Litigation & Dispute Resolution

25 Aug 2014

Cell phoneIn December 2012, I wrote an article on the case of Farnworth v R [2012] Bda LR 44 (151 KB PDF). This particular case provided guidance on the definition of a hand-held device which was in use while driving. Furthermore, it illustrated that the definition of ‘use’ with regards to a hand-held device was quite wide. In Bermuda, the law that guides the use of hand-held devices while driving is regulation 44 of the Motor Car (Construction, Equipment and Use) Regulations 1952 (the “Regulation”). This Regulation has once again come under judicial analysis in the recent case of Lincoln Raynor-Saldana v The Queen [2014] SC (Bda) 58 App (262 KB PDF). This particular case was an appeal from the Magistrate’s Court of Bermuda (Criminal Division) wherein Mr. Raynor-Saldana (the “Appellant”) was convicted for using a hand-held cell phone, namely an iPhone. Mr. Raynor-Saldana was fined $400 and given six (6) demerit points.
19:17 / Litigation & Dispute Resolution
13 Jun 2014

Agathe Holowatinc
Bermuda Supreme CourtOn June 10 2014, MJM Limited presented to the Hamilton Rotary Club Members on debt collection, recovery and the enforcement of judgment process in Bermuda. Presenting to approximately 25 members, Litigation Associate Kimberley D. Caines explained the process of debt recovery in the Magistrate’s Court and the Supreme Court of Bermuda. Guiding the attendees through the debt collection process, Kimberley displaced common misconceptions and shared some observations from her practice on the court’s approach to debt recovery in the current market. Kimberley also shared with members the various mechanisms available to enforce local judgments.
13:54 / Litigation & Dispute Resolution / MJM Barristers & Attorneys
02 Dec 2013

Jennifer Haworth
In March 2013, the Chief Justice issued a decision in the case of Kentucky Fried Chicken (Bermuda) Ltd v Minister of Economy Trade & Industry and the Bermuda Industrial Union [2013] Bda LR 19 (381 KB PDF). Kentucky Fried Chicken (Bermuda) Ltd. (“KFC”) sought judicial review of the Minister of Economy Trade & Industry’s (the “Minister”) decision to refer KFC’s dispute with the Bermuda Industrial Union (“BIU”) to binding adjudication under the Trade Disputes Act 1992 (the “Act”). The Chief Justice refused KFC’s application citing the Court’s limited ability to review such references and only in “extreme cases”.
20:34 / Bermuda Case Law & Legislation / Labour, Employment & Immigration law / Litigation & Dispute Resolution
02 Dec 2013

The Judicial Committee of the Privy Council (the “Board”) is the highest court of appeal for cases from Bermuda to be heard. When a case has reached the Privy Council, the issues to be considered by the Board are typically on points of law. On 8 October 2013, the Board handed down a judgment which will invariably affect all sentences which relate to murder in Bermuda: Selassie (Appellant) and Pearman (Appellant) v The Queen (Respondent) [2013] UK PC 29 (77 KB PDF).
17:34 / Bermuda Case Law & Legislation / Litigation & Dispute Resolution
06 Aug 2013

Bermuda is Britain’s oldest overseas territory and the Privy Council in London is the final Court of Appeal from Decisions of the Court of Appeal in Bermuda. Further, the Supreme Court and Appeal Court of Bermuda are bound by decisions of the Privy Council in cases from all jurisdictions where the Privy Council is the final appellate court. It therefore pays to keep a close watch on Privy Council judgments. For example a judgment was recently delivered by Lord Neuberger on 23rd July, 2013 following a hearing in the case of Antigua Power Company Limited v The Attorney General of Antigua and Barbuda and others (285 KB PDF) [2013] UKPC 23 in which he delivered a withering attack on the Eastern Caribbean Court of Appeal for its delay in handling the first appeal.
13:44 / Bermuda Case Law & Legislation / Litigation & Dispute Resolution
21 May 2013

Litigation surrounding Wills is steadily on the increase. In particular, issues of disputed testamentary capacity are becoming more frequent and as such, attorneys must be extremely cautious when taking Will instructions from individuals. What does this mean? Disputes involving lack of testamentary capacity refer to those that have to do with the determination of the mental state of the testator. When an attorney drafts a Will, he or she has the duty to be aware of the client’s competency, to ascertain whether the client is being subjected to undue influence and to make a reasonable assessment of the mental capacity of the client. An attorney should not draft a Will for a client unless the attorney believes that the client has testamentary capacity and a full comprehension of the nature and extent of the estate that he or she is distributing.
16:27 / Litigation & Dispute Resolution / Wills, Trusts & Estates
13 May 2013

Honor Desmond-Tetlow
In this article I will address some of the general principles of Bermuda divorce law and also take a look at some misconceptions which are fairly widely held. At the outset, however, I must stress that time and space will not permit a very detailed analysis and I would counsel anyone engaged in, or considering, a divorce to seek the advices of an experienced matrimonial lawyer. Firstly, let’s look at jurisdiction. Sometimes clients are confused about their right to initiate a divorce in Bermuda. Ours is a cosmopolitan population and many clients will have been married overseas, leading some of them to believe that any divorce must take place in their “home” jurisdiction. Not so. If either party to the marriage is “domiciled’ in Bermuda (in effect, Bermuda is home) or has been resident continuously in Bermuda for one year or more, our courts can entertain a divorce petition.
03:18 / Family Law / Litigation & Dispute Resolution
19 Apr 2013

Honor Desmond-Tetlow
“Remember to take your SCARF into negotiations” may seem like odd advice. It isn’t. SCARF, an acronym for Status, Certainty, Autonomy, Relatedness and Fairness, should not be overlooked and should be taken into account when entering into negotiations. Briefly:
  • “Status” refers to the need to be respected and treated as an equal;
  • “Certainty” to the need for some predictability and security;
  • “Autonomy” the sense of having choices and some control;
  • “Relatedness” the need for collegiality and a sense of belonging/trust; and
  • “Fairness” is a justice/rule driven priority.
16:22 / Family Law / Labour, Employment & Immigration law / Litigation & Dispute Resolution / MJM Barristers & Attorneys