62/30 Subsequent procedure

30 (1) Subject to rule 32, where a party has begun proceedings for taxation in accordance with rule 29, the Registrar shall give to that party and to any other party entitled to be heard on the taxation not less than fourteen days' notice of the day, time and place appointed for the taxation.

(2) Where a party has begun proceedings for taxation in accordance with rule 29, the Registrar shall as soon as practicable give notice to any other party whose costs are to be taxed in the proceedings of the period within which his bill of costs (together with all necessary papers and vouchers) are to be sent to the Registrar.

(3) A party whose costs are to be taxed must within seven days after beginning the proceedings for taxation or, as the case may be, receiving notice under paragraph (2) —

(a) send a copy of this bill of costs to every other party entitled to be heard on the taxation, and

(b) notify the Registrar that he has done so.

(4) Where, in beginning or purporting to begin any taxation proceedings or at any stage in the course of or in connection with those proceedings, there has been a failure to comply with the requirements of this Order, whether in respect of time or in any other respect, the failure shall be treated as an irregularity and shall not nullify the taxation proceedings or any step taken in those proceedings.

(5) The Registrar may, on the ground that there has been such a failure as is mentioned in paragraph (4), and on such terms as he thinks just, set aside either wholly or in part the taxation proceedings or exercise his powers under this Order to make such order (if any) dealing with the taxation proceedings generally as he thinks fit.

(6) Order 3, rule 6 shall not apply to taxation proceedings.

62/31 [blank]

62/32 Short and urgent taxations

32 (1) Where a party entitled to require the taxation of any costs of or arising out of proceedings to which this Order applies begins proceedings for the taxation of those costs in accordance with rule 29 then if, when he begins such proceedings, he satisfies the Registrar —

(a) that, in view of the amount of any bill of costs to be taxed, the time required for taxation is likely to be short; and

(b) that the speedy completion of the taxation is necessary in the interests of any person concerned in the taxation,

the Registrar shall enter the proceedings for taxation in a list kept for the purposes of this rule and shall forthwith give notice of the day and time appointed for the taxation to the party whose costs are to be taxed.

(2) A party whose costs are to be taxed in proceedings entered in the list referred to in paragraph (1) must not less than four days before the day appointed for the taxation send a copy of his bill of costs to every other party entitled to be heard on the taxation with a notice of the day and time appointed for taxation.

62/33 and 34 [blank]

Part VI: Review of Taxation

62/35 Review of Registrar's decision by a judge

35 (1) Any party to any taxation proceedings who is dissatisfied with the allowance or disallowance in whole or in part of any item by the Registrar, or with the amount allowed by him in respect of any item, may apply to the judge for an order to review the taxation as to that item or part of an item.

(2) An application under this rule for review of the Registrar's decision may be made at any time within fourteen days after the Registrar's decision:

Provided that no application under this rule for review of a decision in respect of any item may be made until after the signing of the Registrar's certificate dealing finally with that item.

(3) An application under this rule shall be made by summons and shall specify the nature and grounds of the objection and the items or parts of items the allowance or disallowance of which or the amount allowed in respect of which is objected to and shall, except where the Judge thinks fit to adjourn into court, be heard in chambers.

(4) On the hearing of an application under this rule, the judge may receive further evidence and may exercise all such powers and discretion as are vested in the Registrar on an original taxation, including the power to award costs of and incidental to the proceedings before him.

(5) On an application under this rule the judge may make such order as the circumstances require, and in particular may order the Registrar's certificate to be amended or, except where the dispute as to the item under review is as to amount only, order the item to be remitted to the Registrar for taxation.

(6) An application under this rule for review of the Registrar's decision in respect of any item shall not prejudice the power of the Registrar under rule 22 to issue an interim certificate in respect of items his decision as to which is not objected to.”.

(2) The Schedule to Order 62 is amended by repealing Parts II and III and replacing them by the following —

“PART II

COSTS

Division I

Amount of Costs

1 (1) The amount of costs to be allowed shall (subject to rule 18 and to any of order of the Court fixing the costs to be allowed) be in the discretion of the Registrar.

(2) In exercising his discretion the Registrar shall have regard to all the relevant circumstances, and in particular to —

(a) the complexity of the item or of the cause or matter in which it arises and the difficulty or novelty of the questions involved;

(b) the skill, specialised knowledge and responsibility required of, and the time and labour expended by, the attorney;

(c) the number and importance of the documents (however brief) prepared or perused;

(d) the place and circumstances in which the business involved is transacted;

(e) the importance of the cause or matter to the client;

(f) where money or property is involved, its amount or value;

(g) any other fees and allowances payable to the attorney in respect of other items in the same cause or matter, but only where work done in relation to those items has reduced the work which would otherwise have been necessary in relation to the item in question.

(3) The bill of costs shall consist of such items specified in Part II as may be appropriate, set out, except for item 4, in chronological order. Each such item (other than an item relating only to time spent in travelling and waiting) may include an allowance for general care and conduct having regard to such of the circumstances referred to in paragraph (2) above as may be relevant to that item. Where a claim is made for such an allowance in addition to an hourly rate or base fee, the amount of the increase must be shown separately.

Fees to counsel

2 (1) No fee to overseas counsel who has been specially admitted as an attorney shall be allowed unless —

(a) before taxation its amount has been agreed by the attorney instructing overseas counsel; and

(b) before taxation a fee note signed by overseas counsel or his clerk is produced.

(2) Except in taxations under rule 14, no costs shall be allowed in respect of more than one counsel appearing before the court unless the Judge or Registrar hearing the matter has certified the attendance as being proper in the circumstances of the case.

Items to be authorised, certified etc.

3 (1) In an action arising out of an accident on land due to a collision or apprehended collision, the costs of preparing a plan (other than a sketch plan) of the place where the accident happened shall not be allowed unless —

(a) before the trial the Court authorised the preparation of the plan, or

(b) notwithstanding the absence of an authorisation under subparagraph (a), the taxing officer is satisfied that it is reasonable to prepare the plan for use at the trial.

(2) The costs of calling an expert witness with regard to any questions as to which as court expert is appointed under Order 40, shall not be allowed on a taxation of costs on the standard basis, unless the Court at the trial has certified that the calling of the witness was reasonable.

Division II

1 Interlocutory Attendances —

(a) Attending the hearing of any summons or other application at Court or appointment in chambers or elsewhere.

(b) Travelling and waiting

2 Conferences and Overseas Counsel —

(a) Attending counsel in conference.

(b) Travelling and waiting.

3 Attendance at Trial or Hearing

(a) Attending the trial or hearing of a cause or matter, or an appeal or to hear a deferred judgment.

(b) Travelling and waiting.

4 Preparation

(a) The doing of any work which was reasonably done arising out of or incidental to the proceedings, including —

(i) The Client: taking instructions to sue, defend, counterclaim, appeal or oppose etc., attending upon and corresponding with client; taking and preparing proofs of evidence;

(ii) Witnesses: interviewing and corresponding with witnesses and potential witnesses, taking and preparing proofs of evidence and, where appropriate, arranging attendance at Court, including issue of subpoena;

(iii) Expert Evidence obtaining and considering reports or advice from experts and plans, photographs and models; where appropriate, arranging their attendance at Court, including issue of subpoena;

(iv) Inspections: inspecting any property or place material to the proceedings;

(v) Searches and Enquiries: making searches at offices or public records and elsewhere for relevant documents: searched in the Companies Registry and similar matters;

(vi) Special Damages: obtaining details of special damages and making or obtaining any relevant calculations;

(vii) Other Parties: attending upon and corresponding with other parties or their attorneys;

(vii) Discovery: perusing, considering or collating documents for affidavit or list of documents: attending to inspect or produce for inspection any documents required to be produced or inspected by order of the Court or by virtue of Order 24;

(ix) Documents: preparation and consideration of pleadings and affidavits, cases and instructions to and advice from counsel, any law involved and any other relevant documents including collating and service;

(x) Negotiations: work done in connection with negotiations with a view to settlement;

(xi) Interest: where relevant, the calculation of interest;

(xii) Notices: preparation and service of miscellaneous notices, including notices to witnesses to attend court.

(b) Travelling and waiting time in connection with the above matters

5 Taxation

(a) Taxation of Costs —

(i) preparing the bill (where allowable) and preparing for and attending the taxation;

(ii) Travelling and waiting.

(b) Review

(i) preparing and delivering objections to decision of taxing officer on taxation or answers to objections, and considering opponent’s answers or objections, as the case may be; attending hearing of review.

(ii) Travelling and waiting.

PART III

FIXED COSTS

Costs on the recovery of a liquidated sum without trial

1 The scale of costs following paragraph 2 of this Part of this Schedule shall apply in relation to the following cases if the writ was indorsed in accordance with Order 6, rule 2(1)(b), with a claim for a debt or liquidated demand only, that is to say—

(a) cases in which the defendant pays the amount claimed within the time and in the manner required by the indorsement of the writ;

(b) cases in which the plaintiff obtains judgment for failure to enter an appearance under Order 13, rule 1, or judgment in default of defence under Order 19, rule 2.

2 There shall be added to the basic costs set out in the said scale the appropriate court fees.

Division I

Fourteen-Day Costs in Writ Actions

The amount of costs indorsed on a Writ of Summons under Order 6, Rule 2(1)(b).

1 Where the amount claimed is

less than $25,000 $200.00

2 Where the amount claimed is not less

than $25,000 but does not exceed $50,000 $500.00

3 Where the amount claimed is not less

than $50,000 but does not exceed $100,000 $700.00

4 Where the amount claimed is not less

than $100,000 but does not exceed $250,000 $900.00

5 Where the amount claimed exceeds

$1,000.00 $250,000

The above apply to all writs for service within the jurisdiction, indorsed with a liquidated demand only, whether indorsed with a statement of claim or not.

Additional Allowances

(1) Where there is more than one

defendant, in respect of each additional

defendant Served $50.00

(2) For the Contingency of Substitute

Service: $200.00

(3) For service in any other place out

of the jurisdiction $400.00

Division II

Judgment in default of Appearance or of Defence for a Debt or Liquidated Demand only or for Possession of Land

The following sums apply whether the statement of claim is indorsed on the Writ or not

1 Where the amount recovered is

less than $25,000 $275.00

2 Where the amount recovered is not less

than $25,000 but is less than $50,000 $650.00

3 Where the amount recovered is not less

than $50,000 but is less than $100,000 $850.00

4 Where the amount recovered is not less

than $100,000 $1,150.00

5 Where the amount recovered exceeds

$250,000 $1,300.00

6 Delivery up of Specific Goods Judgment

for delivery of specific goods where

the stated value of the goods —

(a) is not less than $25,000 but is less

than $50,000 $650.00

(b) is not less than $50,000 but is less

than $100,000 $850.00

(c) is not less than $100,000 but is less

than $250,000 $1,150.00

(d) is in excess of $250,000 $1,300.00

7 Possession of land other than premises

specified in order 13, r. 4(2) or Order 19, r. 5(2).

Costs on judgment without trial -

Judgment for possession with or without a

money claim $600.00

Additional Allowances where Applicable unless Taxation is Ordered

(1) Where the substituted service

ordered and effected: $200.00

(2) In the case of judgment in default of

defence or judgment (where appearance is

entered after the time limited therefore and

the Plaintiff makes an affidavit of service

for the purpose of a judgment on failure to

enter an appearance) (the allowance to

include the search fee) $40.00

(3) Where service ordered and effected

out of jurisdiction $400.00.”

Inserts new Order 72

12 After Order 70 of the Rules of the Supreme Court 1985 there shall be inserted —

“ORDER 72

COMMERCIAL ACTIONS

72/1 Application and Interpretation

1 (1) This Order applies to commercial actions in the Supreme Court, and the other provisions of these Rules apply to those actions subject to the provisions of this Order.

(2) In this Order "commercial action" means any claim or counterclaim arising out of the transaction of trade and commerce and —

(a) includes any claim or counterclaim relating to —

(i) a business document or contract;

(ii) the export or import of goods;

(iii) the carriage of goods by land, sea, air or pipeline;

(iv) the exploitation of oil and gas reserves or other natural resources;

(v) insurance and re-insurance;

(vi) banking and financial services;

(vii) the operation of markets and exchanges;

(viii) the purchase and sale of commodities;

(ix) the construction of ships;

(x) business agency; and

(xi) arbitration.

(b) includes any application under the Companies Act 1981.

(3) There is hereby established, as part of the Supreme Court, a Commercial Division (to be known as the Commercial Court) to take such causes and matters as may in accordance with this Order be entered in the commercial list.

(4) The judges of the Commercial Court shall be known as Commercial Judges and shall be such of the judges of the Supreme Court as the Chief Justice may from time to time designate to be Commercial Judges.

72/2 The Commercial List

2 (1) There shall be a list, which shall be called "the commercial list", in which commercial actions in the Supreme Court may be entered in accordance with the provisions of this Order, for trial in the Commercial Court, and the Chief Justice or one of the Commercial Judges nominated by the Chief Justice shall be in charge of that list.

(2) All proceedings in the commercial list will be heard or determined by a Commercial Judge, except that —

(a) another judge of the Supreme Court may hear urgent applications if no Commercial Judge is available; and

(b) unless a Commercial Judge otherwise orders, any application relating to the enforcement of a Commercial Court judgment or order for the payment of money may be dealt with by any judge of the Supreme Court.

72/3 [blank]

72/4 Entry of action in commercial list when action begun

4 (1) Before a writ or originating summons by which a commercial action in the Supreme Court is to be begun is issued it may be marked in the heading “In the Supreme Court of Bermuda (Commercial Court)” and on the issue of a writ or summons so marked the action begun thereby shall be entered in the commercial list.

(2) If the plaintiff intends to issue a writ or originating summons by which a commercial action in the Supreme Court is to be begun and to mark it in accordance with paragraph (1) and the writ or the originating summons, as the case may be, is to be served out of the jurisdiction, an application for leave to issue the writ or summons and to serve the writ or the summons out of the jurisdiction may be made to a Commercial Judge.

(3) The affidavit in support of an application made to a Commercial Judge by virtue of paragraph (2) must, in addition to the matters required by Order 11, rule 4 (1) to be stated, state that the plaintiff intends to mark the writ or originating summons in accordance with paragraph (1) of this rule.

(4) If the judge hearing an application made to him by virtue of paragraph (2) is of opinion that the action in question should not be entered in the commercial list, he may adjourn the application to be heard by any judge.

72/5 Transfer of action to commercial list after action begun

5 (1) At any stage of the proceedings in a commercial action in the Supreme Court any party to the action may apply by summons to a Commercial Judge to transfer the action to the commercial list.

(2) If, at any stage of the proceedings in a commercial action in the Supreme Court, it appears to the Court that the action may be one suitable for trial in the Commercial Court and any party wishes the action to be transferred to the commercial list, then the Court may adjourn any hearing so that it can proceed before a Commercial Judge and be treated by him as a summons to transfer the action to that list.

72/6 Removal of action from commercial list

6 (1) A Commercial Judge may, of his own motion or on the application of any party, order an action in the commercial list to be removed from that list.

(2) Where an action is in the commercial list by virtue of rule 4, an application by a defendant or third party for an order under this rule must be made within 7 days after giving notice of intention to defend the action.

72/7 Pleadings in commercial list actions

7 (1) The pleadings in an action in the commercial list must be in the form of points of claim, or of defence, counterclaim, defence to counterclaim or reply, as the case may be and must be as brief as possible.

(2) Without prejudice to Order 18, rule 12 (1) no particulars shall be applied for or ordered in an action in the commercial list except such particulars as are necessary to enable the party applying to be informed of the case he has to meet or as are for some other reason necessary to secure the just, expeditious and economical disposal of any question at issue in the action.

(3) The foregoing provisions are without prejudice to the power of a Commercial Judge to order that an action in the commercial list shall be tried without pleadings or further pleadings, as the case may be.

72/8 Directions in commercial list actions

8 (1) Notwithstanding anything in Order 25, rule 1 (1) any party to an action in the commercial list may take out a summons for directions in the action before the pleadings in the action are deemed to be closed.

(2) Where an application is made to transfer an action to the commercial list, Order 25, rules 2 to 7, shall, with the omission of so much of rule 7 (1) as requires the parties to serve a notice specifying the orders and directions which they desire and with any other necessary modifications, apply as if the application were a summons for directions.

72/9 [blank]

72/10 Production of certain documents in marine insurance actions

10 (1) Where in an action in the commercial list relating to a marine insurance policy an application for an order under Order 24, rule 3, is made by the insurer, then, without prejudice to its powers under that rule, the Court, if satisfied that the circumstances of the case are such that it is necessary or expedient to do so, may make an order, either in Form 94 in Appendix A or in such form as it thinks fit, for the production of such documents as are therein specified or described.

(2) An order under this rule may be made on such terms, if any, as to staying proceedings in the action or otherwise, as the Court thinks fit.”.

Substitution of Order 73

13 Order 73 of the Rules of the Supreme Court 1985 is repealed and replaced by the following —

“ORDER 73

ARBITRATION PROCEEDINGS

73/1 [blank]

73/2 Matters for a judge in court

2 (1) Every application to the Court —

(a) to remit an award under section 33 of the Arbitration Act 1986, or

(b) to remove an arbitrator or umpire under section 34(1) of that Act, or

(c) to set aside an award under section 34(2) of that Act, or

(e) to determine, under section 30 of that Act, any question of law arising in the course of a reference, or

(f) to appoint an arbitrator under article 11(3) or secure the appointment of arbitrators under article 11(4) of the Second Schedule to the Bermuda International Conciliation and Arbitration Act 1993, or

(g) to decide, under article 13(3) of the Second Schedule to that Act, on a challenge to an arbitrator, or

(h) to decide, under article 14(1) of the Second Schedule to that Act, on the termination of an arbitrator’s mandate, or

(i) to decide, under article 16(3) of the Second Schedule to that Act, on whether the arbitral tribunal has jurisdiction,

must be made by originating motion to a judge in court.

(2) [blank]

(3) An application for a declaration that an award made by an arbitrator or umpire is not binding on a party to the award on the ground that it was made without jurisdiction may be made by originating motion to a judge in court, but the foregoing provision shall not be taken as affecting the judge's power to refuse to make such a declaration in proceedings begun by motion.

73/3 Matters for judge in chambers

3 (1) Subject to the foregoing provisions of this Order and the provisions of this rule, the jurisdiction of the Court or a judge thereof under the Arbitration Act 1986 and the Bermuda International Conciliation and Arbitration Act 1993, may be exercised by a judge in chambers.

(2) Any application —

(a) for leave to appeal to the Court of Appeal under section 29(3) of the Arbitration Act 1986, or

(b) under section 29(5) of that Act (including any application for leave), or

(c) under section 32 of that Act,

shall be made to a judge in chambers.

(3) Any application to which this rule applies shall, where an action is pending, be made by summons in the action, and in any other case by an originating summons which shall be in Form No. 10 in Appendix A.

(4) Where an application is made under section 29(3) of the Arbitration Act 1986 the summons must be served on the arbitrator or umpire and on any other party to the reference.

73/4 [blank]

73/5 Time limits and other special provisions as to appeals and applications under the Arbitration Acts

5 (1) An application to the Court —

(a) to remit an award under section 33 of the Arbitration Act 1986, or

(b) to set aside an award under section 34(2) of that Act or otherwise, or

(c) to direct an arbitrator or umpire to state the reasons for an award under section 29(5) of that Act,

must be made, and the summons or notice must be served, within twenty-one days after the award has been made and published to the parties.

(2) In the case of an application for leave to appeal to the Court of Appeal under section 29(3)(b) of the Arbitration Act 1986, the originating summons for leave to appeal and the notice of originating motion must be served and the appeal entered, within twenty-one days after the award has been made and published to the parties —

Provided that, where reasons material to the appeal are given on a date subsequent to the publication of the award, the period of twenty-one days shall run from the date on which the reasons are given.

(3) An application, under section 30 of the Arbitration Act 1986, to determine any question of law arising in the course of a reference, must be made, and notice thereof served, within fourteen days after the arbitrator or umpire has consented to the application being made, or the other parties have so consented.

(4) For the purpose of paragraph (3) the consent must be given in writing.

(5) In the case for every application to which this rule applies, the notice of originating motion, the originating summons or the summons, as the case may be, must state the grounds of the application and, where the application is founded on evidence by affidavit, or is made with the consent of the arbitrator or umpire or of the other parties, a copy of every affidavit intended to be used, or, as the case may be, of every consent given in writing, must be served with that notice.

(6) [blank]

(7) Without prejudice to paragraph (5), in an application for leave to appeal under section 29(3)(b) of the Arbitration Act 1986, any affidavit verifying the facts in support of a contention that the question of law concerns a term of a contract or an event which is not a one-off term or event must be lodged with the court and served with the notice of originating motion.

(8) Any affidavit in reply to an affidavit under paragraph (7) shall be lodged with the court and served on the applicant not less than two clear days before the hearing of the application.

(9) A respondent to an application for leave to appeal under section 29(3)(b) of the Arbitration Act 1986 who desires to contend that the award should not be upheld on grounds not expressed or not fully expressed in the award and reasons shall not less than two clear days before the hearing of the application file with the court and serve on the applicant a notice specifying the grounds of his contention.