Rules of the Supreme Court 1985

nothing in that paragraph shall be taken as affecting any provision of any rules (whether made under the Act or any other Act) by virtue of which the Rules of the Supreme Court 1985 or any provisions thereof are applied in relation to any of those proceedings.

(5) These Rules shall not have effect in relation to any pro ceedings taken in any cause or matter which was pending before the Court or a judge thereof immediately before the date appointed under rule 1(1) and any proceedings taken in such cause or matter shall be continued to final determination in accordance with the rules in force immediately before the date so appointed.

1/3 Application of Interpretation Act 1951

3 The Interpretation Act 1951 [title 1 item 1] shall apply to the in terpretation of these rules as it applies to the interpretation of an Act.

1/4 Definitions

4 (1) In these Rules, unless the context otherwise requires, the following expressions have the meanings hereby respectively assigned to them, namely�

"The Act" means the Supreme Court Act 1905 [title 8 item 1];

"an action for personal injuries" means an action in which there is a claim for damages in respect of personal injuries to the plaintiff or any other person or in respect of a person's death, and "personal injuries" includes any disease and any impair ment of a person's physical or mental condition;

"attorney" means a person duly admitted and enrolled under the Act as a barrister and attorney and entitled under the Bermuda Bar Act 1974 [title 30 item 3] to practise law in Bermuda;

"cause book" means the book kept in the Registry, in which the year and number of, and other details relating to, a cause or matter are entered;

"enactment" means any statutory provision including any Act of Parliament of the United Kingdom having effect as part of the law of Bermuda;

"folio" means 72 words, each figure being counted as one word;

"the Matrimonial Causes Rules" means the Matrimonial Causes Rules 1974 [title 8 item 1(b)];

"officer" means an officer of the Supreme Court;

"originating summons" means every summons other than a summons in a pending cause or matter;

"pleading" does not include a petition, summons or preliminary act;

"probate action" has the meaning assigned to it by Order 76;

"receiver" includes a manager or consignee;

"Registrar" means the Registrar of the Supreme Court and except in relation to the jurisdiction of the Registrar under Order 32 rule 11, includes an Assistant Registrar;

"Registry" means the Registry of the Supreme Court;

"statutory rate" means seven per centum per annum or such other rate as may be prescribed under the Interest and Credit Charges (Regulation) Act 1975 [title 17 item 22];

"writ" means a writ of summons.

(2) In these Rules, unless the context otherwise requires, "the Court" means the Supreme Court or any one or more judges thereof, whether sitting in court or in chambers, or the Registrar; but the forego ing provision shall not be taken as affecting any provision of these Rules and, in particular, Order 32, rule 11, by virtue of which the authority and jurisdiction of the Registrar are defined and regulated.

1/5 Construction of references to Orders, rules, etc.

5 (1) Unless the context otherwise requires, any reference in these rules to a specified Order, rule or Appendix is a reference to that Order or rule of, or that Appendix to, these rules and any reference to a specified rule, paragraph or sub-paragraph is a reference to that rule of the Order, that paragraph of the rule, or that sub-paragraph of the para graph, in which the reference occurs.

(2) Any reference in these Rules to anything done under a rule of these Rules includes a reference to the same thing done before the commencement of that rule under any corresponding rule of court ceas ing to have effect on the commencement of that rule.

(3) Except where the context otherwise requires, any reference in these Rules to any enactment shall be construed as a reference to that enactment as amended, extended, or applied by or under any other en actment.

1/6 Construction of references to action etc. for possession of land

6 Except where the context otherwise requires, references in these Rules to an action or claim for the possession of land shall be construed as including references to proceedings against the Crown for an order declaring that the plaintiff is entitled as against the Crown to the land or to the possession thereof.

1/7 [blank]

1/8 [blank]

1/9 Forms

9 (1) The forms in the Appendices shall be used where applicable with such variations as the circumstances of the particular case require.

(2) In cases where no form is prescribed by these Rules the forms in the Appendices of the Rules of the Supreme Court of England 1965 (appearing in the White Book known as the Supreme Court Prac tice 1979) may be used with such variations as circumstances may re quire.

ORDER 2

EFFECT OF NON-COMPLIANCE

2/1 Non-compliance with rules

1 (1) Where, in beginning or purporting to begin any proceedings or at any stage in the course of or in connection with any proceedings, there has, by reason of anything done or left undone, been a failure to comply with the requirements of these Rules, whether in respect of time, place, manner, form or content or in any other respect, the failure shall be treated as an irregularity and shall not nullify the proceedings, any step taken in the proceedings, or any document, judgment or order therein.

(2) Subject to paragraph (3), the Court may, on the ground that there has been such a failure as is mentioned in paragraph (1), and on such terms as to costs or otherwise as it thinks just, set aside either wholly or in part the proceedings in which the failure occurred, any steps taken in those proceedings or any document, judgment or order therein or exercise its powers under these Rules to allow such amendments (if any) to be made and to make such order (if any) dealing with the pro ceedings generally as it thinks fit.

(3) The Court shall not wholly set aside any proceedings or the writ or other originating process by which they were begun on the ground that the proceedings were required by any of these rules to be begun by an originating process other than the one employed.

2/2 Application to set aside for irregularity

2 (1) An application to set aside for irregularity any proceedings, any step taken in any proceedings or any document, judgment or order therein shall not be allowed unless it is made within a reasonable time and before the party applying has taken any fresh step after becoming aware of the irregularity.

(2) An application under this rule may be made by summons or motion and the grounds of objection must be stated in the summons or notice of motion.

ORDER 3

TIME

3/1 "month" means calendar month

1 The word "month", where it occurs in any judgment, order direc tion or other document forming part of any proceedings in the Court, means a calendar month unless the context otherwise requires.

3/2 Reckoning periods of time

2 (1) Any period of time fixed by these rules or by any judgment, order or direction for doing any act shall be reckoned in accordance with the following provisions of this rule.

(2) Where the act is required to be done within a specified pe riod after or from a specified date, the period begins immediately after that date.

(3) Where the act is required to be done within or not less than a specified period before a specified date, the period ends immediately before that date.

(4) Where the act is required to be done a specified number of clear days before or after a specified date, at least that number of days must intervene between the day on which the act is done and that date.

(5) Where, apart from this paragraph, the period in question, being a period of seven days or less, would include a Saturday or a pub lic holiday, as defined in the Public Holidays Act 1947 [title 28 item 8], that day shall be excluded.

3/3 [blank]

3/4 Time expires on Sunday, etc.

4 Where the time prescribed by these rules, or by any judgment, order or direction, for doing any act at the Registry expires on a Sunday or other day on which the Registry is closed, and by reason thereof that act cannot be done on that day, the act shall be in time if done on the next day on which the Registry is open.

3/5 Extension, etc. of time

5 (1) The Court may on such terms as it thinks just, by order extend or abridge the period within which a person is required or autho rised by these rules, or by any judgment, order or direction, to do any act in any proceedings.

(2) The Court may extend any such period as is referred to in paragraph (1) although the application for extension is not made until after the expiration of that period.

(3) The period within which a person is required by these rules, or by any order or direction, to serve, file or amend any pleading or other document may be extended by consent (given in writing) without an or der of the Court being made for that purpose.

3/6 Notice of intention to proceed after year's delay

6 Where a year or more has elapsed since the last proceeding in a cause or matter, the party who desires to proceed must give to every other party not less than one month's notice of his intention to proceed.

A summons on which no order was made is not a proceeding for the purpose of this rule.

COMMENCEMENT AND PROGRESS OF PROCEEDINGS

ORDER 4

CONSOLIDATION OF PROCEEDINGS

4/1 to 4/9 [blank]

4/10 Consolidation, etc. of causes or matters

10 Where two or more causes or matters are pending in the Court, then, if it appears to the Court�

(a) that some common question of law or fact arises in both or all of them, or

(b) that the rights to relief claimed therein are in respect of or arise out of the same transaction or series of transac tions, or

the Court may order those causes or matters to be consolidated on such terms as it thinks just or may order them to be tried at the same time or one immediately after another or may order any of them to be stayed un til after the determination of any other of them.

ORDER 5

MODE OF BEGINNING CIVIL PROCEEDINGS IN COURT

5/1 Mode of beginning civil proceedings

1 Subject to the provisions of any enactment and of these rules, civil proceedings in the Court may be begun by writ, originating sum mons, originating motion or petition.

5/2 Proceedings which must be begun by writ

2 Subject to any provision of any enactment, or of these Rules, by virtue of which any proceedings are expressly required to be begun oth erwise than by writ, the following proceedings must, notwithstanding anything in rule 4, be begun by writ, that is to say, proceedings�

(a) in which a claim is made by the plaintiff for any relief or remedy for any tort, other than trespass to land;

(b) in which a claim made by the plaintiff is based on an al legation of fraud;

(c) in which a claim is made by the plaintiff for damages for breach of duty (whether the duty exists by virtue of a contract or of a provision made by or under any enact ment or independently of any contract or any such pro vision), where the damages claimed consist of or include damages in respect of the death of any person or in re spect of personal injuries to any person or in respect of damage to any property;

(d) in which a claim is made by the plaintiff in respect of
the infringement of a patent.

5/3 Proceedings which must be begun by originating summons

3 Proceedings by which an application is to be made to the Court or a judge thereof under any enactment must be begun by originating summons except where by these Rules or by or under any enactment the application in question is expressly required or authorised to be made by some other means.

This rule does not apply to an application made in pending proceedings.

5/4 Proceedings which may be begun by writ or originating sum mons

4 (1) Except in the case of proceedings which by these Rules or by or under any enactment are required to be begun by writ or originat ing summons or are required or authorised to be begun by originating motion or petition, proceedings may be begun either by writ or by origi nating summons as the plaintiff considers appropriate.

(2) Proceedings�

(a) in which the sole or principal question at issue is, or is likely to be, one of the construction of any enactment or of any instrument made under any enactment or of any deed, will, contract or other document, or some other question of law, or

(b) in which there is unlikely to be any substantial dispute of fact,

are appropriate to be begun by originating summons unless the plaintiff intends in those proceedings to apply for judgment under Order 14 or Order 86 or for any other reason considers the proceedings more appro priate to be begun by writ.

5/5 Proceedings to be begun by motion or petition

5 Proceedings may be begun by originating motion or petition if, but only if, by these Rules or by or under any enactment the proceedings in question are required or authorised to be so begun.

5/6 Right to sue in person

6 (1) Subject to paragraph (2) and to Order 80, rule 2, any per son (whether or not he sues as a trustee or estate representative or in any other representative capacity) may begin and carry on proceedings in the Court by an attorney or in person.

(2) Except as expressly provided by or under any enactment, a body corporate may not begin or carry on any such proceedings other wise than by an attorney.

ORDER 6

WRITS OF SUMMONS: GENERAL PROVISIONS

6/1 Form of writ

1 Every writ must be in Form No. 1, 3, 4 or 5 in Appendix A, whichever is appropriate.

6/2 Indorsement of writ

2 (1) Before a writ is issued it must be indorsed�

(a) with a statement of claim or, if the statement of claim is not indorsed on the writ, with a concise statement of the nature of the claim made or the relief or remedy required in the action begun thereby;

(b) where the claim made by the plaintiff is for a debt or liq uidated demand only, with a statement of the amount claimed in respect of the debt or demand and for costs and also with a statement that further proceedings will be stayed if, within the time limited for appearing, the defendant�

(i) pays the amount so claimed to the plaintiff or his attorney;

(ii) pays that amount into court;

(i) whether the claim relates to a dwelling-house; and

(ii) if it does, whether it is subject to the Rent In creases (Domestic Premises) Control Act 1978 [title 29 item 3];

(d) where the action is brought to enforce a right to recover possession of goods, with a statement showing the value
of the goods.

(2) A defendant who pays money into court under this rule must give notice (in Form No. 23 in Appendix A) to the plaintiff, his at torney or agent.

6/3 Indorsement as to capacity

3 Before a writ is issued it must be indorsed�

(a) where the plaintiff sues in a representative capacity, with a statement of the capacity in which he sues;

(b) where a defendant is sued in a representative capacity, with a statement of the capacity in which he is sued.

6/4 [blank]

6/5 Indorsement as to attorney and address

5 (1) Before a writ is issued it must be indorsed�

(a) where the plaintiff sues by an attorney, with the plain tiff's address and the attorney's name or firm and a business address of his within the jurisdiction.

(b) where the plaintiff sues in person, with�

(i) the address of his place of residence and, if his place of residence is not within the jurisdiction or if he has no place of residence, the address of a place within the jurisdiction at or to which documents for him may be delivered or sent, and

(ii) his occupation.

(2) The address for service of a plaintiff shall be�

(a) where he sues by an attorney, the business address of the attorney indorsed on the writ;

(b) where he sues in person, the address within the juris diction indorsed on the writ.

(3) Where an attorney's name is indorsed on a writ, he must, if any defendant who has been served with or who has entered an appear ance to the writ requests him in writing so to do, declare in writing whether the writ was issued by him or with his authority or privity.

(4) If an attorney whose name is indorsed on a writ declares in writing that the writ was not issued by him or with his authority or priv ity, the Court may on the application of any defendant who has been served with or who has entered an appearance to the writ, stay all pro ceedings in the action begun by the writ.

6/6 Concurrent writs

6 (1) One or more concurrent writs may, at the request of the plaintiff, be issued at the time when the original writ is issued or at any time thereafter before the original writ ceases to be valid.

(2) Without prejudice to the generality of paragraph (1), a writ for service within the jurisdiction may be issued as a concurrent writ with one which, or notice of which, is to be served out of the jurisdiction and a writ which, or notice of which, is to be served out of the jurisdic tion may be issued as a concurrent writ with one for service within the jurisdiction.

(3) A concurrent writ is a true copy of the original writ with such differences only (if any) as are necessary having regard to the pur pose for which the writ is issued.

6/7 Issue of writ

7 (1) No writ which, or notice of which, is to be served out of the jurisdiction shall be issued without the leave of the Court:

Provided that if every claim made by a writ is one which by virtue of an enactment the Court has power to hear and determine notwith standing that the person against whom the claim is made is not within the jurisdiction of the Court or that the wrongful act, neglect or default giving rise to the claim did not take place within its jurisdiction, the fore going provision shall not apply to the writ.

(2) A writ must be issued out of the Registry.

(3) Issue of a writ takes place upon its being sealed by an offi cer of the Registry.

(4) The officer by whom a concurrent writ is sealed must mark it as a concurrent writ with an official stamp.

(5) No writ shall be sealed unless at the time of the tender thereof for sealing the person tendering it leaves at the Registry a copy thereof signed, where the plaintiff sues in person, by him or, where he does not so sue, by or on behalf of his attorney, who may sign either in his own name or in the name of the firm to which he belongs.

6/8 Duration and renewal or writ

8 (1) For the purpose of service, a writ (other than a concurrent
writ) is valid in the first instance for twelve months beginning with the date of its issue and a concurrent writ is valid in the first instance for the period of validity of the original writ which is unexpired at the date of issue of the concurrent writ.

(2) Where a writ has not been served on a defendant, the Court may by order extend the validity of the writ from time to time for such period, not exceeding twelve months at any one time, beginning with the day next following that on which it would otherwise expire, as may be specified in the order, if an application for extension is made to the Court before that day or such later day (if any) as the Court may allow.

(3) Before a writ, the validity of which has been extended under this rule is served, it must be marked with an official stamp showing the period for which the validity of the writ has been so extended.

(4) Where the validity of a writ is extended by order made un der this rule, the order shall operate in relation to any other writ (whether original or concurrent) issued in the same action which has not been served so as to extend the validity of that other writ until the expi ration of the period specified in the order.

ORDER 7

ORIGINATING SUMMONSES: GENERAL PROVISIONS

7/1 Application

1 The provisions of this Order apply to all originating summonses subject, in the case of originating summonses of any particular class, to any special provisions relating to originating summonses of that class made by these rules or by or under any enactment.

7/2 Form of summons, etc.

2 (1) Every originating summons must be in Form No. 8, 10 or 11 in Appendix A, whichever is appropriate.

(2) The party taking out an originating summons (other than an ex parte summons) shall be described as a plaintiff and the other parties shall be described as defendants.

7/3 Contents of summons

3 (1) Every originating summons must include a statement of the questions on which the plaintiff seeks the determination or direction of the Court or, as the case may be, a concise statement of the relief or remedy claimed in the proceedings begun by the originating summons with sufficient particulars to identify the cause or causes of action in re spect of which the plaintiff claims that relief or remedy.

(2) Order 6, rules 3 and 5, shall apply in relation to an origi nating summons as they apply in relation to a writ.

7/4 Concurrent summons

4 Order 6, rule 6, shall apply in relation to an originating sum mons as it applies in relation to a writ.

7/5 Issue of summons

5 An originating summons shall be issued out of the Registry.

7/6 Duration and renewal of summons

6 Order 6, rule 8, shall apply in relation to an originating sum mons as it applies in relation to a writ.

7/7 Ex parte originating summons

7 (1) Rules 2(1), 3(1) and 5 shall, so far as applicable, apply to ex parte originating summonses; but, save as aforesaid, the foregoing rules of this Order shall not apply to ex parte originating summonses.

(2) Order 6, rule 7(3) and (5), shall, with the necessary modifi cations, apply in relation to an ex parte originating summons as they ap ply in relation to a writ.

ORDER 8

ORIGINATING AND OTHER MOTIONS: GENERAL PROVISIONS

8/1 Application

1 The provisions of this Order apply to all motions subject, in the case of originating motions of any particular class, to any special provi sions relating to motions of that class made by these rules or by or under any enactment.

8/2 Notice of motion

2 (1) Except where an application by motion may properly be made ex parte, no motion shall be made without previous notice to the parties affected thereby, but the Court, if satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or
serious mischief may make an order ex parte on such terms as to costs or otherwise, and subject to such undertaking, if any, as it thinks just; and any party affected by such order may apply to the Court to set it aside.

(2) Unless the Court gives leave to the contrary there must be at least two clear days between the service of notice of a motion and the day named in the notice for hearing the motion.

8/3 Form and issue of notice of motion

3 (1) The notice of an originating motion must be in Form No. 13 in Appendix A and the notice of any other motion in Form No. 38 in that Appendix.

Where leave has been given under rule 2(2) to serve short notice of mo tion, that fact must be stated in the notice.

(2) The notice of a motion must include a concise statement of the nature of the claim made or the relief or remedy required.

(3) Order 6, rule 5, shall, with the necessary modifications, ap ply in relation to notice of an originating motion as it applies in relation to a writ.

(4) The notice of an originating motion must be issued out of the Registry.

(5) [blank]

(6) Issue of the notice of an originating motion takes place upon its being sealed by the Registrar.

8/4 Service of notice of motion with writ, etc.

4 Notice of a motion to be made in an action may be served by the plaintiff on the defendant with the writ of summons or originating sum mons or at any time after service of such writ or summons, whether or not the defendant has entered an appearance in the action.

8/5 Adjournment of hearing

5 The hearing of any motion may be adjourned from time to time on such terms, if any, as the Court thinks fit.

ORDER 9

PETITIONS: GENERAL PROVISIONS

9/1 Application

1 Rules 2 to 4 apply to petitions by which civil proceedings in the Court are begun, subject, in the case of petitions of any particular class, to any special provisions relating to petitions of that class made by these Rules or by or under any enactment.

9/2 Contents of petition

2 (1) Every petition must include a concise statement of the na ture of the claim made or the relief or remedy required in the proceedings begun thereby.

(2) Every petition must include at the end thereof a statement of the names of the persons, if any, required to be served therewith or, if no person is required to be served, a statement to that effect.

(3) Order 6, rule 5, shall, with the necessary modifications, ap ply in relation to a petition is it applies in relation to a writ.

9/3 Presentation of petition

3 A petition must be presented by leaving it at the Registry.

9/4 Fixing time for hearing petition

4 (1) A day and time for the hearing of a petition which is re quired to be heard shall be fixed by the Registrar.

(2) Unless the Court otherwise directs, a petition which is re quired to be served on any person must be served on him not less than seven days before the day fixed for the hearing of the petition.

ORDER 10

SERVICE OF ORIGINATING PROCESS: GENERAL PROVISIONS

10/1 General provisions

1 (1) Subject to the provisions of any enactment and these Rules, a writ must be served personally on each defendant by the plaintiff or his agent.

(2) Where a defendant's attorney indorses on the writ a state ment that he accepts service of the writ on behalf of that defendant, the writ shall be deemed to have been duly served on that defendant and to
have been so served on the date on which the indorsement was made.

(3) Where a writ is not duly served on a defendant but he en ters an unconditional appearance in the action begun by the writ, the writ shall be deemed to have been duly served on him and to have been so served on the date on which he entered the appearance.

(4) Where a writ is duly served on a defendant otherwise than by virtue of paragraph (2) or (3), then, subject to Order 11, rule 5, unless within three days after service the person serving it indorses on it the following particulars, that is to say, the day of the week and date on which it was served, where it was served, the person on whom it was served, and, where he is not the defendant, the capacity in which he was served, the plaintiff in the action begun by the writ shall not be entitled to enter final or interlocutory judgment against that defendant in default of appearance or in default of defence.

10/2 Service of writ on agent of overseas principal

2 (1) Where the Court is satisfied on an ex parte application that�

(a) a contract has been entered into within the jurisdiction with or through an agent who is either an individual re siding or carrying on business within the jurisdiction or a body corporate having a registered office or a place of business within the jurisdiction, and

(b) the principal for whom the agent was acting was at the time the contract was entered into and is at the time of the application neither such an individual nor such a body corporate, and

(c) at the time of the application either the agent's authority has not been determined or he is still in business rela tions with his principal,

the Court may authorise service of a writ beginning an action relating to the contract to be effected on the agent instead of the principal.

(2) An order under this rule authorising service of a writ on a defendant's agent must limit a time within which the defendant must enter an appearance.

(3) Where an order is made under this rule authorising service of a writ on a defendant's agent, a copy of the order and of the writ must be sent by post to the defendant at his address out of the jurisdiction.

10/3 Service of writ in pursuance of contract

3 (1) Where�

(a) a contract contains a term to the effect that the court shall have jurisdiction to hear and determine any action in respect of the contract or, apart from any such term, the Court has jurisdiction to hear and determine any such action, and

(b) the contract provides that, in the event of any action in respect of the contract being begun, the process by which it is begun may be served on the defendant, or on such other person on his behalf as may be specified in the contract, in such manner, or at such place (whether within or out of the jurisdiction), as may be so specified,

then, if an action in respect of the contract is begun in the Court and the writ by which it is begun is served in accordance with the contract, the writ shall, subject to paragraph (2), be deemed to have been duly served on the defendant.

(2) A writ which is served out of the jurisdiction in accordance with a contract shall not be deemed to have been duly served on the de fendant by virtue of paragraph (1) unless leave to serve the writ, or notice thereof, out of the jurisdiction has been granted under Order 11, rule 1 or 2.

10/4 Service of writ in certain action for possession of land

4 Where a writ is indorsed with a claim for the possession of land, the Court may�

(a) if satisfied on an ex parte application that no person ap pears to be in possession of the land and that service cannot be otherwise effected on any defendant, autho rise service on that defendant to be effected by affixing a copy of the writ to some conspicuous part of the land;

(b) if satisfied on such an application that no person ap pears to be in possession of the land and that service could not otherwise have been effected on any defen dant, order that service already effected by affixing a copy of the writ to some conspicuous part of the land shall be treated as good service on that defendant.

10/5 Service of originating summons, petition and notice of mo tion

5 The foregoing rules of this Order (except rule 1(4)) shall apply in relation to an originating summons to which an appearance is required to be entered as they apply in relation to a writ, and rule 1(1) and (2) shall, with any necessary modifications, apply in relation to an originat ing summons to which no appearance need be entered, a notice of an originating motion and a petition as they apply in relation to a writ.

ORDER 11

SERVICE OF PROCESS, ETC., OUT OF THE JURISDICTION

11/1 Principal cases in which service of writ out of jurisdiction is permissible

1 (1) Subject to rule 3 service of a notice of a writ out of the ju risdiction is permissible with the leave of the Court in the following cases, that is to say�

(a) if the whole subject-matter of the action begun by the writ is land situated within the jurisdiction (with or without rents or profits) or the perpetuation of testimony relating to land so situate;

(b) if an act, deed, will, contract, obligation or liability af fecting land situate within the jurisdiction is sought to be construed, rectified, set aside or enforced in the ac tion begun by the writ;

(c) if in the action begun by the writ relief is sought against a person domiciled or ordinarily resident within the ju risdiction;

(d) if the action begun by the writ is for the administration of the estate of a person who died domiciled within the jurisdiction or if the action begun by the writ is for any relief or remedy which might be obtained in any such action as aforesaid;

(e) if the action begun by the writ is for the execution, as to property situate within the jurisdiction, of the trusts of a written instrument, being trusts that ought to be exe cuted according to the law of Bermuda and of which the person to be served with the writ is a trustee or if the action begun by the writ is for any relief or remedy which might be obtained in any such action as afore said;

(f) if the action begun by the writ is brought against a de fendant to enforce, rescind, dissolve, annul or otherwise affect a contract, or to recover damages or obtain other relief in respect of the breach of a contract, being (in ei ther case) a contract which�

(i) was made within the jurisdiction, or

(ii) was made by or through an agent trading or re siding within the jurisdiction on behalf of a prin cipal trading or residing out of the jurisdiction, or

(iii) is by its terms, or by implication, governed by the law of Bermuda;

(g) if the action begun by the writ is brought against a de fendant in respect of a breach committed within the ju risdiction of a contract made within or out of the juris diction, and irrespective of the fact, if such be the case, that the breach was preceded or accompanied by a breach committed out of the jurisdiction that rendered impossible the performance of so much of the contract as ought to have been performed within the jurisdiction;

(h) if the action begun by the writ is founded on a tort committed within the jurisdiction;

(i) if in the action begun by the writ an injunction is sought ordering the defendant to do or refrain from doing any thing within the jurisdiction (whether or not damages are also claimed in respect of a failure to do or the doing of that thing);

(j) if the action begun by the writ being properly brought against a person duly served within the jurisdiction, a person out of the jurisdiction is a necessary or proper party thereto;

(k) if the action begun by the writ is either by a mortgagee of property situate within the jurisdiction (other than land) and seeks the sale of the property; the foreclosure
of the mortgage or delivery by the mortgagor of possession of the property but not an order for payment of any moneys due under the mortgage or by a mortgagor of property so situate (other than land) and seeks redemption of the mortgage, reconveyance of the property or delivery by the mortgagee of possession of the property but not a personal judgment;

(l) if the action begun by writ is brought under the following United Kingdom Acts as applied to Bermuda�

The Carriage by Air Act 1961

The Carriage by Air (Supplementary Provisions) Act 1962

The Merchant Shipping (Oil Pollution Act) 1971 [title 31 item 15];

(m) if the action is a probate action within the meaning of Order 76; or

(n) if the action is for the enforcement of an arbitration award made within the jurisdiction.

In this paragraph "mortgage" includes a charge or lien, "mortgagee" means a person entitled to, or interested in a mortgage and "mortgagor' means a person entitled to, or interested in property subject to a mort gage.

(2) Service of notice of a writ in any place out of the jurisdiction is permissible without the leave of the Court if every claim made in the action begun by the writ is one which by virtue of an enactment the Court has power to hear and determine notwithstanding that the person against whom the claim is made is not within the jurisdiction of the Court or that the wrongful act, neglect or default giving rise to the claim did not take place within its jurisdiction.

(3) Where a notice of a writ is to be served out of the jurisdic tion under paragraph (2), the time to be inserted in the notice within which the defendant served therewith must enter an appearance shall be limited in accordance with the practice adopted under rule 4(4).

11/2 Service out of jurisdiction in certain actions of contract

2 Where it appears to the Court that a contract contains a term to the effect that the Court shall have jurisdiction to hear and determine any action in respect of the contract, the Court may, subject to rule 3, grant leave for service out of the jurisdiction of the notice of the writ, by which an action in respect of the contract is begun.

11/3 Leave for service of notice of writ

3 (1) Leave granted under rule 1 or 2 shall be leave for service out of the jurisdiction of notice of the writ and not the writ.

(2) Notice of a writ for service out of the jurisdiction must be in Form No. 6 in Appendix A.

11/4 Application for, and grant of, leave to serve writ out of juris diction

4 (1) An application for the grant of leave under rule 1 or 2 must be supported by an affidavit stating the grounds on which the applica tion is made and that, in the deponent's belief, the plaintiff has a good cause of action, and showing in what place or country the defendant is, or probably may be found.

(2) No such leave shall be granted unless it shall be made suf ficiently to appear to the Court that the case is a proper one for service out of the jurisdiction under this Order.

(3) [blank]

(4) An order granting under rule 1 or 2 leave to serve a notice of a writ out of the jurisdiction must limit a time within which the defen dant to be served must enter an appearance.

11/5 Service of notice of writ abroad: general

5 (1) Subject to the following provisions of this rule, Order 10, rule 1, and Order 65, rule 4, shall apply in relation to the service of a notice of a writ, notwithstanding that the notice is to be served out of the jurisdiction.

(2) Nothing in this rule or in any order or direction of the Court made by virtue of it shall authorise or require the doing of anything in a country in which service is to be effected which is contrary to the law of that country.

(3) A notice of a writ which is to be served out of the jurisdic tion�

(a) need not be served personally on the person required to be served so long as it is served on him in accordance with the law of the country in which service is effected; and

(b) need not be served by the plaintiff or his agent if it is served by a method provided for by rule 6 or rule 7.

(4) Where a certificate under the following provisions of this rule is produced in relation to the service of notice of a writ in accor dance with rule 6 or rule 7, Order 10, rule 1(4), shall not apply in rela tion to that service.

(5) An official certificate stating that a notice of a writ as re gards which rule 6 has been complied with has been served on a person personally, or in accordance with the law of the country in which service was effected, on a specified date, being a certificate�

(a) by a British consular authority in that country; or

(b) by the government or judicial authorities of that country; or

shall be evidence of the facts stated.

(6) An official certificate by the Deputy Governor stating that notice of a writ has been duly served on a specified date in accordance with a request made under rule 7 shall be evidence of that fact.

(7) A document purporting to be a certificate as is mentioned in paragraph (5) or (6) shall, until the contrary is proved, be deemed to be such a certificate.

(8) In this rule and rule 6 "the Hague Convention" means the Convention on the service abroad of judicial and extra-judicial docu ments in civil or commercial matters signed at the Hague on November 19, 1965.

11/6 Service of notice of writ abroad through foreign govern ments, judicial authorities and British Consuls

6 (1) This rule does not apply to service in any Commonwealth country, any colony, protectorate or protected state of the United King dom, or any trust territory administered by the Government of any Commonwealth country.

(2) Where in accordance with these rules notice of a writ is to be served on a defendant in any country with respect to which there subsists a Civil Procedure Convention (other than the Hague Convention) providing for service in that country of process of the Supreme Court, the notice may be served�

(a) through the judicial authorities of that country; or

(b) through a British consular authority in that country (subject to any provision of the convention as to the na tionality of persons who may be so served).

(2A) Where in accordance with these rules, notice of a writ is to be served on a defendant in any country which is a party to the Hague Convention, the notice may be served�

(a) through the authority designated under the Convention in respect of that country; or

(b) if the law of that country permits�

(i) through the judicial authorities of that country, or

(ii) through a British consular authority in that country.

(3) Where in accordance with these Rules notice of a writ is to be served on a defendant in any country with respect to which there does not subsist a Civil Procedure Convention providing for service in that country of process of the Court, the notice may be served�

(a) through the government of that country, where that gov ernment is willing to effect service; or

(b) through a British consular authority in that country, ex cept where service through such an authority is contrary to the law of that country.

(4) A person who wishes to serve notice of a writ by a method specified in paragraph (2), (2A) or 3 must lodge in the Registry a request for service of notice of the writ by that method, together with a copy of the notice and an additional copy thereof for each person to be served.

(5) Every copy of a notice lodged under paragraph (4) must be accompanied by a translation of the notice in the official language of the country in which service is to be effected, or, if there is more than one official language of that country, in any one of those languages which is appropriate to the place in that country where service is to be effected:

Provided that this paragraph shall not apply to a copy of a notice which is to be served in a country the official language of which is, or the official languages of which include, English, or is to served in any coun try by a British consular authority on a British subject, unless the ser vice is to be effected under paragraph (2) and the Civil Procedure
Con vention with respect to that country expressly requires the copy to be ac companied by a translation.

(6) Every translation lodged under paragraph (5) must be certi fied by the person making it to be a correct translation; and the certifi cate must contain a statement of that person's full name, of his address and of his qualifications for making the translation.

(7) Documents duly lodged under paragraph (4) shall be sent by the Registrar to the Deputy Governor with a request that he arrange for notice of the writ to be served by the method indicated in the request lodged under paragraph (4) or, where alternative methods are indicated, by such one of those methods as is most convenient.

11/7 Service of notice of writ in certain actions under certain Acts

7 (1) Where a person to whom leave has been granted under rule 1 to serve notice of a writ on a High Contracting Party to the convention set out in Schedule 1 to the Carriage by Air Act 1961 or the Schedule to the Carriage by Air (Supplementary Provisions) Act 1962, being a writ beginning an action to enforce a claim in respect of carriage undertaken by that Party, wishes to have the notice served on that Party, he must lodge with the Registrar�

(a) a request for service to be arranged by the Deputy Gov ernor; and

(b) a copy of the notice; and

(c) except where the official language of the High Contract ing Party is, or the official languages of that Party in clude English, a translation of the notice in the official language or one of the official languages of the High Contracting Party.

(3) Rule 6(6) shall apply in relation to a translation lodged un der paragraph (1) of this rule as it applies in relation to a translation lodged under paragraph (5) of that rule.

(4) Documents duly lodged under this rule shall be sent by the Registrar to the Deputy Governor with a request that the Deputy Gover nor arrange for the notice to be served on the High Contracting Party or the government in question, as the case may be.

11/8 Undertaking to pay expenses of service by Deputy Governor

8 Every request lodged under rule 6(4) or rule 7 must contain an undertaking by the person making the request to be responsible person ally for all expenses incurred by the Deputy Governor in respect of the service requested and, on receiving due notification of the amount of those expenses, to pay that amount to the Accountant General and to produce a receipt for the payment to the Registrar.

11/9 Service of originating summons, petition, notice of motion, etc.

9 (1) Subject to paragraph (2) and to Order 73, rule 7, service out of the jurisdiction of an originating summons is permissible with the leave of the Court.

(2) Where the proceedings begun by an originating summons might have been begun by writ, service out of the jurisdiction of the originating summons is permissible as aforesaid if, but only if, service of the writ, or notice of the writ, out of the jurisdiction would be permissible had the proceedings been begun by writ.

(3) Where any proceedings are authorised by these Rules or (apart from these rules) by or under any enactment to be begun by origi nating motion or petition, service out of the jurisdiction of the notice of motion or of the petition is permissible with the leave of the Court.

(4) Subject to Order 73, rule 7, service out of the jurisdiction of any summons, notice or order issued, given or made in any proceedings is permissible with the leave of the Court.

(5) Rule 4(1) and (2) shall, so far as applicable, apply in relation to an application for the grant of leave under this rule as they apply in relation to an application for the grant of leave under rule 1 or 2.

(6) An order granting under this rule leave to serve out of the jurisdiction an originating summons to which an appearance is required to be entered must limit a time within which the defendant to be served with the summons must enter an appearance.

(7) Rules 5, 6 and 8 shall apply in relation to any document for the service of which out of the jurisdiction leave has been granted under this rule as they apply in relation to a writ.

ORDER 12

ENTRY OF APPEARANCE TO WRIT OR ORIGINATING SUMMONS

12/1 Mode of entering appearance

1 (1) Subject to paragraph (2) and to Order 80, rule 2, a defen-dant to an action begun by writ may (whether or not he issued as a
trustee or estate representative or in any other representative capacity) enter an appearance in the action and defend it by an attorney or in per son.

(2) Except as expressly provided by any enactment, a defen dant to such an action who is a body corporate may not enter an ap pearance in the action or defend it otherwise than by an attorney.

(3) An appearance is entered by properly completing the requi site documents, that is to say, a memorandum of appearance, as defined by rule 3, and a copy thereof, and handing them in at, or sending them by post to, the Registry.

(4) If two or more defendants to an action enter an appearance by the same attorney and at the same time, only one set of the requisite documents need be completed and delivered for those defendants.

12/2 [blank]

12/3 Memorandum of appearance

3 (1) A memorandum of appearance is a request to the Registrar to enter an appearance for the defendant or defendants specified in the memorandum.

(2) A memorandum of appearance must be in Form No. 14 in Appendix A, and both the memorandum of appearance and the copy thereof required for entering an appearance must be signed by the attor ney by whom the defendant appears or, if the defendant appears in per son, by the defendant.

(3) A memorandum of appearance must specify�

(a) in the case of a defendant appearing in person, the ad dress of his place of residence and, if his place of resi dence is not within the jurisdiction or if he has no place of residence, the address of a place within the jurisdic tion at or to which documents for him may be delivered or sent; and

(b) in the case of a defendant appearing by an attorney, a business address of his attorney's within the jurisdic tion;

and where the defendant enters an appearance in person, the address within the jurisdiction specified under sub-paragraph (a) shall be his ad dress for service, but otherwise his attorney's business address shall be his address for service.

(5) If the Court is satisfied on application by the plaintiff that any address specified in the memorandum of appearance is not genuine, the Court may set aside the appearance.

12/4 Procedure on receipt of requisite documents

4 (1) On receiving the requisite documents the Registrar must in all cases affix to the copy of the memorandum of appearance an official stamp showing the date on which he received those documents and enter the appearance in the cause book, and�

(a) if the requisite documents were handed in at the Reg istry, hand back that copy of the memorandum, and

(b) if they were sent by post, send that copy by post to the plaintiff or, as the case may be, his attorney at the plaintiff's address for service and also send by post to the defendant or, as the case may be, his attorney at the defendant's address for service a notice of appearance (stamped with the official stamp showing that date) stating that the defendant specified therein entered an appearance on that date.

(2) Where the defendant enters an appearance by handing in the requisite documents at the Registry, he must on the date on which he enters the appearance send by post to the plaintiff, if the plaintiff sues in person, but otherwise to the plaintiff's attorney, at the plaintiff's address for service, the copy of the memorandum of appearance handed back to him under paragraph (1).

12/5 Time limited for appearing

5 References in these rules to the time limited for appearing are references�

(a) in the case of a writ served within the jurisdiction, to fourteen days after service of the writ (including the day of service) or, where that time has been extended by or by virtue of these Rules, to that time as so extended; and

(b) in the case of a notice of a writ, served out of the juris diction, to the time limited under Order 10, rule 2(2), Order 11, rule 1(3) or rule 4(4), or, where that time has been extended as aforesaid, to that time as so extended.

Proceedings	Enactments
1 Bankruptcy proceedings	Bankruptcy Act 1876 section 58 [title 8 item 49]
2 Proceedings relating to the winding up of com panies	Companies Act 1981 section 288 [title 17 item 5]
3 Non-contentious or com mon form probate pro ceedings	Administration of Estates Act 1974 section 57 [title 26 item 12]
4 Proceedings in Supreme Court when acting as Prize Court	Colonial Courts of Admiralty Act 1890 section 7
5 Proceedings before the judge within the meaning of Part IV of the Mental Health Act 1968	Mental Health Act 1968 section 60 [title 11 item 36]
6 Matrimonial proceedings	Supreme Court Act 1905 section 62 [title 8 item 1]
7 Controverted election pro ceedings	Legislature (Appointment, Election and Membership Controversies) Act 1968 section 43 [title 2 item 3]
8 Proceedings relating to appeal against cancella tion of li cence or permit	Hotels (Licensing and Control) Act 1969 section 18 [title 17 item 2]
	Companies Act 1981 sections 141 and 276A, [title 17 item 35] under section 62 of the Supreme Court Act 1905
	Banks Act 1969 section 28 [title 17 item 20]
9 Civil appeals proceedings	Civil Appeals Act 1971 section 18 [title 8 item 85]
10 Planning appeals pro ceed ings	Development and Planning Act 1974 section 54 [title 20 item 1]
11 Workmen's compensation proceedings	Workmen's Compensation Act 1965 section 41 [title 18 item 3]
12 Acquisition of land pro ceedings	Acquisition of Land Act 1970 section 26 [title 19 item 2]
13 Application for a writ of habeas corpus ad subjici endum or for orders of mandamus, of prohibition and of certio rari	Administration of Justice (Prerogative Writs) Act 1978 section 14 [title 8 item 1A].

Bermuda Consolidated Legislation

Rules of the Supreme Court 1985