents must (or can) the parties submit in your jurisdiction? What is the usual timetable?
The pleadings timetable in the Supreme Court is usually as follows: either a generally endorsed writ followed by a statement of claim or a specially endorsed writ (which includes the statement of claim); followed by a defence; followed by a reply. Thereafter, the parties will exchange lists of documents in relation to discovery (disclosure) and witness statements. There might also be reply witness statements and/or expert reports. In advance of trial, the parties will exchange skeleton arguments (written documents setting out their case). They may also file lists of issues, chronologies, dramatis personae, and closing submissions.
On 6 January 2025, the Chief Justice issued a practice direction in relation to the standard timetable for civil and commercial cases, although this can be (and often is) varied where the needs of the case demand it. The standard timetable after discovery is as follows:
- Parties to provide available dates for hearing within 7 days;
- Evidence to be filed and served within 14-21 days;
- Reply evidence to be filed and served within 14-21 days thereafter;
- Plaintiff to provide an agreed hearing bundle 7 days before the hearing;
- Plaintiff to file and serve a skeleton argument 7 days before the hearing;
- Defendant to file and serve a skeleton argument 3 days before the hearing.
14. What, if any, are the rules for disclosure of documents in your jurisdiction? Are there any exceptions (e.g. on grounds of privilege, confidentiality or public interest)?
Disclosure (called discovery in Bermuda) is dealt with by RSC Order 24. Broadly speaking, the parties are required to give mutual discovery of documents in their possession, custody or power that are relevant to matters in issue in the case. Relevance is determined under the old Peruvian Guano test, i.e. not just documents that support or undermine the case of one or other of the parties, but also documents that may set the other party on a ‘train of enquiry’ to such documents.
Unless the Court orders otherwise (and it frequently does), the parties are to give discovery by exchanging lists of documents 14 days after the close of pleadings. Often this will not be sufficient time for discovery in large commercial cases and the parties will want (or need) a bespoke discovery regime. In many commercial cases, the parties will devise sophisticated electronic discovery protocols. The court has the power to make such provision in respect of discovery as is appropriate in the circumstances of the case as part of its inherent case management powers.
The distinction between discovery and production is important. Discovery is telling the other side that you have a document; production is handing over a copy of the document, or otherwise making it available for inspection. A party can resist production (but not discovery) on the basis that the document in question is privileged. Bermudian law recognises both legal advice privilege and litigation privilege.
If documents are particularly sensitive, the parties may agree a bespoke confidentiality regime, which may include limiting the people to whom the documents can be shown or else directing that the documents will not be mentioned in open court, and any hearings addressing the documents will be held in private, but confidentiality is not a basis for resisting either discovery or production.
There are also limited statutory exceptions on the basis of public interest – for example, regulation 4(1) of the Public Service Commission Regulations 2001, which enables Bermuda’s Governor to certify that discovery of certain documents would not be in the public interest – but these do not often arise in practice in commercial cases.
15. How is witness evidence dealt with in your jurisdiction (and in particular, do witnesses give oral and/or written evidence and what, if any, are the rules on cross-examination)? Are depositions permitted?
Bermuda uses both affidavits and witness statements.
Affidavits (which must be formally sworn by the witness before filing) are used for applications in relation to which there is not likely to be live evidence, such that the witnesses are not likely to be cross-examined. Affidavits are used in relation to almost all interlocutory applications.
Witness statements (which are signed by the witness but not sworn) are used at trial and will stand as the witness’ evidence in chief. At trial, all witnesses who have provided witness statements must be tendered for oral cross-examination unless a valid hearsay notice has been served.
Although RSC Order 39 is headed “Evidence by deposition”, it does not envisage a deposition in the sense that the term is usually understood. What is envisaged by Order 39 is attendance for examination before a Court appointed examiner. Bermuda does not utilise US-style depositions.
16. Is expert evidence permitted in your jurisdiction? If so, how is it dealt with (and in particular, are experts appointed by the court or the parties, and what duties do they owe)?
Expert evidence is permitted in Bermuda in appropriate cases. If the parties are agreed that expert evidence is required, there is no need for an application to Court. If the parties are not agreed, the party seeking to adduce expert evidence will need to make an application for leave. Experts are generally appointed by the parties, either separately (i.e. one expert per party) or collectively (as a single joint expert), but their role is to assist the Court and their principal duty is to the Court. (There is also a lesser-used provision at RSC Order 40 for the appointment of a “court expert”.)
Ordinarily, the parties’ experts will exchange reports and will then meet to identify any areas of agreement and disagreement between them. Following this joint meeting, the experts will normally produce a joint report. Assuming there remain issues on which they disagree, the experts will also attend trial for cross-examination.
Experts in Bermuda should always be independent, even though they are appointed by the parties. The Court does not look kindly upon any expert who appears overly partisan.
17. Can final and interim decisions be appealed in your jurisdiction? If so, to which court(s) and within what timescale?
Both final and interlocutory decisions of the Supreme Court can be appealed to the Court of Appeal, although interlocutory decisions can only be appealed with leave, either from the Supreme Court or from the Court of Appeal.
A final decision can be appealed as of right within 6 weeks. A party wishing to appeal an interlocutory decision must make an application to the Supreme Court for leave within 14 days. If the Supreme Court refuses leave, that application can be renewed in the Court of Appeal within 7 days. If leave is granted, the appeal itself must be filed within 7 days thereafter.
18. What are the rules governing enforcement of foreign judgments in your jurisdiction?
The enforcement of foreign judgments in Bermuda is governed by the Judgments (Reciprocal Enforcement) Act 1958 and the common law.
A judgment by a foreign court of competent jurisdiction (i.e. a court that had jurisdiction over the defendant, either because he was present in the jurisdiction or because he otherwise submitted to the jurisdiction) may be enforced in Bermuda by an action for the amount due under the judgment provided: (a) the judgment is final and conclusive between the same parties; (b) the judgment is for a definite sum of money (and not tax, a fine or a penalty); (c) the judgment was not obtained by fraud or contrary to the principles of natural justice; and (d) enforcement would not be contrary to Bermuda’s public policy. In order to make use of this procedure, the plaintiff in Bermuda must issue a writ pleading the foreign claim and judgment, the amount of the debt, and any costs claimed. Once served, the plaintiff can then enter default judgment (if the defendant fails to file a memorandum of appearance and/or a defence) or seek summary judgment in Bermuda based on the foreign judgment.
If the foreign judgment requires the defendant to do something other than pay a particular amount of money, it will not be enforceable in Bermuda, but it may nevertheless create an issue estoppel, such that the plaintiff can commence proceedings for the same relief in Bermuda and the defendant will be estopped from denying any matter of fact or law decided in the foreign proceedings, provided that both the parties and the matters in issue are the same. In practical terms, this will usually enable the plaintiff to obtain summary judgment in Bermuda.
19. Can the costs of litigation (e.g. court costs, as well as the parties’ costs of instructing lawyers, experts and other professionals) be recovered from the other side in your jurisdiction?
The usual rule in Bermuda is that costs follow the event, i.e. the losing party pays. Most costs orders will be on the standard basis, which will generally result in a 65-75% rate of recovery, although the court may also award costs on the (higher) indemnity basis, if the paying party has behaved unreasonably in the litigation.
20. What, if any, are the collective redress (e.g. class action) mechanisms in your jurisdiction?
There is no class action regime in Bermuda.
The collective redress mechanism that is the most similar to a class action in Bermuda is a ‘representative proceeding’ under RSC Order 15, rule 12, which allows a party to bring a claim on behalf of or against a group with the same interests. To do so, the parties to be represented must consent to the representation and to the consolidation of the proceedings, and the court must grant leave.
21. What, if any, are the mechanisms for joining third parties to ongoing proceedings and/or consolidating two sets of proceedings in your jurisdiction?
A defendant can add a third party to proceedings, with leave, by issuing a third party notice under RSC Order 16 if the defendant (a) claims a contribution or indemnity from the third party, (b) claims substantially the same relief or remedy from the third party as is claimed against the defendant by the plaintiff, or (c) requires a question or issue related to the original subject-matter to be determined not only between the plaintiff and the defendant but also between either or both of them and the third party.
Two or more sets of proceedings before the Supreme Court can be consolidated if it appears to the court that they raise a common question of law or fact, or that the relief claimed arises out of the same transaction or series of transactions, or that it is desirable to consolidate the proceedings for some other reason. Any consolidation will be on such terms as the court thinks just, and may include a direction that the proceedings be tried at the same time, or one immediately after another, or that one be stayed pending determination of the other.
In addition, court may direct that two or more sets of proceedings shall be case managed and heard together, even if they are not formally consolidated.
22. Are third parties allowed to fund litigation in your jurisdiction? If so, are there any restrictions on this and can third party funders be made liable for the costs incurred by the other side?
Bermuda does not have legislation restricting or regulating the funding of litigation by third parties. The Supreme Court has previously upheld funding arrangements between litigants and professional litigation funders on the basis that such arrangements promote access to justice and support the fair hearing rights conferred by the Bermuda Constitution, such that they are to be encouraged not condemned.
Despite being generally supportive of such funding arrangements, the Supreme Court has not hesitated to make costs orders against third party funders in appropriate circumstances, including where proceedings have been brought for the benefit of the third party and/or the third party was, in practical terms, controlling the proceedings. Costs have even been ordered against the third party funder on the indemnity basis where the funder has been incorporated for the purposes of funding unmeritorious litigation and attempting to circumvent the local costs regime.
23. What has been the impact of the COVID-19 pandemic on litigation in your jurisdiction?
Although difficult at the time, the impact of the COVID-19 pandemic that remains today is largely positive, in that it ushered in the greater use of technology in the court process, including the use of Zoom hearings and remote transcription and electronic bundling services. This has perhaps been more pronounced in relation to large commercial disputes than in other areas of law, given the nature of these cases.
24. What is the main advantage and the main disadvantage of litigating international commercial disputes in your jurisdiction?
Bermuda is a well-established and sophisticated international financial centre well served by specialist lawyers and other service providers. Bermuda’s judges and attorneys have vast experience handling large, complex, high-value commercial disputes, including cases with a cross-border or multi-jurisdictional element. This local expertise is undoubtedly a major advantage to parties involved in international commercial litigation in Bermuda. In addition, Bermuda is a well-developed jurisdiction with a large and established body of case law, both from its own courts and from the UK’s superior courts (whose decisions are highly persuasive rather than binding). Bermuda’s Court of Appeal comprises experienced local judges and highly-regarded judges from England and Wales, and its Supreme Court has specialist commercial court judges. Having the UK-based Privy Council (which includes the same judges as the UK Supreme Court) as Bermuda’s final appellate court provides an added layer of reassurance to commercial parties transacting business in Bermuda. These factors combine to make Bermuda a largely sensible and predictable place in which to resolve international commercial disputes.
At present, the main disadvantage of litigating international commercial disputes in Bermuda is the court’s continued reliance on hard copy filings and payment by revenue stamps applied to those documents, although this is an area in which the current Chief Justice is actively seeking to modernise, as set out below.
25. What is the most likely growth area for commercial disputes in your jurisdiction for the next 5 years?
Bermuda has recently seen a significant uptick in the number of merger appraisal cases, whereby minority shareholders who have had their shares forcibly acquired by majority shareholders ask the court to appraise the fair value of their shares. These cases have produced a number of significant judgments from both the Supreme Court and the Court of Appeal, with two decisions of the Privy Council awaited in the near future, and we expect this trend to continue over the coming years.
As the Bermuda insurance and reinsurance market continues to mature, the frequency of arbitrated coverage and other disputes will also continue to rise.
26. What, if any, will be the impact of technology on commercial litigation in your jurisdiction in the next 5 years?
The Bermuda courts made significant advances in their use of technology during the COVID-19 pandemic, as set out above. Large commercial cases are therefore already benefiting from the availability of significant technological support, including in relation to electronic discovery, remote hearings, real time transcription, and the use of e-bundles during hearings. More broadly, the current Chief Justice is exploring the introduction of a bespoke electronic judicial case management system, which will enable parties to file documents and pay court fees electronically and will modernise the court’s case management more generally.
Bermuda