The Bermuda Triangle

1. The Bermuda Triangle Injunctions, Undertakings, and Contempt

2. Ingenious Injunctions • Dawson-Damer v Lyndhurst Limited [2019] SC (Bda) 8 Civ, Hargun CJ • Application to Bermuda Court for an interim proprietary injunction against a Bermuda trustee, in aid of Bahamian Court proceedings • Bermuda trustee had not submitted to jurisdiction of Bahamian Court • Since the Bahamian Court’s prospective (foreign) judgment would be unenforceable in Bermuda, interim injunction in aid of Bahamian proceedings was refused • Applicant then undertook to issue fresh substantive proceedings against Bermuda trustee in Bermuda within 90 days • Bermuda Court granted the interim proprietary injunction – and why not?

4. Implied Undertakings • Athene Holding Limited v Siddiqui, Cernich, & Caldera Holdings Ltd [2019] SC (Bda) 20 Com, Hargun CJ • Application to Bermuda Court for release from implied undertaking relating to Affidavits and Skeleton Argument, for intended use in parallel US Court proceedings • Only documents produced ‘under compulsion’? • But is there also a duty imposed by ‘the circumstances of the case’ or by ‘the rules of Court’, eg: • Where the proceedings relate to a confidential arbitration agreement? • Where the proceedings relate to confidential trade secrets? • Where the proceedings relate to a confidential trust structure? • Where the documents are separately impressed with obligations of confidentiality or privilege (absent express waiver)?

6. Contumelious Conduct • Re MF Global Holdings Ltd., Chapter 11 Case No. 11-15059, Memorandum Opinion of US Bankruptcy Judge Martin Glenn dated 12 January 2017 • Bermuda arbitration agreements in Bermuda Market insurance policies • Insurance claims asserted in US Bankruptcy Court • Anti-suit injunctions in Bermuda Court • TROs in US Bankruptcy Court • The Barton doctrine • Ask the Audience • Is it safer to commit a contempt of Court in the USA or in Bermuda?

8. The Royal Gazette, Bermuda, 22 May 2019 • http://www.royalgazette.com/news/article/20190522/pettingill-in-contempt-of-court • “A law firm was found in contempt of court yesterday after it continued to represent patients of Ewart Brown despite a judge’s order not to. • Assistant Justice Kiernan Bell told Mark Pettingill and Victoria Greening, of Chancery Legal, they had disobeyed a Supreme Court injunction issued this month to block the firm from acting for the former premier’s patients because of a conflict of interest. • Mrs Justice Bell, who earlier ruled that Mr Pettingill, a former attorney-general, and Ms Greening, had a conflict of interest, said: “I do make a finding that Chancery Legal are in contempt of court.” • … • Mr Pettingill asked the court if he was to be taken away in “shackles”.”

9. R v Saul Froomkin [1990] Bda LR 10 • Plus ça change, plus c'est la même chose … • “The Appellant, One of Her Majesty's Counsel, is also Her Majesty's Attorney General for Bermuda. He was found by Martyn Ward, J, to be guilty of contempt in the face of the court when appearing for the Crown in a case upon indictment. … It is clear that there was a number of clashes between counsel and the bench in the course of a lengthy trial. [The trial judge made accusations against Mr. Froomkin] of shouting, giving evidence, use of hyperbole, being argumentative, lack of knowledge of the law and of his duty and discourtesy …” • Court of Appeal for Bermuda, per Huggins JA: Counsel’s alleged discourtesy was NOT a contempt in the face of the Court, but “Where either [Judge or Counsel] feels it necessary to insist on being allowed to perform what he sees as his duty, it is especially desirable that he should do so with great courtesy”.