The Bahamas’ legal system is based on the common law adversarial model. Trials and hearings are heard orally, with written submissions used to supplement the oral arguments.

There is a single court system, comprised of three levels:

• the Magistrate’s Court, which can be categorised as a small claims court in respect of civil matters;
• the Supreme Court; and
• the Court of Appeal.

The highest appellate court is the Privy Council, which sits in the UK. The Supreme Court comprises divisions, including criminal, common law and equity, commercial, family, and probate.

Generally, court filings and proceedings are open to the public. However, the court may, in special circumstances, order that proceedings be held in camera and/or files sealed upon the application of a party if it determines that the reasons for such privacy justify bypassing the open justice principle.

Legal representatives are required to be called to The Bahamas Bar for audience before the court. The Bahamas Bar is closed, which means that only citizens of The Bahamas are qualified to be called to the Bar save where the person is appointed to a legal post or has been granted special admission. The Bar Council may grant special permission for foreign lawyers to practise. This special admission is usually temporary.

In theory, third-party funding is not available. However, where the funder has a legitimate interest in the outcome of the subject matter, third-party funding is permitted.

Third-party funding is available for any type of litigation provided that the funder has a legitimate interest in the outcome of the subject matter.

Both the plaintiff and the defendant can benefit from third-party funding.

There is no minimum or maximum amount a third-party funder will fund.

This is not applicable in the jurisdiction.

Contingency fees are prohibited.

Time limits do not apply to third-party funding of litigation.

There are no rules requiring parties to take pre-action steps before commencing an action.

The limitation period for instituting actions in simple contract or tort is six years. The limitation period for instituting actions for personal injuries is three years generally and one year where the action is against a person acting in execution of statutory or other public duty.

Regardless of the defendant’s location, the Bahamian courts have jurisdiction over any action arising from acts or events that took place within the country.

Save for bankruptcy and insolvency proceedings, family proceedings, non-contentious probate proceedings and proceedings instituted under any enactment where the enactment regulates the proceedings, the following documents are filed to initiate a lawsuit:

• standard claim form;
• fixed date claim form; or
• originating application.

If standard claim and fixed date claim forms are used, they must be accompanied by a statement of case except in urgent cases where the court allows the claim form to be filed without a statement of case.

The court may allow a statement of case to be amended at a case management conference (CMC) or at any time upon application to the court.

A statement of case may be amended once without the court’s permission at any time prior to the date fixed by the court for the first CMC.

Any amendment that (i) adds or substitutes parties after the end of the relevant limitation period or (ii) makes changes to statements of case after the end of the relevant limitation period, requires the court’s permission.

The initiating party is responsible for bringing the proceedings to the attention of the defendant(s) by serving them. Parties outside the jurisdiction can be sued. The Civil Procedure Rules provide for service outside the jurisdiction.

Where the defendant fails to file an acknowledgment of service or fails to file a defence, the claimant can obtain default judgment. However, some types of claims are exempted from default judgment.

The court has the power to appoint one or more persons with sufficient interest in the proceedings to represent all or some of those persons with the same or similar interests. The parties to a representative action must have the same or similar interests.

There are no requirements to provide clients with a cost estimate of the potential litigation at the outset, although it is good practice to do so.       

It is possible to make interim/interlocutory applications before trial. Parties are able to obtain remedies from the applications; eg, injunctions, payment into court, or security for costs.

Parties can apply for early judgment by applying for summary judgment on the claim. The court may grant summary judgment if it considers that the claimant has no real prospect of succeeding on the claim or the issue or if the defendant has no real prospect of successfully defending the claim. The court may also order summary judgment on its own volition. The court may order that a statement of case or any part thereof be struck out. As it is a draconian measure, the court will only strike out claims in “plain and obvious” cases.

The dispositive motions that are commonly made before trial are summary judgments and striking out. The court will grant summary judgment where it has decided that the claimant has no real prospect of succeeding on the claim or where the defendant has no real prospect of defending the claim. The court will strike out an entire claim in plain and obvious cases where:

• there has been a failure to comply with a rule, practice direction, order or direction given by the court in the proceedings;
• the statement of case does not disclose any reasonable cause or ground for bringing the claim;
• the statement of case is frivolous, vexatious, scandalous, an abuse of the court’s process or is likely to obstruct the just disposal of the proceedings; or
• the statement of case does not accord with the rules on how to commence an action.

The court may add a new party to proceedings without an application if it is desirable to add the new party so that the court can resolve all the matters in dispute in the proceedings or if there is an issue involving the new party that is connected to the matters in dispute in the proceedings and it is desirable to add the new party so that the court can resolve that issue.

The court may not add a party except by substitution after the case management conference on the application of an existing party unless that party can satisfy the court that the addition is necessary due to a change of circumstance that became known after the case management conference.

A defendant can apply for an order requiring the plaintiff/claimant to pay a sum of money as security for the defendant’s costs. This is known as an application for security for costs.

The general rule is that all applications must be listed for hearing at a case management conference or pre-trial review. Where an application is made which could have been dealt with at a case management conference or pre-trial review, the court will order the applicant to pay the costs of the application unless there are special circumstances.

The timeframe within which the court will deal with interlocutory applications depends heavily on the court’s calendar. However, applications for proceedings already filed will usually be heard within six weeks of the application having been filed. In the case of an urgent application, the applicant’s attorney will file a certificate of urgency, explaining the urgency of the application. In this case, the application will be heard within two to seven days, depending on the degree of urgency.

Under the Civil Procedure Rules 2023, which recently replaced the Rules of the Supreme Court, discovery has been replaced by disclosure. Disclosure is available in civil cases. Each party has a duty to disclose the documents that are or have been in its control. The standard of disclosure required is that each party is required to disclose all documents that are directly relevant to the matters in question in the proceedings. Disclosure is administered by the litigants. There are no mechanisms by which the scope and/or costs of the discovery process can be curbed.

It is possible to obtain discovery from a third party via a Norwich Pharmacal Order (NPO). This is applicable in situations where an individual, inadvertently involved in the tortious acts of others, is obliged to assist the wronged party. Despite not being personally liable, they must provide complete information and disclose the identities of the perpetrators (Norwich Pharmacal Co. v Commissioners of Customs and Excise [1974] AC 133). In order to obtain an NPO, the party wishing to obtain the discovery must commence an action for this purpose.

The general approach to disclosure is for parties to disclose all relevant documents in their possession.

There are mechanisms for disclosure.

The Bahamas adheres to the concept of legal privilege, which safeguards confidentiality in legal proceedings. This means that any communications between a lawyer and their client, if made for the purpose of giving or receiving legal advice, remain shielded from public disclosure. This privilege extends equally to communication between in-house counsel and their employer, as long as the communication occurs within the context of legal advice.

Legal privilege is the only exception to disclosure.

Injunctions may be awarded where the applicant has satisfied the court of the following:

• there is a serious issue to be tried;
• damages would not be adequate remedy; and
• the balance of convenience lies with granting the injunction (more prejudice would be caused by not awarding the injunction).

The following types of injunctions are available:

• mandatory injunctions;
• prohibitory injunctions;
• interim injunctions; and
• final injunctions.

Recently, the Supreme Court decided that free-standing injunctions (injunctions where there are no substantive proceedings in the context of which the injunction is sought) can be awarded.

Injunctions to prevent parallel proceedings in another jurisdiction are available. An action must be commenced for this purpose. They are usually brought on the ground that the appropriate forum for the proceedings is The Bahamas.

In urgent circumstances, injunctions can be obtained within two to three days. There are no arrangements that can be made for out-of-hours judges, nor are there any similar procedures available.

In urgent circumstances, it is possible to obtain ex parte injunctive relief without notice to the respondent. 

The applicant can be held liable for damages suffered by the respondent if the respondent suffers damages as a result of the injunction when the injunction was wrongly obtained. Ordinarily, before granting the injunction, the court will require the applicant to give an undertaking in damages for this reason. The need for an undertaking in damages is enhanced where the injunction is sought ex parte. In certain circumstances, the court can request that the undertaking be collateralised – ie, that security be provided.

Injunctive relief can be granted against worldwide assets of the respondent.

The court has jurisdiction (pursuant to TSB International v Chabra [1992] 2 All ER 245) to grant a freezing injunction against a third party against whom the claimant asserts no cause of action provided that the injunction is ancillary and incidental to a claim in respect of a defendant against whom the claimant does assert a cause of action.

If the respondent fails to comply with the terms of an injunction, they can be held in contempt of court, whereby the party will be penalised for failing to comply with the court order.

Trials take place in person. They involve oral arguments and witness expert examination at a physical hearing.

In case management conferences and short interlocutory hearings, the courts continue to utilise remote video platforms, which were implemented during the COVID-19 pandemic. In respect of more complex applications and trials, the court will set a pre-trial review to give directions to bring the matter on for hearing or trial. These pre-trial reviews are also heard via remote video platforms.

Jury trials are not available in any civil cases.

Evidence is usually taken at trial, although witness statements, which stand as evidence in chief at trial, are exchanged in advance of the trial. Evidence is taken from the person with first-hand knowledge of the evidence in question. In certain circumstances, hearsay evidence is admissible and it is left to the court to determine what weight to attribute to it.

Expert testimony is permitted. However, it is restricted to evidence that is reasonably required to resolve the proceedings justly. Parties can only call expert witnesses with the court’s permission. If two or more parties wish to submit evidence on the same issue, the court may direct that expert evidence be given by an independent expert witness.

In The Bahamas, the open justice principle applies. Accordingly, all matters to be heard in open court are open to the public, and transcripts of those hearings are also available to the public. However, the public is not permitted to attend chamber applications.

The level of intervention by a judge during a hearing or trial varies depending on the judge. However, judges often intervene as much as is required to determine the matter. If the judge requires that a question be asked of a witness in order to determine the issue and the question has not been asked by counsel, the judge will ask the witness the question.

Judges often reserve judgments at the conclusion of trials. With respect to hearings, whether the ruling is reserved to a later date depends on the complexity of the issues, the implications of the decision and whether evidence and submissions have been submitted.

Once the defence has been filed (within 28 days from the filing of the statement of claim), the case management conference takes place not less than four weeks but not more than twelve weeks thereafter. The trial date(s) depends on the availability of the court’s calendar, which can be anywhere from a few months to nine months from the date of the case management conference. Typically, unless it is a very complex, document-heavy matter, it takes approximately 18-24 months to bring a matter on for trial, depending on the court’s calendar. The duration of the trial would depend on the number of witnesses to be called and examined and the length of those examinations.        

Court approval is required where one of the parties is a minor.

The actual terms upon which a matter has been settled will be confidential. However, it may not be possible to keep the fact of the settlement of the proceedings confidential, as this would be reflected on the filed consent order settling the proceedings.

The consent order, which contains the terms of the agreement, can be enforced.

Consent orders often contain a provision for “liberty to apply” which provides for the parties to return to court to have the terms of the consent order varied.

The awards typically available to a successful litigant who obtains judgment in his/her favour would vary depending on the remedies claimed in the action. These remedies can range from an award of damages, a declaration, an order for an accounting, and an injunction. All the foregoing remedies would be available after the conclusion of a full trial.

Punitive damages apply in certain cases of damages. For example, exemplary damages are available in circumstances where it is appropriate to punish the defendant for outrageous behaviour and deter him/her or others from repeating it. There is some overlap between exemplary and aggravated damages, but the recovery of both is duplicitous and strictly prohibited. There are no rules limiting maximum damages.

The Civil Procedure (Award of Interest) Act, Ch 80, provides that the court may, if it thinks fit, order that there be included in the sum of judgment interest at the rate it thinks fit on any part of the damages awarded or the entire sum of the damages awarded. The interest awarded can be for the whole or any part of the period from the date when the action arose to the date of judgment. It is in the court’s discretion.

Post-judgment interest accrues on the full judgment debt and accrues annually until paid.

The following mechanisms are available for the enforcement of a domestic judgment:

• warrant of execution;
• in relation to securities, a charging order, stop order or stop notice;
• in relation to land, a fixed date claim form to enforce the equitable charge;
• appointment of a receiver; and
• writ of sequestration.

The Reciprocal Enforcement of Judgments Act, Ch 77, facilitates the enforcement of judgments, orders and awards in The Bahamas. However, the Act only applies to judgments and orders from Barbados, Bermuda, Jamaica, Leeward Islands, St. Lucia, Trinidad, British Guiana, British Honduras, Australia, and the United Kingdom. Judgments and orders obtained in other countries must be enforced by commencing a new action in The Bahamas for the purpose of enforcing that foreign judgment/order.

Judgments and orders from the Supreme Court can be appealed to the Court of Appeal as of right. Judgments and orders from the Court of Appeal can be appealed to the Privy Council, which is the highest appellate court.

Final judgments and orders made by the Supreme Court can be appealed to the Court of Appeal. However, leave from a Supreme Court judge is required to appeal interlocutory orders of the Supreme Court.

Appeals from the Court of Appeal to the Privy Council require leave of the Court of Appeal, which is granted where the monetary value of the judgment exceeds BSD4,000 and/or the appeal raises a point of general public importance.

In the case of an appeal from the Supreme Court to the Court of Appeal, the intended applicant must file a notice of appeal within fourteen days in the case of an appeal from an interlocutory order and six weeks in other cases from the date of the judgment or order from the court below. Intended applicants can apply for extensions of time for this period.

In respect of an appeal from the Court of Appeal, the intended appellant must apply for provisional leave within six weeks, during which time they must pay the bond and settle the record of the appeal.

Appeals can be taken on both points of law and points of fact. The appellant must prove that the judge erred either in not making a factual finding or on a point of law. However, an appellate court will not re-hear the matter, but there will be a review of the first instance decision. An appeal court will only consider new points which were not made before the court below where the party making the point did not have a reasonable opportunity to advance the point before the court below and if it relates to new evidence that was not available to the party at the time of the trial.

There is no ability for the Supreme Court to impose conditions on granting leave to appeal where leave to appeal is required. As a condition of prosecuting an appeal, the Court of Appeal requires the intended appellant to pay a bond for prosecuting the appeal.

The appellate court can reverse or affirm the decision of the court below, or send the matter back to the court below to be reheard.

Costs are entirely in the discretion of the court. Ordinarily, however, the successful party is awarded costs. As such, the losing party pays the costs (the “reasonable” amount of attorney fees) of the successful party. The court may, however, make no order as to costs. There are two methods of quantifying the costs. Costs may be determined by the court based on fixed costs or based on prescribed costs. Fixed costs are costs fixed by the rules for certain stages of the proceedings. The rules set out scales for the costs attached to claims.

Where fixed costs are not applicable, prescribed costs apply. Costs are determined based on the value of the claim.

When awarding costs, the court considers the following factors:

• the conduct of the parties both before and during the proceedings;
• whether a party has succeeded on particular issues, even if not ultimately successful in the case, although success on an issue that is not conclusive of the case confers no entitlement to a costs order;
• the manner in which a party has pursued a particular allegation, a particular issue, or the case;
• whether the manner in which the party has pursued a particular allegation, issue or the case, has increased the costs of the proceedings;
• whether it was reasonable for a party to pursue a particular allegation or raise a particular issue and whether the successful party increased the costs of the proceedings by the unreasonable pursuit of issues; and
• whether the claimant gave reasonable notice of an intention to pursue the issue raised by the application.

Interest is awarded on costs based on the judgment rate.

Mediation is seldom used. The most popular method of ADR is arbitration.

The legal system does not promote ADR very much. ADR is not integrated into the Civil Procedure Rules.

Institutions offering and promoting ADR are not very well organised in The Bahamas.

The Arbitration Act, 2009, governs the recognition and enforcement of arbitral awards by the Supreme Court.

There are no subject matters that may not be referred to arbitration in The Bahamas.

Parties can challenge arbitral proceedings as to the substantive jurisdiction of the tribunal, on the ground that there was a serious irregularity affecting the tribunal, the proceedings or the award, on a point of law.

In The Bahamas, arbitration awards are treated as judgments pursuant to the Arbitration (Foreign Arbitral Awards) Act, 2009. Awards made pursuant to an arbitration agreement in a state other than The Bahamas that is a party to the New York Convention are enforceable pursuant thereto.

Domestic arbitral awards are enforceable in the same manner as a judgment or order of the court.

As far as is known, there are no proposals for dispute resolution reform in The Bahamas.

In the Bahamas, the main area for growth in commercial disputes is in the arbitration arena and specifically around resolving trust disputes. Expecting that this could be a growth area for the Bahamas, our recent Arbitration Act, 2009, made provisions for facilitating the arbitration of trust disputes. The Trustee Amendment Act paved the way for this innovation by including provisions in the Act subjecting trust disputes to the arbitral regime where the trust instrument expressly provides for same, and, to a limited extent, conferring on an arbitrator the equitable jurisdiction previously reserved to judges on the equity side of the court, to enable an award to bind the trust estate and its trustees and beneficiaries.