BR 55/2005

SUPREME COURT ACT 1905

1905 : 4

THE RULES OF THE SUPREME COURT AMENDMENT RULES 2005

The Chief Justice, in exercise of the powers conferred upon him by section 62 of the Supreme Court Act 1905 and section 14 of the Administration of Justice (Prerogative Writs) Act 1978, makes the following Rules:

Citation and Commencement

1 These Rules may be cited as the Rules of the Supreme Court Amendment Rules 2005, and shall come into operation on the 1 January 2006.

Amendment of Order 1, rule 2

2 The Table in paragraph (2) of rule 2 of Order 1 of the Rules of the Supreme Court 1985 is amended by deleting item 13.

Inserts new Order 1A

3 After Order 1 of the Rules of the Supreme Court 1985 there shall be inserted:

"ORDER 1A

THE OVERRIDING OBJECTIVE

1A/1 The Overriding Objective

1 (1) These Rules shall have the overriding objective of enabling the court to deal with cases justly.

(2) Dealing with a case justly includes, so far as is practicable —

(a) ensuring that the parties are on an equal footing;

(b) saving expense;

(c) dealing with the case in ways which are proportionate —

(i) to the amount of money involved;

(ii) to the importance of the case;

(iii) to the complexity of the issues; and

(iv) to the financial position of each party;

(d) ensuring that it is dealt with expeditiously and fairly; and

(e) allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases.

1A/2 Application by the Court of the Overriding Objective

2 The court must seek to give effect to the overriding objective when it —

(a) exercises any power given to it by the Rules; or

(b) interprets any rule.

1A/3 Duty of the Parties

3 The parties are required to help the court to further the overriding objective.

1A/4 Court’s Duty to Manage Cases

4 (1) The court must further the overriding objective by actively managing cases.

(2) Active case management includes —

(a) encouraging the parties to co-operate with each other in the conduct of the proceedings;

(b) identifying the issues at an early stage;

(c) deciding promptly which issues need full investigation and trial and accordingly disposing summarily of the others;

(d) deciding the order in which issues are to be resolved;

(e) encouraging the parties to use an alternative dispute resolution procedure if the court considers that appropriate and facilitating the use of such procedure;

(f) helping the parties to settle the whole or part of the case;

(g) fixing timetables or otherwise controlling the progress of the case;

(h) considering whether the likely benefits of taking a particular step justify the cost of taking it;

(i) dealing with as many aspects of the case as it can on the same occasion;

(j) dealing with the case without the parties needing to attend at court;

(k) making use of technology; and

(l) giving directions to ensure that the trial of a case proceeds quickly and efficiently.”.

Substitution of Order 11

4 The Rules of the Supreme Court 1985 are amended by substituting the following for Order 11 —

“ORDER 11

SERVICE OF PROCESS, ETC., OUT OF THE JURISDICTION

11/1 Principal cases in which service of writ out of jurisdiction is permissible

1 (1) Provided that the writ does not contain any claim to which Order 75, r. 4 applies, and is not a writ to which paragraph (2) of this rule applies, service of a writ out of the jurisdiction is permissible with the leave of the Court if in the action begun by the writ —

(a) relief is sought against a person domiciled or ordinarily resident within the jurisdiction;

(b) an injunction is sought ordering the defendant to do or refrain from doing anything within the jurisdiction (whether or not damages are also claimed in respect of a failure to do or the doing of that thing);

(c) the claim is brought against a person duly served within or out of the jurisdiction and a person out of the jurisdiction is a necessary or proper party thereto;

(d) the claim is brought to enforce, rescind, dissolve, annul or otherwise affect a contract, or to recover damages or obtain other relief in respect of the breach of a contract, being (in either case) a contract which —

(i) was made within the jurisdiction, or

(ii) was made by or through an agent trading or residing within the jurisdiction on behalf of a principal trading or residing out of the jurisdiction, or

(iii) is by its terms, or by implication, governed by the law of Bermuda, or

(iv) contains a term to the effect that the Court shall have jurisdiction to hear and determine any action in respect of the contract;

(e) the claim is brought in respect of a breach committed within the jurisdiction of a contract made within or out of the jurisdiction, and irrespective of the fact, if such be the case, that the breach was preceded or accompanied by a breach committed out of the jurisdiction that rendered impossible the performance of so much of the contract as ought to have been performed within the jurisdiction;

(f) the claim is founded on a tort and the damage was sustained, or resulted from an act committed, within the jurisdiction;

(g) the whole subject-matter of the claim relates to property located within the jurisdiction;

(h) the claim is brought to construe, rectify, set aside or enforce an act, deed, will, contract, obligation or liability affecting land situate within the jurisdiction;

(i) the claim is made for a debt secured on immovable property or is made to assert, declare or determine proprietary or possessory rights, or rights of security, in or over moveable property, or to obtain authority to dispose of moveable property, situate within the jurisdiction;

(j) the claim is brought to execute the trusts of a written instrument being trusts that ought to be executed according to the law of Bermuda and of which the person to be served with the writ is a trustee, or for any relief or remedy which might be obtained in any such action;

(k) the claim is made for the administration of the estate of a person who died domiciled within the jurisdiction or for any relief or remedy which might be obtained in any such action;

(l) the claim is brought in a probate action within the meaning of Order 76;

(m) the claim is brought to enforce any judgment or arbitral award;

(n) the claim is brought for a declaration that no contract exists where, if the contract was found to exist, it would comply with the conditions set out in paragraph (1) (d) of this rule;

(o) and (p) [blank]

(q) the claim is made under the Drug Trafficking Suppression Act 1988;

(r) [blank]

(s) the claim is made under the Proceeds of Crime Act 1997;

(t) the claim is brought for money had and received or for an account or other relief against the defendant as constructive trustee, and the defendant's alleged liability arises out of acts committed, whether by him or otherwise, within the jurisdiction;

(u) the claim is brought under any one or more of the following United Kingdom Acts as applied to Bermuda, that is to say —

(i) the Carriage by Air Act 1961,

(ii) the Carriage by Air (Supplementary Provisions) Act 1962,

(iii) the Merchant Shipping (Oil Pollution) Act 1971.

(2) Service of a writ out of the jurisdiction on a defendant is permissible without the leave of the Court provided that each claim against that defendant made by the writ is a claim which by virtue of any enactment the Court has power to hear and determine notwithstanding that the person against whom the claim is made is not within the jurisdiction of the Court or that the wrongful act, neglect or default giving rise to the claim did not take place within its jurisdiction.

(3) Where a writ is to be served out of the jurisdiction under paragraph (2), the time to be inserted in the writ within which the defendant served therewith must enter an appearance shall be limited in accordance with the practice adopted under rule 4(4).

11/2 and 11/3 [blank]

11/4 Application for, and grant of, leave to serve writ out of jurisdiction.

4 (1) An application for the grant of leave under rule 1(1) must be supported by an affidavit stating —

(a) the grounds on which the application is made,

(b) that in the deponent's belief the plaintiff has a good cause of action,

(c) in what place or country the defendant is, or probably may be found, and

(d) where the application is made under rule 1(1)(c), the grounds for the deponent's belief that there is between the plaintiff and the person on whom a writ has been served a real issue which the plaintiff may reasonably ask the Court to try.

(2) No such leave shall be granted unless it shall be made sufficiently to appear to the Court that the case is a proper one for service out of the jurisdiction under this Order.

(3) [blank]

(4) An order granting under rule 1 leave to serve a writ out of the jurisdiction must limit a time within which the defendant to be served must enter an appearance.

11/5 Service of writ abroad: general

5 (1) Subject to the following provisions of this rule, Order 10 rule 1(1), (2), and (3) and Order 65, rule 4, shall apply in relation to the service of a writ, notwithstanding that the writ is to be served out of the jurisdiction.

(2) Nothing in this rule or in any order or direction of the Court made by virtue of it shall authorise or require the doing of anything in a country in which service is to be effected which is contrary to the law of that country.

(3) A writ which is to be served out of the jurisdiction —

(a) need not be served personally on the person required to be served so long as it is served on him in accordance with the law of the country in which service is effected; and

(b) need not be served by the plaintiff or his agent if it is served by a method provided for by rule 6 or rule 7.

(4) [blank]

(5) An official certificate stating that a writ as regards which rule 6 has been complied with has been served on a person personally, or in accordance with the law of the country in which service was effected, on a specified date, being a certificate —

(a) by a British consular authority in that country; or

(b) by the government or judicial authorities of that country; or

(c) by any other authority designated in respect of that country under the Hague Convention,

shall be evidence of the facts so stated.

(6) An official certificate by the Deputy Governor stating that a writ has been duly served on a specified date in accordance with a request made under rule 7 shall be evidence of

(7) A document purporting to be a certificate as is mentioned in paragraph (5) or (6) shall, until the contrary is proved, be deemed to be such a certificate.

(8) In this rule and rule 6 "the Hague Convention" means the Convention on the service abroad of judicial and extra-judicial documents in civil or commercial matters signed at the Hague on November 15, 1965.

11/6 Service of writ abroad through foreign governments, judicial authorities and British Consuls

6 (1) Save where a writ is to be served pursuant to paragraph (2A) this rule does not apply to service in any Commonwealth country, any colony, protectorate or protected state of the United Kingdom, or any trust territory administered by the Government of any Commonwealth country.

(2) Where in accordance with these Rules a writ is to be served on a defendant in any country with respect to which there subsists a Civil Procedure Convention other than the Hague Convention providing for service in that country of process of the Court, the writ may be served —

(a) through the judicial authorities of that country; or

(b) through a British consular authority in that country (subject to any provision of the convention as to the nationality of persons who may be so served).

(2A) Where in accordance with these Rules, a writ is to be served on a defendant in any country which is a party to the Hague Convention, the writ may be served —

(a) through the authority designated under the Convention in respect of that country; or

(b) if the law of that country permits —

(i) through the judicial authorities of that country, or

(ii) through a British consular authority in that country.

(3) Where in accordance with these Rules a writ is to be served on a defendant in any country with respect to which there does not subsist a Civil Procedure Convention providing for service in that country of process of the Court, the writ may be served —

(a) through the government of that country, where that government is willing to effect service; or

(b) through a British consular authority in that country, except where service through such an authority is contrary to the law of that country.

(4) A person who wishes to serve a writ by a method specified in paragraph (2), (2A) or 3 must lodge in the Registry a request for service of the writ by that method, together with a copy of the writ and an additional copy thereof for each person to be served.

(5) Every copy of a writ lodged under paragraph (4) must be accompanied by a translation of the writ in the official language of the country in which service is to be effected, or, if there is more than one official language of that country, in any one of those languages which is appropriate to the place in that country where service is to be effected:

Provided that this paragraph shall not apply in relation to a copy of a writ which is to be served in a country the official language of which is, or the official languages of which include, English, or is to served in any country by a British consular authority on a British subject, unless the service is to be effected under paragraph (2) and the Civil Procedure Convention with respect to that country expressly requires the copy to be accompanied by a translation.

(6) Every translation lodged under paragraph (5) must be certified by the person making it to be a correct translation; and the certificate must contain a statement of that person's full name, of his address and of his qualifications for making the translation.

(7) Documents duly lodged under paragraph (4) shall be sent by the Registrar to the Deputy Governor with a request that he arrange for the writ to be served by the method indicated in the request lodged under paragraph (4) or, where alternative methods are indicated, by such one of those methods as is most convenient.

11/7 Service of writ in certain actions under certain Acts

7 (1) Where a person to whom leave has been granted under rule 1 to serve a writ on a High Contracting Party to the convention set out in Schedule 1 to the Carriage by Air Act 1961 or the Schedule to the Carriage by Air (Supplementary Provisions) Act 1962, being a writ beginning an action to enforce a claim in respect of carriage undertaken by that Party, wishes to have the writ served on that Party, he must lodge with the Registrar —

(a) a request for service to be arranged by the Deputy Governor; and

(b) a copy of the writ; and

(c) except where the official language of the High Contracting Party is, or the official languages of that Party include English, a translation of the writ in the official language or one of the official languages of the High Contracting Party.

(2) Rule 6(6) shall apply in relation to a translation lodged under paragraph (1) of this rule as it applies in relation to a translation lodged under paragraph (5) of that rule.

(3) Documents duly lodged under this rule shall be sent by the Registrar to the Deputy Governor with a request that the Deputy Governor arrange for the writ to be served on the High Contracting Party or the government in question, as the case may be.

11/8 Undertaking to pay expenses of service by Deputy Governor

8 Every request lodged under rule 6(4) or rule 7 must contain an undertaking by the person making the request to be responsible personally for all expenses incurred by the Deputy Governor in respect of the service requested and, on receiving due notification of the amount of those expenses, to pay that amount to the Accountant General and to produce a receipt for the payment to the Registrar.

11/9 Service of originating summons, petition, notice of motion, etc.

9 (1) Rule 1 of this Order shall apply to the service out of the jurisdiction of an originating summons, notice of motion or petition as it applies to service of a writ.

(2) and (3) [blank]

(4) Service out of the jurisdiction of any summons, notice or order issued, given or made in any proceedings is permissible with the leave of the Court but leave shall not be required for such service in any proceedings in which the writ, originating summons, motion or petition may by these rules or under any enactment be served out of the jurisdiction without leave.

(5) Rule 4(1) and (2) shall, so far as applicable, apply in relation to an application for the grant of leave under this rule as they apply in relation to an application for the grant of leave under rule 1.

(6) An order granting under this rule leave to serve out of the jurisdiction an originating summons must limit a time within which the defendant to be served with the summons must enter an appearance.

(7) Rules 5, 6 and 8 shall apply in relation to any document for the service of which out of the jurisdiction leave has been granted under this rule as they apply in relation to a writ.”.

Inserts new rule 14 into Order 22

5 After rule 13 of Order 22 of the Rules of the Supreme Court 1985 there shall be inserted —

“22/14 Written offers “without prejudice save as to costs”

14 (1) A party to proceedings may at any time make a written offer to any other party to those proceedings which is expressed to be “without prejudice save as to costs” and which relates to any issue in the proceedings.

(2) Where an offer is made under paragraph (1), the fact that such an offer has been made shall not be communicated to the Court until the question of costs falls to be decided.”.

Inserts new paragraph (2) into Order 25, rule 3

6 Rule 3 of Order 25 of the Rules of the Supreme Court 1985 is amended by renumbering the existing paragraph (1), and adding the following new paragraph (2) —

“(2) On the hearing of the summons for directions, the Court shall decide whether the bundle to be provided under Order 34, rule 10 is to include the documents mentioned in paragraph 2 (c) of that rule and direct the parties accordingly.”.

Amendment of Order 33

7 (1) Rule 4 of Order 33 of the Rules of the Supreme Court 1985 is amended by inserting the following new paragraph immediately after the existing paragraph (2) –

“(2A) In an action for personal injuries, the Court may at any stage of the proceedings and of its own motion make an order for the issue of liability to be tried before any issue or question concerning the amount of damages to be awarded and –

(a) notwithstanding the provisions of Order 42, rule 5(5), an order so made in the absence of the parties shall be drawn up by an officer of the Court who shall serve a copy of the order on every party; and

(b) where a party applies within fourteen days after service of the order upon him, the Court may confirm or vary the order or set it aside.”.

(2) Order 33 of the Rules of the Supreme Court 1985 is amended by inserting the following new rule immediately after the existing rule 4 _

“33/4 A Split trial: offer on liability

4A (1) This rule applies where an order is made under rule 4(2A) for the issue of liability to be tried before any issue or question concerning the amount of damages to be awarded if liability is established.

(2) After the making of an order to which paragraph (1) applies, any party against whom a finding of liability is sought may (without prejudice to his defence) make a written offer to the other party to accept liability up to a specified proportion.

(3) Any offer made under the preceding paragraph may be brought to the attention of the Judge after the issue of liability has been decided, but not before.”.

Inserts new rule 10 into Order 34

8 Order 34 of the Rules of the Supreme Court 1985 is amended by adding the following new rule after the existing rule 9 _

“34/10 The Court bundle

10 (1) At least fourteen days before the date fixed for the trial or, in the case of an action entered in any running list, within three weeks of the defendant’s receiving notice of such entry, the defendant shall identify to the plaintiff those documents central to his case which he wishes included in the bundle to be provided under paragraph (2).

(2) At least two clear days before the date fixed for the trial the plaintiff shall lodge two bundles consisting of one copy of each of the following documents _

(a) witness statements which have been exchanged, and experts’ reports which have been disclosed, together with an indication of whether the contents of such documents are agreed;

(b) those documents which the defendant wishes to have included in the bundle and those central to the plaintiff’s case, and

(c) where a direction has been given under Order 25, rule 3(2), a note agreed by the parties or, failing agreement, a note by each party giving (in the following order) _

(i) a summary of the issues involved,

(ii) a summary of any propositions of law to be advanced together with a list of the authorities to be cited, and

(iii) a chronology of relevant events.

(3) Nothing in this rule shall prevent the Court from giving, whether before or after the documents have been lodged, such further or different directions as to the documents to be lodged as may, in the circumstance, be appropriate.

(4) Where an action is to be tried with the assistance of assessors, additional copies of the bundle to be lodged under paragraph (2) shall be provided for the use of the assessors.

(5) For the purposes of this rule, “plaintiff” includes a defendant where an action is proceeding on a counterclaim and “defendant” includes any other party who is entitled under any order of the Court or otherwise to be heard at the trial.”.

Inserts new rule 2A into Order 38

9 After rule 2 of Order 38 of the Rules of the Supreme Court 1985 there shall be inserted —

“38/2A Exchange of Witness Statements (O.38, r 2A)

2A (1) The powers of the Court under this rule shall be exercised for the purpose of disposing fairly and expeditiously of the cause or matter before it, and saving costs, having regard to all the circumstances of the case, including (but not limited to) –

(a) the extent to which the facts are in dispute or have been admitted;

(b) the extent to which the issues of fact are defined by the pleadings;

(c) the extent to which information has been or is likely to be provided by further and better particulars, answers to interrogatories or otherwise.

(2) At the summons for directions in an action commenced by writ the Court shall direct every party to serve on the other parties, within 14 weeks (or such other period as the Court may specify) of the hearing of the summons and on such terms as the Court may specify, written statements of the oral evidence which the party intends to adduce on any issues of fact to be decided at the trial.

The Court may give a direction to any party under this paragraph at any other stage of such an action and at any stage of any other cause or matter.

Order 3, rule 5 (3) shall not apply to any period specified by the court under this paragraph.

(3) Directions under paragraph (2) or (17) may make different provision with regard to different issues of fact or different witnesses.

(4) Statements served under this rule shall —

(a) be dated and, except for good reason (which should be specified by letter accompanying the statement), be signed by the intended witness and shall include a statement by him that the contents are true to the best of his knowledge and belief;

(b) sufficiently identify any documents referred to therein; and

(c) where they are to be served by more than one party, be exchanged simultaneously.

(5) Where a party is unable to obtain a written statement from an intended witness in accordance with paragraph (4) (a), the Court may direct the party wishing to adduce that witness’s evidence to provide the other party with the name of the witness and (unless the Court otherwise orders) a statement of the nature of the evidence intended to be adduced.

(6) Subject to paragraph (9), where the party serving a statement under this rule does not call the witness to whose evidence it relates, no other party may put the statement in evidence at the trial.

(7) Subject to paragraph (9), where the party serving the statement does call such a witness at the trial —

(a) except where the trial is with a jury, the Court may, on such terms as it thinks fit, direct that the statement served, or part of it, shall stand as the evidence in chief of the witness or part of such evidence;

(b) the party may not without the consent of the other parties or the leave of the Court adduce evidence from that witness the substance of which is not included in the statement served, except —

(i) where the Court’s directions under paragraph (2) or (17) specify that statements should be exchanged in relation to only some issues of fact, in relation to any other issues;

(ii) in relation to new matters which have arisen since the statement was served on the other party;

(c) whether or not the statement or any part of it is referred to during the evidence in chief of the witness, any party may put the statement or any part of it in cross-examination of that witness.

(8) Nothing in this rule shall make admissible evidence which is otherwise inadmissible.

(9) Where any statement served is one to which Parts IIA and IIB of the Evidence Act 1905 apply, paragraphs (6) and (7) shall take effect subject to the provisions of those Parts of that Act and Parts III and IV of this Order.

The service of a witness statement under this rule shall not, unless expressly so stated by the party serving the same, be treated as a notice under the said Act of 1905; and where a statement or any part thereof would be admissible in evidence by virtue only of the said Act of 1905 the appropriate notice under Part III or Part IV of this Order shall be served with the statement notwithstanding any provision of those Parts as to the time for serving such a notice. Where such a notice is served a counter-notice shall be deemed to have been served under Order 38, rule 26 (1).

(10) Where a party fails to comply with a direction for the exchange of witness statements he shall not be entitled to adduce evidence to which the direction related without the leave of the Court.

(11) Where a party serves a witness statement under this rule, no other person may make use of that statement for any purpose other than the purpose of the proceedings in which it was served —

(a) unless and to the extent that the party serving it gives his consent in writing or the Court gives leave; or

(b) unless and to the extent that it has been put in evidence (whether pursuant to a direction under paragraph (7) (a) or otherwise).

(12) Subject to paragraph (13), the judge shall, if any person so requests during the course of the trial, direct the associate to certify as open to inspection any witness statement which was ordered to stand as evidence in chief under paragraph (7) (a).

A request under this paragraph may be made orally or in writing.

(13) The judge may refuse to give a direction under paragraph (12) in relation to a witness statement, or may exclude from such a direction any words or passages in a statement, if he considers that inspection should not be available —

(a) in the interests of justice or national security,

(b) because of the nature of any expert medical evidence in the statement, or

(c) for any other sufficient reason.

(14) Where the associate is directed under paragraph (12) to certify a witness statement as open to inspection he shall —

(a) prepare a certificate which shall be attached to a copy (“the certified copy”) of that witness statement; and

(b) make the certified copy available for inspection.

(15) Subject to any conditions which the Court may by special or general direction impose, any person may inspect and (subject to payment of the prescribed fee) take a copy of the certified copy of a witness statement from the time when the certificate is given until the end of seven days after the conclusion of the trial.

(16) In this rule —

(a) any reference in paragraphs (12) to (15) to a witness statement shall in relation to a witness statement of which only part has been ordered to stand as evidence in chief under paragraph (7) (a), be construed as a reference to that part;

(b) any reference to inspecting or copying the certified copy of a witness statement shall be construed as including a reference to inspecting or copying a copy of that certified copy.

(17) The Court shall have power to vary or override any of the provisions of this rule (except paragraphs (1), (8) and (12) to (16) and to give such alternative directions as it thinks fit.”.