What happens when the court in another jurisdiction needs to obtain evidence from a businesses or individual in The Bahamas for the purposes of civil proceedings in that jurisdiction? The experienced Bahamas lawyers at ParrisWhittaker regularly provide assistance to individuals and businesses in civil matters pursuant to the Evidence (Proceedings in Other Jurisdictions) Act, Ch. 66 (E(POJ)A.
The E(POJ)A extends this UK law to the Bahamas (there are similar provisions in the Cayman Islands and other jurisdictions, for instance). So-called ‘requesting authorities’ in other jurisdictions can formally apply to the Bahamas Supreme Court for civil evidence from individuals and companies within the Bahamas under the legislation. It gives statutory effect to what is commonly known as the Hague Evidence Convention1 – a multinational treaty – in relation to requests for evidence for civil proceedings.
Under the E(POJ)A, the Supreme Court of the Bahamas has all powers conferred to it under the legislation - which sets out a procedure where an application is made from the ‘requesting court’ to the Registrar of the Bahamas Supreme Court for help in relation to civil proceedings/investigations. In essence, the requesting court will ask for an order for evidence to be obtained in the Bahamas. The request goes to the Supreme Court via the Attorney General.
The application may be made ex parte and must be supported by an affidavit exhibiting the letter of request, and the letter must clearly identify the evidence requested – otherwise what may be considered a fishing expedition, or amounting to pre-trial discovery, could be rejected. A Supreme Court judge then hears the application and has discretion to make provision for the obtaining of evidence in The Bahamas as it deems appropriate to give effect to the request.
The Court’s discretion includes making orders including examining witnesses, the production of documents; the inspection, photographing, preservation custody or detention or any property; the taking of samples of property and the carrying out of any experiments on or with any property, the medical examination of any person; and the taking and testing of blood samples from any person.
An Order, once made, is then filed in the Registry of the Supreme Court and served on the relevant person or court for the requested evidence. They then normally have two weeks to comply with the terms of the Order. Once the documentation/bank records or other records are received, they are forwarded to the requesting Authority.
Where an interview or disposition is required, Order 39 of the Grand Court Rules must be given effect. This means the Order of the Supreme Court (see above) must be served on the relevant person. The Registrar will then be appointed as ‘Examiner’ who will take certain information, and conduct an interview (or take the disposition) at a date set. A Notice of Hearing is filed, and served on the relevant person.
Witnesses must give evidence on oath (or by affirmation) at the Office of the Registrar of The Supreme Court and a court reporter records their oral evidence. The witness then has the opportunity to review their evidence and can have it amended or corrected as required (any such alterations will be signed by the Registrar and the witness). Finally, witness will be required to sign a Certificate stating that the deposition was read over by the Registrar (together with the date, and confirmation that the contents are true and correct to the best of the witness’s knowledge).
The certificate is then attached to the deposition, certified by the Registrar, forwarded to the Attorney General – and finally sent to the Requesting Authority.
For expert, incisive legal advice on all matters relating to civil proceedings with foreign jurisdictional issues, contact the experienced corporate lawyers at ParrisWhittaker. Whatever your circumstances and however complex your issues, we are ready to act on your behalf.
1Convention on the Taking of Evidence Abroad in Civil or Commercial Matters