New procedural rules in the Supreme Court are expected to have a profound effect on the way in which civil litigation is conducted in Bermuda.

The Supreme Court Amendment Rules 2005 (?the Rules?), which came into effect on January 1, should speed up the notoriously slow court process and make it easier for successful parties to recover a higher percentage of their legal costs.

The Rules include an ?overriding objective? which directs that the Court must deal with a case ?justly?. This includes, so far as is practicable, ensuring that the parties are on an equal footing and saving expense.

It also involves dealing with the case in ways that are proportionate to the amount of money involved, the importance of the case, the complexity of the issues and the financial position of each party.

The Court must also ensure that the matter is dealt with ?expeditiously and fairly? and it must allot to it ?an appropriate share of the Court?s resources, while taking into account the need to allot resources to other cases?.

More importantly, the Court ?must seek to give effect to the overriding objective when it?exercises any power given to it by the Rules; or?interprets any rule?.

In other words the Court and the parties to an action must make every effort to ensure that cases do not stall unnecessarily.

The ?overriding objective? also provides that ?the parties are required to help the Court to further the overriding objective?.

It also imposes a duty on the Court to actively manage cases that includes, perhaps most importantly, encouraging ?the parties to use an alternative dispute resolution procedure?? and help ?the parties to settle the whole or part of the case?.

Various forms of the overriding objective were adopted in England and Wales (1999), in the Eastern Caribbean States (2000) and in Jamaica (2002).

Courts in those jurisdictions are actively encouraging mediation to resolve disputes. More recently in England and Wales judges have ordered mediation and have penalised parties in costs if they fail to explore alternative dispute resolution methods.

Bermuda Courts may not go as far as that, but mediation in England and Wales has a success rate in excess of 60 percent.

The Rules have also updated the Court?s cost recovery structure. Previously a winning party might only expect to recover one third of legal fees expended.

The Rules, which are now far closer to those in England and Wales, should allow the successful party to recover a much greater percentage of what has actually been spent on legal fees.

This may encourage parties to settle cases due to the potential cost of not doing so.

The Rules also provide for the exchange of witness statements before trial. Previously, there was no obligation on the part of the judiciary to order the exchange of witness evidence, increasing the likelihood of ?litigation by surprise?.

This innovation should narrow the issues between the parties, reducing both costs and the time spent at trial.

The international business sector will be better served as well due to the creation of a Commercial Division of the Supreme Court.

Specialist judges will provide expertise, and hear commercial actions in a more timely manner due to the introduction of a separate cause list for commercial cases. The new Rules also apply to this division of the Court.

While it remains to be seen how attorneys and judges in Bermuda adapt to the new landscape, the Rules should result in increased co-operation between attorneys and a court that encourages settlement.