UPDATE: Finding the Law in Bermuda
By Jennifer Williams
Jennifer Williams is the Information Services Manager at Conyers Dill & Pearman and has over 20 years of experience working in law firms in Bermuda. She is passionate about the evolution of law libraries and knowledge management.
Published September/October 2021
(Previously updated by Karen Skiffington in June/July 2013)
Table of Contents
Bermuda, the oldest self-governing colony of the United Kingdom, is one of the last few remaining Dependent Territories. With a population of about 64,000 (2016 Census), this 21-square-mile group of islands in the Atlantic faces many challenges unique to a tiny jurisdiction. Bermuda has one of the highest per capita incomes in the world, coupled with an excellent reputation for business, particularly in the insurance and reinsurance arena, which is second only to London.
2. Legislative System
Bermuda’s legislative system is drawn largely from that of England and has existed since 1609. There are two political parties, the Progressive Labour Party (PLP), currently forming the Government, and the One Bermuda Alliance (OBA), which forms the Opposition. The legislative bodies are the House of Assembly, with 36 MPs representing the populace, and the Senate, which has 11 members appointed by the Governor on the advice of the Party in power and by the Opposition.
3. UK Law and Bermuda Law
Although Bermuda law is based on English law, there are several major differences. Bermuda has not adopted UK’s Law of Property Act 1925 and follows older English common law with regard to real property. The UK Civil Procedure Rules are also not followed, and instead civil procedure is governed by the Rules of the Supreme Court 1905, largely based on the 1997 White Book with some matters omitted or adapted for local circumstances. Some aspects of Bermuda Law are based on Canadian law, notably regarding human rights, employment, and drunk driving.
Until recently there were no written texts of Bermuda law, but “Offshore Commercial Law in Bermuda,” edited by the former Chief Justice, the Hon Ian RC Kawaley, the 2nd, was published in 2018. Several texts published in the UK discuss aspects of Bermuda law, notably “Law of Reinsurance in England & Bermuda” by Terry O’Neill and Jan Woloniecki, now in its 5th edition published by Sweet & Maxwell, 2019; and “Bermuda, British Virgin Islands and Cayman Islands Company Law” by Christopher Bickley, 4th edition, published by Sweet & Maxwell in 2013. Articles on aspects of Bermuda law generally written for clients may be found at the larger law firms’ websites.
Bermuda’s legislation is consolidated in the Revised Laws of Bermuda, available both in hard copy (up to 1998) and online. The printed consolidations are no longer being updated, but the Bermuda Laws Online website is current. Both statutes and statutory instruments (Bermuda Regulations) are available on the website, maintained by the Attorney General’s Chambers.
Legislation is not codified but follows the English system of statutes and statutory instruments.
Legislation is introduced in the House of Assembly and is read three times prior to passage. The next step is passage through the Senate, followed by the Governor’s assent and in many cases operative date notice in the Official Gazette. Bills are not available online, although the larger law firms obtain them from the Clerk to the House of Assembly. Information on the passage of bills is now available from the House of Assembly website.
All statutory instruments must be published in the Official Gazette, which from November 2018 has been published online. Previously, Official Gazette notices were published in an appointed newspaper (formerly the Royal Gazette). Other legal notices are also published in the Official Gazette: government appointments, all marriage and probate notices, company formation and winding up notices, etc. The Official Gazette is no longer printed locally as a separate publication, and notices can be found on the government website.
Private legislation—generally regarding local companies with special objects outside the Companies Act 1981—is also passed through the House of Assembly. Private legislation is now difficult to obtain in print and is not available online.
The court system is also similar to that of England & Wales with a Magistrates’ Court, Supreme Court, and Court of Appeal. The Judicial Committee of the Privy Council is the court of last resort in the appeals process. Unedited transcripts since 2007 are available from the Bermuda Government website under the Judiciary sub-site, while the edited and indexed Bermuda Law Reports (cited as Bda LR) are available by subscription through Justis Publishing Ltd. There are no printed law reports in Bermuda. Editorial work is done by Karen Skiffington.
Pleadings and other court documents are not public documents. In general, information about cases pending before the Courts is not available outside the immediate parties. There is a Cause Book at the Supreme Court Registry in Hamilton, but it is not online and must be searched in person for a fee. The normal practice is to engage a local law firm to conduct a search of the Cause Book. Further information on the Supreme Court Registry (which also acts as the Registry for the Court of Appeal) is available from the Judiciary sub-site of the Bermuda Government website.
There are no published decisions of the Magistrates’ Court, or for jury trials in the Supreme Court. Decisions of the Judicial Committee of the Privy Council are available through BAILII and the Privy Council Papers Online (for judgments handed down before July 31, 2009) and the Judicial Committee of the Privy Council website (after July 31, 2009), and are often published in the major series of law reports for England & Wales.
6. Legal Profession
There are over 450 lawyers, properly known as barristers and attorneys, in the community. The profession is fused, similar to Canada. Lawyers may qualify in any Commonwealth country and be called to the bar in Bermuda, or they may study abroad and complete their studies in Bermuda as pupils. Most lawyers work for the larger firms, while there are a few boutique firms and sole practitioners. The largest companies, particularly in the reinsurance industry, employ in-house counsel. The government has large legal teams in the Attorney General’s Chambers and the Department of Public Prosecutions.
The Bermuda Bar Association is the organizational body that governs and assists the legal community. Their website contains information on local law firms, the seniority list of the Bar Association, Continuing Legal Education requirements, and other initiatives.