Law Report - Loophole in the Criminal Appeal Rules?

Brangman v Raynor [2013] SC (Bda) 23 App

In his appeal against sentence, Brangman received a small reduction in his sentence to bring it into line with other sentences for sex offences handed down by the Magistrates' Court.

An interesting issue arose, however, as to whether appellants were able to exploit a provision in the law to get an automatic extension of bail when they appeal.

Kawaley CJ said that sections 11 & 12 of the Criminal Appeal Act appear to allow that if an appeal against conviction is filed before sentencing takes place, the proceedings are automatically stayed and so if the appellant is already on bail he cannot be remanded until the appeal is determined [41].

That appeared to be what had happened in the present case, where the appellant had managed to cleverly get his appeal in between the conviction being read out and the sentencing, presumably by serving it personally on the Senior Magistrate. Kawaley CJ said he would welcome the views of the Court of Appeal on this issue.

Comment - It's also noted that it requires the lawyers to not only get the appeal form drafted in time but to find and serve the Senior Magistrate. If the Senior Magistrate is sitting in Court, it would presumably be contempt of court to approach the bench to serve him without his permission. That might be a practical way for the Senior Magistrate to postpone an appeal until bail and other important issues have been dealt with.

Law Report - court appointment of third arbitrator

Carnival Corporation & ors. v Estibeiro [2013] SC (Bda) 20 Civ

The parties were involved in an arbitration under Bermuda law. The Respondent had applied to the Florida Court for the appointment of a third arbitrator. The Applicants had applied to the Bermuda Supreme Court for the same, submitting that the Bermuda Court was the appropriate place to do this.

Kawaley CJ agreed that the Bermuda Court was the appropriate place to seek relief in a dispute concerning a Bermuda arbitration. He appointed Geoffrey Bell QC, who was of a higher order of seniority than those suggested by the applicants, which should help to allay the concerns of the respondent as to the third arbitrator's neutrality.

Law Report - disclosure of information - Tax Information Exchange Agreements

Bunge Limited v The Minister of Finance [2013] SC (Bda) Civ

The Applicant was challenging the Minister's refusal to provide a copy of a request for information by Argentina under an Agreemnet for the Exchange of Information Relating to Taxes.

Hellman J notedthat the International Co-operation (Tax Information Exchange Agreements) Act 2005 was materially similar to the USA - Bermuda Tax Convention Act 1986 for these purposes, although the 2005 Act did not contain a provision that the notice requesting the information should contain the pertinent details of the initial Request [15].

He held fairness and justice required that an applicant was entitled to be satisfied that a request fulfilled the statutory requirements. The right to disclosure of the request is not unfetted. Confidential or sensitive information, for example information prejudicial to the investigation, could be redacted [38]. If necessary, the Court could review the unredacted request in the absence of the applicant to determine whether or not it is valid [41].

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law report - "nominal" damages and costs

Williams v the Bermuda Hospital Board [2013] SC Bda 15 Civ

The Plaintiff had been awarded damages of $2,000 against the Hospital, the Defendant, and awarded the costs of the action. Hellman J had described the damages as "nominal"

The Defendant had applied to overturn the order for costs, on the grounds that when a Plaintiff has succeeded in obtaining only nominal damages, the usual costs order is that the Defendant is entitled to their costs.

Hellman J considered authority which indicated that nominal damages meant something which were not real damages at all, but which gave an entitlement to a judgment or verdict because your rights have been infringed [3]. This was not the same as small damages
Comment - for example, if somebody trespasses momentarily on your land you might be entitled to sue them and win, as your rights have been infringed, but as you have not suffered any real damage, the court would probably award legal costs to the trespasser.

Hellman J clarified that, when he used the term "nominal damages", he was not using it in its strict legal meaning, but was using it in the sense of "small" damages [4].

The Defendant submitted further that the Plaintiff had only obtained 1-2% of the amount claimed. However, the solution for a Defendant who believes a Plaintiff will only obtain a percentage of his claim is to pay the amount into court to protect itself from paying costs [9].

Further, when making a costs order, the Court is entitled to consider the effect that the award would have on the award of damages [11]. If it is the court's view that a party is entitled to a small award of damages, but then awards costs against the Plaintiff, then the result will be that the plaintiff is in debt to the Defendant.

Law report - claiming indemnity costs from other side

Femi Bada v Capcar Enterprises Ltd [2013] SC Bda 13 Civ

Comment - this case will be particularly interesting for landlords and tenants, as leases in Bermuda often contain an indemnity clause such as this.

The parties had had a contract dispute, and it was a term of the contract that the Appellant agreed to fully indemnify the Respondent for all legal costs incurred in enforcing the terms and conditions.

The outcome of the legal action was that the Respondent discontinued its claim against the Appellant and agreed to pay its legal costs to be taxed on a full indemnity basis.

Kawaley CJ held that this type of indemnity clause is designed to create a legal entitlement to compensate a party for all of its costs falling within the scope of the clause [17]. This differs from usual costs taxations, where all costs are considered on the basis of whether it is reasonable for the other party to pay them.

To deprive a party of their full costs would require exceptional circumstances, for example if the bill included time that was not spent, or did not reflect the terms on which the attorney was hired, or was clearly grossly inflated [22].