The Bahamian legal system is based on the English common law, supplemented by legislation promulgated by the Parliament of the Commonwealth of The Bahamas. Court proceedings in The Bahamas are conducted through an adversarial system of civil procedure. Legal arguments are made by a combination of oral and written submissions, and Bahamian courts can only make decisions on issues which are in dispute.
The Industrial Tribunal has the power to hear and determine trade disputes, register industrial agreements, hear and determine matters relating to the registration of such agreements, make orders or awards, and award compensation on complaints brought before it in accordance with the Industrial Relations Act of 1970.
The Supreme Court is the second highest court in The Bahamas. It has unlimited jurisdiction in general civil and criminal matters.
The Court of Appeal is the highest resident tribunal in The Bahamas. It has jurisdiction to hear and determine appeals from judgments, orders and sentences made by the Supreme Court.
The Judicial Committee of the Privy Council in London, England, is the final appellate court of the Commonwealth of The Bahamas. Appeals to the Judicial Committee of the Privy Council may be made from decisions of the Court of Appeal in all matters where an appeal is permissible.
Court proceedings in The Bahamas are generally open to the public, although the open justice principle is not absolute. In circumstances where it is necessary to avoid prejudice to the administration of justice, courts can order that proceedings be heard in camera (in private).
In accordance with Order 60, rule 3 of the Rules of the Supreme Court, any person can search, inspect and take a copy of any originating process, judgment, order made by the court and, with the leave of the court, any other documents. However, applications can be made to the court to seal court records or anonymise judgments to protect confidential information from public disclosure.
Lawyers entitled to practice in The Bahamas are categorised as “counsel and attorney” and are officers of the Supreme Court. The statutory qualification for admission to practice in The Bahamas is:
(i) a call to the Bar of England, Scotland, Northern Ireland or the Republic of Ireland, or of such other country as may be specified;
(ii) admission to practise as a solicitor in any of the above countries; or
(iii) receipt of a Legal Education Certificate from the Council of Legal Education of the West Indies.
Before being admitted to practice, applicants who meet requirement (i), (ii) or (iii) above must also serve a period of “pupilage” for 12 months under the tutelage of a lawyer in actual practice in The Bahamas. All applicants for admission to practice must be Bahamian citizens and must not have been disqualified or suspended from practice in the courts of any place outside The Bahamas.
The Bar Council may agree to the special admission of a person who is not a Bahamian citizen for the purpose of conducting specific legal proceedings, so long as the person is qualified as above. Also, a non-Bahamian citizen entitled to practice before a court of unlimited jurisdiction in any country may become a "registered associate" and agent of a Bahamian counsel and attorney.
There is no absolute prohibition of litigation funding by a third party. However, the activity of litigation funding is significantly restricted by the common law principles governing the torts of champerty and maintenance, which still apply in The Bahamas. Those principles attempt to prevent officious or wanton intervention in the litigation of others, in which the intermeddler has no interest whatsoever, and where the assistance which he or she renders to the other party is without justification or excuse.
Until there are legislative provisions which address whether litigation funding is permitted, the developments in English common law cases on third-party funding are likely to be of persuasive authority in the courts of The Bahamas. While the courts of The Bahamas have examined the effect of these cases on the assignment of causes of action, there have been no decisions approving or disapproving arrangements for or specific terms of litigation funding. The assignment of a cause of action to a third party will be permitted only if it can be shown that the third party as assignee has a genuine commercial interest in taking the assignment and enforcing it for his or her own benefit.
While case law has relaxed the courts’ approach to the issue of whether the principles of champerty and maintenance would invalidate a third party’s assistance in pursuing an action for profit, it would still be advisable for third-party litigation funders to obtain the sanction of the court on a case-by-case basis prior to entering into the arrangement.
There are no stipulations as to which types or forms of action or suit may or may not receive third-party funding.
As recognised by the Privy Council in Massai Aviation Holdings, Aerostar Limited v The Attorney General and Bahamasair Holdings Limited (2007) UKPC 12, the object of the law of champerty and maintenance was originally designed to protect vulnerable defendants who might be unable to resist unmeritorious claims pursued against them. The law later developed to also protect vulnerable plaintiffs who might be induced to part with some of the proceeds of their action in order to obtain funding to pursue it.
To the extent that the modern developments in English common law have deemed litigation funding arrangements permissible as not having offended the rules of champerty and maintenance, there have been no distinctions between their availability to plaintiffs or defendants, and a court in The Bahamas is unlikely to prefer validating one over the other.
Since the scope and level of third-party litigation funding has not been addressed by legislation in The Bahamas, there are no specific guidelines on the types of costs to be funded by third parties.
Please see 2.4 Minimum and Maximum Amounts of Third-Party Funding.
Contingency fees are not permitted.
Since the scope and level of third-party litigation funding has not been addressed by legislation in The Bahamas, there are no specific guidelines on the time limit by which funding should be obtained.
The Rules of the Supreme Court do not contain any pre-action protocols prior to the commencement of proceedings. While it is a usual practice for a demand letter to be sent by the plaintiff to the potential defendant before initiating proceedings, this step is not mandatory, nor is there an obligation on the potential defendant to respond to a pre-action letter.
The limitation periods for different causes of action are set out in the Limitation Act, 1995. For instance, actions founded on simple contract or on tort (not involving personal injuries) must be brought within six years. An action for damages in respect of personal injuries and actions under the Fatal Accidents Act must be brought within three years.
The limitation period begins to run from the date on which the cause of action accrued. In claims founded upon contract, the limitation period will run from the date of the breach of contract. In actions founded upon tort, the limitation period runs from the date when the act causing the damage occurred.
The Limitation Act, 1995 provides for the extension of the limitation period in cases of disability, acknowledgement, part payment, fraud and mistake.
A limitation defence must be specifically pleaded by a defendant. The court is not entitled of its own motion to bar a claim which is not brought within the prescribed limitation period.
Generally, the jurisdictional requirements are based on whether or not a defendant can be effectively served within The Bahamas. A defendant may be served outside of the jurisdiction of The Bahamas in certain cases stipulated under Order 11 of the Rules of the Supreme Court.
Proceedings for most causes of action are commenced by a generally endorsed writ of summons (writ), requiring the defendant(s) to enter an appearance in the action within 14 days of being served with the writ. Once a defendant has entered an appearance, the writ is then followed by a statement of claim, which provides detailed particulars of the plaintiff’s claims.
Pursuant to Order 5, rule 3 of the Rules of the Supreme Court, proceedings by which an application is to be made to the Supreme Court under any statute must be commenced by an originating summons, unless expressed otherwise. There are also certain other proceedings which are considered appropriate to be commenced by originating summons. The originating summons stipulates the claim and is supported by an affidavit.
Further, proceedings may be commenced by originating motion or petition only if required by the Rules of the Supreme Court or by any statute.
The originating process may be amended without the leave of the court after it is filed, but before service on the defendant. After service on the defendant, the leave of the court is required to amend the originating process.
Generally, a writ or other originating process must be served personally on each defendant by the plaintiff or his or her agent. The court may make an order for substituted service of the originating process or any other document. Further, a writ is deemed to be duly served on a defendant where his or her attorney endorses on the writ a statement that he or she accepts service of the writ on behalf of the defendant.
Order 11, rule 1 of the Rules of the Supreme Court stipulates the cases in which service of a notice of a writ outside of the jurisdiction of The Bahamas is deemed permissible with the leave of the court. An application for the grant of leave for service of a notice of a writ outside of the jurisdiction must be supported by an affidavit stating:
If a defendant fails to enter an appearance to the originating process, judgment in default of appearance may be entered against such defendant, either with or without the leave of the court, depending on the type of action. A defendant may apply to set aside a judgment entered in default of appearance on the ground that the judgment was irregular or that the defendant has a good defence on the merits to the plaintiff’s claim.
In The Bahamas, representative actions may be commenced where numerous persons have the same interest in any proceedings, subject to certain exceptions. At any stage of the representative proceedings, the court has the discretion, on an application by the plaintiff, to appoint any one or more of the defendants to represent all, or all except one or more, of those persons in the proceedings.
Rule 10(3) of the Bahamas Bar (Code of Professional Conduct) Regulations states that attorneys should provide clients with a fair estimate of their fees and disbursements, pointing out any uncertainties involved.
It is possible for parties to make interim applications before the substantive hearing of a claim. Interim (or interlocutory) applications include those dealing with management/procedural issues, evidential disputes, the striking out of portions of pleadings or the claim in its entirety, costs, injunctive relief, contempt proceedings, etc.
Parties can make an application for early judgment, called an application for summary judgment, on some or all of the issues in dispute. Such an application is made by the plaintiff where there is no reasonable prospect of success of the opposing party and there is no other compelling reason why the case should be disposed of at trial. Conversely, a defendant can apply to strike out a part of or the entire claim made against him or her. These applications can be made at any time, but the parties are encouraged to make them as early on in the proceedings as possible.
As stated above, the most common motions made prior to trial which could dispose of the action (or portions thereof) are an application by the plaintiff for summary judgment and an application by the defendant to strike out the claim.
Generally speaking, it is for the plaintiff to decide which causes of action to pursue and which parties to claim against. However, where a defendant seeks to be indemnified and asserts that any blame attributed to him or her must be covered by another party, the defendant may add a “third party” to the action. Should a party who was not named in the proceedings wish to become a party, it can apply to be joined to the proceedings on the basis that it is an interested party and/or necessary for the determination of the issues before the court.
A defendant may apply for an order that money be paid into court to secure any possible cost order, should the plaintiff’s claim be unsuccessful. The power to order security for costs is discretionary, but it is usually ordered where the plaintiff is non-resident without any assets in the jurisdiction.
Please see 11 Costs.
Ordinarily, the applicant will write to the opposing counsel to agree convenient dates and thereafter make an application to the court for a hearing date for the application. In the event the application is urgent, the applicant can write to the court directly and seek to have the application heard ex parte.
Discovery is available in civil cases in The Bahamas in the form of document disclosure, production and inspection. It does not include witness testimony, as oral evidence is generally given at trial. Discovery is administered by the litigants, and parties may agree to dispense with or limit the scope of the discovery of documents. Where such an agreement is made, the costs of the discovery process can be curbed.
As a general rule, the court has no power to order the discovery or production of documents as against a person who is not a party to the action. However, within certain limits, the right to obtain discovery has been extended, upon application by a party, against a person who is not a party in form, but is so in truth and substance.
Where discovery is to be made with or without an order of the court, the parties concerned must make and serve on the other party/parties a list of the documents which are or have been in their possession, custody or power relating to any matter in question in the cause.
While Order 24 of the Rules of the Supreme Court governs the discovery process in The Bahamas, a party may also make an application to the court pursuant to Order 26 of the Rules of the Supreme Court seeking leave to serve, within a period to be specified by the court, on any other party interrogatories relating to any matter in question between the applicant and that other party in the cause or matter. Further, Order 27 of the Rules of the Supreme Court empowers a party to give notice in its pleadings or otherwise in writing that the party admits the truth of the whole or any part of the case of any other party in the proceedings. An example of such a notice would be a Notice to Admit Facts.
The concept of legal privilege is recognised in The Bahamas. However, with respect to disclosure, the fact that a document is privileged does not exempt a party from disclosing its existence.
Pursuant to the Bahamas Bar (Code of Professional Conduct) Regulations, attorneys have a duty to hold in strict confidence all information received in the course of the professional relationship from or concerning the client. There is no statutory distinction between external and in-house counsel.
The only documents which are not to be disclosed are those which are not relevant to the matter and those which are not and were never in the possession, custody or power of the party or the party’s agent. Further, where there is an order for limited discovery or relating to specific documents, only documents within the terms of that order must be disclosed.
Among the forms of injunctive relief which the Supreme Court will frequently grant are Mareva injunctions, Anton Piller orders, Norwich Pharmacal orders and anti-suit injunctions. An overarching principle is that the court will not grant a free-standing injunction where no cause of action lies against the party to be restrained. Unless there is jurisdiction to obtain some substantive relief against the defendant in the courts of The Bahamas, a court will not grant interim injunctions over a defendant’s assets in The Bahamas.
The general circumstances under which the court will grant injunctive relief remain governed by the principles laid down in American Cyanamid Co v Ethicon Ltd  AC 396. The court must consider:
An applicant for a freezing order to secure assets must show a “good and arguable case”, which is a slightly higher threshold than the above-mentioned “serious issue to be tried”.
The court will exercise its discretionary jurisdiction in equity to grant Norwich Pharmacal relief by requiring a third party to make disclosures of information leading to the identity of a wrongdoer or to trace or preserve assets. It is not necessary that the respondent is itself a wrongdoer, but sufficient that he or she is mixed up, involved or otherwise participated in the wrongdoing, whether innocently or not, and has information which is relevant.
With regard to anti-suit injunctions, the Privy Council has set out the principle that a court should not purport to interfere with any foreign court, but may act personally upon a defendant by restraining him or her from commencing or continuing proceedings in a foreign court. Based on that principle, courts in The Bahamas have been prepared to grant anti-suit injunctions where they were satisfied that the party over whom they had in personam jurisdiction had conducted the foreign proceedings in a manner which was vexatious, oppressive or unconscionable.
Although there are no formal rules governing audiences outside of the normal business hours of the court’s operation, judges of the Supreme Court have in practice accommodated quick and urgent hearings for injunctive relief at times outside of normal business hours and/or in places in which the judge is reasonably accessible outside of the court room. Additionally, due to the COVID-19 pandemic, judges are advised in the Court Coronavirus Mitigation Protocols to conduct urgent interlocutory applications remotely (ie, by teleconference, video-link, live television link and internet link). However, the discretion remains with the individual judge to determine which matters are suitable for remote hearings.
While injunctive relief can and in many instances is obtained without notice to a defendant, the principle formulated by the Privy Council is that the courts should not entertain applications of which no notice has been given unless either (i) giving notice would enable the defendant to take steps to defeat the purpose of the injunction, or (ii) there has been no time to give notice before the injunction is required. Where an application proceeds without notice to the defendant, the applicant is under a more compelling duty to make full and frank disclosure.
In the event that the court determines that the order for injunctive relief ought not to have been made and if a defendant succeeds in discharging the order on that basis, the court also has the jurisdiction to make a finding of liability and assess damages if it is proved that loss or damage was suffered by the defendant.
There are certain exceptions to the general principle that the court requires an undertaking in damages to be given. Further, the court will require security of the undertaking in damages where the defendant can show that there is a sufficient risk of loss which is unlikely to be compensated, unless it was caused by the grant of the injunction, and that such loss can be properly quantified or estimated.
The primary use of the Mareva injunction is to grant injunctive relief against the worldwide assets of the respondent.
The courts in The Bahamas have applied the English common law principles developed in TSB Private Bank International v Chabra  1 WLR 231, which allows injunctive relief to be obtained not only against parties to the cause of action, but also against third parties who hold and control assets for and on behalf of the wrongdoer.
There are a number of options open to a litigant where a party enjoined fails to comply with the terms of an injunction, including seeking a variation of the order. However, the primary consequence of a breach of an injunction is that an application for contempt of court may be pursued. The forms of punishment for a finding of contempt are varied, ranging from the refusal of audience to fines and imprisonment for continued and sustained breaches of injunctive orders.
Civil trials in The Bahamas are in the first instance heard before a single judge and are generally open to the public. Written witness statements and expert witness statements are exchanged prior to the trial and stand as evidence-in-chief. At the trial the witnesses affirm the contents of their statements and are then tendered for cross-examination. Counsel for the parties may make opening addresses to the court and, at the end of the trial, closing submissions. Although the judge may render his or her judgment or ruling immediately upon the conclusion of the trial, it is usual for judgment to be reserved to a later date to enable the judge to consider the transcript of the proceedings, the evidence and the legal submissions.
Interlocutory applications may be made by either party prior to the trial. At the hearing the filed summons and the affidavits in support and in response are considered. Oral arguments are made by counsel for the parties in addition to any written skeleton arguments which may have been laid over in advance of the hearing. The registrar or judge will usually make an order immediately upon the conclusion of the hearing, unless he or she reserves the decision to a later date.
The court has a duty to actively manage cases. A case management hearing takes place before all civil trials. After the close of pleadings, the action is referred to a case management conference before the judge who will hear the trial.
In The Bahamas, civil cases are in practice not heard by a jury, although the Rules of the Supreme Court do make provision for a trial before a judge with a jury.
The admission of evidence at trial is governed by the Rules of the Supreme Court and the Evidence Act. Generally, evidence may be given of facts relevant to any fact in issue. Oral evidence must be the direct evidence of a witness. Subject to certain exceptions, hearsay evidence must not generally be admitted in evidence.
Expert evidence may be given in certain circumstances where, inter alia, the court has to form an opinion on:
At the case management hearing, directions are given for the filing and exchange of expert reports and expert witness statements in advance of the trial. The experts are subject to cross-examination at trial.
Interlocutory applications before a registrar of the Supreme Court are heard in chambers and are not open to the public, although the parties may be present. Interlocutory applications before a judge may be heard in chambers or in open court.
As a general rule, trials are open to the public. An application can be made for a trial to be held in camera if the applicant can demonstrate to the court that a public hearing is likely to lead to a denial of justice.
Judges may and often do ask questions of counsel, the factual witnesses and the expert witnesses during the conduct of the trial.
The timeframe from the commencement of an action to trial is dependent upon a number of factors. For commercial disputes, an action can progress to trial within two years of commencement, although typically commercial actions tend to take longer to progress to trial. The length of the trial depends on the complexity of the issues, the number of parties involved, the number of factual and expert witnesses and the volume of the documentary evidence.
Once parties have agreed to settle their dispute, there are various ways to discontinue the court proceedings. While court approval is generally not necessary, parties often wish to have their settlement blessed by the court in the form of a Tomlin Order (see 8.3 Enforcement of Settlement Agreements).
Where parties do not feel the need to put the settlement before the court, they will generally execute an agreement detailing the terms of the settlement and simply file a notice of discontinuance.
The terms of a settlement can remain confidential, whether it be contained in a Tomlin Order or by virtue of the terms of the settlement agreement.
Where parties have agreed to settle proceedings via a Tomlin Order, that Order will provide the court with the terms upon which either party may resume the proceedings before the court in the event that either party breaches the terms of the settlement agreement.
In order to set aside a settlement agreement, it would have to be shown that the agreement was entered into as a result of fraud, a misrepresentation, undue influence or duress.
The remedies available to a successful litigant may be either legal, equitable or statutory.
Generally, damages are the legal remedy awarded by a court in The Bahamas.
The most common equitable remedies in claims involving a breach of contract are specific performance, rescission, rectification, injunctions and declaratory relief. In a dispute involving a breach of trust, equitable remedies may include an accounting of profits by the trustee and the tracing of ownership interests.
Actions may also be brought pursuant to specific statutes – for example, the Companies Act or the Employment Act.
As a general rule, damages under Bahamian law are compensatory. There is no limit (statutory or otherwise) on the amount of damages which a claimant can recover. The parties can, however, agree to limit the damages which can be recovered.
Damages are recoverable provided that they were caused by the defendant’s actions or inaction, are foreseeable and not too remote. The plaintiff also has a duty to take reasonable steps to mitigate the losses suffered.
Aggravated damages may be awarded when there is something which under contract or tort would justify more than a nominal award. Exemplary or punitive damages may be awarded when the sum intended to be awarded as aggravated does not adequately address the character of unacceptable conduct. However, to date, aggravated or exemplary damages have not been awarded in a personal injury action in The Bahamas.
The Civil Procedure (Award of Interest) Act of 1992 provides for the award of both pre-judgment and post-judgment interest.
It is within the discretion of the court as to whether pre-judgment interest on a debt or damages is in fact awarded and, if so, at what rate and for what period of time.
Post-judgment interest runs on every judgment debt. The rate of interest, as fixed by the Civil Procedure (Rate of Interest) Rules, 2008, is the prime rate of the Central Bank of the Bahamas plus 2% per annum.
The Rules of the Supreme Court afford the following means by which a judgment for the payment of money may be enforced: a writ of fieri facias, garnishee proceedings, a charging order, the appointment of a receiver and/or a writ of sequestration. In enforcement proceedings the plaintiff becomes the judgment creditor and the defendant becomes the judgment debtor.
The procedure to be adopted for the enforcement of a foreign judgment in The Bahamas is dependent upon the country in which the foreign judgment was obtained.
The provisions of the Reciprocal Enforcement of Judgments Act (REJA) have, to date, been extended to the following countries: Barbados, Bermuda, Jamaica, Leeward Islands, St Lucia, Trinidad, British Guiana (Guyana), British Honduras (Belize), Australia and the UK.
A judgment or order in civil proceedings given or made by certain superior courts of one of the countries listed above may be registered and enforced under the REJA by the judgment creditor making an application to the Supreme Court within 12 months of the date of the foreign judgment. Once registered, the foreign judgment becomes a judgment of the Supreme Court.
If the judgment was obtained in a country to which the REJA does not extend, enforcement in The Bahamas may only be achieved under the common law, which requires the satisfaction of six specific conditions. If those conditions are satisfied, the proceedings are then conducted by the plaintiff serving a writ on the defendant, in which the foreign judgment is pleaded as the basis for the claim. If the defendant enters an appearance, the plaintiff may apply for summary judgment on the ground that the defendant has no defence to the claim.
Appeals to the Supreme Court may come from the magistrates’ courts or any tribunal. Also, an appeal from a judgment, order or decision of a registrar lies to a Supreme Court judge in chambers. With the leave of the Supreme Court, an application for judicial review may be made with respect to proceedings before a magistrate or tribunal.
Subject to an exhaustive list of exceptions, the Court of Appeal has jurisdiction to hear and determine all appeals from any judgment or order of the Supreme Court made in or incidental to civil proceedings. Similarly, in criminal proceedings, the Court of Appeal has jurisdiction to hear appeals from a person convicted of a criminal offence in the Supreme Court pursuant to an exhaustive list of grounds of appeal.
All appeals to the Privy Council must be made with leave to appeal from the Court of Appeal or special leave from the Privy Council.
With respect to appeals from a magistrate to the Supreme Court, the magistrate must inform the party to whom the decision is adverse that it has a right to appeal and what steps must be taken to appeal.
As stated above, subject to an exhaustive list of exceptions, the Court of Appeal has jurisdiction to hear and determine all appeals from any judgment or order of the Supreme Court made in or incidental to civil proceedings. For criminal appeals to the Court of Appeal from a Supreme Court conviction, a person may only appeal on one or more specific grounds.
Leave to appeal to the Privy Council will only be granted upon:
Appeals to the Supreme Court must be brought by originating motion. The notice of this motion must state the grounds of appeal and whether the appeal is against the whole or part of the decision. The notice must be served and the appeal entered within 28 days after the date of the judgment, order, determination or other decision being appealed.
Civil appeals to the Court of Appeal must be brought by notice of motion. Appeals against interlocutory orders must be made within 14 days of the order and appeals against final orders within six weeks of the order.
For appeals to the Privy Council, they must be brought by petition from the intending appellant pursuant to leave to appeal obtained from the court appealed from or pursuant to special leave granted by the Privy Council within 21 days of the date of the judgment to be appealed from.
Appeals to the Supreme Court are by way of rehearing, and the Supreme Court has the power to receive further evidence on questions of fact and draw any inferences of fact.
Appeals to the Court of Appeal and the Privy Council are also by way of rehearing. The Court of Appeal and the Privy Council have full discretionary power to receive further evidence on questions of fact in the case of an appeal from a judgment after a trial or hearing of any cause or matter on the merits, but no further evidence can be admitted except on special grounds or with respect to matters which occurred after the trial or hearing.
On an appeal to the Supreme Court, the court can impose conditions on the granting of the appeal by amending the grounds of appeal or make any other order which it deems just to ensure the determination of the real question on the merits. The Court of Appeal has the same power.
The Privy Council only hears applications for special leave to appeal. The only condition which is typically imposed is security for costs. Leave to appeal is otherwise granted by the Court of Appeal subject to the powers of that court, which allow conditions to be imposed on granting leave to appeal.
After hearing an appeal, the Supreme Court has the power to give any judgment or decision or make any order which should have been made by the body before whom the matter was first brought. It also has the power to remit the matter for rehearing.
After hearing a civil appeal, the Court of Appeal may make an order confirming, reversing or varying the judgment or order appealed against or order a new trial. The Court of Appeal has the power to give any judgment and make any order which ought to have been made, and to make any further or other order which it deems necessary. It can also order a new trial or set aside a finding or judgment of the court below.
As the final court of appeal, the Privy Council has the same powers as the Court of Appeal after the hearing of an appeal.
The award of costs by the court (whether in interlocutory applications or of the trial of the action) is ultimately an exercise of the court’s discretion. However, this discretion should recognise that “costs follow the event” – ie, the unsuccessful party will be ordered to pay the costs of the successful party. This principle should only be departed from in exceptional circumstances.
The court can either fix costs (ie, order a specific amount to be paid) or seek the parties to agree costs, failing which ordering the costs to be taxed. Upon costs being awarded, parties should attempt to settle the amount of costs in the first instance. If the parties cannot come to a settlement position, the successful party’s/parties’ bill(s) of costs is/are sent to a taxing master, who will hold a taxation, following which he or she will make a ruling on the costs to be paid by the unsuccessful party. Any award of costs is subject to a review and thereafter an appeal.
Once the costs have been taxed and certified, the paying party must pay the costs promptly.
In exercising its discretion on costs, the court is required to have regard to all the circumstances but, in particular, the conduct of the parties (before as well as during the proceedings), whether a party was only partly successful and any admissible settlement offers which were made.
Once an award of costs has been made, it attracts the same rate of interest as a civil judgment pursuant to the Civil Procedure (Award of Interest) Act of 1992.
In The Bahamas, alternative dispute resolution (ADR) is considered a progressive way of settling disputes in a quick and efficient manner. Although all forms of ADR are utilised, arbitration is seemingly the most popular method as it is enforced through legislation and by the courts and is conducted in accordance with globally recognised standards.
Pursuant to the Rules of the Supreme Court, the court has the case management power to conduct a dispute resolution conference between the parties at the close of pleadings. This can lead to a mediation or other ADR process, with a view to arriving at a settlement before the trial starts. Although the parties are directed to mediate and are encouraged to negotiate a settlement, there are no sanctions against a party who refuses to participate in ADR. However, the objection by a party to engage in ADR may be taken into consideration on the issue of costs.
Mediation and arbitration clauses are treated as binding in The Bahamas and will only be overturned in exceptional circumstances. In the case of an arbitration agreement, the Arbitration Act (henceforth, the Act) vests the Supreme Court with the statutory power to stay proceedings in order to enforce the agreement to arbitrate.
The Bahamian court system promotes ADR pursuant to provisions of the Rules of the Supreme Court, which dictate its procedure through enabling legislation in relation to ADR methods such as arbitration. Organised institutions which offer and conduct forms of ADR include ADR Bahamas and the Chartered Institute of International Arbitrators.
Under the Act, arbitration is a legislatively backed form of ADR with the support of the Supreme Court and the Court of Appeal, which are vested with enforcement jurisdiction. The conduct of arbitration as well as its recognition and enforcement are also supported by the Rules of the Supreme Court, which set out the procedure for appealing from or enforcing an arbitration award.
There are no restrictions in relation to disputes in civil proceedings.
Under the Act, a party to an arbitration can apply to the court to challenge the award of a tribunal on three grounds:
A challenge can be made where The Bahamas is the seat of the arbitration or, if no seat has been designated or determined, by reason of another connection with The Bahamas if the court deems it appropriate.
In addition to the Act, The Bahamas has given effect to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958 by enacting the Arbitration (Foreign Arbitral Awards) Act, 2009, which mandates that a foreign award made pursuant to the New York Convention will be enforceable in The Bahamas, either by an action or in the same way as domestic orders are enforced.
Under the Act, a domestic arbitration award may, with the leave of the court, be enforced in the same manner as a judgment or order of the court. Generally, a domestic judgment or order of the court will be enforced under Order 45 of the Rules of the Supreme Court, which states that a judgment or order can be enforced by a writ of fieri facias, garnishee proceedings, a charging order, the appointment of a receiver, an order of committal and, where necessary, a writ of sequestration.
There are plans for reform in both the traditional court system and alternative dispute resolution in The Bahamas. Regarding litigation reform, the Chief Justice of The Bahamas is aiming to revamp the Supreme Court Rules, some of which are 40 years old, in a bid to develop “an entirely new and modern foundation” for handling civil and commercial cases. The aim is to reform the procedures which govern how Bahamian courts deal with civil cases as part of a wide-ranging and across-the-board transformation of the judicial system. This will improve access to justice and the speed at which matters are dealt with, along with helping to reduce legal costs and cut the long-standing case backlog which continues to undermine the efficiency of the courts.
Additionally, the new Civil Procedure Rules which are presently being considered will cover everything from greater case management powers for judges to cross-border procedures, international co-operation and greater use of ADR and mediation.
The new Supreme Court Rules were due to be enacted in April 2020. However, with the presence of COVID-19 and various emergency orders mandating curfews, lockdowns and closures, the enactment has been delayed.
Regarding reforms for ADR in The Bahamas, the government laid in the House of Assembly the Arbitration (Amendment) Bill, 2018 and the International Commercial Arbitration Bill, 2018. Once those bills have been passed, the legislation will bring further certainty and clarity for those interested in using The Bahamas as a venue for arbitration matters.
The Arbitration (Amendment) Bill, 2018 will rename the Arbitration Act of 2009"The Bahamas Domestic Arbitration Act",whichwill govern domestic arbitration. The International Commercial Arbitration Bill, 2018 will incorporate key provisions of the Model Law of the United Nations Commission on International Trade Law (the “UNCITRAL Model Law”). The UNCITRAL Model Law covers all stages of the arbitral process, from the arbitration agreement to the recognition and enforcement of the arbitral award, and reflects a worldwide consensus on key aspects of international arbitration practice, accepted by numerous countries irrespective of their legal or economic system. The relevant provisions of the UNCITRAL Model Law have been included in the Schedule of the International Commercial Arbitration Bill,2018 to indicate which provisions of that Bill align with the corresponding provisions of the UNCITRAL Model Law, thus making it easier for persons using the legislation.
Once these bills have been gazetted, they will facilitate international commercial arbitration in The Bahamas. Through the incorporation of the UNCITRAL Model Law into the Bahamian legislation, The Bahamas will position itself to become a centre for international commercial arbitration, thereby creating opportunities for new business and additional foreign investment.
COVID-19 has prompted the judiciary of The Bahamas to pivot in its operations. The pandemic has given rise to the judiciary issuing Coronavirus Mitigation Protocols and Practice Directions. The objectives of these protocols are to:
The judiciary has also overhauled its website in an effort to take advantage of the use of technology, which reduces the need for persons to physically attend the premises of the courts. There are now mechanisms on the judiciary’s website which enable counsel to apply for hearing dates and submit documents to the court, amongst other things. Pursuant to Practice Direction No 2 of 2020, emails are now preferred to letters. This diminishes the necessity for persons to come and physically deliver letters to judicial offices, which promotes social distancing initiatives.
Court hearings are now facilitated through videoconferencing mediums, such as Zoom and Webex, wherever possible. Practice Direction No 3 of 2020 and the Coronavirus Mitigation Protocols 5.0 presently govern the procedure of virtual/remote hearings. They provide guidance with respect to the format which electronic hearing bundles are to take, the appropriate attire for counsel and the mode/procedure which the virtual/remote hearing will follow. It is important to note that the rules give the presiding judge the authority to adjust the mode/procedure of any hearing before him or her.
On 30 March 2020, the government of The Bahamas passed the Emergency Powers (COVID 19) (Special Provisions) Order, 2020 (the “Special Provisions Order”), which suspends any limitation of time provided under the Limitation Act up to 30 days after the cessation of the state of public emergency issued by the Governor General pursuant to the Emergency Powers Act. There has been much debate as to whether the Special Provisions Order is still in effect. This is because the first proclamation of a state of emergency under which the Special Provisions Order was issued expired on 29 June 2020, and a new proclamation of a state of emergency was issued by the Governor General and came into effect on 30 June 2020.
Reform to Modernise the Judiciary
The judiciary has made it clear that one of its priorities in 2020 is the implementation of various reforms to modernise the Bahamian court system. This will primarily be done using a new technology platform, which will enhance access to the administration of justice, make such access more “user friendly” and reduce the disposition cycle of cases. The backbone of the new technology platform will be an integrated case management system, which will allow for a wide range of e-services, such as e-filing, e-scheduling, e-payment, e-notices and e-probate. Some of these services are already available and can be accessed through the judiciary’s new website: www.bahamasjudiciary.com.
Change has already commenced, as evidenced by practice directions issued by the Chief Justice, Sir Brian M. Moree QC, this year. Under these practice directions, attorneys are encouraged to:
In addition to infrastructural upgrades, the judiciary recognises that internal reform is also needed and has indicated that there will be structural changes in its management model, the introduction of a new service-orientated culture, rationalising internal procedures and workflows, an increased emphasis on efficiency, productivity and accountability to the public and enhanced training for the judiciary’s staff.
Modernising the judiciary will also make the Bahamian judicial system more resilient to events such as hurricanes and global pandemics. With the vast majority of procedures done electronically, cases can continue to progress through the litigation process despite courts and offices being closed.
New Civil Procedure Rules (the “CPR”)
Presently, civil litigation in The Bahamas is generally governed by the Rules of the Supreme Court of 1978 (the “RSC”), which were promulgated more than 40 years ago. The RSC are based on the former UK Rules of the Supreme Court which were in force at that time and are in many respects identical to their UK counterpart.
During his speech at the opening of the 2020 legal year, the Chief Justice declared: “We will introduce new Rules of the Supreme Court based on an adapted and updated version of the CPR model used around the Commonwealth”. The transition to the CPR will be a real and systemic change, which will result in a new litigation culture focused on the overriding objective. This will enable the court to:
Specific areas of the litigation procedure which will be significantly reformed include case management, discovery (there will be a modified and narrower criterion for documents to be disclosed known as “disclosure”), the court’s control of the preparation and presentation of evidence (in particular the role and duty of expert witnesses) and the cost regime.
The Bahamian CPR have been drafted on the basis of the Civil Procedure Rules from England, New Zealand, Cayman and Barbados and taking the Rules of the Eastern Caribbean Supreme Court as a guide. The CPR were planned to become effective earlier this year, but delays caused primarily by the COVID-19 pandemic have pushed back the timetable. It is now expected that the CPR will be circulated for consultation by the end of this year and made effective during the first quarter of 2021.
It is important to note that the CPR will not apply to the following proceedings:
Recent Clarifications of the RSC on the Service Out of the Jurisdiction
The RSC govern the procedure applicable to the service of court documents in a Bahamian action on parties who are not within the jurisdiction. This procedure is particularly relevant where disputes before the court have a multi-jurisdictional reach and the parties who are subject to the court’s jurisdiction are not within the geographical location of the court. Recent judgments of the Bahamian Supreme Court have clarified various aspects of the service out of the jurisdiction in these types of actions.
Winder J In Volpi v Delanson Services Limited and another –  1 BHS J. No 54 addressed the issue of whether, in a series of related actions brought against the trustee by an ousted beneficiary of a trust, the action by originating summons seeking an interim injunction in aid of related arbitration proceedings could be served on a party outside of the jurisdiction. The court clarified that the rules governing service out of the jurisdiction relegate service of proceedings begun by originating summons to the permitted exceptions specified by RSC Order 66, rule 4, specifically providing for service of the appointment of an arbitrator or the enforcement of an arbitral award.
The court poignantly observed in its judgment that, while the rule 4 provisions of RSC Order 66 were designed for the arbitration legislation previously in force and not for the current Arbitration Act, it is only within the purview of Parliament to make rules which appropriately complement the seemingly wider jurisdiction of the Arbitration Act. The court preferred the restrictive interpretation of the present rules governing service out of the jurisdiction, despite its finding that the Arbitration Act vests the court with the jurisdiction to issue an injunction in aid of arbitration where the seat of the arbitration is The Bahamas.
The court also found that Section 4 of the Arbitration Act gives the Act extra-territorial effect – that is to say, it has effect whether or not the seat of the arbitration is The Bahamas or the arbitration takes place in The Bahamas. In its judgment, the court found that its statutory jurisdiction under the Arbitration Act is relegated by the preamble to Section 55, which gives the court the same powers in respect of arbitral proceedings that it has in respect of legal proceedings.
Hence the court found that the exercise of its statutory jurisdiction to issue an interim injunction in aid of arbitration proceedings could not exceed its jurisdiction to do so in respect of a court action. Accordingly, the court could not grant service out of the jurisdiction in aid of arbitration if it could not do so in respect of an action brought on the same basis. The court, therefore, set aside its leave to serve process out of the jurisdiction on the basis that the applicant could not obtain a freestanding interim injunction by issuing process by originating summons, as a freestanding injunction could not similarly be obtained in an action brought by writ, in accordance with the standing Bahamian authority of Meespierson (Bahamas) Limited and others v Grupo Torras SA and another – 2 ITELR 29.
The Volpi judgment relied on the Bahamian Court of Appeal’s findings in the earlier judgment of AWH Fund Limited (In Compulsory Liquidation) v ZCM Asset Holding Company (Bermuda) Limited –  2 BHS J. No 53 to the effect that RSC Order 11, rule 8 permits service out of the jurisdiction of an originating summons, except an originating summons in arbitration proceedings, and that service out of the jurisdiction of proceedings begun by originating summons is subject to the further limitation that it is permitted only if such service would be permissible if the proceedings had been begun by writ. The Court of Appeal’s judgment in AWH Fund Limited sought to clarify the interpretation of the RSC provisions as to service out of the jurisdiction in so far as they apply to the service of insolvency proceedings begun by petition.
In yet another pronouncement on service out of the jurisdiction, the Supreme Court has clarified in Surf 'N' Turf Ltd v Deltec Bank & Trust Limited and others –  1 BHS J. No 203that service out of the jurisdiction is permissible in respect of service of an interpleader summons pursuant to RSC Order 11, rule 8(4), as that rule permits service of “any summons, notice or order issued, given or made in any proceedings”.
The Court of Appeal’s findings in AWH Fund Limited as to service out of the jurisdiction in insolvency proceedings was more recently upheld by the Privy Council in a judgment dated 29 July 2019 ( UKPC 37). Therein, the Privy Council confirmed that RSC Order 11, rule 8 enables the Supreme Court of the Bahamas to grant leave for service out of the jurisdiction of claims of fraudulent preference advanced by a liquidator by way of summons in a winding-up action brought by petition.
Their Lordships found that there is no jurisdictional gateway to be established because the liquidator’s claims were brought under the International Business Companies Act, which by its nature is a vehicle intended to attract foreign investment. Accordingly, it displaced the presumption against extraterritoriality and RSC Order 11 applied to permit service out of the jurisdiction of a claim brought thereunder.
Given that these recent cases were aimed at clarifying the applicability of the rules on service out of the jurisdiction, it will be instructive to note whether they may prompt the Rules Committee to amend or restate these rules in a manner which supports the court’s functions under more recent legislation, such as the Arbitration Act.