I INTRODUCTION TO DISPUTE RESOLUTION FRAMEWORK

i Overview of Bermudian legal system and the sources of Bermuda law

Bermuda is a self-governing dependent territory of the United Kingdom. The court of first instance in civil matters, where the sum in dispute is in excess of 25,000 Bermudian dollars, is the Supreme Court of Bermuda. In 2006, a Commercial Court (an administrative subdivision of the Supreme Court of Bermuda) was established, in which specialist commercial judges sit. The Court of Appeal for Bermuda, comprising three judges who sit in periodic sessions, hears appeals from the Supreme Court. Appeals lie as of right to the Judicial Committee of the Privy Council in London from any final judgment of the Court of Appeal for Bermuda where the sum in dispute is 12,000 Bermudian dollars or more; and at the discretion of the Court of Appeal for Bermuda in cases of ‘great general or public importance’.2 Section 15 of the Supreme Court Act 1905 provides:

Subject to the provisions of any Acts which have been passed in any way altering, amending or modifying the same, and of this Act, the common law, the doctrines of equity and the Acts of the Parliament of England of general description which were in force in England at the date when these Islands were settled [July 11, 1612] shall be, and are hereby declared to be, in force within Bermuda.

Bermuda Courts are technically bound by decisions of the Privy Council. Decisions of the UK Supreme Court and House of Lords that are declaratory of the common law, while not technically binding, are invariably followed by Bermuda courts. Decisions of the English Court of Appeal are also regarded as highly persuasive authority in Bermuda.

II THE YEAR IN REVIEW

The most recent session of the Court of Appeal for Bermuda (November 2017) did not give rise to any decisions of interest to international practitioners. Two cases argued in the March 2017 session are worthy of note.

The only petition brought under Section 111 of the Companies Act 1981 ever to have succeeded at trial in Bermuda, In the matter of Kingboard Copper Foil Holdings Limited3 was reversed on appeal.4 Kingboard Copper Foil Holdings Limited (the Company) was incorporated in Bermuda and listed on the Singapore Stock Exchange (SGX). The Company’s minority shareholders had exercised their right under the SGX Listing Rules to veto a mandate for the company to enter into transactions with other companies in the Kingboard Group that were owned by the majority shareholders. The Company’s management proceeded to effectively ‘nullify the only real right – the veto – which minority had’5 by entering into a licensing agreement with a company called Harvest which was controlled by a ‘friend’ of the Kingboard Group, a Mr Lin. Under the Harvest licence agreement, the Company’s manufacturing plant in China was used to produce copper foil which was then sold to another company in the Kingboard Group, Laminates. The Company misrepresented in an announcement to its shareholders that the shareholders and directors of Harvest were independent third parties who did not have any prior connection with the Kingboard group and that the Company ‘had no means of knowing who Harvest’s customers would be …’ The Court of Appeal for Bermuda concluded as follows:

This attempt to conceal the position in respect of Harvest until the trial does not reflect well on the Company or the Kingboard Group. The Chief Justice acquitted the majority shareholders of outright dishonesty; but said that they had caused the Company to ‘flirt with deception’ … Mr. Woloniecki submits with some force, that, if there was not something fishy about the arrangements, why did those concerned attempt to paint this ‘alternative reality’ and cover up the connection with Mr. Lin. The Company, for which, after the Licence Agreement, there was no incentive to change the status quo, should have attempted constructively to engage with all the minority shareholders and addressed their concerns. There was no easy solution but the knee jerk reaction was oppressive … I see the force of those submissions. But they face a number of obstacles. First, as I have said, there were in fact without prejudice discussions. Second it was not suggested that the unfairness or oppression was constituted by a failure to negotiate. Third, given that the Harvest Licence Agreement was not a sham, the fact that Mr. Lin had links with Kingboard and was its ‘friend’ loses much of its significance. If an arrangement was to be made which enabled the Company to have some earnings and Laminates to obtain supplies of copper foil the likelihood is that some ‘friend’ would be required for that purpose.6

In Bermuda Bar Council v. Walkers Bermuda Ltd7 the Court of Appeal for Bermuda held, reversing the decision of the Chief Justice, that the Bermuda Bar Council was entitled to withhold a certificate of recognition pursuant to Section 16C(2) of the Bermuda Bar Act 1974 to an incorporated law firm on the grounds that the firm had not satisfied Bar Council that the company was ‘controlled by Bermudians’ as required by Paragraph 1(1) of the Third Schedule of the Companies Act 1981. The central issue in this case is of fundamental importance in relation to the provision of legal services in Bermuda. The Court of Appeal applied the broad test of ‘control’ as stated by the Privy Council in Bermuda Cablevision Limited and Others v. Colica Trust.8

III COURT PROCEDURE

i Overview of court procedure

The Rules of the Supreme Court of Bermuda 1985 were originally derived from the English rules in the 1979 White Book and updated in 2006 to reflect the English rules in the 1999 White Book that were in force prior to the introduction of CPR.

ii Procedures and time frames

The amendment of the RSC 1985 in 2006 included the adoption of case management powers and the ‘overriding objective’ into Bermudian procedure. As a general rule the Commercial Court in Bermuda tends to be less proactive in relation to case management than in England, and relies upon counsel to agree sensible directions. Procedural time frames are, generally speaking, set by reference to dates mutually agreeable to local counsel. A time frame of 12 to 18 months from the issue of the writ to the trial of the action is not untypical. Where appropriate the Court will order a timetable for an expedited trial, and trials have been held within six months of the commencement of proceedings. In urgent cases, interlocutory injunctions may be obtained ex parte or ex parte on notice. Provided papers which make out a case of urgency are filed with the Supreme Court Registry as soon as practicable in the morning, it will usual be possible to get before at judge by 4.30 pm on the same. It is possible to get before a judge outside normal court hours, including at weekends, in cases of genuine urgency.

iii Class actions

There is no procedure for class actions in Bermuda. The population of the Island is only 60,000 and the circumstances that typically give rise to class actions in other jurisdictions are unlikely to occur in Bermuda.

iv Representation in proceedings

An individual has a constitutional right to appear in person in any proceedings. Corporations must be represented by a barrister and attorney licensed to practice in Bermuda.

v Service out of the jurisdiction

Service of proceedings out of the jurisdiction is governed by RSC Order 11. RSC Order 11 r.1(1)(d) confers jurisdiction on the Bermuda court in cases where: 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:

  • a was made within the jurisdiction;
  • b 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;
  • c the contract is by its terms, or by implication, governed by the law of Bermuda; or
  • d contains a term to the effect that the court shall have jurisdiction to hear and determine any action in respect of the contract.

The Bermuda courts follow, in relation to application under Order 11, the principles set out by the House of Lords in Seaconsar Far East Ltd v. Bank Markazi Jomhuouri Islam Iran9 to determine whether a claim under one of the grounds of Order 11 has been sufficiently made out; and, Spiliada Maritime Corp v. Cansulex Ltd (The Spiliada)10 in relation to forum non conveniens. The jurisdictional rules are the same for natural persons and corporations. Every company incorporated in Bermuda must have a registered office where it may be served. In cases where leave to serve process abroad is granted, the procedures of The Hague Convention are followed.

vi Enforcement of foreign judgments

The Judgment (Reciprocal Enforcement) Act 195811 provides for enforcement of courts in the United Kingdom and of the following countries or territories: Australia, the Bahamas, Barbados, British Guiana, Gibraltar, Grenada, Hong Kong, Leeward Islands, St Vincent, Jamaica, Nigeria, Dominica and St Lucia.12 The effect of registration is that the foreign judgment is of the same force and effect as a judgment of the Supreme Court of Bermuda entered at the date of registration, and such steps may be taken to enforce it as if it were such a judgment.13 Section 6 of the 1958 Act prohibits the bringing of proceedings to enforce a judgment to which the 1958 Act other than proceedings under the 1958 Act.14 The leading case on the 1958 Act is Consolidated Contractors International Company SAL v. Masri.15

vii Assistance to foreign courts

Bermudian courts will make orders, in response to letters of request from foreign courts, for the taking of evidence on deposition in Bermuda for the purposes of trials in foreign jurisdictions but not for the purposes of discovery. However, it is not uncommon for US lawyers to take depositions as part of American discovery procedures in Bermuda by consent. The Bermudian courts have regularly given assistance to foreign liquidators and have, in the past, recognised the appointment of foreign liquidators at common law without the need to commence ancillary winding-up proceedings in Bermuda. However, the decision of the Privy Council in Singularis Holdings Ltd v. Pricewatherhouse Coopers16 has significantly reduced the scope of the common law powers of a Bermuda court to assist foreign liquidators.

viii Access to court files

The Practice Direction on Access to Court Records in Civil Case (Circular No. 23 of 2015) applies to cases filed after 1 December 2015. The Practice Direction permits inspection by members of the public of writs and pleadings, it does not extend to affidavits. In the case of complete proceedings, unless the Court has ordered the file, or particular documents on the file, to be sealed, access is available pursuant to the Supreme Court (Records) Act 1955.

ix Litigation funding

The Commercial Court recognised the legitimacy of third-party funding of litigation in Bermuda in Stiftung Salle Modulable and Rutli Stiftung v. Butterfield Trust (Bermuda) Limited.17 There are, as yet, no judicial guidelines on what kinds of funding agreements are legitimate, and the question of their validity has yet to be considered by the Court of Appeal for Bermuda. Third party funding arrangements between liquidators of insolvent and creditors are not uncommon and are typically sanctioned by Bermuda Courts. The Salle Modulable case is believed to be the first example of a funding arrangement involving professional third-party funders in Bermuda litigation, we are not aware of other instances.

IV LEGAL PRACTICE

i Conflicts of interest and Chinese walls

The common law rule in Prince Jefri Bolkiah v. KPMG18 applies in Bermuda. It is therefore permissible, as matter of legal principle, for a Bermudian law firm to act against a former or even an existing client, provided that the firm is not in possession of confidential information regarding that client’s affairs which it acquired while acting for the client which would give it an unfair advantage. As a matter of practice Bermudian law firms tend approach question of conflicts of interest on a pragmatic and commercial basis rather than on narrow legalistic grounds.

Where there is a conflict of interest or a potential conflict of interest Chinese walls are theoretically possible with the informed consent of the clients involved and the permission of the Bermuda Bar Council. Such arrangements are, however, rarely if ever adopted. Given the relatively small size of most law firms in Bermuda, with lawyers in a particular department typically located in close proximity to one another, and sharing common administrative staff, it is not generally practicable to erect an effective Chinese wall within an office in Bermuda. The position may be different if the legal team on the other side of the ‘wall’ is located in another jurisdiction.

ii Money laundering, proceeds of crime and funds related to terrorism

Bermuda has a comprehensive AML/ATF regime. The key legislation includes the following:

  • a Proceeds of Crime Act 1997;
  • b Proceeds of Crime (Anti-Money Laundering and Anti-Terrorism Financing) Regulations 2008;
  • c Anti-Terrorism (Financial and Other Measures) Act 2004;
  • d Financial Intelligence Agency Act 2007;
  • e Proceeds of Crime (Anti-Money Laundering and Anti-Terrorist Financing Supervision and Enforcement) Act 2008;
  • f BMA’s Guidance Notes on the Prevention and Detection of Money Laundering and Combating Terrorist Financing (as updated);
  • g The Terrorism (United Nations Measures) (Overseas Territories) Order 2001;
  • h The Al-Qa’ida and Taliban (United Nations Measures) (Overseas Territories) Order 2002;
  • i The Al-Qa’ida and Taliban (United Nations Measures) (Overseas Territories) (Amendment) Order 2002; and
  • j International Sanctions Act 2003 and International Sanctions Regulations 2013.

The Proceeds of Crime Act 1997 establishes the offence of money laundering and creates penalties for committing such offences, gives investigative powers to the police and provides for the tracing and confiscation of the proceeds of criminal conduct. The Money Laundering offences are contained in Part V of the Proceeds of Crime Act 1997 and in summary include:

iii Concealing or transferring proceeds of criminal conduct

A person is guilty of an offence if, knowing or having reasonable grounds to suspect that any property is, or in whole or in part directly or indirectly represents another person’s proceeds of criminal conduct he or she conceals or disguises that property or converts or transfers that property or removes it from Bermuda for the purpose of assisting any person to avoid prosecution for a drug trafficking or relevant offence or the making or enforcement of a confiscation order.

iv Assisting another to retain proceeds of criminal conduct

A person is guilty of an offence if he or she enters into or is otherwise concerned in an arrangement whereby the retention or control by or on behalf of another person (A) of (A’s) proceeds of criminal conduct is facilitated (whether by concealment, removal from the jurisdiction, transfer to nominees or otherwise) or the proceeds of criminal conduct are used to secure that funds are placed at (A’s) disposal or are used for (A’s) benefit to acquire property by way of investment and he knows or suspects that A is a person who is or has been engaged in or has benefited from criminal conduct.

v Acquisition, possession or use of proceeds of criminal conduct

A person is guilty of an offence if, knowing that any property is, or in whole or in part directly or indirectly represents the proceeds of criminal conduct he or she acquires or uses that property or has possession of it.

vi Failure to disclose knowledge or suspicion of money laundering

A person is guilty of an offence if he or she knows or suspects that another person is engaged in money laundering that relates to any proceeds of criminal conduct; the information or other matter on which that knowledge or suspicion is based came to his attention in the course of his trade, profession, business or employment and he does not disclose the information or other matter to the MLRO or the Financial Intelligence Agency (FIA), as appropriate, as soon as is reasonably practicable after it comes to his or her attention.

vii Tipping off

A person is guilty of an offence if he knows or suspects that a police officer is acting or is proposing to act, in connection with an investigation which is being or is about to be conducted into money laundering or if he knows or suspects that a disclosure has been made to the FIA or an appropriate person in accordance with any procedure established by his employer and he discloses to any other person information or any other matter that is likely to prejudice that investigation or a proposed investigation that might be conducted following such a disclosure.

The Proceeds of Crime (Anti-Money Laundering and Anti-Terrorist Financing) Regulations 2008 specify arrangements that must be put in place by regulated financial institutions (RFI)s within the scope of the Regulations, in order to prevent operations relating to money laundering or terrorist financing. The Regulations apply to all RFIs as defined at Section 2(2) of the Regulations. Institutions within the scope of the Regulations are required to establish adequate and appropriate policies and procedures in order to prevent operations relating to money laundering or terrorist financing, covering:

  • a customer due diligence;
  • b internal and external reporting;
  • c record-keeping;
  • d internal control;
  • e risk assessment and management;
  • f compliance management; and
  • g communication.

The legislation specifically relating to the offence of financing terrorism is contained in the Anti-Terrorism (Financial and Other Measures) Act 2004. The Financing of Terrorism offences are contained in Chapter II of the Anti-Terrorism (Financial and Other Measures) Act 2004 and in summary include:

viii Fundraising

A person commits an offence if he or she provides, invites another to provide or receives money or other property and intends that it should be used or suspects that it may be used for the purposes of terrorism.

ix Use and possession

A person commits an offence if he or she uses or possesses money or other property for the purposes of terrorism.

x Funding arrangements

A person commits an offence if he or she enters into or becomes concerned in an arrangement as a result of which money or other property is made available or is to be made available to another and he or she knows or suspects that it will or may be used for the purposes of terrorism.

xi Money laundering

A person commits an offence if he or she enters into or becomes concerned in an arrangement which facilitates the retention or control by or on behalf of another person of terrorist property by concealment, removal from the jurisdiction, transfer to nominees or in any other way unless that person did not know or suspect that the arrangement related to terrorist property.

xii Failure to disclose

A person commits an offence if he does not disclose to the FIA as soon as is reasonably practicable his belief or suspicion that another person has committed any of the above offences (fundraising, use and possession, funding arrangements or money laundering) and the information upon which it is based.

xiii Tipping off

A person is guilty of an offence if he or she knows or suspects that a police officer is acting or proposing to act in connection with an investigation which is being or is about to be conducted into terrorist financing, or he or she knows or suspects that a disclosure has been made to the FIA and he or she discloses to any other person information or any other matter which is likely to prejudice that investigation or proposes investigation which might be conducted following such a disclosure.

xiv Data protection

The Personal Information Protection Act (PIPA) received Royal Assent on 27 July 2016. An independent Privacy Commissioner will be appointed to ensure compliance and to assist in providing education and information on the terms of PIPA to the public. There is a two-year interim period before PIPA comes into force. Drawing from legislation in Canada, the United States, Europe and elsewhere, PIPA sets out how organisations, businesses and the Bermuda government may use personal information and emphasises meeting international best practices while promoting Bermuda’s economic interests, regulatory regime and unique characteristics. PIPA applies to all individuals, entities, or public authorities that use personal information in Bermuda, both online and offline (in a structured filing system). PIPA defines personal information as any information about an identified or identifiable individual and includes provisions for the protection of ‘sensitive personal information’ which includes, but is not limited to, any personal information relating to an individual’s place of origin, race, colour, national or ethnic origin, sex, sexual orientation and marital status. Under PIPA, data breaches that could adversely affect an individual must be reported to a Privacy Commissioner and to affected individuals. Requirements for international transfers of personal data mirror those in the European Union, with the Privacy Commissioner designating jurisdictions that have a comparable level of data protection. In many cases, companies have already adopted some of the practices included in PIPA. While PIPA will apply to all Bermuda organisations including Bermuda exempted companies, PIPA notably enables the limited use of personal information by organisations involved in corporate business transactions. During the period leading up to and including the completion of a business transaction, the organisation may use personal information about individuals without their consent provided certain conditions are satisfied.

V DOCUMENTS AND THE PROTECTION OF PRIVILEGE

i Privilege

The Bermuda courts apply the English common law rules of privilege as restated by the House of Lords in Three Rivers District Council v. Bank of England (No. 6),19 and recognise the two broad categories of privilege that exist under English law: ‘legal advice privilege’ and ‘litigation privilege’. The rules relating to ‘legal advice privilege’ apply to all legal advisers, including in-house lawyers and foreign lawyers. In a recent decision the Commercial Court has held that a bill of costs prepared for the purposes of taxation is privileged.20

ii Production of documents

The production of documents in litigation in Bermuda – ‘discovery’ – is governed by R.S.C. Order 24. Order 24 r.2(1) provides for automatic discovery within 14 days after close of pleadings21 by the parties exchanging lists of documents in their ‘possession, custody or power relating to any matter in question between them in the action’. The expression ‘relating to’ is frequently, and inaccurately, paraphrased as ‘relevant’. The test is wider than direct relevance to issues in the pleadings, and covers the following categories of documents:

  • a which are direct evidence of facts in issue, or which are to be used at trial;
  • b which contain information which may enable one’s opponent to advance his own case, or damage one’s own case; or
  • c which ‘may fairly lead him to a train of inquiry which may have either of those consequences’.22

Where documents are located overseas, whether electronically or otherwise, while the Court has the power to order that inspection of original documents take place at the offices of a party’s Bermudian attorneys, it is usually the case – especially where there is a large quantity of documents – for inspection of original documents to take place abroad.

A litigant must to disclose all documents within its ‘possession, custody or power’. Whether documents held by a subsidiary or parent company is subject to disclosure will depend on whether, in the ordinary course of business, the party has control over the documents. The existence of documents held by third-party advisers which are privileged must be disclosed in the list of documents. Such documents are typically described in general terms and a claim to privilege is asserted.

As a matter of principle a litigant must review electronic records and disclose them if they are ‘relevant’ for the purposes of R.S.C. Ord. 24. There is no reported case law in Bermuda on the extent of a party’s obligation to reconstruct back up tapes. Although the test of ‘relevance’ under R.S.C. Ord. 24 is wider than the scope of ‘standard disclosure’ under the English Civil Procedure Rules, following the Peruvian Guano case that formerly applied in England, we suspect that the Bermuda Commercial Court would be likely to follow the English decisions on the scope of discovery under the CPR and limit oppressive or disproportionate demands for discovery in appropriate cases. In arbitrations held in Bermuda where a tribunal is composed of three arbitrators who are English lawyers the scope of discovery, if it is not agreed by the parties, tends to be ordered in accordance with CPR.

VI ALTERNATIVES TO LITIGATION

i Overview of alternatives to litigation

The two alternatives to litigation in Bermuda are arbitration and mediation, discussed below. Arbitration is more commonly used than mediation.

ii Arbitration

There are two separate legal frameworks for arbitration in Bermuda: The Arbitration Act 1986 (which is ultimately derived from the English Arbitration Acts of 1950 and 1979) applies to the domestic arbitrations the seat of which in Bermuda; the Bermuda International Conciliation and Arbitration Act 1993 (the 1993 Act) gives effect to the UNCITRAL Model Law on International Commercial Arbitration (the Model Law) and applies to any ‘international commercial arbitration’ (as defined by Article 1 of the Model Law) the seat of which is in Bermuda. Parties may agree to opt out of the 1993 Act and provide for the 1986 Act to apply to an international commercial arbitration. The 1993 Act also provides a legal framework for mediation (referred to as ‘conciliation’) in Bermuda.

As noted below arbitration of insurance and reinsurance disputes is common in Bermuda. Such arbitrations are typically ad hoc. To the extent institutional rules are adopted in insurance and reinsurance disputes, ARIAS (UK) rules tend to be used. International commercial arbitrations not involving insurance or reinsurance disputes may use AAA, LCIA or ICC rules. Domestic arbitrations in Bermuda generally involve construction disputes or rent review arbitrations, and do not typically adopt institutional rules.

Arbitration is the typical form of dispute resolution procedure in the Bermudian insurance and reinsurance industry. Bermuda is the third-largest reinsurance market in the world (after London and New York) and arbitrations of reinsurance disputes in Bermuda are not uncommon. The so-called ‘Bermuda Form’ – which provides for direct liability insurance subject to New York law – provides for arbitration of disputes in either Bermuda or London.

Awards under the 1986 Act may be appealed on points of law to the Court of Appeal for Bermuda with the leave of the Commercial Court. However, parties may agree to exclude the right of appeal. Under the 1993 Act no appeals on points of law are possible, and arbitral awards may only be challenged in the Court of Appeal for Bermuda on the limited grounds that are available to resist enforcement of foreign awards under the New York Convention.

The New York Convention applies to Bermuda. In the case of an award made in an international commercial arbitration which is not within the scope of the New York Convention, it may be enforced under Chapter VIII of the Model Law. The Bermuda Courts have consistently enforced foreign arbitral awards. In the most recent decision, Sampoerna Strategic Holdings Ltd v. Huaweil Tech Investments Co Ltd & Huawei International Pte Ltd23 involving a Singaporean award, a challenge on public policy grounds was rejected. Evans JA said that, ‘a heavy burden lies upon a party seeking to set aside or prevent enforcement of an arbitral award on the ground of breach of natural justice’. He approved dicta stating that it was necessary to demonstrate that upholding an award would ‘shock the conscience’ or ‘be clearly injurious to the public good’ or ‘violate the forum’s most basic notions of morality and justice’.

The Bermuda courts have consistently enforced agreements to arbitrate, staying Bermudian proceedings brought in breach of an arbitration agreement, and granting anti-suit injunctions to restrain foreign proceedings brought in breach of an arbitration agreement.

iii Mediation

Mediation is governed by Part II (‘Conciliation’) of the 1993 Act. Section 3 provides: ‘Parties to an international arbitration agreement are hereby encouraged to resolve any disputes between them through conciliation.’ Notwithstanding this statutory exhortation to conciliate, mediations in commercial disputes in Bermuda are relatively rare. This may, in large part, be due to a lack of suitably qualified mediators resident on the Island. Mediations of Bermudian disputes are more likely to be held in London.

iv Other forms of alternative dispute resolution

There is no express statutory provision for ‘expert determination’ in Bermuda. English common law principles are likely to be applied.

VII OUTLOOK and CONCLUSIONS

Following the decision in Bermuda Bar Council v. Walkers Bermuda Ltd, the respondent company made an application to the Minister pursuant to Section 114B of the Companies Act 1981 for a licence permitting it to operate in Bermuda as a company that was not owned or controlled by Bermudians. It is understood that similar applications may be made by other foreign law firms wishing to set up offices in Bermuda. At the time of writing the issue of foreign law firms being permitted to practise in Bermuda is being considered by the Registrar of Companies in consultation with the Bermuda Bar Council.

1 Jan Woloniecki is head of litigation and Peter Dunlop is a senior counsel at ASW Law Limited.

2 Appeals Act 1911 s.2.

3 [2015] SC Comm (Bda) 76 (10 November 2015).

4 Kingboard Chemical Holdings Et Al v. Annuity & Life Reassurance Ltd. Civ. App. No. 24 of 2015 (24 March 2017). Jan Woloniecki was counsel for the petitioner who succeeded at first instance. William Wong SC of the Hong Kong Bar appeared for the respondents and successful appellants. The Court of Appeal for Bermuda has granted leave to appeal to the Privy Council.

5 Per Sir Christopher Clark JA at [79].

6 Per Sir Christopher Clarke JA at [79]-[80].

7 [2017] CA (BDA) 12 (12 May 2017).

8 [1998] AC 198.

9 [1994] 1 A.C. 438; see Utilicorp United Inc v. Renfro [1994] Bda L.R. 79.

10 [1987] A.C. 460; see Arabian American Insurance Co (Bahrain) EC v. Al Amana Insurance & Reinsurance Co Ltd [1994] Bda L.R. 27.

11 Derived in part from the English Judgments and Administration Act 1920 and in part from the English Foreign Judgments (Reciprocal Enforcement) Act 1933.

12 See: The Judgments Extension Order 1956; The Judgments (Reciprocal Enforcement) (Australia) Order 1998. At the time the 1956 Order was made most of the territories listed were dependencies of the United Kingdom. The territory formerly known as British Guiana is now an independent state called Guyana. The 1956 Order does not define ‘Leeward Islands’ but these are believed to include: the British Virgin Islands, Anguilla, Saint Kitts, Nevis, Antigua and Barbuda. It has been suggested that ‘Jamaica’ should be interpreted to include the Cayman Islands, as this jurisdiction was a dependency of Jamaica at the time the 1956 Order was made.

13 Section 3 of the 1958 Act; see Berliner Bank AG v. Karageorgis, Civil Jurisdiction 1997, No. 86, May 23, 1997; [1997] Bda L.R. 37.

14 See: Young v. GNI Fund Management (Bermuda) Ltd [2001] Bda L.R. 70.

15 [2009] Bda L.R. 12 (aff’d [2010] Bda L.R. 21, [2011] UKPC 29.

16 [2014] UKPC 36.

17 [2012] Bda LR 78.

18 [1999] 1 BCLC 1.

19 [2005] 1 A.C. 610.

20 Chubb (formerly known as ACE) Insurance Co v. Ford Motor Co [2017] SC (Bda) 88 Civ (24 October 2017).

21 In practice almost invariably extended by agreement of the parties.

22 Compagnie Financière et Commerciale du Pacifique v. The Peruvian Guano Co (1882–83) L.R. 11 Q.B.D. 55 at 62–63, per Brett L.J. But see, Wallace Smith Trust Co Ltd (in liquidation) v. Deloitte Haskins & Sells (a firm) [1996] 4 All E.R. 403 at 412e–h, per Neil L.J.: ‘I anticipate . . . that these principles and the present practice may have to be re-examined in the near future. The scope of discovery in a complex action imposes obligations with regard to the examination and identification of documents which are often extremely expensive properly to fulfill.’

23 [2014] Bda LR 108.