Bahamas Litigation Guide IBA Litigation Committee

Transcription

1 The Process of a Typical Commercial Case Bahamas Litigation Guide IBA Litigation Committee Mrs. Tara A.A. Archer tarcher@higgsjohnson.com Mr. Audley D. Hanna Jr. ahanna@higgsjohnson.com Higgs & Johnson Ocean Centre, Montagu Foreshore, East Bay St. P. O. Box N 3247 Nassau Bahamas

2 1. Limitation issues The Limitation Act 1995 provides that contractual claims have a limitation period of six years and that claims based upon a contract under seal have a limitation period of twelve years. Limitation is a positive defence which must be specifically pleaded within a party s Defence, therefore it could, theoretically, be waived. 2. Pre-litigation requirements There are no pre-litigation requirements which must be conducted prior to presenting a claim to the Court. 3. Starting proceedings Proceedings with respect to commercial claims are commenced by virtue of a Writ of Summons wherein the nature of the claim is outlined. Preliminary issues may be dealt with by virtue of interlocutory applications. 4. Timetable and Case management Upon being served with a Writ of Summons, a defendant has a period of fourteen days within which to enter an Appearance. In the event that the Writ of Summons contains a Statement of Claim, a defendant also has to enter its Defence within fourteen days subsequent to entering an Appearance. In the event that the Writ of Summons does not contain a Statement of Claim, the plaintiff has a period of fourteen days from the date of an Appearance being filed by a defendant to file a Statement of Claim. Upon being served with a Defence, a plaintiff may thereafter file a Reply within fourteen days thereby generally closing pleadings. In the event that a defendant wishes to file a Rejoinder it must make an application to the Court by Summons for this purpose. Once pleadings have closed, either party may refer the action to Case Management by virtue of a Notice after which a Case Management hearing usually occurs within two months. During the Case Management hearing, a presiding judge will set dates (with the parties input) for the progress of the case up to trial. Typically, the trial of an action would be set six to twelve months from the date of the Case Management hearing. Once a trial has concluded, the Judge would generally issue a written ruling within two to five months. Overall, the period from the filing of a Writ of Summons to obtaining a final written ruling would be approximately 12 to 18 months.

3 In the event that there is no arguable defence to a claim, a Plaintiff may make an application by Summons for summary judgment once an Appearance has been entered. 5. Disclosure of Evidence The parties to an action are required to disclose all non-privileged documents in their possession relating to the action, including all documents intended to be relied upon at trial. The timeframe within which documents must be disclosed is directed by the Court during Case Management. Where a party fails to produce all relevant documents the opposing party is at liberty to make an application for, inter alia, specific discovery in order to obtain specific documents. 6. Administration of Evidence The evidence of witnesses of fact is adduced prior to trial by virtue of Witness Statements. Witnesses Statements stand as evidence in chief and therefore a party is effectively bound to the content of the Witness Statement. A witness is cross-examined with respect to his Witness Statement and the cross-examination is technically required to be limited only to matters contained in and arising out of the Witness Statement. Documentary evidence is generally contained within a filed Bundle of Documents which should be agreed between the parties prior to trial. Where documents are disputed, they are contained within a separate Bundle of Documents in which case a judge would make a final determination as to admissibility. Generally, a judge would give directions as to expert evidence during Case Management. The experience of the expert must be established and accepted by the Court prior to the Court deeming any evidence expert evidence. 7. Remedies In a commercial claim damages are typically the remedy sought. However, in appropriate cases, a party may obtain specific performance or injunctive relief. Within commercial cases, interlocutory injunctions and applications for interim payments are generally the interim remedy utilised. 8. Enforcement Once a Judgment has been obtained there are several means of enforcement which are available including. inter alia: In relation to Companies: 1. A statutory demand may be issued in accordance with section 188 of the Companies Act If not satisfied within three weeks, an application may be made to place the company into liquidation;

4 2. Garnishee proceedings may be commenced with respect to funds held in bank accounts; 3. Writs of Execution - there are various forms of Writs of Execution, and depending upon the circumstances, a judgment creditor may utilise a Writ of Execution to have property of the judgment debtor seized and sold in satisfaction of the judgment; 4. Examination of judgment debtor is a process typically utilised at the onset of enforcement proceedings for the purpose of ascertaining the assets of the judgment debtor. In relation to Individuals: 1. All of the above save for number 1; 2. A request may be made to the Supreme Court, pursuant to the provisions of the Bankruptcy Act 1870, for the issuance of a Debtor s Summons. The Debtor s Summons, once issued, requires the judgment debtor to satisfy the relevant judgment debt within twenty one days of service or otherwise an application may be made to have the judgment debtor adjudged bankrupt. 9. Appeal Generally, within six weeks of the Supreme Court s final ruling a party may appeal. There are not necessarily specific circumstances or grounds which must be satisfied for a party to appeal, rather a party may appeal where it considers that the Judge at first instance has made an error of fact or law which has resulted in an incorrect ruling. Appeals from the Supreme Court are made to the Court of Appeal. An appeal from the Court of Appeal may be made to the Privy Council in London, England. 10. Costs Yes, the Court has the power to order one party to pay another all or part of its legal costs of an action. Although an award of costs is within the discretion of the Court, the prevailing party to an action is generally awarded costs, which are taxed if not agreed. In rare circumstances, the Court may fix the costs to be awarded or may award costs on an indemnity basis which is essentially an award of the prevailing party s costs in their totality. With respect to fees, a prevailing party will usually be awarded the fees paid to its attorneys upon the basis set out above. In relation to disbursements, a prevailing party is generally entitled to: 1. filing fees;

5 2. agents fees; and 3. fees related to phone calls, photocopies, etc.