Litigation 2019 Second Edition

Last Updated December 05, 2019

Turks & Caicos Islands

Law and Practice

Authors



GrahamThompson was founded in 1950 and is at the forefront in serving the principal economic sectors of The Bahamas and Turks and Caicos Islands, the tourism industry and the financial services and banking sectors. The firm’s expertise in the offshore financial arena, including private client, trusts and estates and corporate, commercial and securities, is internationally recognised, as is the firm’s expertise in real estate and development. GrahamThompson’s litigators are highly sought-after experts who provide effective and specialised representation and advice across a wide spectrum of disciplines including but not limited to: the banking and finance, corporate and commercial, employment and labour, insurance, intellectual property, insolvency, regulatory and manufacturing sectors. GrahamThompson operates four offices: Nassau and Lyford Cay in New Providence; Freeport, Grand Bahama; and Providenciales, Turks and Caicos Islands.

The Turks and Caicos Islands are a self-governing constitutional democracy under the British Crown. They have a written Constitution, the most recent version of which came into force on 15 October 2012. The Turks and Caicos Islands Constitution Order 2011 is an Order made by Her Majesty in Council in exercise of the powers conferred upon Her by Sections 5 and 7 of the West Indies Act 1962, an enactment of the UK Parliament.

The majority of local laws are enacted by the Legislature for the Turks and Caicos Islands, which consists of Her Majesty (whose executive authority is exercised on Her behalf by the Governor) and a House of Assembly.

The Islands’ legal system is based on English common law and the doctrines of equity with primary statutory law drawn from:

  • certain Acts of Parliament of England which were extended to the Bahama Islands (of which the Turks and Caicos Islands then formed part) in 1799 and which remain relevant;
  • such subsequently enacted laws of the United Kingdom which specifically extend to the Turks and Caicos Islands;
  • such treaties and conventions relevant to the Turks and Caicos Islands;
  • such laws of the Bahamas, Jamaica or the former Federation of the West Indies that apply to the Turks and Caicos Islands; and
  • the local laws enacted by the Turks and Caicos Islands House of Assembly.

The courts of the Turks and Caicos Islands hear cases based primarily on the adversarial model, very similar to that operated in England and Wales and other Caribbean countries. Proceedings generally follow an adversarial model conducted through both written submissions and oral argument and cross-examination of witnesses.

The judges and magistrates appointed to preside or sit in any court of the Turks and Caicos Islands in the exercise of their judicial functions are independent from the legislative and executive branches of government, which is a constitutional requirement. The legislature and the cabinet are constitutionally required to uphold the rule of law and judicial independence and are required to ensure that adequate funds are provided to support the judicial administration in the Islands.

The Judicial Service Commission for the Turks and Caicos Islands is created by Section 86 of the Constitution of the Turks and Caicos Islands. It advises HE the Governor with respect to judicial appointments, disciplinary control over persons holding the offices of Chief Justice, President of the Court of Appeal, Registrar and Deputy Registrar, and removal from office of persons holding or acting in the offices of Registrar and Deputy Registrar (Section 87). The Chairman of the Judicial Service Commission is appointed by HE the Governor acting in their discretion; two other members are appointed by HE the Governor acting after consultation with the Premier and Leader of the Opposition from among persons who hold or have held high judicial office.

The Magistrate’s Court

The Magistrate’s Court for the Turks and Caicos Islands is a statutory body established by Section 3 of the Magistrate’s Court Ordinance (CAP. 2.03) with summary jurisdiction for both criminal and civil cases.

The Supreme Court

The Supreme Court of the Turks and Caicos Islands is a Superior Court of Record, being constituted by section 77 of the Constitution and the Supreme Court Ordinance (CAP. 2.02) (the SCO). Pursuant to Section 3 of the SCO, in addition to any jurisdiction previously exercised by the Supreme Court or conferred upon it by the SCO or any other law, the Supreme Court has within the Islands the jurisdiction vested in the following Courts in England:

  • the High Court of Justice; and
  • the Divisional Court of the High Court of Justice as constituted by the Supreme Court of Judicature (Consolidated) Act, 1925, and any Act of the Parliament of the United Kingdom replacing that Act.

Subject to the SCO and any other law, the jurisdiction of the Supreme Court is exercised in accordance with the Rules of the Supreme Court 2000, which are based on the former Rules of the Supreme Court of England and Wales prior to the Civil Procedure Rules of England and Wales. In any matter of practice or procedure for which no provision is made by the SCO or any other law or by any rules, the practice and procedure in similar matters in the High Court of Justice in England shall apply so far as local circumstances permit and subject to any directions which the Supreme Court may give in any particular case.

Most criminal trials on indictment and a limited category of civil trials are heard by a Justice of the Supreme Court sitting with a jury pursuant to the Jury Ordinance (CAP. 2.09). Juries ordinarily consist of six members, but all cases of treason, murder and piracy require juries of twelve persons (s.22 Jury Ordinance). In civil cases, save for the limited category of cases referred to above, trials are before a judge alone.

Both the Magistrate’s Court and the Supreme Court have jurisdiction in relation to children and family matters under various recent legislation including the Matrimonial Causes Ordinance (CAP. 11.04), the Children (Care and Protection) Ordinance 2015, the Family Law (Guardianship, Custody and Access to Children) Ordinance 2015 and other Ordinances.

The Court of Appeal

The Court of Appeal for the Turks and Caicos Islands is established by section 80(1) of the Constitution of the Turks and Caicos Islands with a President and Justices of Appeal appointed by HE the Governor acting after consultation with the President of the Court. It currently sits three times per year and in each case for three weeks.

The practice and procedure of the Court of Appeal is governed by the Court of Appeal Ordinance (CAP 2.01) and the Court of Appeal (Practice and Procedure) Rules which provide that the Court of Appeal Rules of the Bahama Islands shall apply mutatis mutandis to appeals from the Supreme Court of the Turks and Caicos Islands.

The Privy Council

Pursuant to the Turks and Caicos Islands (Appeal to Privy Council) Order a final appeal from a judgment of the Court of Appeal lies with leave to Her Majesty in Council.

Pursuant to Section 3, an appeal shall lie:

  • as of right from any final judgment, where the matter in dispute on the appeal amounts to or is of the value of GBP300 or upwards, or where the appeal involves directly or indirectly some claim or question to or respecting property or some civil right amounting to or of the said value or upwards; and
  • with the leave of the Court of Appeal, from any other judgment, whether final or interlocutory, if, in the opinion of the Court of Appeal, the question involved in the appeal is one which, by reason of its great or general importance or otherwise, ought to be submitted to Her Majesty in Council for decision.

Other Courts and Tribunals

The Coroners Ordinance (CAP. 2.05) provides for a Coroner for the Turks and Caicos Islands. The Magistrate is the ex officio Coroner of the Islands. The Coroner may appoint from time to time a deputy Coroner.

The Labour Tribunal is a statutory body established by Section 93 of the Employment Ordinance (CAP. 17.08). It has jurisdiction to hear and determine any labour dispute or complaint or other matter referred to it under the Employment Ordinance or any other Ordinance. The composition of the Labour Tribunal is prescribed by Section 94 of the Employment Ordinance.

Save for interlocutory hearings heard in chambers and those matters of a sensitive or highly confidential nature which may be heard in camera (eg, matters involving children and other persons with a disability, matters concerning national security and other matters involving confidential information where the court determines that the public interest is not served by the matter being heard in open court), the general rule is that judicial proceedings in the Turks and Caicos Islands are conducted in public and that all proceedings are available for the public to observe.

Pursuant to Order 63, rule 4 of the Rules of the Supreme Court 2000, any person shall, on payment of the prescribed fee, be entitled during office hours to search for, inspect and take a copy of any of the following documents filed in the Supreme Court Registry:

  • the copy of any writ of summons or other originating process;
  • any judgment or order given or made in the court or the copy of any such judgment or order; and
  • with the leave of the Court, which may be granted on an application made ex parte, any other document.

In appropriate cases, upon application by a party to proceedings, the Supreme Court may order its record relating to an action or part thereof to be sealed and thus kept confidential.

Individuals may appear in person in all courts in the Turks and Caicos Islands but companies must appear by an attorney in the Supreme Court and higher courts.

The Turks and Caicos Islands Bar comprises lawyers who are described as attorneys and who are admitted on application to the Chief Justice pursuant to Section 4 of the Legal Profession Ordinance (Cap. 2.10) (the LPO). Eligibility to be admitted is limited to Turks and Caicos Islanders; and any other applicant who has obtained the qualifications specified in Section 5(1) of the LPO and who has gained the experience specified in Section 5(2), and who in the opinion of the Chief Justice is otherwise a fit and proper person to be so admitted. The qualifications referred to are that such person:

  • has been called to the bar or admitted as a solicitor or an attorney in some part of the Commonwealth or the Republic of Ireland;
  • has obtained a Certificate of Legal Education from the Council of Legal Education of the West Indies;
  • has obtained a Diploma of Legal Practice from an institution approved by the Law Society of England and Wales;
  • is qualified to practise as an attorney under regulations made under Section 30; and/or
  • has not been disbarred or struck off the roll of attorneys of any court in any part of the Commonwealth or the Republic of Ireland or has not done any act or thing which would render them liable to be disbarred or struck off the roll of attorneys of any such court.

The experience referred to is as follows:

  • in the case of all applicants, not less than three months’ training in the practice of law under the supervision of an attorney admitted to practice in the Islands for not less than two years;
  • in addition to the experience referred to above, in the case of an applicant who is not a Turks and Caicos Islander, not less than five years’ experience in practice outside the Turks and Caicos Islands since call or admission.

A foreign lawyer may be called by way of limited admission to conduct a case in the Turks and Caicos Islands courts, however, they must possess the qualifications specified in Section 5(1) or be exempted under Section 4(3). An application for the admission of such person may be made by an attorney enrolled in the Islands who must satisfy the Chief Justice that they have instructed such person and that such person has come or intends to come to the Islands for the purpose of appearing, acting, and advising in that suit or matter. The Chief Justice may admit a person to practice for the purpose of the suit or matter concerned but not otherwise.

Foreign lawyers require a work permit (usually a temporary one), the application for which would be made on their behalf by the local law firm which engages their services.

Admission to the Bar is not required for work involving international commercial arbitration.

There is no express prohibition or sanction relating to third-party funding; however, in cases where a third party is the real party interested in the litigation, it runs the risk that an adverse costs order may be made against it.

There is also an absence of legal protection insurance and "after the event" insurance and, as a result, all litigation is funded on a private client basis.

In theory, all lawsuits are available for third-party funding; however, it is really a matter between the litigant and potential funder as to whether the nature of the suit or the amount involved means third-party funding will be made available.

There are no specific rules concerning third-party funding, so in theory it is equally available to plaintiffs and defendants.

Again, there are no specific rules concerning third-party funding so the amount of funding to be provided by a third party is a matter to be decided between the funder and the relevant litigant.

In the absence of any legislation/rules, this is very much a matter to be decided between the funder and the relevant litigant.

Contingency Fees

Contingency fee arrangements, that is to say, an agreement whereby the amount of the legal fees is contingent on the success of the claim and is dependent on the value of the damages recovered, are unlawful at common law and thus not permissible in the Turks and Caicos Islands. A contract which breaches the rule against champerty and maintenance is against public policy and is therefore unenforceable in the Turks and Caicos Islands.

Conditional Fee Agreements

Conditional fee agreements have been common place in England and Wales since their statutory introduction in 1995. A conditional fee differs from a contingency fee in that the fee, whilst still only payable in the event of success, is calculated as a percentage uplift on the normal hourly charging rate, ie, it is independent of the amount of damages recovered. There is no equivalent legislation in the Turks and Caicos Islands and conditional fee agreements are not present in the jurisdiction.

Damage-based Agreements

Damage-based agreements (DBAs), a form of contingency fee arrangement, are now available in England and Wales for most contentious work (other than criminal or most family matters) under relevant legislation. Again, there is no equivalent legislation in the Turks and Caicos Islands and DBAs are not present in the jurisdiction.

In the absence of any specific legislation or rules in the Turks and Caicos Islands to allow for any form of contingency fee, any arrangement which amounts to a contingency fee would offend the rule against champerty and maintenance and would be unenforceable.

In the absence of any specific legislation or rules in the Turks and Caicos Islands concerning third-party funding, there are no time limits within which a party to litigation should obtain third-party funding.

There are no rules requiring pre-action conduct such as the pre-action protocols found under the CPR in England and Wales, and in the absence of a contractual obligation such as a requirement to seek resolution by discussion or informal mediation, there is no obligation on a party to take any steps prior to issuing proceedings and there is no obligation on a potential defendant to respond to any pre-litigation correspondence. That said, it is usual in civil litigation to see correspondence between the disputing parties prior to the initiation of any court proceedings and a plaintiff may be penalised in costs if they have not sent a letter before action prior to initiating proceedings and a defendant may be penalised they do not set out, in pre-action correspondence, a valid defence that is later relied upon.

There is presently no single statute of limitations that is in force in the Turks and Caicos Islands, meaning that most civil/commercial causes of action justiciable before the Magistrate’s Court and/or Supreme Court are not susceptible to being time-barred; however, there are individual Ordinances which contain limitation periods, such as:

  • the Trusts Ordinance (Cap. 16.12) (which provides that:
    1. no period of limitation or prescription applies to an action brought against a trustee:
      1. in respect of any fraud to which the trustee was a party or to which they were privy; or
      2. to recover from the trustee trust property, or the proceeds thereof in their possession, under their control or previously received by them and converted to their use;
    2. where a) does not apply, the period within which an action founded on breach of trust may be brought against a trustee by a beneficiary is:
      1. three years from the delivery of the final accounts of the trust to the beneficiary; or
      2. three years from the date on which the beneficiary first has knowledge of the occurrence of a breach of trust, whichever period shall begin to run first; and
    3. where a) does not apply, no action founded on breach of trust may in any event be brought against a trustee by any person after the expiry of the period of 18 years following the occurrence of the breach;
  • the Fatal Accidents Ordinance (Cap. 4.10) (action to be commenced within 12 calendar months after the death of the deceased person); and
  • the Public Authorities Protection Ordinance (Cap. 21.10) (any action, prosecution or other proceeding against any person for any act done in pursuance, or execution, or intended execution of any Ordinance or any public duty or authority, or in respect of any alleged neglect or default in the execution of any such Ordinance, duty or authority, shall not lie or be instituted unless it is commenced within six months after the act, neglect or default complained of, or, in case of a continuance of injury or damage, within six months after the ceasing thereof)

The burden is on a defendant to raise limitation as a defence. There is no automatic bar on recovery. Parties may agree to vary or exclude limitation periods.

A defendant may be subject to suit in the Turks and Caicos Islands if they are validly served with proceedings issued out of one of the courts whether within the jurisdiction of the court or outside the jurisdiction (in the case of the Supreme Court) and/or submits to the jurisdiction of the Turks and Caicos Islands courts. Thereafter, the courts apply the common law rules to determine whether or not a party is subject to the jurisdiction of the Turks and Caicos Islands courts.

The nature of the originating process differs depending on the court and the nature of the claim.

Civil proceedings before the Magistrate’s Court are commenced by filing a plaint. Civil proceedings before the Supreme Court are commenced by filing either a writ of summons, originating summons, originating notice of motion or petition.

The Magistrate’s Court is a court of summary jurisdiction and does not work with pleadings, however, it will permit an amendment to the plaint note after it has been filed.

The Rules of the Supreme Court set out the circumstances in which originating process and pleadings may be amended, either without the leave of the court, with the leave of the court, or by the consent of the parties.

Personal service is required for proceedings against an individual brought either in the Magistrate’s Court or the Supreme Court.

In the case of proceedings against a company service may be effected by addressing the document to the company and leaving it at, or sending it by a prescribed method (post, facsimile or email) to either the company’s registered office or the office of the company’s registered agent.

The Magistrate's Court uses a bailiff for the service of proceedings whereas in the Supreme Court, it is the responsibility of the plaintiff to arrange for service. A plaintiff in proceedings before the Supreme Court has a year following the court issuing the relevant document within which to serve a writ of summons or originating summons. An order for substituted service can be obtained from the Supreme Court if a defendant proves difficult to serve or elusive.

Parties outside the jurisdiction may be sued before the Supreme Court of the Turks and Caicos Islands but service of originating process is only permissible out of the jurisdiction with the leave of the Supreme Court if one or more of the jurisdictional gateways set out in Order 11, rule 1 of the Rules of the Supreme Court 2000 is satisfied. Application for leave is made ex parte by filing an affidavit setting out how it is that the defendant comes within the terms of Order 11, rule 1 and that it is appropriate for the proceedings to be served outside of the jurisdiction. Upon granting leave, the court will direct the time for filing an acknowledgment of service and also the form of service outside the jurisdiction.

Upon receipt of the originating process, a defendant usually has a limited time to acknowledge that they have received the originating process and that there is an intention to defend it. The usual time for filing an acknowledgment of service at the Supreme Court Registry is 14 days (in the case of a party served within the jurisdiction) or 28 days (in the case of a party served outside the jurisdiction).

If a defendant to Magistrate’s Court proceedings does not respond to a civil complaint, judgment may be entered against them, but the plaintiff must first prove their case.

In the Supreme Court, in certain limited cases, where a defendant who has been served with process fails to give notice of intention to defend or, having given notice of intention to defend fails to file a defence, the plaintiff may enter a judgment in default simply by filing the judgment at court together with a proof of service. This administrative form of judgment in default is available only in the following types of cases:

  • a claim for a liquidated demand only;
  • a claim for unliquidated damages only;
  • a claim relating to the detention of goods only;
  • a claim for possession of land only; and
  • a mixed claim consisting of two or more of the claims mentioned above and no other claim.

In all other cases, the plaintiff will have to proceed with the action as if the defendant had given notice of intention to defend, though the plaintiff may apply to the court for judgment and on the hearing of the application, the court shall give such judgment as the plaintiff appears entitled to on their statement of claim.

If a judgment in default is entered against a defendant, it may be subsequently set aside if the defendant is able to show that it was wrongly entered or they are able to show some good reason why it should be permitted to defend the claim. In these circumstances, the court can exercise its discretion to set aside the default judgment.

There are no specific provisions in the Rules of Court for collective/class action per se, however, Order 15, rule 12, makes provision for representative proceedings where numerous persons have the same interest. They may be begun by or against one or more of them, representing either all or some of them.

There are presently no requirements for an attorney to provide a client with a cost estimate of the potential litigation at the outset, though most clients request same and it is good practice to provide one.

It is possible to make interlocutory applications before trial or the substantive hearing of a claim. Indeed, in certain urgent cases, it is possible to seek orders prior to the formal issuing of proceedings. Such interlocutory applications are not limited to case management issues and parties are able to obtain remedies (such as interim injunctions) from the court.

In Supreme Court proceedings, in addition to the ability to enter judgment in default referred to above, in circumstances where the defendant has acknowledged service giving notice of intention to defend, the party bringing a claim (whether as plaintiff or as counterclaiming defendant) may seek (prior to trial):

  • summary judgment on a cause of action on the grounds that there is plainly no defence to the claim (or part thereof). A statement of claim must have been served on the defendant and the application must be supported by an affidavit which verifies the facts on which the claim or part of the claim is based and which must state that, in the deponent’s belief, there is no defence to the claim or the part of it on which judgment is sought, except possibly in relation to the amount of damages claimed;
  • the determination of any question of law or construction of any document arising in any cause or matter where it appears to the court that such question is suitable for determination without a full trial of the action and such determination will finally determine (subject to any possible appeal) the entire cause or matter or any claim or issue therein; and/or
  • the determination of one or more preliminary issues.

A party may apply to have all or part of a pleading struck out on the basis that:

  • it discloses no reasonable cause of action or defence, as the case may be;
  • it is scandalous, frivolous or vexatious;
  • it may prejudice, embarrass or delay the fair trial of the action; or
  • it is otherwise an abuse of the process of the court.

Further, it may order the action to be stayed or dismissed or judgment to be entered accordingly, as the case may be. No evidence is admissible in support of any application made on the first of the above grounds.

Claims or defences can also be struck out if the relevant party has failed to comply with an order of the court.

See 4.2 Early Judgment Applications.

At any stage of the proceedings in any cause or matter, the Supreme Court may, on such terms as it thinks just and either of its own motion, or on an application, order any of the following persons to be added as a party, namely:

  • any person who ought to have been joined as a party or whose presence before the Court is necessary to ensure that all matters in dispute in the cause or matter may be effectively and completely determined and adjudicated upon; or
  • any person between whom and any party to the cause or matter there may exist a question or issue arising out of or relating to or connected with any relief or remedy claimed in the cause or matter which in the opinion of the Court it would be just and convenient to determine as between him and that party as well as between the parties to the cause or matter.

Additionally, a defendant who has given notice of intention to defend, may add a third party in circumstances where the defendant seeks a contribution or indemnity from a person not already a party to the action. This can include circumstances in which claims against such a person relate to the original subject matter of the action, or the relief being claimed is substantially the same as the relief being claimed by the plaintiff, or if some question or issue relating to the original subject matter of the action requires the third party to be a party.

Interested parties may also intervene in proceedings in which they have not been joined in order to make submissions.

A defendant to a Supreme Court action may apply for an order that the plaintiff do give security for the defendant’s costs in circumstances where the plaintiff is ordinarily resident out of the jurisdiction, or is a nominal person suing for the benefit of some other person and the defendant is able to establish that the plaintiff may be unable to pay the costs of the defendant if ordered to do so. Additional grounds for ordering security are that the plaintiff’s address is not correctly stated in the writ or other originating process, or that the plaintiff has changed their address during the course of proceedings with a view to avoiding the consequences of an adverse result in the litigation.

The respondent to an appeal to the Court of Appeal may seek security for its costs of the appeal, and the Court may order that such security shall be given for the costs of an appeal as may be just.

Security can be effected by way of payment into court, into a particular account agreed upon by the parties or some other form of acceptable security such as the attorney for the party that is required to give the security giving an undertaking.

The Turks and Caicos Islands courts can, and generally do, award costs to be paid by the unsuccessful party to the successful party.

Pursuant to section 62 of the CPO, all costs of and incident to proceedings in the Supreme Court shall be in the discretion of the Court. Order 62, rule 3(3) provides: “If the Court in the exercise of its discretion sees fit to make any order as to the costs of any proceedings, the Court shall order the costs to follow the event, except when it appears to the Court that in the circumstances of the case some other order should be made as to the whole or any part of the costs”.

This applies to the costs on interlocutory applications just as much as it does to the costs of the trial or the action as a whole, though in many interlocutory applications and motions which involve obtaining directions for the future conduct of the action the usual order is “costs in the cause” which means that the party in whose favour an order for costs is made at the conclusion of the cause or matter in which the proceedings arise shall be entitled to his costs of the application in respect of which such an order is made. There are certain cases where the Rules of the Supreme Court provide that an order for costs is deemed to have been made (see Order 62, rule 5) or where costs shall not follow the event (see Order 62, rule 6).

Unless the Court orders that costs of an interim application are to be taxed and paid forthwith, and costs awarded on an interlocutory application are not recoverable until the action has come to an end.

Save in respect of certain interlocutory applications for which specific timeframes are provided by specific Rules of Court, interlocutory applications in chambers may be brought on two days’ notice. Where circumstances dictate, a party can request that the application be dealt with on an urgent basis and even on an ex parte basis.

The Turks and Caicos Islands Supreme Court is generally responsive to urgent scenarios and an application for an injunction can be obtained, if the circumstances warrant it, without notice and/or by way of a telephone application to the Court.

Discovery is very much a part of the litigation process in the Turks and Caicos Islands. Indeed, after the close of the pleadings in an action begun by writ (ie, once all the required pleadings have been filed and served), subject to the provisions of Order 24 of the Rules of the Supreme Court, there is a mandatory requirement for there to be discovery by the parties to the action of the documents which are or have been in their possession, custody or power relating to matters in question in the action; although the parties are at liberty to agree to dispense with or limit the discovery of the documents which would otherwise be required.

Discovery is usually by way of exchanging the lists of documents, which should take place within fourteen days of the close of the pleadings. The list is required to set out those documents that the party has or had in their possession, custody or power as well as those which they had but no longer have. It must also identify any documents or classes of documents that the party refuses to produce for inspection and state the grounds for the refusal – such as legal professional privilege.

Thereafter, each party is entitled to inspect the documents listed in the other party’s list as still being in the other party’s possession, custody or power.

The inspecting party is entitled upon request to copies of the documents available for inspection.

If a party is not satisfied that the other party’s discovery is complete, it may make application to the court for discovery of specific documents or categories of documents which it can show must be in the other party’s possession, custody or control. The party can also ask the court to order the disclosing party to make an affidavit verifying that the list is correct.

The process of discovery in the Turks and Caicos Islands requires each party to disclose not only those documents that it views as favourable to its case but also those which adversely affect its case. The parties are expected to be diligent in producing all documents which are or have been in their custody, possession or power which are relevant to the action, and must conduct a reasonable search for these. Discovery includes not only documents but also emails, telephone recordings and anything else that is in a recordable form and is in the possession of the disclosing party.

It is not the practice of the Supreme Court to take witness testimony prior to the trial whether as part of the discovery process or otherwise, though there are exceptions, including where a witness is located out of the jurisdiction and a letter of request may be issued to the judicial authority of the foreign country in question requesting that the evidence of the witness be taken before either a court of that country or a special examiner.

The Rules of the Supreme Court specifically leave it open to the parties to agree to dispense with or limit discovery of documents which they would otherwise be required to make. Further, there is a general provision that discovery is to be ordered only if necessary (see Order 24, rule 8).

It is possible to obtain discovery from third parties not named as parties to the proceedings if the documents sought are likely to support the case of one party and adversely affect the case of the other. For this to be permissible, the disclosure must be necessary in order to dispose fairly of the claim or to save costs. There are a number of ways this can be achieved, including:

  • serving the relevant witness with a subpoena compelling them to attend with the requested documents. This can sometimes be arranged prior to the trial in order that the parties have access to the documents ahead of time and can review them before the trial;
  • obtaining from the Court what is commonly referred to as a Norwich Pharmacal Order. This requires the third party to disclose relevant documents or information; and
  • applications against banks to produce their records where these are relevant to the proceedings.

Discovery and inspection of documents is dealt with primarily by Order 24 of the Rules of the Supreme Court 2000, which provides for, inter alia:

  • mutual discovery of documents;
  • discovery of documents without order;
  • orders for discovery;
  • orders for the determination of issues before discovery;
  • the form of list of documents and affidavits verifying same;
  • orders for discovery of particular documents or classes of documents;
  • inspection of documents referred to in a party’s list of documents and those documents referred to in pleadings, affidavits and witness statements;
  • orders for production for inspection and provision of copies;
  • restrictions on the use of disclosed documents; and
  • sanctions for failing to comply with the requirement or orders for discovery. These include the possibility that the action may be dismissed or, as the case may be, that the defence be struck out and judgment entered against the defendant.

As provided above, the Supreme Court does have rules setting out discovery mechanisms. The same is not the case for the Magistrate’s Court, where the system is very much "trial by ambush". Documents are only admitted into the record if entered into evidence via a witness’ testimony.

The Turks and Caicos Islands recognises the concept of legal professional privilege. Some documents, although they must be disclosed in the list of documents made in compliance with the Rules of the Supreme Court as relating to any matter in question between the parties, may be privileged from production. If it is desired to claim that any documents are so privileged, the claim must be made in the list of documents “with a sufficient statement of the grounds of the privilege” (see O.24, r.5(2)). Privilege may also be claimed by those who are not a party but against whom discovery is sought.

The principal categories of privilege may be conveniently summarised as:

  • documents protected by legal professional privilege;
  • documents tending to incriminate or expose to a penalty the party who would produce them; and
  • documents privileged on the grounds of public policy.

Documents in respect of which legal professional privilege is claimed can be separated into two classes, namely:

  • those that are privileged whether or not litigation was contemplated or pending; and
  • those that are only privileged if litigation was contemplated or pending when they were made or came into existence.

Letters and other communications passing between a party, or their predecessors in title, and their attorneys are privileged from production provided they are, and are sworn to be, confidential, and written to, or by, the attorney in his or her professional capacity and for the purpose of getting legal advice or assistance for the client.

Communications between an attorney and a non-professional agent or a third party, directly, or through an agent which come into existence after litigation is contemplated or commenced and made with a view to such litigation, either for the purpose of obtaining or giving advice in regard to it, or of obtaining or collecting evidence to be used in it, or obtaining information which may lead to the obtaining of such evidence, are privileged.

The above principles are not confined to external counsel in the Turks and Caicos Islands, but extend to in-house counsel, provided that in-house counsel is acting in the capacity of a legal advisor and not as a business adviser, as well as confidential communications with any legal advisor such as foreign lawyers.

In addition to legal professional privilege, a party is not compelled to give discovery which will tend to criminate or expose to proceedings for a penalty, themselves or their spouse or civil partner.

A party may withhold a document on the grounds that the disclosure of it would be injurious to the public interest.

A party may not disclose in civil proceedings confidential information covered by the Confidential Relationships Ordinance (Cap. 16.14).

An application for an injunction may be made by any party to a matter before or after the trial of the cause or matter, whether or not the claim for the injunction was included in that party’s writ, originating summons, counterclaim or third-party notice, as the case may be.

An application for an injunction must be made by motion or summons; however, where the case is one of urgency, the application may be made ex parte on affidavit. Indeed, if the matter is really urgent, the application can even be made before the originating process has been filed in the court and may be granted on such terms providing for the issue of the writ or summons and such other terms as the Court thinks fit.

The Court has a wide inherent jurisdiction to make injunctions where it appears to the court to be just or convenient to do so. An order may be made either unconditionally or upon such terms and conditions as the court thinks just, while having regard to settled reasons or principles.

Injunctions may be temporary (interlocutory) - granted to preserve a state of affairs until the parties' rights are determined at trial (or granted at trial to preserve the position pending appeal) - or permanent.

An interim injunction can be granted until a specified day and is usually granted where the Court is persuaded that the applicant would otherwise suffer irreparable harm. Such interim injunctions can be granted ex parte but when making such an application, the applicant has the burden of full and frank disclosure. The failure to give full and frank disclosure can itself be a basis for discharging the injunction in due course.

A permanent injunction is usually a form of relief sought which, upon determination, will settle the parties’ rights and will be in place indefinitely unless it is either restricted by the terms of the order or is subsequently removed by a further order of the Court. The party seeking a permanent injunction has to demonstrate that not only are the present actions of the other party infringing their rights, but also that it is likely that there will be continuing conduct and consequential damage if the conduct is not restrained permanently by the Court.

The procedure to be adopted by the Court in hearing applications for interlocutory injunctions, and the tests to be applied, are well settled and were laid down by the House of Lords (as it then was) in American Cyanamid Co. v Ethicon Ltd [1975] A.C. 396; [1975] 2 W.L.R. 316. The principles and guidelines derived from that case are of general application, albeit in certain circumstances, they are subject to variations and in some other cases the variations are such that it can reasonably be claimed that they do not apply.

Where the obtaining of an injunction is a substantial object if the action, the claim should be included on the writ.

The types of injunctive relief that can be obtained include (but are not limited to):

  • an order prohibiting a person from doing something (a prohibitory injunction), or requiring that person to do something (a mandatory injunction);
  • an order restraining a defendant from removing from the jurisdiction assets that may in due course be attached for the purposes of satisfying the plaintiff’s judgment (commonly referred to as a Mareva injunction);
  • an order requiring a party to provide certain information;
  • an order permitting a party’s property to be searched in order to preserve evidence (these are sometimes referred to as Anton Pillar orders); and
  • an order preventing a party from commencing or continuing with proceedings outside of the jurisdiction (referred to as an anti-suit injunction).

Urgent injunctive relief can be obtained within the same day and outside of Court hours if circumstances genuinely require. A phone call to the Supreme Court Registry during working hours will generally secure an appointment before a Supreme Court judge. Documents such as affidavits, skeleton arguments and draft orders can be sent by email in the first instance with an undertaking to file at the Registry as soon as practicable. In circumstances of extreme urgency, including outside Court hours, applications can be made by video link or over the phone.

Where time permits, the attorney representing the party seeking relief should draft: the originating process (assuming the application is being made in conjunction with the commencement of proceedings and not subsequent thereto) -  usually a generally endorsed writ of summons setting out brief details of the nature of the claim and the relief sought; an affidavit sworn on behalf of the applicant setting out the nature of the relief sought, the evidential ground upon which the application is made and an explanation as to why the matter is urgent; a draft order; and a skeleton argument setting out the legal basis underpinning the application.

Injunctive relief can be sought on an ex parte basis and usually is in the case of applications for Mareva injunctions and Anton Pillar orders, in order not to tip off the respondent that the application is being made.

In cases where notice would ordinarily be required but the application is being made on an urgent basis, the application may be made ex parte on notice. In other words, the respondent will be informed that the application is to be made but it will proceed whether the respondent appears or not. In these circumstances, if the respondent attends or is represented at the application, he/she/it has no obligation to say anything, which is usually the wiser course, but may make representations if it is thought that it will assist in defeating the application.

Generally, when an application has been made ex parte, the Court will set a return date and require the applicant to issue a summons giving notice of the said date to the respondent and at that hearing the matter will be considered afresh on an inter partes basis with all sides being heard.

An order granting an interlocutory injunction may be made either unconditionally or on such terms and conditions as the Court thinks just. The long-established practice (whether the application is made on notice or ex parte) is to make any interlocutory order subject to a condition in the form of the applicant’s undertaking to pay damages to the respondent (or any other party adversely affected by the order) for any loss sustained by reason of the injunction if it subsequently transpires that it ought not to have be granted. The purpose of such damages is to put the person affected by the injunction in the same position (as best as money can) that he or she would have been in if the injunction had not been granted.

The giving of such an undertaking is usually sufficient security and generally no fortification of the same is required.

The Supreme Court of the Turks and Caicos Island can grant an injunction extending to the worldwide assets of the respondent, particularly if the respondent is within the jurisdiction and the court is able to deliver a sanction on the defendant if its order should be breached.

To obtain such an order, an applicant must satisfy the Court that:

  • they have a good, arguable case on a substantive claim over which the Court has jurisdiction;
  • there are no assets or insufficient assets within the jurisdiction to satisfy their claim; and
  • there are assets outside the jurisdiction; and
  • there is a real risk of dissipation or secretion of those assets so as to render any judgment which the applicant may obtain nugatory.

In addition, in exercising its discretion the Court should consider whether undertakings or provisos or a combination of both should be requested or imposed for the purpose of protecting the respondent from oppression and for protecting the position of foreign third parties.

A third party is bound by the terms of an injunction granted against a party as soon as the third party has notice of it, even though the respondent himself has not yet been served and does not know the order has been made. Where the third party is holder of an asset of the respondent (eg, their bankers), in many instances, the effectiveness of the injunction will depend as much on the restraining of the actions of the third party as those of the respondent, if not more so. In an appropriate case, and in accordance with the relevant rules, a third party may be joined as a party to the action.

It tends to be more difficult to obtain such an order against a third party who is outside the jurisdiction, as the Court tends to only grant orders that are effective and that can be enforced.

Where a person refuses, neglects, disobeys or otherwise fails to comply with the terms of an injunction, then subject to the provisions of the Rules of the Supreme Court, the injunction order may be enforced by one or more of the follows means:

  • with the leave of the Court, a writ of sequestration against the property of that person;
  • where that person is a body corporate, with the leave of the Court, a writ of sequestration against the property of any director or other officer of the body; and/or
  • subject to the provisions of the Debtors Ordinance (Cap. 4.02), an order of committal against that person or, where that person is a body corporate, against any such officer.

Subject to exception in certain limited circumstances, it is a necessary prerequisite to enforcement of an injunction that a copy of the order has been served personally on the person required to do or abstain from doing the act in question; and, in the case of an order requiring a person to do an act, that copies have been so served before the expiration of the time within which he was required to do the act. Further, there must be prominently displayed on the front of the copy of the order served on the respondent a warning to the person on whom the copy is served that disobedience to the order would be contempt of court punishable by imprisonment or (in the case of an order requiring a body corporate to do or abstain from doing an act) punishable by sequestration of the assets of the body corporate and by imprisonment of any individual responsible.

Third parties who have knowledge of an injunction and who assist the respondent in breaching its terms are also liable to be held in contempt of court.

In the normal course, a trial in the Turks and Caicos Islands of an action begun by writ will involve the following steps:

  • the plaintiff setting down of the action for trial;
  • the defendant identifying to the plaintiff at least 14 days before the date fixed for trial, those documents central to his case which he wishes included in the trial bundle;
  • the plaintiff lodging at least two clear days before the date fixed for trial a bundle for use of the judge consisting of one copy of each of the following documents:
    1. the writ;
    2. the pleadings (including any affidavits ordered to stand as pleadings);
    3. any request or order for particulars and the particulars given, and any interrogatories and answers thereto;
    4. all orders made in the action except only any order relating only to time;
    5. witness statements which have been exchanged, and experts’ reports which have been disclosed, together with an indication of whether the contents of such documents are agreed;
    6. those documents which the defendant wishes to have included in the bundle and those central to the plaintiff’s case; and
    7. where a direction has been given requiring the same, a note agreed by the parties or, failing agreement, a note by each party giving (in the following order):
      1. a summary of the issues involved;
      2. a summary of any propositions of law to be advanced, together with a list of the authorities to be cited; and
      3. a chronology of the relevant events.

Prior to the setting down of the action for trial, the parties will have exchanged written witness statements from each of the witnesses they intend to call to give evidence. Those witness statements are usually directed to stand as the respective witness’ evidence in chief, though at trial the witness may be asked supplemental questions by counsel for the party calling him/her before being tendered for cross-examination. The adversarial system prevails and the evidence of the witness is tested by cross-examination. The party calling the witness may then re-examine the witness though the scope of re-examination is limited. The same procedure is adopted for witnesses of fact and expert witnesses.

Once all the evidence has been heard by the Court, each party is entitled to make its legal submissions and closing statements in respect of the respective merits of their cases. Submissions are generally put in writing and submitted to the court, with some oral submissions still allowed to supplement them.

Applications for interlocutory relief are usually made in chambers and must be made by summons which must be served on the other party. Save in respect of certain applications where specific provisions apply, a summons must be served on every other party not less than two days before the day specified in the summons for the hearing of the application; it must be served within 14 days of its issue; and any evidence relied on in support of the application must be served with the summons. Applications of this nature almost always involve hearings at which the Court hears oral argument, though in applications of substance, the parties’ representatives are expected to lodge skeleton arguments in advance of the hearing.

At least one case management hearing (referred to in the Rules of the Supreme Court as a directions hearing) is required in an action begun by writ with a view to provide an occasion for the consideration by the Court of the preparations for the trial of the action so that:

  • all matters which must or can be dealt with on interlocutory applications and have not already been dealt with may so far as possible be dealt with; and
  • such directions may be given as to the future conduct of the action as appear best adapted to secure the just, expeditious and economical disposal thereof.

Standard directions may be agreed by the parties, not more than one month after the pleadings are deemed to be closed provided that the only directions are as to the mode of trial and the time for setting down, in which case the action is to be set down within six months.

Pursuant to Section 15 of the CPO, in every action, unless under the provisions of that Ordinance a trial with a jury is ordered, or either party has given notice of demand for a jury, the mode of trial shall be by a judge without a jury. An order for trial by jury in civil cases is rarely made, although technically still available to the parties. In considering whether to direct a trial without a jury of any action, the Court will take into account whether the action, matter or issue requires any prolonged examination of documents or accounts, or any scientific or local investigation, which cannot in its opinion conveniently be tried with a jury.

The Evidence Ordinance (Cap. 2.06), the Evidence (Special Provisions) Ordinance (Cap. 2.07) and Order 38 of the Rules of the Supreme Court provide a framework in respect of the admissibility of evidence at trial and the procedure in connection with the use of evidence. In summary, most evidence can be admissible, although the weight given to it may be negligible depending on the circumstances. The court will not admit prejudicial evidence where to do so is unfair to the other party. To that extent, hearsay evidence is divided into different classes and can usually be adduced by the service of requisite notice and counter-notice. As far as practicable, all questions concerning the giving of hearsay evidence should be dealt with and disposed of before the trial, but it would ultimately remain at the discretion of the court whether to allow such evidence if it does arise at the trial.

Only experts are able to give opinion evidence and the Court must first determine if a witness put forward as an expert has sufficient credentials and experience in their field to be accepted by the Court as an expert. The ability to call expert evidence is dependent on the Court’s permission and is usually determined in advance of the trial at a directions hearing.

As mentioned in 7.4 Rules That Govern Admission of Evidence, expert testimony is permitted at trial subject to the Court ruling that the relevant witness is qualified as and accepted as an expert. Experts’ reports are required to be exchanged well in advance of the trial and experts are encouraged to meet with a view to determining what they can agree on and what matters they differ on. The number of experts a party can call and the experts’ respective disciplines is determined at a directions hearing.

As stated in 1.3 Court Filings and Proceedings, the general rule is that hearings of trials are open to the public, there are circumstances in which a civil action may be held in camera and the public excluded. The test is whether public access would defeat the ends of justice, such as in cases in which particulars of a secret process must be disclosed. An application for the trial to be heard in camera because of privileged and confidential information which may arise in the evidence can be denied if the court, in the course of exercising its inherent jurisdiction, forms the view that the case is of fundamental importance and should be held in public. The court may give directions with a view to avoiding unnecessary reference to information which could be commercially damaging and where there would be no interference with the presentation of the case.

It is only recently that proceedings before the Supreme Court have started to be recorded and the court does not produce transcripts, though a party may request an electronic copy of the recording from which it can arrange privately for a transcript to be prepared.

Judges can and usually do intervene where it is appropriate; however, the level of intervention differs from judge to judge. A judge may feel it appropriate in certain circumstances to raise questions and issues with counsel for the parties in chambers – in the absence of any witness giving evidence and/or the parties themselves. Judges often indicate which way they are thinking in terms of an issue, though making it clear they have not made a final decision on the issue. When witnesses are being questioned, judges sometimes intervene to ensure that they fully understand the evidence that is being given or where there has been an omission of evidence relating to facts that are relevant to the determination of the case.

Decisions and orders are far more likely to be given or made at the hearing of an interlocutory application; however, where the application involves detailed argument, particularly on the law, decisions will generally be reserved. Judgments following trials are usually reserved, though sometimes judges of the Supreme Court and the justices of appeal sitting in the Court of Appeal will give their decision with written reasons to follow.

Arguments as to costs are generally heard after the decision and the reasons for the same have been communicated to the parties.

Much depends on the nature of the action; the level of discovery involved; the number of interlocutory skirmishes and interim appeals; whether expert evidence is required or not; whether overseas counsel are instructed or not; and the desire of one or more of the parties to have the matter tried; however, in most civil/commercial cases, if the parties are diligent and follow the timetable set out in the Rules of Court for the service of pleadings; the automatic directions pertaining to discovery; and the "usual" directions relating to witness statements, experts’ reports, setting down and the preparation of the trial bundle, the trial of an action can take place within eight to twelve months of its commencement – or sooner if the subject matter justifies an expedited trial. The more typical scenario is between one and two years to trial, although this can be cut shorter if the issue is relatively straightforward and the parties are desirous of an early hearing.

Parties to civil litigation in the Turks and Caicos Islands are always at liberty to resolve their dispute at any time and do not necessarily need the approval of the Court, save in specific circumstances where a child or protected party is involved.

A plaintiff in an action begun by a writ may, without the leave of the court, discontinue the action or withdraw any particular claim not later than 14 days after service of the defence; however, if a party wishes to discontinue an action, claim or counterclaim at a later stage, the leave of the Court is required. There are generally costs consequences when discontinuing an action.

It is open to the parties to agree that the terms of any settlement and indeed the fact of the same together with the negotiations resulting therein should remain confidential. Save in respect of those settlements for which the Court’s approval is required, the terms of settlement do not need to be communicated to the Court, and the parties may enter into their own agreement and either obtain what is known as a Tomlin Order or simply ask the Court to discontinue or dismiss the proceedings with no further order. To that extent, the settlement of the lawsuit will remain confidential.

Settlement agreements are contracts, the breach of which will give rise to a claim for breach of contract enforced by way of fresh proceedings. In order to avoid the need for such, parties generally put the terms of settlement in a schedule to a Tomlin Order which means that the underlying action is stayed, save for the enforcement of the terms of settlement. This means that in the event of a breach of the settlement terms by one party, the other may be enforce the same by applying to the Court that made the consent order by way of a summons in the original action.

As stated above, settlement agreements are contracts and thus may be set aside on the same basis as any other contract. For example, allegations of fraud or undue influence could be made, but unless the settlement agreement was part of a Tomlin Order, a new action would need to be commenced seeking the declaration of invalidity.

It is not possible in a guide of this nature to set out in detail all of the remedies open to a successful party in civil/commercial litigation – entire textbooks are devoted to this - but there are many awards and orders that may be sought depending on the nature of the dispute and the issues between the parties.

The most common relief sought before the Turks and Caicos Islands courts is payment of money, whether it be repayment of a debt, damages or restitution.

Equitable remedies, such as injunctions, specific performance, declaratory relief, rectification, rescission, accounts and enquiries are also available.

In actions relating to companies, the Companies Ordinance 2017 and the Insolvency Ordinance provide statutory relief to aid, amongst others, directors, prejudiced members, unpaid creditors, and the company itself in the form of (amongst other things): the appointment of an interim supervisor; the appointment of a receiver; the appointment of an administrator; the appointment of a liquidator; and an order for the sale of a party’s shares in the company.

The general rule regarding damages is that they should be compensatory only, ie, awarded to compensate a party for its loss and to put the party into the same position, or as near to it as possible, if, in the case of a contract, there had not been a breach or, in the case of a tort, the wrongful act had not been committed or the proper act had not been omitted.

Subject to the compensatory principal, there is no limit on the amount of damages that may be awarded unless the parties have, by way of contract, agreed a maximum amount that can be claimed, though it should be noted that a party claiming damages is under an obligation to mitigate their loss and to take reasonable steps to do so.

Punitive damages are not available under Turks and Caicos Islands law, which, like English law, has always rejected the notion that any damages payable should be paid as a penalty.

In very limited circumstances exemplary or aggravated damages can be claimed so long as specifically pleaded together with the facts relied upon. Such awards are only made in three categories of cases, as set out by the House of Lords (as it then was) in the case of Rookes v Barnard [1964] AC 1129 at pages 1226-1227. The three categories are:

  • oppressive, arbitrary or unconstitutional actions by the servants of government;
  • where the defendant’s conduct was calculated to make a profit for themselves; and
  • where a statute expressly authorises the same.

By Section 19(2) of the CPO, subject to rules of court, in proceedings before the Supreme Court for the recovery of a debt or damages the Court may include in any sum for which judgment is given simple interest at such rate as the Court thinks fit or as rules of court may provide, on all or any part of the debt or damages in respect of which judgment is given, or payment is made before judgment, for all or any part of the period between the date when the cause of action arose and:

  • in the case of any sum paid before judgment, the date of the payment; and
  • in the case of the sum for which judgment is given, the date of the judgment.

In certain cases, the Court may award equitable interest which is compounded at such rests as the Court thinks fit.

By Section 20 of the CPO, subject to any contract between the parties providing for a higher rate of interest on a debt, all judgments for the payment of money shall carry interest from the date when the judgment is entered until it is satisfied, or so much of it as is outstanding from time to time, at such rate as may be prescribed by rules of court, or in default of such prescription, at the rate of 6% per annum. The default rate of 6% per annum presently applies.

Judgment for a sum of money payable on a certain date may be enforced by several means, which are cumulative and not alternatives, and include:

  • a writ of seizure and sale - expressed in the general form of a direction to the court-appointed bailiff to seize in execution such goods of the judgment debtor that may be sufficient to satisfy the amount of the judgment debt, together with interest and the costs of execution, including the bailiff’s costs and charges;
  • garnishee proceedings, whereby proceedings are issued against a third party who owes a debt to the judgment debtor. This can include money held by a financial institution for the judgment debtor;
  • a charging order, which creates a charge in favour of the judgment creditor over certain of the judgment debtor’s assets;
  • the appointment of a receiver by way of equitable execution;
  • the appointment of a liquidator;
  • an order for committal; and
  • a writ of sequestration.

Although the laws of the Turks and Caicos Islands include the Overseas Judgments (Reciprocal Enforcement) Ordinance (Cap. 4.01) which makes provision for the enforcement in the Turks and Caicos Islands of foreign judgments, the Governor has not issued any Order extending the provisions of that Ordinance to any overseas country with the result that the means by which a foreign judgment is enforced in the Turks and Caicos Islands is to issue fresh proceedings before the courts here suing on the foreign judgment and then to seek summary judgment within the action on the basis that there is no defence to the claim.

Appeals from decisions, orders and judgments of the Magistrate’s Court and other tribunals and inferior courts (save for the Labour Tribunal, appeals from which are made directly to the Court of Appeal) are made to the Supreme Court.

Decisions, orders and judgments of the Supreme Court may be appealed to the Court of Appeal, leave to appeal having been obtained if it is required.

From the Court of Appeal, an appeal lies in certain circumstances (set out in 1.2 Court System) to Her Majesty in Council.

There is also the right to apply for judicial review by which the Supreme Court exercises its supervisory jurisdiction over the proceedings and decisions of inferior courts, tribunals or other persons or bodies which perform public duties or functions.

The rules concerning appeals from the Magistrate’s Court to the Supreme Court are set out in Part XIV of the Magistrate’s Court Ordinance (Cap. 2.03) and, in the case of appeals from decisions of the Magistrate’s Court exercising its civil jurisdiction, in Order 55 of the Rules of the Supreme Court – which also deals with every other appeal which by or under an enactment lies to the Supreme Court from any court, tribunal or person (other than an appeal from the Magistrate’s Court in a criminal matter).

Appeals from the Supreme Court to the Court of Appeal are governed by the Court of Appeal Ordinance (CAP 2.01) and the Court of Appeal (Practice and Procedure) Rules which provide that the Court of Appeal Rules of the Bahama Islands shall apply mutatis mutandis to appeals from the Supreme Court of the Turks and Caicos Islands

Generally when a party in a civil action is dissatisfied with a decision, order or judgment, they have a general right of appeal in relation to final orders made against them; however, in the case of interlocutory orders made by the Supreme Court, they must obtain leave to appeal to the Court of Appeal. If the Supreme Court refuses to grant leave, an application for leave to appeal may be made to the Court of Appeal.

An appeal from the Magistrate’s Court to the Supreme Court must be made within five days after the day on which the Magistrate has given his decision and is made by the appellant serving a notice in writing on the Magistrate and on the other party of his intention to appeal and also the general grounds of his appeal, and the appellant must enter into satisfactory security before the Magistrate for the due prosecution of the appeal in the Supreme Court.

An appeal from the Registrar to a Judge of the Supreme Court is brought by serving on every other party to the proceedings in which the judgment, order or decision was given or made a notice to attend before the judge on a day specified in the notice and, unless the Court otherwise, orders, the notice must be issued within five days after the judgment, order or decision appealed against was given or made and served not less than two clear days before the day fixed for the hearing.

In the case of appeals from the Supreme Court to the Court of Appeal, the appellant must:

  • give notice in writing, within 28 days of the judgment, decree or order from which the appeal is made, to the Registrar of the Supreme Court, and to the opposite party or parties in the action, of their intention to appeal and also of the general grounds of their appeal; and
  • file and serve a notice of appeal within the following periods (calculated from the date on which the judgment or order of the court below was signed, entered or otherwise perfected), that is to say:
    1. in the case of an appeal from an interlocutory order, 14 days; and
    2. in any other case, six weeks.

An appeal to the Supreme Court from the Magistrate’s Court and every other court, tribunal or person from which an appeal lies to the Supreme Court shall be by way of rehearing.

An appeal from the Supreme Court to the Court of Appeal is by way of a review and the Court of Appeal is usually constrained to have before it only the evidence that was before the lower court. The Court of Appeal is tasked with determining if the trial judge erred in such a way that it is appropriate to either alter the trial judge’s decision or send the matter back for re-hearing. If the judge in the lower court has been given a discretion and has exercised it, the exercise of that discretion cannot be overturned simply because the Court of Appeal might exercise its discretion in a different way. The appellant has to demonstrate that the exercise of the discretion was unreasonable and that the trial judge took into account something that they should not have taken into account, or failed to take into account something that they should have. New arguments on the law may be allowed at the discretion of the Court of Appeal. 

As stated above, a party appealing from the Magistrate’s Court to the Supreme Court is required to enter into security for the due prosecution of the appeal.

It used to be the case that a party appealing to the Court of Appeal when settling the record of appeal had to deposit, with the Registrar of the Court of Appeal, a sum fixed by the Registrar to cover the estimated cost of making up and forwarding the record and enter into such bond as the Registrar shall fix by way of security for the due prosecution of the appeal and the payment of any costs; however, those requirements are generally no longer imposed.

When granting leave to appeal the relevant court can impose conditions. If there is money due and owing to a party, the court can require the appellant to pay the money into court. The court can make orders preventing the sale or disposal of property pending the hearing of the appeal.

In the case of an appeal to the Supreme Court from an inferior court, tribunal or person, the Court may give any judgment or decision or make any order which ought to have been made by the court, tribunal or person and make such further or other order as the case may require or may remit the matter with the opinion of the Court for rehearing and determination by it.

The Court of Appeal has jurisdiction to determine appeals from any judgment or order of the Supreme Court given or made in civil proceedings, or to order a new trial if the Court thinks fit, and, for all purposes of and incidental to the hearing and determination of any such appeal and the amendment, execution and enforcement of any judgment or order made thereon, the Court shall, subject as aforesaid, have all the powers, authority and jurisdiction of the Supreme Court. The Court of Appeal shall not alter or reverse a judgment or order of the Supreme Court in any case in which the Court is satisfied that the effect of the judgment or order is to effect substantial justice between the parties.

The relevant appellate court may also, at the time of its decision, make any orders relating to the payment of costs and interest that may have the effect of reversing any previous orders made in the course of the litigation.

The party seeking to bring a claim; make an application within an action; or file any affidavit to be used as evidence therein, is required to pay the applicable court fee. As parties progress through litigation, each party normally pays its own expenses and attorney’s fees.

Interlocutory orders may be made during the course of the litigation, which order one party or another to pay the other party’s costs of an associated with the interlocutory application but, unless the order is made in terms that the party against whom costs were ordered to be paid must pay them "forthwith" (allowing them to seek taxation of the costs then and not have to wait until judgment has been given in the action), the usual order is to preserve the status quo until the end of the litigation.

As stated in 4.6 Costs of Interim Applications/Motions, the usual rule regarding costs is that they follow the event. Costs are usually awarded on the "standard" basis which means that the party in whose favour the costs award is made, when seeking to recover those costs, must show that the costs claimed were reasonably incurred.

Unless the amount of costs to be recovered by the successful party can be agreed with the other party, the party to litigation in the Supreme Court seeking to recover its costs must apply to the Court for what is known as "taxation" – essentially a court assessment of the costs claimed. That process allows the paying party to challenge the costs sought to be recovered.

As a rule of thumb, a successful party to litigation who has been awarded its costs will recover between 65% and 75% of the costs it has incurred and expended.

In limited circumstances, a party may be ordered to pay costs to be taxed on the indemnity basis. This means the burden of proof moves to the paying party to show that costs claimed were unreasonably incurred. An order for indemnity costs usually allows the beneficiary of such an order to recover close to the full amount expended.

The starting point is that costs follow the event – ie, the winner is normally awarded their costs; however, the court always retains a discretion.

There are many factors on which a judge can exercise his or her discretion so as not to give the winner their costs, including whether the overall winner won on every issue, or lost on some; the way in which the successful party conducted itself; and whether the losing party had made any payment into court or settlement offer prior to or during the course of the litigation. If a successful party has obtained judgment for a sum of money, that party may nevertheless be deprived of its costs – and in some cases forced to pay the losing party’s costs – if the amount awarded is equal to or less than a payment into court made by the defendant.

Once the amount payable to a party in respect of costs has been determined (whether by agreement or following taxation), the costs form part of the judgment and interest may be awarded on the same at the judgment rate (6% per annum). Interest runs from the date of the judgment until the costs are paid.

Though some domestic contracts include mediation and/or arbitration clauses, the arbitration agreements are usually inadequately drafted and a culture of alternative dispute resolution is yet to become established in the Turks and Caicos Islands. Indeed, the Arbitration Ordinance (Cap. 4.08) came into force ten years before the UNCITRAL Model Law was adopted by the United Nations Commission on International Trade Law and is as sparse in its provisions as the Arbitration Act 1889 of England and Wales. The law in the Turks and Caicos Islands regarding arbitration therefore remains much the same as it was in England and Wales before the Arbitration Act 1934.

The legal system in the Turks and Caicos Islands does very little, if anything, to promote ADR, though parties to divorce or other family proceedings often agree to seek to resolve their differences through informal mediation.

There are no institutions in the Turks and Caicos Islands offering or promoting ADR, though some members of the local bar are members or fellows of the Chartered Institute of Arbitrators.

Arbitration in the Turks and Caicos Islands is governed by the Arbitration Ordinance (Cap. 4.08). An arbitration agreement is referred to in the Arbitration Ordinance as a “submission”. By Section 2 of the Arbitration Ordinance, “submission” is defined as “a written agreement to submit present or future differences to arbitration, whether or not any arbitrator is named therein”. As such, the only real legal requirement regarding a reference to arbitration in the Turks and Caicos Islands is that the arbitration agreement is in writing.

The Arbitration Ordinance governs both domestic and international arbitration proceedings.

There is no organised system for the reporting of cases in the Turks and Caicos Islands, so it is difficult to research a body of local case law; however, based on personal experience, the national courts are pro-enforcement of arbitration agreements. Section 3 of the Arbitration Ordinance provides that: “A submission, unless a contrary intention is expressed therein, shall be irrevocable except by leave of the court and shall have the same effect in all respects as if it had been made an order of court”.

Section 5 of the Ordinance provides that: “If any party to a submission, or any person claiming through or under him, commences any proceedings in any court against any other party to the submission, or any person claiming through or under him, in respect of any matter agreed to be referred, any party to such proceedings may at any time after appearance, and before delivering any pleadings or taking any other step in the proceedings, apply to that court to stay the proceedings and the court, if satisfied that there is no sufficient reason why the matter should not be referred in accordance with the submission and that the applicant was, at the time when the proceedings were commenced and still remains ready and willing to do all things necessary to the proper conduct of the arbitration, may make an order staying the proceedings”.

The Turks and Caicos Islands are not a contracting party to and have not ratified the New York Convention. They are a party to the Geneva Protocol on Arbitration Clauses.

The Arbitration Ordinance does not contain any restriction on the subject matters that may be referred to arbitration though the concept of what is capable of being arbitrated is usually circumscribed by the notions of what constitutes public justice and cannot be dealt with privately. Certainly, it is not permissible to arbitrate any matter which would violate the Turks and Caicos Islands’ most basic notions of morality and justice.

By Section 16(2) of the Arbitration Ordinance, the Supreme Court may set aside an arbitral award where an arbitrator, umpire or referee has misconducted himself, or the arbitration award has been improperly procured.

Further, pursuant to Order 73, rule 2(2) of the Rules of the Supreme Court 2000, an application may be made to a single judge in court for a declaration that an award is not binding on a party to the award on the ground that it was made without jurisdiction.

Section 10 of the Arbitration Ordinance provides that: “Any award on a submission may, by leave of the court, be enforced in the same manner as a judgment or order to the same effect”.

In respect of foreign arbitration awards, Order 73, rule 6 provides that: “Where an award is made in proceedings on an arbitration in any country to which the Overseas Judgment (Reciprocal Enforcement) Ordinance extends, being a country to which the said Ordinance has been applied, then, if the award has, in pursuance of the law in force in the place where it is made, become enforceable in the same manner as a judgment given by a court in that place, the Overseas Judgments (Reciprocal Enforcement) Rules shall apply in relation to the award as they apply in relation to a judgment given by a court in that place, subject, however, to the following modifications:

  • for reference to the country of the original court there shall be substituted references to the place where the award was made; and
  • the affidavit required by rule 5 of the said Rules must state (in addition to the other matters required by that rule) that to the best of the information or belief of the deponent 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”.

Unfortunately, as stated above, the provisions of the Overseas Judgment (Reciprocal Enforcement) Ordinance have not been extended to any country with the result that any foreign award will have to be enforced at common law, which requires bringing proceedings on it.

GrahamThompson

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Graceway Plaza
Leeward Highway
Providenciales
Turks and Caicos Islands

+1 649 339 4130

+1 649 339 1069

info@gtclaw.com www.grahamthompson.com
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GrahamThompson was founded in 1950 and is at the forefront in serving the principal economic sectors of The Bahamas and Turks and Caicos Islands, the tourism industry and the financial services and banking sectors. The firm’s expertise in the offshore financial arena, including private client, trusts and estates and corporate, commercial and securities, is internationally recognised, as is the firm’s expertise in real estate and development. GrahamThompson’s litigators are highly sought-after experts who provide effective and specialised representation and advice across a wide spectrum of disciplines including but not limited to: the banking and finance, corporate and commercial, employment and labour, insurance, intellectual property, insolvency, regulatory and manufacturing sectors. GrahamThompson operates four offices: Nassau and Lyford Cay in New Providence; Freeport, Grand Bahama; and Providenciales, Turks and Caicos Islands.

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