Judgment reserved in Supreme Court dispute over IT service contract
Judgement has been reserved in a Supreme Court battle between two of Bermuda’s industry heavyweights.
Puisne Judge Larry Mussenden heard evidence and argument on Wednesday in the matter of Fireminds Operations Limited and Bermuda Investment Advisory Services.
The substantive dispute between the parties relates to an IT master service agreement and statement of works between Fireminds, the technology service provider, and BIAS, the investment firm, that were effective in December 2018.
The agreement provides for binding and conclusive arbitration where they cannot settle a dispute.
Such arbitration is to be concluded within 120 days of the date that service of the written notice of arbitration is given.
Arbitration proceedings were initiated by BIAS in September 2019.
However, starting in October 2019, several attempts to appoint an arbitrator were unsuccessful.
In September 2021, Fireminds applied to the court to terminate the arbitration proceedings on the basis of delay.
The court granted an injunction, preventing the arbitration from going ahead until the determination of the termination application.
That matter was heard on Wednesday.
Michael Branco, the former CEO of Fireminds, and BIAS CEO Robert Pires took the stand in the morning session.
Keith Robinson, of Carey Olsen, cross-examined Mr Branco on his affidavit evidence.
Richard Horseman, of Wakefield Quin, cross-examined Mr Pires on his affidavit evidence.
Mr Pires said that his focus had been on getting control of his business’s data.
In closing arguments, Mr Horseman said delays regarding the matter were due to BIAS, which he said had a duty under the Arbitration Act 1986 to proceed with the arbitration with due diligence.
He argued that the delay by BIAS was both intentional and vexatious, and caused prejudice to his client.
Mr Horseman called for the court to terminate the arbitration.
Mr Robinson questioned whether his client’s focus on data equalled intention.
He submitted that vexatious is “an extremely strong word”, is condemnatory and is “more than simply making commercial decisions”.
Further, Mr Robinson said that Fireminds had not been prejudiced by the delay, nor did it pose a substantial risk to a fair trial.
He said Fireminds had not met the burden under the Act.