Gathering Evidence in Aid of Foreign Litigation Guide |
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Bahamas |
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(Latin America/Caribbean)
Firm
McKinney, Bancroft & Hughes
Contributors
Beatrice Miranda |
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| Does your jurisdiction permit gathering evidence in aid of foreign litigation? | Yes. The Evidence (Proceedings in Other Jurisdictions) Act, 2000 (the “2000 Act”) makes provision for enabling the Supreme Court of The Bahamas (“Supreme Court”) to assist in obtaining evidence required for the purposes of civil proceedings in other jurisdictions. Pursuant to section 8(2) of the 2000 Act, Order 65 of the Rules of the Supreme Court of 1978 (“RSC”) shall apply to the obtaining of evidence in aid of foreign litigation for the purposes of the 2000 Act. In this regard, RSC Order 65, rule 1 provides that the power of the Supreme Court or a judge thereof to make an order for the attendance and examination of witnesses, the production of documents and the giving of directions may be exercised by the Registrar of the Supreme Court (“Registrar”). However, the Registrar may not exercise this power in relation to criminal matters. |
| Is your jurisdiction a party to the Hague Evidence Convention? Are there other statutory requirements for obtaining evidence in aid of foreign litigation? Please indicate the relevant statutes. | No. The Bahamas is not a party to the Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters (the “Hague Evidence Convention”). The statutory requirements for gathering evidence for foreign proceedings are prescribed by the 2000 Act and RSC Order 65. An application for an order to gather evidence must be made ex parte by a person authorized to make that application by the foreign court in question. The application must be supported by an affidavit that exhibits the letter of request, certificate or any other document which evidences the foreign court’s need for evidence to be gathered for a matter pending before it. All supporting documentation must be submitted in English or translated into English. In certain circumstances, the application is made by the Attorney General on behalf of the foreign court. |
| Do requests for gathering evidence require approval by a court or administrative body? Please indicate the appropriate forum for making such requests. | Yes. An application for an order to gather evidence in aid of foreign proceedings is generally made to the Registrar. The ex parte summons and supporting affidavit must be filed with the Registry of the Supreme Court. |
| What types of information can be sought? Requests for Documents? Written questions? Depositions? | An applicant under RSC Order 65 can request that an order be made for the attendance and examination of a witness and/or the production of documents. Witnesses are examined by way of deposition, which may be taken before any fit and proper person nominated by the applicant or before such other qualified person as seems fit to the Supreme Court or the Registrar. Additionally, under section 5(2) of the 2000 Act, an order for evidence can include the inspection, photographing, preservation, custody or detention of any property, the taking of samples of any 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 samples of blood from any person. |
| Who bears the burden of showing whether any privileges apply? | Where a witness claims any privilege which exempts him or her from giving evidence, the burden rests on the witness to show that a claim to privilege exists. |
| Does there need to be any showing that the information sought is allowable in the foreign jurisdiction in which the action is pending? | Pursuant to section 6 of the 2000 Act, a person shall not be compelled to give evidence in aid of foreign proceedings if he or she could not be compelled to give that evidence (i) in civil proceedings in the Bahamas or (ii) in civil proceedings in the country in which the requesting court exercises jurisdiction. In the event that privilege is claimed under (ii), the claim will need to be supported by a statement contained in the request or conceded by the applicant for the order. If the claim for privilege is not so supported or conceded, the witness will be required to give the evidence to which the claim of privilege relates. However, the evidence will not be transmitted to the court requesting the evidence until the claim for privilege is referred to said court and is either upheld or rejected. If the evidence is taken under these circumstances, it must be contained in a separate document from the remainder of the deposition. |
| If your jurisdiction allows depositions, may they be conducted remotely (by videoconference, Zoom etc.) | The order which dictates that a deposition be given can also prescribe the time and place of that examination. In recent years, Bahamian courts have exercised their wide case management powers under RSC Order 31A, rule 18(2)(n), which permits the court to receive evidence by telephone or other electronic means or use any other method of direct communication. |
| Has your jurisdiction adopted any “blocking statutes” that limit the extent to which residents in your jurisdiction may give evidence in a foreign court’s civil or criminal proceedings? | No. While the 2000 Act makes provisions for enabling the Supreme Court to assist in obtaining evidence required for the purposes of civil proceedings in other jurisdictions, the Criminal Justice (International Cooperation) Act of 2000 enables the Bahamas to cooperate with other countries in criminal proceedings and investigations. |
| May citizens residing in your jurisdiction voluntarily give evidence in a foreign proceeding? If not, what procedure must be followed before they can give evidence? If such restrictions exist, are they enforced in practice? | Yes. A citizen residing in the Bahamas may volunteer to submit to the jurisdiction of a foreign court and give evidence in foreign court proceedings. |
| Would your answers differ materially if the foreign proceeding is arbitration, and if so how? | No. The provisions of the 2000 Act and RSC Order 65 apply equally to a request by a foreign court and a foreign arbitral tribunal. In this regard, section 3(1) of the 2000 Act defines “the requesting court” as a court or tribunal exercising jurisdiction in a country or territory outside the Bahamas. |
Gathering Evidence in Aid of Foreign Litigation Guide
Bahamas
(Latin America/Caribbean) Firm McKinney, Bancroft & HughesContributors Beatrice Miranda
Updated 16 Mar 2022Yes. The Evidence (Proceedings in Other Jurisdictions) Act, 2000 (the “2000 Act”) makes provision for enabling the Supreme Court of The Bahamas (“Supreme Court”) to assist in obtaining evidence required for the purposes of civil proceedings in other jurisdictions. Pursuant to section 8(2) of the 2000 Act, Order 65 of the Rules of the Supreme Court of 1978 (“RSC”) shall apply to the obtaining of evidence in aid of foreign litigation for the purposes of the 2000 Act. In this regard, RSC Order 65, rule 1 provides that the power of the Supreme Court or a judge thereof to make an order for the attendance and examination of witnesses, the production of documents and the giving of directions may be exercised by the Registrar of the Supreme Court (“Registrar”). However, the Registrar may not exercise this power in relation to criminal matters.
No. The Bahamas is not a party to the Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters (the “Hague Evidence Convention”). The statutory requirements for gathering evidence for foreign proceedings are prescribed by the 2000 Act and RSC Order 65. An application for an order to gather evidence must be made ex parte by a person authorized to make that application by the foreign court in question. The application must be supported by an affidavit that exhibits the letter of request, certificate or any other document which evidences the foreign court’s need for evidence to be gathered for a matter pending before it. All supporting documentation must be submitted in English or translated into English. In certain circumstances, the application is made by the Attorney General on behalf of the foreign court.
Yes. An application for an order to gather evidence in aid of foreign proceedings is generally made to the Registrar. The ex parte summons and supporting affidavit must be filed with the Registry of the Supreme Court.
An applicant under RSC Order 65 can request that an order be made for the attendance and examination of a witness and/or the production of documents. Witnesses are examined by way of deposition, which may be taken before any fit and proper person nominated by the applicant or before such other qualified person as seems fit to the Supreme Court or the Registrar. Additionally, under section 5(2) of the 2000 Act, an order for evidence can include the inspection, photographing, preservation, custody or detention of any property, the taking of samples of any 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 samples of blood from any person.
Where a witness claims any privilege which exempts him or her from giving evidence, the burden rests on the witness to show that a claim to privilege exists.
Pursuant to section 6 of the 2000 Act, a person shall not be compelled to give evidence in aid of foreign proceedings if he or she could not be compelled to give that evidence (i) in civil proceedings in the Bahamas or (ii) in civil proceedings in the country in which the requesting court exercises jurisdiction. In the event that privilege is claimed under (ii), the claim will need to be supported by a statement contained in the request or conceded by the applicant for the order. If the claim for privilege is not so supported or conceded, the witness will be required to give the evidence to which the claim of privilege relates. However, the evidence will not be transmitted to the court requesting the evidence until the claim for privilege is referred to said court and is either upheld or rejected. If the evidence is taken under these circumstances, it must be contained in a separate document from the remainder of the deposition.
The order which dictates that a deposition be given can also prescribe the time and place of that examination. In recent years, Bahamian courts have exercised their wide case management powers under RSC Order 31A, rule 18(2)(n), which permits the court to receive evidence by telephone or other electronic means or use any other method of direct communication.
No. While the 2000 Act makes provisions for enabling the Supreme Court to assist in obtaining evidence required for the purposes of civil proceedings in other jurisdictions, the Criminal Justice (International Cooperation) Act of 2000 enables the Bahamas to cooperate with other countries in criminal proceedings and investigations.
Yes. A citizen residing in the Bahamas may volunteer to submit to the jurisdiction of a foreign court and give evidence in foreign court proceedings.
No. The provisions of the 2000 Act and RSC Order 65 apply equally to a request by a foreign court and a foreign arbitral tribunal. In this regard, section 3(1) of the 2000 Act defines “the requesting court” as a court or tribunal exercising jurisdiction in a country or territory outside the Bahamas.