Thursday, 23 May 2013

Law report - serving parties outside of Bermuda in trust proceedings

In the matter of the Hanover Trust [2013] SC (Bda) 38 Civ

The Chief Justice clarified an issue regarding service of court proceedings on overseas parties to a trust action. He held that in trust proceedings concerning a Bermuda trust or where the trust property was in Bermuda, it was not necessary to obtain the leave of the court to do this, as the court had clear jurisdiction to hear such applications [143]-[15]. Leave would only be required if the overseas party might potentially challenge jurisdiction to hear the dispute or whether Bermuda is the most convenient forum to hear it [13].

Law report - court and collection fees

Acorn Services Ltd v Dill [2013] SC (Bda) 33 App

The Plaintiff had been awarded judgment for rent arrears, including collection and legal fees attainable under the lease. The Plaintiff had appealed on the grounds that the Magistrate had not awarded the full collection fees under the lease.

Kawaley CJ held that the collection fees were a contractual claim which the Plaintiff was entitled to. The clause in the contract did not put a penalty on the Defendant, but merely reflected the costs that the Plaintiff had suffered in order to collect on the debt [10]-[13].

Law report - stays of proceedings

In the matter of an application for information about a trust [2013] SC (Bda) 45 App

Justice Hellman, sitting as a single judge of the Court of Appeal, had refused a stay of an order by the Chief Justice for the applicant to disclose accounting information to the respondents, pending appeal to the Court of Appeal.

The applicant then re-applyied for Justice Hellman to stay the matter only until the full Court of Appeal could consider the matter in a further month's time.

Hellman J held that he did have the authority to do this [13]. He decided that, as the full Court of Appeal would be able to consider the matter in as little as a month, it tipped the balance in staying the order for that short period [20].

Wednesday, 22 May 2013

Law report - two sets of costs and judicial review

Kentucky Fried Chicken (Bermuda) Limited v Minister of Economy, Trade & Industry [2013] SC (Bda) 35 Civ

This judgment concerned what happens when an applicant has failed to obtain the relief they were seeking in judicial review proceedings where there is more than one respondent.

Kawaley CJ noted that this was strangely not something which had been raised before in a considered judgment in Bermuda [5].

The general position is that only one set of costs would be awarded as an applicant should not have to pay for duplication of effort. There is an exception when a second respondent has a separate interest on an issue which is not dealt with by the first respondent.

The Chief Justice took the route of allowing costs to both respondents, but only one set of costs for each issue, depending on whether the issue was one properly for the Minister or for the BIU to respond to, so as to avoid duplication of costs [7]-[10].

The Chief Justice indicated that, in future, the proper time to raise the issue of paying two sets of costs is early in the proceedings, in order to allow the parties to focus on who should play an active role in the proceedings [11].