Rules of the Supreme Court 1985 Amendment Rules 2000
RULES OF THE SUPREME COURT 1985 AMENDMENT RULES
2000


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BR 41 / 2000

SUPREME COURT ACT 1905

1905 : 4

RULES OF THE SUPREME COURT 1985 AMENDMENT RULES
2000


The Chief Justice, in exercise of the powers conferred on him by
section 62 of the Supreme Court Act 1905, makes the following Rules:—

Citation
1 These Rules may be cited as the Rules of the Supreme Court
Amendment Rules 2000.

Addition of Order 119
2 The Rules of the Supreme Court 1985 are amended by the
addition of the following—

"ORDER 119

PROCEEDINGS RELATING TO ORDERS MADE
BY THE BERMUDA MONETARY AUTHORITY WITH RESPECT

TO TAKEOVERS

119/1 Interpretation

In this Order—

"the Authority" means the Bermuda Monetary Authority
established by the Bermuda Monetary Authority Act 1969;

"relevant enactment" means—

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(i) the Jardine Matheson Holdings Limited Consolidation
and Amendment Act 1988,

(ii) the Jardine Strategic Holdings Limited Consolidation
and Amendment Act 1988,

(iii) the Dairy Farm International Holdings Limited
Consolidation and Amendment Act 1988,

(iv) the Mandarin Oriental International Limited
Consolidation and Amendment Act 1988,

(v) the Hongkong Land Holdings Limited Company Act
1989,

and includes any other enactment declared by the Authority by
notice published in the Gazette to be a relevant enactment for
the purposes of this Order.

119/2 Application
This Order applies where a person is entitled to apply to the
Court for relief or interim relief in connection with an order made
by the Authority under a relevant enactment or in connection
with any application to the Authority for the making of such
order.

119/3 Form of application

3 (1) A person may make an application to the Court in
accordance with this Order—

(a) in respect of an order made by the Authority
under a relevant enactment;

(b) in respect of the refusal of the Authority to
make such order;

(c) in respect of the failure of the Authority to
make such order within the period prescribed by
the relevant enactment.

(2) An application under paragraph (1) shall be by
originating summons.

(3) Order 28 does not apply to an originating summons
issued under this Order.

119/4 Form of originating summons
4 (1) The originating summons shall be in Form No. 10
in Appendix A.

(2) No appearance need be entered to the originating
summons.

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119/5 Contents of summons
5 (1) Every originating summons issued under rule 3
shall—

(a) identify the relevant enactment under which
the application is made;

(b) identify the order of the Authority or, where
no order has been made, the application made
to the Authority with which the summons is
concerned; and

(c) include a concise statement of the relief
(including, if applicable, the interim relief) or
remedy sought by the person taking out the
summons (in this Order referred to as "the
plaintiff").

(2) The issue of an originating summons under this
Order shall not operate as a stay of proceedings on, or of the
taking of appropriate action to put into effect, the order of the
Authority to which the proceedings under this Order relate
unless the Court so orders.

119/6 Service of summons
6 (1) Subject to paragraph (2), every originating
summons issued under this Order shall be served on each of the
persons against whom the summons is issued (in this Order
referred to as "the defendants") as soon as practicable after it
has been issued and, in the case of a summons to which rule
7(2) applies, in any event within 2 days of issue (but subject
always to any delay resulting from compliance with the law of
the country in which service is effected).

(2) The Authority shall be made a defendant to every
summons issued under this Order. The summons shall be
served on the Authority as soon as possible after, and in any
event on the day of, issue.

119/7 Service out of the jurisdiction
7 (1) Subject to paragraph (2), Order 11 rule 9 shall
apply to any originating summons issued under this Order.

(2) Service out of the jurisdiction of an originating
summons issued under this Order is permissible without the
leave of the Court in any case where the subject matter of the
application concerns the affairs of a company incorporated in
Bermuda.

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(3) Order 11 rules 5, 6 and 8 shall apply in relation to
the service out of the jurisdiction of an originating summons
issued under this Order.

(4) Nothing in this Order or in any order or direction of
the Court shall authorise or require the doing of anything in a
country in which service is to be effected which is contrary to the
law of that country.

119/8 Service - general provisions
8 (1) In addition to any other method of service
permitted by these Rules or directed by any order of the Court,
an originating summons issued under this Order may be served
on the defendants (whether within or out of the jurisdiction) by
fax.

(2) An affidavit shall be filed by or on behalf of the
plaintiff proving due service of the originating summons on each
of the defendants.

(3) In the event that service of the summons is effected
by fax the affidavit made under paragraph (2) shall confirm the
date and time of transmission of each fax serving the summons
on each defendant and the grounds on which the plaintiff
believes that the summons will, by virtue of such transmission,
have come to the attention of the defendants.

(4) The affidavit made under paragraph (2) shall be
filed with the Court and a copy thereof served on each
defendant, in each case no later than the day before the day
listed for the first hearing of the summons under rule 9(1) of this
Order.

119/9 Hearing for directions etc, by Court
9 (1) Upon issue of an originating summons under this
Order the Court shall fix a day and time for the attendance of the
parties before the Court for the first hearing of the summons.

(2) The day fixed under paragraph (1) shall be no more
than 4 days from the date of issue of the summons.

(3) Unless on the first hearing of the summons the
Court disposes of the summons altogether, the Court shall give
such directions as to the further conduct of proceedings as it
thinks best adapted to secure the just, expeditious and
economical disposal thereof.

(4) Without prejudice to the generality of paragraph (3),
the Court shall, at as early a stage of the proceedings on the
summons as appears to it to be practicable, consider whether

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there is or may be a dispute as to fact and whether the just,
expeditious and economical disposal of the proceedings can
accordingly best be secured by hearing the summons on oral
evidence or mainly on oral evidence, and, if it thinks fit, may
order that no further evidence shall be filed and that the
summons shall be heard on oral evidence or partly on oral
evidence and partly on affidavit evidence, with or without cross-
examination of any of the deponents, as it may direct.

(5) Without prejudice to the generality of paragraph (3),
and subject to paragraph (4), the Court may give directions as to
the filing of evidence and as to the attendance of deponents for
cross-examination and any directions which it could give under
Order 25 if the cause or matter had been begun by writ and the
summons were a summons for directions under that Order.

119/10 Affidavit evidence
10 (1) Where the plaintiff intends to adduce evidence in
support of an originating summons at the first hearing thereof
he must do so by affidavit.

(2) Upon issuing a summons under this Order the
plaintiff must file with the Court the affidavit evidence on which
he intends to rely.

(3) Copies of the affidavit evidence filed with the Court
under paragraph (2) must be served by the plaintiff on each
defendant (including the Authority) at the same time as that
defendant is served with the summons.

119/11 Adjournment of summons
11 (1) The hearing of the originating summons by the
Court may (if necessary) be adjourned from time to time, either
generally or to a particular date, as may be appropriate, and the
powers of the Court under rule 9 may be exercised at any
resumed hearing.

(2) If the hearing of the summons is adjourned
generally, any party may with the leave of the Court restore it to
the list on 2 days' notice to all the other parties (except a
defendant who has not been served with the summons).

119/12 Proceeding in absence of party failing to attend
12 (1) Where any party to an originating summons under
this Order fails to attend on the first or any resumed hearing
thereof, the Court may proceed in his absence if, having regard
to the nature of the application, it thinks it expedient so to do.

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(2) Before proceeding in the absence of any party the
Court may require to be satisfied that the summons or, as the
case may be, notice of the time appointed for the resumed
hearing was duly served on that party.

(3) Where the Court hearing a summons proceeds in
the absence of a party, then, provided that any order made on
the hearing has not been perfected, the Court, if satisfied that it
is just to do so, may re-hear the summons.

(4) Where an application made by summons has been
dismissed without a hearing by reason of the failure of the party
who took out the summons to attend the hearing, the Court, if
satisfied that it is just to do so, may allow the summons to be
restored to the list.

119/13 Counterclaim by defendant
13 (1) A defendant to an action begun by originating
summons issued under rule 3 who alleges that he is entitled to
any relief or remedy under the relevant enactment identified in
the summons under rule 5 may make a counterclaim in the
action in respect of that entitlement instead of bringing a
separate action.

(2) A defendant who wishes to make a counterclaim
under this rule must at the first hearing of the originating
summons by the Court inform the Court of the nature of his
claim and, without prejudice to the powers of the Court under
paragraph (3), the claim shall be made in such manner as the
Court may direct under rule 9.

(3) If it appears on the application of a plaintiff against
whom a counterclaim is made under this rule that the subject-
matter of the counterclaim ought for any reason to be disposed
of by a separate action, the Court may order the counterclaim to
be struck out or may order it to be tried separately or make such
other order as may be expedient.

119/14 Order for hearing or trial
14 (1) Unless on the first hearing of an originating
summons issued under this Order the Court disposes of the
summons altogether, at the first hearing or at as early a stage of
the proceedings on the summons as appears to the Court to be
practicable, the Court shall make an order for the hearing or
trial in accordance with this rule.

(2) The Court shall by order determine the place and
mode of the trial, but any such order may be varied by a
subsequent order of the Court made at or before the trial.

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(3) Order 33, rule 4(2), and Order 34, rules 1 to 8,
shall apply in relation to a cause or matter begun by originating
summons under this Order and to an order made therein under
this rule as they apply in relation to an action begun by writ and
to an order made therein under the said rule 4 and shall have
effect accordingly with the necessary modifications and with the
further modification that for references therein to the summons
for directions there shall be substituted references to the first or
any resumed hearing of the originating summons by the Court.

119/15 Failure to prosecute proceedings with despatch

15 (1) If the plaintiff in a cause or matter begun by
originating summons under this Order makes default in
complying with any order or direction of the Court as to the
conduct of the proceedings, or if the Court is satisfied that the
plaintiff in a cause or matter so begun is not prosecuting the
proceedings with due despatch, the Court may order the cause
or matter to be dismissed or may make such other order as may
be just.

(2) Paragraph (1) shall, with any necessary
modifications, apply in relation to a defendant by whom a
counterclaim is made under rule 13 as it applies in relation to a
plaintiff.

119/16 Abatement etc. of action

16 Order 34, rule 9, shall apply in relation to an action
begun by originating summons under this Order as it applies in
relation to an action begun by writ.

119/17 Court expert

17 Order 40 rule 6 shall not apply to proceedings under
this Order, and the application allowed by Order 40 rule 4 shall
be made within 2 days after receiving a copy of the court expert's
report.

119/18 Costs

18 (1) The Court shall not order the Authority to pay any
costs of or incidental to or relating to proceedings commenced by
originating summons under this Order, and shall order that
such costs incurred by the Authority shall be paid by whichever
of the other parties to the proceedings the Court in its discretion
thinks fit and, if by more than one other such party, in such
proportion as the Court considers appropriate.

(2) This rule is without prejudice to the generality of
the discretion of the Court with respect to orders as to costs and

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the provisions of Order 62 insofar as parties other than the
Authority are concerned.

119/19 Application to have order of Authority registered

19 Any application under any relevant enactment to have
an order made by the Authority registered in the Court shall be
made by summons in chambers.

119/20 Form of application

20 (1) The application to have an order of the Authority
registered shall be by an originating summons which shall be in
Form No. 10 in Appendix A.

(2) No appearance need be entered to the originating
summons.

119/21 Affidavit in support

21 The application shall be supported by an affidavit of the
facts—

(a) identifying the relevant enactment under which
registration is sought;

(b) exhibiting the order of the Authority or a verified or
certified or otherwise duly authenticated copy thereof;

(c) stating, so far as the deponent can, the full name,
title, trade or business and usual or last known place of abode or
business of the applicant and the person against whom the order
was made respectively; and

(d) stating that to the best of the information and belief
of the deponent the applicant is entitled to have the order
registered and the order does not fall within any of the cases in
which, under the relevant enactment, an order of the Authority
cannot properly be ordered to be registered.

119/22 Title

22 The summons and the affidavit shall be entitled—

""In the matter of the .................Act ............, and in the
matter of an order of the Bermuda Monetary Authority
dated the .................day of.................20..........".

119/23 Order for registration

23 (1) An order to register shall be drawn up by or on
behalf of the applicant and shall be served on the person against
whom the order of the Authority was made.

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(2) The order to register an order of the Authority shall
state the time within which the person against whom the order
of the Authority was made is to be entitled to apply to set aside
the registration.

(3) Such time, where the person against whom the
order of the Authority was made is, or is ordinarily resident, out
of the jurisdiction of the Court, shall depend on the distance
from Bermuda of the place where such person resides and the
postal facilities between Bermuda and that place.

(4) The Court may, on an application made at any time
where it remains competent for any party to apply to have the
registration set aside, extend the period (either as originally fixed
or as subsequently extended) within which an application to
have the registration set aside may be made.

119/24 Register of orders

24 (1) A register of orders of the Authority ordered to be
registered under this Order shall be kept in the Registry.

(2) The order of the Authority shall be registered in the
said register in accordance with the order to register it.

(3) The register shall be arranged in alphabetical order
in the surname of the person against whom the order of the
Authority was made, and there shall be entered in the register
the date of the order for registration and of the registration, the
name, title, trade or business of the person against whom the
order of the Authority was made and of the applicant, and any
special directions in the order for registration.

119/25 Notice of registration

25 (1) Notice in writing of the registration of the order of
the Authority must be served on the person against whom the
order was made within a reasonable time after such registration.

(2) Such notice shall (in the absence of an order by the
Court as to the mode of service thereof) be served on the person
against whom the order of the Authority was made by delivering
it to him personally or by sending it to him at his usual or last
known place of abode or business or in such other manner as
the Court may direct.

(3) Service of such notice out of the jurisdiction is
permissible without leave, and Order 11, rules 5, 6 and 8 shall
apply in relation to such a notice as they apply in relation to a
writ.

(4) The notice of registration must state -

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(a) full particulars of the order registered and of
the order for such registration;

(b) the name and address of the applicant or of
his counsel or agent on whom, and at which,
any summons issued by the person against
whom the order of the Authority was made may
be served;

(c) the right of such person to apply to have the
registration set aside; and

(d) the period within which an application to set
aside the registration may be made.

119/26 Application to set aside
26 (1) The person against whom the order of the Authority
was made may, at any time within the time limited by the order
to register after service on him of the notice of registration of the
order of the Authority, apply by summons in chambers to set
aside the registration.

(2) Where the Court hearing an application to set aside
such registration is satisfied that the case comes within any of
the cases under the relevant enactment in which no order of the
Authority can be ordered to be registered or that it is not just or
convenient that the order should be registered in Bermuda or
that there is other sufficient reason for setting aside the
registration, it may order the registration to be set aside either
unconditionally or on such terms as it thinks fit and either
altogether or until such time as it directs.

(3) The summons referred to in paragraph (1) of this
rule shall be an ordinary summons entitled in the same manner
as the summons and affidavit referred to in rule 22.".







Made this 27th day of April, 2000





Chief Justice