Bermuda Law

The Legal System
In order to understand the context of Bermuda law, it is important to understand the hierarchy of the Court system in Bermuda. Briefly the superior courts of Bermuda consist of three tiers:

The Supreme Court of Bermuda sits year round on all days except weekends and public holidays and (at present) consists of a Chief Justice and 5 Puisne Judges (one of whom sits almost exclusively as a criminal court judge). There is a Commercial, Court which consists of the Chief Justice and 2 designated commercial judges. That court was set up to address Bermuda’s large insurance and reinsurance industry. Bermuda does not have any other specialist courts (such as admiralty, chancery, technology or patent).

Each of the Puisne Judges exercises the same jurisdiction and, whilst decisions of Judges of co-ordinate jurisdiction are highly persuasive, no Judge (or Assistant Justice or Acting Justice) of the Supreme Court of Bermuda can bind another under our theory of the doctrine of precedent.

The Court of Appeal for Bermuda sits in Bermuda for three months of the year (typically), in March, June and November. Our Justices of Appeal tend to be peripatetic and sit on various Courts of Appeal throughout the commonwealth. Three of the six Justices of Appeal presently constituting the Court of Appeal for Bermuda are current or former Lords Justices of Appeal of the Court of Appeal of England and Wales. All decisions of our Court of Appeal are binding on the Supreme Court.

The Privy Council is the final Court of Appeal for litigants in Bermuda. Very few cases are heard by the Privy Council on appeal from the Court of Appeal from Bermuda. Indeed, in most years there are no appeals at all from the Court of Appeal from Bermuda to Privy Council. Decisions of the Privy Council on appeal from the Court of Appeal for Bermuda are binding on the Court of Appeal for Bermuda and upon the Supreme Court of Bermuda.

Appeals to the Privy Council from other jurisdictions, even if not strictly binding in Bermuda, are often treated as binding for the simple (and logical) reason that the members of the Privy Council on appeal from some other Commonwealth jurisdiction are likely to be the same (or the majority of) members that sit on the Privy Council in respect of any appeal from the Court of Appeal for Bermuda. The majority (or the entirety) of members of the Privy Council sitting to hear any appeal are also Lords of Appeal in Ordinary, or “Law Lords” as they are known in the United Kingdom, and are the same judges that constitute the Judicial Committee of the House of Lords, the highest court of appeal in the United Kingdom.

The Privy Council is not bound by its own previous decisions, even when considering (or re-considering) the law of a jurisdiction that it has previously rendered a decision on.

As Bermuda is a relatively small Jurisdiction and deals typically with between three and four hundred civil actions per year in the Supreme Court we must look to other Jurisdictions for guidance on the development of the law. Whilst the various courts in Bermuda will give weight to any reasoned decision from the Commonwealth or from the United States of America, by far are the greatest weight is given to decisions of the Supreme Court of England and Wales in the development and interpretation of our law. Indeed, so ingrained is our reliance on the development of English Law that section 10 of the (Bermuda) Interpretation Act 1951 provides that “Except as otherwise expressly provided in this or in any other Act, a Court or other public authority constituted in Bermuda shall, in interpreting or construing any statutory provision, apply as nearly as practicable the rules for the interpretation and construction of provisions of law for the time being binding upon the Supreme Court of Judicature in England.”

Bermuda is a party to the Hague Convention on the Service Abroad of Judicial and Extra-judicial Documents in Civil or Commercial Matters and special rules may apply to documents from a foreign court sought to be served in Bermuda or Bermuda documents sought to be served abroad.

Bermuda remains a British colony and, as a consequence, much of Bermuda’s law is derived from British law, both statute law and the common law. Bermuda law relating to contracts is substantially the same as that of England, though Bermuda does not have all of the consumer protection legislation that England has. The law relating to negligence in Bermuda is also substantially the same as that in England, as is the law relating to restitution.

Bermuda company law is derived from the English Companies Act 1948, with many of the amendments to that Act subsequently enacted in England also adopted in Bermuda. The law relating to companies in Bermuda was consolidated in 1981 and the relevant statute in Bermuda is the Companies Act 1981, which has been amended from time to time since that date, most recently by the Companies Amendment Act 2008 (effective 1 April 2008).

Insolvency (bankruptcy) law in Bermuda has two different regimes, one for people and one for companies. The Bankruptcy Act 1989 and the Bankruptcy Rules 1990 govern personal bankruptcy and the Companies Act 1981 and the Companies (Winding-Up) Rules 1982 govern corporate insolvency.

In any case, the development of case law in interpreting any Act of Parliament must be taken into account and professional advice should be sought in relation to any issue that will or may become contentious. .