First Published in The Royal Gazette, Legally Speaking, September 2019
Commencing a claim in a court of summary jurisdiction, also known as the Magistrates' Court, is a relatively straightforward process.
The claim is opened when the plaintiff completes the Ordinary Summons form which is issued in duplicate by the Court clerk. The Summons must contain the name and address of the plaintiff, the name and address of his counsel (if any), the name and known address of the defendant, and the particulars of claim.
The particulars of claim briefly, but with reasonably sufficient information, sets out the plaintiff's complaint and what they wish to obtain as relief.
The Magistrates' Court hears claims where the amount claimed does not exceed $25,000, but for certain exceptional cases, such as Government-led actions to recover unpaid taxes this amount may be higher.
Once a Summons has been issued, the defendant(s) are served with the Summons and must make a decision: admit or deny the claim. The defendants must announce their position in open court on the Summons Return Date, which is specified on the Summons. This is the parties' first appearance before the Magistrate.
Admitting the claim typically results in judgment being entered in favour of the plaintiff, and the Court ordering terms for provision of the relief sought. If the relief is payment of money, the Court will order a payment plan after considering both parties' positions on payment (ie what the defendant can afford to pay).
If a defendant wishes to deny the claim, they can do so at the Summons Return Date. Denying the claim will result in the Court ordering directions after hearing the parties' positions on next steps. Typically, the Court first gives the plaintiff a certain amount of time to provide any further information explaining the claim. Then, the Court will order that the defendant file its defence within a certain time frame after receiving the plaintiff's particulars.
At the first return date, the Court may set a date for trial, or it may set the matter down for mention, a judicial checkup where the Magistrate receives an update on the matter and determines any issues that may have arisen.
The process appears simple enough and is designed to operate in an efficient way, but practical issues risk causing delays that, for parties represented by attorneys, can cause significant additional expense.
Many people availing themselves of the Magistrates' Court are self-represented "litigants in person" because it is not mandatory to have legal representation to bring a claim before the court. While this is an important aspect of our legal system, it presents its own set of complexities when litigants in person are not versed in the law or in legal procedure. Inexperienced claimants filing claims themselves can result in claims having an unclear basis and cause more of the court's time to be taken than is proportionate to the claim.
Before instructing an attorney, you should consider whether the cost of engaging an attorney to take the claim through to trial will be proportionate to the claim. Regardless of whether you are the successful party, the ability to recover costs is strictly capped by the Magistrates' Court Rules. The starting point is that the Magistrate has wide discretion with regards to awarding costs. Moreover, regardless of the hourly rate that your attorney may charge, the Court Fees and Expenses Rules 1972 cap the hourly rate that a successful party may recover. The other risk to consider is that the Magistrate may order the successful party to pay costs, notwithstanding their success if there has been unreasonable behaviour or a loss on a particular issue that has taken up a lot of court time.
If you are unsure whether you have a defence to the claim, you should seek advice on the merits of defending it and an estimate of the costs associated with doing so all the way to trial. The cost may be greater than the amount in dispute. If so, it may be prudent to make an offer to settle before proceeding to trial.
The Magistrates' Rules include the overriding objective of enabling the court to deal with cases justly. The court is required to further that objective by actively managing cases which includes helping the parties to settle the case. While Magistrates do not prejudge any matter, they can encourage parties to settle by highlighting the practical realities and cost risks faced by either side in continuing.
As with many courts worldwide, Bermuda courts are very busy and this often means that adjournments can last several months. The Court does not rush the hearing of matters and if a matter is not concluded on a particular date, an adjournment of the trial will take place.
From our experience, it is important that defendants consider the above practical issues concerning time and costs when determining whether they wish to defend a claim to trial. If facing a litigant in person, those practical risks should be considered with even more scrutiny as any costs and time spent can increase substantially.
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.