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International News

Public Access In Bermuda

September 19, 2019 posted by Steve Brownstein

Are court hearings held in public? Are court documents available to the public?
The Bermuda Constitution generally provides that all proceedings instituted in any court shall be held in public, save that the court may exclude persons other than the parties and their legal representatives to such extent: (i) as the court may be empowered or required by law so to do and may consider necessary or expedient in circumstances where publicity would prejudice the interests of justice, or in interlocutory proceedings or in the interest of public morality, the welfare of persons under the age of 18 years or the protection of the private lives of persons concerned in the proceedings; or (ii) in the interests of defence, public safety or public order.
The legal principles governing private chamber hearings were considered in Bermuda Casino Gaming Commission v Richard Schuetz [2018] SC (Bda) 24 Civ.
The Bermuda courts have recognised that the granting of confidentiality orders (ie, the anonymising of proceedings and dealing with them as private) may be appropriate where there is no obvious public interest in knowing about the matter in dispute (Re BCD Trust (Confidentiality Orders) [2015] Bda LR 108). The legal principles governing confidentiality orders were recently considered In The Matter [of] The E Trust [2018] SC (Bda) 38 Civ.
The public may apply for copies of originating process, judgments and orders in civil and commercial matters save for any case whereby order of the court public access to such documents has been restricted, divorce proceedings and any other proceedings related to children, applications in relation to arbitration proceedings, applications for directions in relation to trusts, cases relating to the administration of deceased estates, winding-up proceedings and any other category of case that may be identified, from time to time, by way of circular by the Registrar of the Supreme Court (the Registrar).
The legal basis for members of the public to gain automatic access to court records where the member of the public is not a party to the proceedings is as follows:
-where a case is no longer pending or active because it is finally concluded, a member of the public can apply to the Registry for copies of documents under the Supreme Court (Records) Act 1955;
-where a case is pending, a member of the public can apply to the Registry for copies of any originating process or orders made in the case under Order 63, rule 4 of the Rules; and
-where reference is made in the course of a public hearing or in a public judgment to any documents on the court file, a member of the public has a common-law right to apply for copies of the relevant document or documents (Bermuda Press (Holdings) Ltd v Registrar of Supreme Court [2015] SC (Bda) 49 Civ).

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