International Fraud & Asset Tracing 2026 Comparisons

While civil fraud actions in The Bahamas can take many forms, at common law such claims are generally rooted in the tort of deceit by way of claims of fraudulent misrepresentation. Alternative claims are frequently pursued in the tort of conspiracy.

Generally, such claims involve allegations of dishonesty, false statements, corrupt payments, misappropriation of property and concealment, all with an intention to cause financial harm to the victims, and result in an unlawful gain to the perpetrator(s).

Fraudulent Misrepresentation

A common claim in fraud actions, fraudulent misrepresentation is predicated on false statements. To succeed on the claim, there are three key elements that must be made out for the court – ie, that:

• the misrepresentation was knowingly false, or recklessly made without regard as to whether it was true or false;
• it was intended that the misrepresentation would be acted upon; and
• there was reliance on the misrepresentation resulting in loss.

Conspiracy

By contrast, conspiracy is an economic tort that has two forms:

• lawful means conspiracy; and
• unlawful means conspiracy.

Both forms involve two or more persons acting together with the intention to cause harm to another. The main distinction between the two is that with respect to an unlawful means conspiracy, the intention to cause harm to another need not be the predominant purpose of the conspiracy.

Pursuant to the Prevention of Bribery Act of The Bahamas, bribery is only a criminal offence in The Bahamas in relation to acts involving public officials, local and foreign.

An agent who receives a bribe may be subject to a number of equitable and common law claims from his or her principal. These include claims of breach of fiduciary duty, damages for fraud or deceit, and forfeiture of the agent’s remuneration.

Breach of Fiduciary Duty

This cause of action is based on the duty of loyalty owed by the agent to act in, and avoid any conflict with, the interests of their principal. Under this cause of action, a principal can pursue the agent for an account of the profits received, or equitable compensation for the losses suffered as a result of the breach.

Proprietary Claim

The receipt of the bribe by the agent results in the bribe being held on constructive trust for the principal. The creation of a constructive trust is important as it offers protection against unsecured creditors in the event of the agent becoming insolvent. Additionally, the constructive trust would allow for tracing claims by the principal where the bribe is used to acquire other property, or comes into the hands of other parties who may have knowingly assisted with the bribe.

Damages for Fraud and Deceit

A claim can be pursued by a principal for losses suffered beyond the amount of the bribe itself. The onus will be on the claimant to establish that it has suffered such losses.

Forfeiture of the Agent’s Remuneration

Where the agent received remuneration or commission for any work connected to the bribe, it follows that they should not be entitled to the remuneration or commission. The principal is therefore able to seek recovery of the remuneration paid to the agent in respect of the work connected to the bribe.

Parties who assist or facilitate fraudulent acts can be pursued by claims of knowing receipt and dishonest assistance.

Knowing receipt claims are applicable when a party receives property that was held on trust or by a fiduciary, with knowledge that the property was transferred to that party in breach of trust or fiduciary duty. It therefore operates as an equitable claim whereby a claimant can hold a party personally liable to account for or provide compensation for any property that they dispose of despite knowledge of the breach of trust or fiduciary duty. A claimant does not have to establish dishonesty on the part of the recipient of the property but must satisfy the court that the knowledge of the recipient would make it unconscionable for the recipient to retain the benefit of the property.

Conversely, a claim of dishonest assistance requires an element of dishonesty. However, as the claim can be pursued even where there is no receipt by the defendant of property in breach of trust or a fiduciary obligation, the dishonesty element must arise from the acts of the defendant that facilitated, induced or procured the breach. The test for whether the defendant acted dishonestly is an objective one based on what the defendant actually knew at the time, and not what a reasonable person ought to have known.

Section 41 (1) of the Limitation Act of the Bahamas postpones the running of the period of limitation for a claim based on fraud until the claimant has:

• discovered the fraud; or
• with reasonable diligence, could have discovered the fraud.

This provision operates to limit the instances in which a party, by themself, their agent or any other person, can rely on its intentional concealment of material fact to assert that the limitation period for a claim has expired.

A claimant who seeks the recovery of property misappropriated or transferred by fraud can assert a proprietary claim against the converted proceeds of the original fraud.  This is subject to there being:

• a continuing enforceable proprietary interest;
• an ability to trace that interest to identifiable assets; and
• no dissipation of the proceeds or presence of a bona fide purchaser for value without notice of the fraud. 

At common law, tracing is not available where the proceeds have become co-mingled with other funds. Equity, however, will also allow for tracing of proceeds that have become co-mingled with other funds, provided that there is a fiduciary relationship.

The Supreme Court (Civil Procedure) Rules 2022 (CPR), which govern the commencement and prosecution of civil claims in The Bahamas, do not prescribe any pre-action protocols for fraud claims. 

Freezing orders can be sought under Part 17 of the CPR to restrain a party from dissipating assets. If granted, a freezing order will operate to restrain a party from dealing with any assets, including seeking to remove the assets from the jurisdiction. A cross-undertaking in damages is required upon seeking a freezing order.

Non-Compliance

A defendant’s failure to comply with a freezing injunction may lead to contempt proceedings. In determining whether a defendant is in contempt, the court will consider whether the defendant knew of the freezing injunction, was aware of its terms and still knowingly refused to comply with the order. If the answer is yes, the defendant will face sanctions, which may be a fine but could also be a committal to prison.

The nature and extent of any sanctions is at the discretion of the court. In weighing what sanctions, if any, to impose, the court can consider all of the circumstances of the non-compliance. It is likely that the court would place significant weight on anything that suggests that the defiance of the freezing order was not a one-off but likely to be repeated.

Third Parties

Freezing orders are usually endorsed with a penal notice warning any third parties against knowingly facilitating a breach of the order. If that admonition is ignored, third parties run the same risk of committal proceedings faced by defendants who defy the order.

Fees

Filing fees are payable on the commencement of all actions. The fee structure is tiered and increases with the value of the claim.

There is no mechanism under the CPR to compel a defendant to disclose his or her assets prior to a judgment.  Post-judgment, Part 44 of the CPR provides for information to be obtained from a judgment debtor, including the disclosure of assets. 

Preservation of evidence is possible via Part 17 of the CPR, which governs interim remedies. This part of the CPR allows, among other things, for the grant of an interim injunction, freezing and search orders, and orders for the detention, custody, preservation and procuring a sample of “relevant property”.

An applicant for a search order is required to give an undertaking in damages. If the assets that the applicant has are deemed insufficient to satisfy the undertaking, the court may require the application to fortify the undertaking by providing security. The form and amount of the security is to be fixed by the judge.

Prior to commencing a claim, the ability to obtain documents from third parties is limited. Recourse may be had to a Norwich Pharmacal Order (NPO), which is invoked to seek a court-ordered disclosure from third parties, who may have become caught up, unwittingly, in acts of wrongdoing by other parties.

The restrictions on the use of information obtained via an NPO will depend on the information relayed to the court in the course of the application, and any specific purpose identified. If for example, the NPO was sought to assist in identifying a fraudster, against whom proceedings would be brought, the applicant would be constrained to use any information for that purpose. This constraint would likely be underpinned by an undertaking given to the court as to the purpose for which the obtained information would be used, warranting an application to the court to make any use of the information for any other purpose.

Post-Commencement

Once proceedings are commenced, obtaining documents from third parties is possible by way of a witness summons. This procedure is under Part 33 of the CPR, and enables a party to seek the issuance of a witness summons to produce documents to the court (as opposed to any of the parties). The leave of the court is required for the issuance of a witness summons:

• less than 21 days before the hearing; or
• requiring a party to give evidence or produce documents on any date other than one fixed for trial, or the hearing of an application.

Whether an application for any of the relief under Part 17 of the CPR proceeds on ex parte basis is entirely up to the discretion of the judge hearing the matter. While permissible, ex parte applications are the exception and should only be allowed by the judge where:

• the relief being sought would be defeated by notice; or
• the urgency of the application makes it impossible to provide notice.

On obtaining an order on an ex parte basis, the applicant must provide the respondent with a copy of the application, all supporting evidence and any written submissions relied upon at the hearing. The applicant must also provide a copy of the transcript of the ex parte hearing, or if none exists, the attorney’s notes of the hearing.

Victims of fraud typically lodge fraud complaints with the Financial Crimes Unit of the Royal Bahamas Police Force. The prosecution of a criminal complaint does not automatically preclude the prosecution of a civil fraud claim. However, the courts have recognised that an extant criminal complaint proceeding relating to fraud can provide a basis for an application to stay a parallel civil claim in respect of the fraud.

Where a defendant is not participating in a matter, by failing to file either an acknowledgement of service or a defence, a default judgment may be obtained. The main prerequisites for both are:

• proof of service of the claim form and statement of claim on the defendant;
• the expiry of the period for filing an acknowledgment of service or defence; and
• failure to satisfy the claim on which judgment is sought. Default judgments may be set aside if wrongly entered because any of the prerequisites were not satisfied, or if the defendant promptly applies, offers a good explanation for the default and has a real prospect of successfully defending the claim.

Where a defence is wholly unmeritorious, judgment can be obtained without a trial by way of an application for summary judgment. To accede to an application for summary judgment, the court must be satisfied that there is no prospect of successfully defending the claim. This is a discretionary exercise that does not entail the court conducting a mini-trial but rather reviewing the evidence to determine whether the prospects of success are realistic or fanciful.

The Bahamas has recognised the well-established common law position that allegations of fraud must be expressly pleaded and sufficiently particularised. This requirement has been interpreted as rendering it inadequate for a party to make a mere, bare or vague reference to fraud in their pleadings. Instead, there is an obligation on a party to set out, in their statements of case, all of the material facts and circumstances upon which they rely to assert fraud. To the extent that documents are critical to the allegations of fraud, they should be identified in the party’s pleadings.

A party’s failure to provide sufficient particulars of fraud, or identify crucial documents in their statement of case, can have significant consequences. The pleading may be susceptible to a strike-out challenge on the ground that it is frivolous and vexatious, or fail at trial, having only set out a mere reference to fraud.

At common law, claims can be commenced in The Bahamas against unknown persons. If these unknown persons are anonymous but identifiable, issues such as the court’s jurisdiction and effecting service of the originating process can be readily addressed. In turn, the court may also be prepared to grant an interim order under Part 17 of the CPR.

The considerations for the court in granting an interim order against unknown persons are that:

• the class of unknown persons is properly defined;
• the acts being restrained relate to the matters complained of;
• the defendants must be identifiable and capable of service; and
• the order must be clear and precise and not extend to acts that are lawful.

The court can issue a witness summons under Part 33 of the CPR to compel a witness to give evidence. This power can be invoked in respect of inferior courts or tribunal, provided there is no such power vested in that inferior court or tribunal.

Liability for fraud may be imposed on a limited liability company or other corporate entity, in a civil context, where the fraudulent acts are committed by individuals who, acting within the scope of their authority, control and represent the company’s decision-making and are therefore considered to have “directing mind and will” of the company itself.

However, where the company is itself the victim of fraud, the fraudulent conduct will not be attributed to the company, and the company may pursue claims against the responsible individuals, as discussed in 3.3 Shareholders’ Claims Against Fraudulent Directors. This issue is further addressed in 3.2 Claims Against Ultimate Beneficial Owners.

In The Bahamas, the general principle is that a company is treated as a separate legal personality, distinct from its directors, shareholders and ultimate beneficial owner(s) (see Salomon v Salomon & Co Limited [1897] AC 22). This means that a company has distinct legal rights and obligations from those who stand behind the company. Further, these individuals are ordinarily shielded from personal liability by the “corporate veil”. 

Accordingly, directors are generally protected by the “corporate veil” from personal claims based on acts properly done in the course of the company’s management. This protection is reinforced under Section 55 of the International Business Companies Act, which states that in performing such functions, the directors of a company must act honestly and in good faith with a view to the best interest of the company and exercise the care, diligence and skill that a reasonably prudent person would exercise in comparable circumstances. However, this protection is not absolute. Bahamian law, applying common law principles, recognises circumstances upon which it is necessary to look beyond the corporate veil.

Courts have lifted the veil to prevent misuse of corporate structures for fraud, concealment or avoidance of obligations (see Re a Company [1985] BCLC 333). Similarly, Bahamian law recognises piercing the corporate veil but emphasises flexibility rather than a rigid approach, concluding that the separate entity principle is not applied where it yields a result “too fragrantly opposed to justice”.

Therefore, where a company is merely a sham, façade or alter ego of its beneficial owner, and is being used to perpetuate fraud, the Bahamian court may not apply the separate legal personality principle and impose liability directly on the controlling individual.

Nevertheless, in circumstances where the corporate veil is not “pierced” or “lifted”, individuals behind a company may incur direct personal liability, namely where these individuals:

• personally participate in fraudulent misrepresentations;
• procure or direct the commission of a tort; and
• breach fiduciary duties owed.

As a general rule, for breach of directors’ duties, where the company suffers loss as a result, the only “person” with legal standing to pursue a claim on behalf of the company is the company itself. Under Section 79 of the Companies Act and Section 40 of the International Business Companies Act, subject to any limitations in its memorandum or articles or any unanimous shareholder agreement, directors have the authority to manage the business and affairs. In exercising such authority, directors and officers must act honestly and in good faith, with a view to the best interests of the company. Where such duties are breached, particularly in cases involving fraud, the company is the entity that suffers the loss and is therefore typically the property party to bring proceedings.

There are of course exceptions to address issues where the alleged wrongdoers are in control of the company and therefore would not, in practice, vote in favour of issuing proceedings against themselves. To address the difficulty that may arise in circumstances where the alleged wrongdoers are themselves in control of the company, common law has developed the mechanism of the derivative action, which permits shareholders to bring proceedings on behalf of the company.

Derivative Actions

A derivative action allows a shareholder to pursue claims in respect of wrongs done to the company where those in control have failed or refuse to act. This ensures that directors cannot rely on their control of the company to protect themselves from the consequences of their breaches and avoid liability.

Double Derivative Actions

Bahamian law, through common law, also recognises instances where members of a company’s holding company may pursue the company’s cause of action where the holding company was itself subject to the same wrongdoer control as the company. Common law has therefore permitted an extended form of derivative claim where a shareholder of a parent company wants to pursue a claim vested in a subsidiary of that parent company (a double derivative claim), or in subsidiaries of the subsidiary (a triple derivative claim). The test to be applied by the court is that of a common law derivative action.

Common law recognises double derivative actions where:

• the wrong lies in a subsidiary company;
• the parent company, whose members include the claimant, will not act because it is controlled by the wrongdoer; and
• justice requires intervention.

A claimant may add a new defendant to proceedings without the court’s permission at any time before the case management conference by filing, at the court office, an amended claim form and statement of claim.

An application for permission to add a party may be made by:

• an existing party; or
• a person who wishes to become a party.

The Computer Misuse Act 2003 (CMA) provides an example in which the Bahamian courts are empowered to exercise extraterritorial jurisdiction. By virtue of Section 11 of the CMA, the Bahamian courts are empowered to try offences under the CMA that are committed outside of The Bahamas. 

The service of proceedings on parties out of the jurisdiction is governed by Part 7 of the CPR, which has streamlined the process surrounding the service of court process out of the jurisdiction, making the involvement of foreign parties more efficient than previous procedural requirements.

Part 7 of the CPR sets out instances where a party may be served out of the jurisdiction without the court’s permission, that is “without leave”, and where the court’s permission is required. In cases that fall within CPR Rule 7.2, a claim form may be served out of The Bahamas without leave of the court. However, where service is not allowed under CPR Rule 7.2, a claim form may be served outside of The Bahamas, with the court’s permission.

An application for leave under CPR Rule 7.3 must be made on notice to every party to the proceedings, other the party intended to be served. Typically, such an application is made by way of notice of application, with a supporting affidavit stating any facts or matters related to the desirability of the court assuming jurisdiction, including the grounds on which the application is made, the place or country in which the person to be served is or possibly may be found, whether or not the person to be served is a citizen of The Bahamas and a statement that, in the deponent's view, there is a serious issue to be tried on the merits.

The court will consider whether the applicant establishes:

• that the claim has a real and substantial connection with The Bahamas;
• that there is a serious issue to be tried on the merits;
• that The Bahamas is the appropriate forum for the trial; and
• any other relevant circumstances to support an assumption of jurisdiction.

Alternate Service

There is an availability of alternative service procedures that address difficulties where traditional service methods are not feasible and provide for expedience.

Where service on a defendant who is to be served out of The Bahamas is impracticable, the claimant may apply to the court for an order under CPR Rule 7.12 that the claim form be served by an alternative method. This order must specify the date on which service of the claim form is deemed to have been effected, and such service shall be deemed to be good service. However, where any method of service specified in an order for service by alternative method is subsequently shown to be contrary to the law of the country in which the claim was purportedly served, such service shall be invalid.

An order for service by an alternative method can be made only where none of the methods provided in an order for service by an alternative method can be made only where none of the methods provided has been successfully adopted, including of course service by a method permitted by the law of the country in which the claim form or document is to be served.

Court’s power to dispense with service

The court may also dispense with service of a claim form in exceptional circumstances. An application to dispense with service may be made without notice at any time and must be supported by affidavit evidence. The court’s power to dispense with service can be exercised retrospectively as well as prospectively.

The method of enforcement will generally depend on the nature of the judgment. Except where an enactment or rule provides otherwise, a person who has obtained or is entitled to enforce a judgment or order (“judgment creditor”) may pursue multiple methods of enforcement that are available, concurrently or sequentially.

Methods of Enforcing Judgments or Orders

Under CPR Rule 43.11, the judgment creditor may enforce a judgment or order for the payment of money by any of the following methods:

• a writ of fieri facias (writ of execution) or warrant of execution under CPR Part 48;
• a third-party debt order under CPR Part 45;
• in relation to securities, a charging order, stop order or stop notice under CPR Part 47;
• in relation to land, by a fixed date claim to enforce the equitable charge created by Section 63 of the Supreme Court Act (Chapter 53) under Part 50;
• the appointment of a receiver under CPR Part 53; or
• a writ of sequestration under CPR Part 50.

Enforcement of Judgment for Possession of Land

Under CPR Rule 50.1, a judgment or order for the giving of possession of land may be enforced by:

• writ of possession;
• an order of committal (where CPR Rule 50.3 applies); or
• writ of sequestration.

Leave of the court is generally required to issue a writ of possession to enforce a judgment or order for the giving of possession of any land, except where the judgment or order was given or made in a mortgage action. The court will not grant leave unless it is shown that every person in actual possession of the whole or any part of the land has received notice of the proceedings sufficiently enabling him or her to apply to the court for any relief to which they may be entitled.

Enforcement of Judgment for Delivery of Goods

A judgment or order for the delivery of any goods that does not provide the alternative of paying the assessed value of the goods may be enforced by:

• writ of delivery to recover the goods without alternative provisions for recovery of their assessed value (“writ of specific delivery”);
• an order of committal; or
• writ of sequestration.

Enforcement of Judgment To Do or Abstain From Doing Any Act

Where a person (i) required by a judgment or order to do an act within a time specified in the judgment or order refuses or neglects to do it within that time, or, as the case may be, within that time as extended or abridged under these Rules or (ii) disobeys a judgment or order requiring him or her to abstain from doing an act, then, subject to the provisions of these Rules, the judgment or order may be enforced by:

• a writ of sequestration against the property of that person, having obtained leave of the court;
• a writ of sequestration against the property of any director or other officer of the body, where that person is a body corporate and having obtained leave of the court; or
• an order of committal against that person or, where that person is a body corporate, against any such officer, subject to the provisions of the Debtors Act (Chapter 70).

This rule must be read together with CPR Rule 50.5, under which as a general rule, enforcement cannot be obtained unless a copy of the order is served personally on the person in default with the requisite penal notice indorsed thereon.

Registration of Foreign Judgment by Way of the Reciprocal Enforcement of Judgments Act

The Reciprocal Enforcement of Judgments Act (REJA) enables the registration of foreign judgments, orders and awards in the Supreme Court. REJA applies solely to jurisdictions of reciprocity, namely Barbados, Bermuda, Jamaica, the Leeward Islands, St Lucia and Trinidad, British Guiana, British Honduras, Australia and the United Kingdom.

Under Section 2 of REJA, a judgment means “any judgment or order given or made by a court in any civil proceedings whether before or after the passing of this Act and includes an award in proceedings on an arbitration if the award has, in pursuance of the law in force in the place where it was made, become enforceable in the same manner as a judgment given by a court in that place”.

To enforce a judgment obtained outside of The Bahamas under REJA, the person by whom the judgment was obtained (including the successors and assigns of that person) applies to the Supreme Court, at any time within 12 months after the date of the judgment, or such longer period as may be allowed by the court, to have the judgment registered in the court. The court will consider whether it thinks it is just and convenient that the judgment should be enforced in The Bahamas. Nevertheless, no judgment shall be ordered to be registered under REJA if:

• the original court acted without jurisdiction;
• the judgment debtor, being a person who was neither carrying on business nor ordinarily resident within the jurisdiction of the original court, did not voluntarily appear or otherwise submit or agree to submit to the jurisdiction of that court;
• the judgment debtor, being the defendant in the proceedings, was not duly served with the process of the original court and did not appear, notwithstanding that he or she was ordinarily resident or was carrying on business within the jurisdiction of that court, or agreed to submit to the jurisdiction of that court;
• the judgment was obtained by fraud;
• the judgment debtor satisfies the registering court either that an appeal is pending or that he is or she entitled or intends to appeal against the judgment; or
• the judgment was in respect of a cause of action that, for reasons of public policy or for some other similar reason, could not have been entertained by the registering court.

Common Law

Foreign judgments may also be enforced by an action at common law. Judgment from any country to which REJA has not been extended can be enforced at common law. The method of such enforcement is by way of commencement of an action in the Supreme Court by which a party may seek to have recognised or domesticated the order of the foreign court by an order of the Bahamian court. The foreign judgment constitutes a cause of action that can only be opposed on limited grounds, namely:

• the foreign court lacked competent jurisdiction;
• the rules of natural justice had not been complied with in the foreign proceedings;
• the foreign judgment was not final and conclusive;
• the judgment debt was not definite or ascertainable;
• the foreign judgment was obtained by fraud; and
• recognition of the foreign judgment would be contrary to public policy in The Bahamas.

Enforcement of Foreign Arbitral Award Under the Arbitration (Foreign Arbitral Awards) Act

The Bahamas, by way of the Arbitration (Foreign Arbitral Awards) Act (the “AFAA Act”), has given effect to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 10 June 1958) (“the New York Convention”), which allows foreign arbitral awards awarded in member states of the New York Convention to be enforced domestically.

An application before the Supreme Court of the Commonwealth of The Bahamas for the enforcement of a foreign arbitral award is made by a fixed date claim form along with a statement of claim. All such particulars and evidence as may be necessary in relation to such order or orders for enforcement must be included in the fix date claim form, statement of claim or affidavit, particularly:

• the duly authenticated original award or a duly certified copy of it;
• the original arbitration agreement or a duly certified copy of it; and
• a translation of the award or agreement certified by an official or sworn translator or by a diplomatic or consular agent, if the award or agreement is in a language other than English.

Further, as these proceedings would involve an order against a government department, the statement of claim should include a statement of the circumstances in respect of which the Crown liability is alleged, and the government department and officer of the Crown concerned with the stated allegation. The affidavit must be filed and served on all respondents.

A respondent who wishes to oppose an application to enforce under the AFAA 2009 must file and serve an affidavit setting out the grounds upon which the enforcement of the award is opposed within 14 days from the date of service of the applicant’s affidavit.

The leave application and an application for an order, or orders, for the enforcement of the award may be made simultaneously. The court may, at the time of hearing the leave application, make an order as to the enforcement.

There are circumstances upon which the court may refuse the enforcement of a foreign arbitral award, namely where it is proven that:

• a party to the arbitration agreement is under some incapacity;
• the arbitration agreement was not valid under the law to which the parties subjected it or, failing any indication thereon, under the law of the state where the award was made;
• the party against whom the award is invoked was not given proper notice of the appointment of the arbitrator or the arbitration proceedings or was otherwise unable to present his or her case;
• the award deals with a difference not contemplated by or falling within the terms of the submission to arbitration, or contains decisions on matters beyond the scope of the submission to arbitration;
• the composition of the arbitral tribunal, or the arbitral procedure, was not in accordance with the agreement of the parties or – failing such agreement, with the law of the state where the arbitration took place;
• the award has not yet become binding on the parties, or has been set aside or suspended by a competent authority in the state in which, or under the law of which, the award was made;
• the award is in respect of a matter that is not capable of settlement by arbitration; or
• the enforcement of the award is contrary to public policy.

There are also special considerations under CPR Part 65, and Sections 15 and 19 of the Crown Proceedings Act, to consider as the present circumstances concern potential proceedings involving the Crown.

Service Outside of the Jurisdiction

If in these circumstances a party must be served outside of the jurisdiction, where a party is seeking to enforce a judgment or arbitral award CPR 7.2(m) and/or when a claim is made for interim relief in support of judicial or arbitral proceedings commenced – or to be commenced – outside the jurisdiction (CPR 7.2(q)), proceedings may be served out of The Bahamas without leave of the court (CPR 7.2(m) and (q)).

Jurisdiction of Foreign Court

The Bahamian court has noted that, ordinarily, while foreign courts could make in personam orders, they could not make in rem orders (orders concerning the actual transfer of Bahamian property or proprietary rights); this can only be done by a Bahamian court. In rem judgments bind the whole world, whereas in personam judgments merely bind the parties in the litigation.

In The Bahamas, the privilege against self-incrimination is protected in criminal proceedings under the Constitution of the Commonwealth of The Bahamas (“the Constitution of The Bahamas”), as well as by common law principles and statute.

Pursuant to Article 20(1) of the Constitution of The Bahamas, any person charged with a criminal offence, unless the charge is withdrawn, is guaranteed a fair hearing within a reasonable time by an independent and impartial court established by law. Furthermore, paragraph (7) of Article 20 of the Constitution of The Bahamas states that “No person who is tried for a criminal offence shall be compelled to give evidence at the trial.”

The Bahamian courts have given a purposive interpretation to paragraphs (1) and (2) of Article 20 of the Constitution of The Bahamas, concluding that this Article does not simply encompass the right to refuse to testify in a court but must also apply to bodies endowed by the law with inquisitional power; and the right to refuse to answer questions that may open an incriminating line of enquiry (per Osadebay, JA, in The Attorney General v Financial Clearing Corporation, Civil Appeal No 70 of 2001).

In addition, Sections 44(b) and 138 of the Evidence Act (Chapter 65) provide that a witness shall not be compelled to produce any document in his or her possession or power nor answer any question where the production of the document or such answer may tend to expose that person or the husband or wife of such person to a criminal charge or to any penalty or forfeiture.

In civil proceedings, including fraud claims, no person can be compelled to self incriminate. A person may therefore refuse to answer any question, or produce any document or thing, if to do so would create a real risk of criminal prosecution.

While a defendant may invoke this privilege, in certain contexts, the court may draw an adverse inference from the absence or silence of a witness who might be expected to have material evidence to give on an issue in an action. This adverse inference may strengthen the evidence adduced by the other party or weaken the evidence, if any, adduced by the defendant. Nevertheless, this cannot itself establish liability. 

The firm is not aware of any decisions on whether a defendant in a civil fraud claim may be able to invoke a right against self-incrimination in response to a court order.

The Bahamas, like most jurisdictions, recognises that confidential communications between a lawyer and client are to be protected under the doctrine of legal professional privilege.

There is a fraud exception to this privilege, typically seen in applications for discovery and inspection. The exception dictates that correspondence between a lawyer and client can be disclosed if the correspondence was in furtherance of a criminal purpose. The common law authority for this fraud exception, which has been recognised within The Bahamas, is the seminal decision of Kuwait Airways Corpn v Iraqi Airways Co (No 6) [2005] 1 WLR 2734, [2005] 1 WLR 2734.

The CPR addresses exemplary or punitive damages at Part 8 of the CPR; specifically, this addresses the requirements for a claim form. In addition to setting out a short description of the nature of the claim, and the remedy sought, a claimant must expressly state in the claim form that exemplary damages are being sought.

The Bahamas has a legislative framework that, while providing some protection against disclosure of customer information, balances the jurisdiction’s obligations with international standards for providing information to aid in the investigation of crimes and anti-money laundering policies.

The firm is not aware of any Bahamian jurisprudence on crypto-assets.