First published in The Royal Gazette, Legally Speaking, February 2022
Litigants in Bermuda must negotiate a legal system that combines deep historical roots with a modern approach that increasingly accommodates specialisation.
Here, we canvass the legal history of the island, the courts that make up the island's justice system and our system of government.
Bermuda is the oldest and largest self-governing overseas territory of the United Kingdom. Executive authority is vested in the Queen and is exercised on her behalf by the Governor after consulting with the appropriate minister of government.
The Government of Bermuda was reconstituted by the Bermuda Constitution Order 1968, which came into force that year. No domestic legislation or principle of common law can derogate from the Constitution.
The Constitution provides a style of government similar to that of Westminster. The House of Assembly is the equivalent of the British House of Commons and the Senate is the equivalent of the House of Lords.
There are 36 electoral constituencies in Bermuda, each of which is represented in the House of Assembly by a directly elected member of parliament.
The Senate consists of 11 senators each of whom is appointed by the Governor for the life of the Parliament, which can be no more than five years.
The person who commands the majority of the 36 MPs becomes the Premier and then forms a Cabinet of 12 ministers chosen from both the Senate and House of Assembly. Each member of Cabinet is sworn into office by the Governor.
The common law, doctrines of equity and acts of Parliament of England extant as at July 11, 1612 are considered to be in force in Bermuda. Since this time, Bermuda has enacted its own legislation and its common law and equity have developed in the Bermuda courts, with much influence from other common law jurisdictions.
The law of Bermuda is based on the common law legal system of England and Wales and decisions of the English Court of Appeal and Supreme Court are a highly persuasive authority in the Bermuda courts.
The Bermuda Legislature enacts Bermuda's law; however, certain UK Acts apply to the extent that they have been specifically extended to the island or have survived since they originally became law here in 1612.
Together with a number of tribunals, Bermuda's court system comprises the Magistrates' Court and the Supreme Court, headed by the Chief Justice and staffed by Puisne Judges.
The main function of the Magistrates' Court is to decide on summary criminal matters. If the Magistrate determines that your offence is serious, then the case is sent to the Supreme Court. Appeals from judgments made in the Magistrates' Court are heard by the Supreme Court as well.
The Magistrates' Court also hears certain classes of civil cases valued under $25,000. The Magistrates' Court Rules 1973 govern the procedure.
In the 1970s, there was no designated commercial judge in Bermuda. There was, however, an increase in international commercial legal work and a growing legal profession as a result.
A modern approach was required and consequently the Bermuda Bar Act in 1974 was enacted to keep up with the development.
Eventually, by the 1980s, specialisation within the legal profession was standard. For the first time in Bermuda's history, the island was starting to develop a specialised commercial judiciary.
In 1992, the Governor appointed a QC as Puisne Judge. Presiding over many significant commercial cases that came before the Supreme Court, he modelled the role of a specialist commercial judge despite never formally being designated as one.
Taking the next logical step to a dedicated commercial court, the Bermuda Commercial Court was established under Order 72 of the Rules of the Supreme Court as amended with effect from January 2006. Commercial court cases are heard by designated specialist commercial judges, including the Chief Justice.
Each of the Puisne Judges of the Supreme Court exercises the same jurisdiction, and while a decision of co-ordinate jurisdiction is highly persuasive, no judge of the Supreme Court of Bermuda can bind another.
Serious criminal offences that are tried in the Supreme Court are heard by a judge and jury. The most common examples are robberies, burglaries or when a person seriously injures or kills someone.
Civil and criminal trials are held in open court in one of the five Supreme Court rooms. The Rules of the Supreme Court of Bermuda 1985, with some exceptions, govern civil procedure in the Supreme Court.
The Court of Appeal for Bermuda typically sits here for three months of the year — in March, June and November — usually for three weeks at a time. The Court of Appeal entertains appeals from the Supreme Court.
All decisions of the Court of Appeal are binding on the Supreme Court. The Rules of the Court of Appeal for Bermuda 1965 govern the procedure in Bermuda's Court of Appeal.
The Judicial Committee of the Privy Council is the final court of appeal for litigants in Bermuda. Decisions of the Lord Justices of the Privy Council on appeal from the Court of Appeal are binding on all Bermuda courts. The Privy Council is not bound by its own previous decisions.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
