Bermuda Trust Cases 2019
About Fozeia Rana-Fahy
Fozeia Rana-Fahy is a Director in the firm’s litigation practice group. Ms. Rana-Fahy practices in the areas of civil and commercial litigation and is an accredited mediator.
The Court will take a cautious approach when considering whether to determine preliminary issues ahead of trial, such orders being an exception to the general rule that there be one final trial.
The Plaintiff’s application identified the key issues in dispute and sought a trial of various questions as a preliminary issue, including inter alia:
- whether various trusts (or any of them) were void at common law or under the Trusts (Special Provisions) Amendment Act 1998; and
- whether the Court has jurisdiction to direct a scheme ( whether under statute or pursuant to its inherent jurisdiction) to amend or vary the purpose of specified purpose trusts so as to render them sufficiently certain to allow the trusts to be carried out.
The Plaintiff sought supplementary directions including listing the preliminary issues for trial without evidence and a stay of all proceedings pending such trial.
The court considered that the critical questions in this case were whether a determination of the preliminary issues would significantly reduce the costs associated with a trial, and whether there was a risk that such a determination would in fact lead to an increase in costs and a delay.
Having analysed the respective pleadings and contemplated the potential outcomes if the preliminary issues were to be tried or not tried, and the having concluded that there was a very real risk that there would be appeals up to the Privy Council, the Court found that it was impossible to conclude that a trial of the preliminary issues would result in significant saving of costs associated with trial (save if the issues were resolved in favour of the Plaintiff). With regards the second question as to a possible increase in costs and delay, the Court found that there was a risk of added costs and, in particular, a delay to trial if the preliminary issues were to be tried at this stage. Further, there was no basis for concluding that a determination of the preliminary issues would promote settlement.
The Court acknowledged that its overarching duty is to manage litigation so as to promote a fair hearing in a reasonable time, and this could more likely be achieved by having one trial and one set of appeals. In the circumstances, the Court refused the Plaintiff’s application for trial of the preliminary issues.