Bermuda Law Blog

Timothy Frith
Questions of Causation frequently arise in many areas of the law, but causation is not a single, unvarying concept to be mechanically applied without regard to the context in which the question arises.

Lord Bingham in R v Kennedy [2007] UKHL 38

A dissent in a court of last resort is an appeal to the brooding spirit of the law, to the intelligence of a future day, when a later decision may possibly correct the error into which the dissenting judge believes the court to have been betrayed.

Chief Justice Charles Evans Hughes The Supreme Court of the United States 3rd ed 1936

The last ten years have seen the question of “but-for” causation brought into sharp focus in order to avoid the potential injustice to thousands of Mesothelioma victims who have contracted the disease and who now seek to establish a causal link between Mesothelioma and their exposure to asbestos during the course of their employment which may have taken place many years before. The central problem that has bedevilled such employer’s liability claims has been the difficulty in establishing when the disease was triggered.

Timothy Frith
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.

Jane Collis
If you should become incapacitated without an Enduring Power of Attorney, an application to the Supreme Court for the appointment of a receiver may be the only option for your loved ones to manage your affairs. The baby boomers are growing older and those of us who fall into this category need to be prepared for what may lie ahead. Do you know what will happen to you and your property in the event that you become incapacitated? Those who have planned ahead will have signed an Enduring Power of Attorney, giving someone authority to manage their property and affairs in such circumstances, and an Advance Treatment Directive, giving someone the power to make medical treatment decisions on their behalf. This option will still be available to you if your incapacity should be physical, but it will be altogether too late if you should become mentally incapacitated.

Fozeia Rana-Fahy
There has been a significant increase in contentious and non-contentious trust matters arising from family disputes in relation to Bermuda trusts. Most often these involve wealthy international dynastic families or family corporations. The type of matters we see before the Bermuda Courts include applications for variation of trusts or sanctions of a compromise between the trustees and various classes of beneficiary and/or the consent of the court on behalf of minor beneficiaries; applications for directions eg. relating to disclosure or distribution of assets; applications to remove trustees for breach of their duties or recovery assets allegedly lost as a result of breach of the trustees’ duties; and applications to set aside the whole trust on the grounds of fraud, undue influence or the uncertainty and failure of the trust objects.

Jeremy Leese
Recent statutory amendments, introduced by the Companies Amendment Act 2013, mean that Bermuda companies listed on appointed stock exchanges are no longer required to file prospectuses in Bermuda. Previously, a Bermuda company listed on an appointed stock exchange (which covers many of the world’s major stock exchanges) had to file with the Registrar of Companies in Bermuda a copy, signed by or on behalf of all directors of the company, of any prospectus that had to be filed under the rules of that stock exchange (or pursuant to the rules of the relevant regulator in such jurisdiction). The legislation now in effect abolishes the requirement to also file such prospectus in Bermuda.

-A non-Bermudian can only buy a property in Bermuda if they have acquired a licence to do so. This involves applying to the Minister of National Security and paying an application fee which is approximately $1,500 and is refunded if the licence is granted. Once the licence is granted the licensee may purchase a property in Bermuda subject to certain restrictions. Not all property on the market in Bermuda is available to the licensees, and roughly only 5% of the market is accessible. These are generally houses that start at $3.5 million and condominiums that start at around $800,000. The houses must have a minimum ARV (Annual Rental Value) of $177,000 and the condos must have an ARV of at least $32,400 in order to be extended to non-Bermudians. Undeveloped land is not available to non-Bermudians and they are restricted from renting or subdividing the property which they have acquired.

Jane Collis
The principle of separate legal personality of a company has been affirmed in yesterday’s Supreme Court case of Prest v. Petrodel Resources Limited, and the principles upon which the court will act to “pierce the corporate veil” have been clarified, but it remains the case that upon divorce, the court will look carefully at the reality of the structure to achieve a fair distribution of assets. The decision has important implications for all those engaged in the trusts and corporate services business. A unanimous Supreme Court overturned the decision of the Court of Appeal yesterday in the case of Prest v. Petrodel Resources Limited and others [2013] UKSC 34 (400 KB PDF). At stake was the issue of whether it is open to the court, in an application for ancillary relief in divorce proceedings, to treat assets of a company of which one spouse is the sole controller as being assets to which that spouse is “entitled” for the purposes of Section 24(1)(a) of the Matrimonial Causes Act 1973. Lying at the heart of the matter are the competing objectives of the commercial and family law divisions, the former of which seeks adherence to established legal principles to ensure commercial certainty for parties dealing at arm’s length, while the latter aims to achieve a “fair result” in circumstances where the parties are dealing at anything but arm’s length.