1 Legal framework
1.1 Is there a dedicated class action regime in your jurisdiction? If not, how is collective action typically brought?
The Bahamas does not have a dedicated class action regime. Further, there is no provision within Bahamian law for the bringing of class actions in the classic sense. Rather, Bahamian legislation provides for what are known as ‘representative actions'.
Representative actions are, in many ways, similar to class actions and may be brought by one or more individuals on behalf of a number of other individuals where it can be established that the persons bringing the action have the same interest in those proceedings. A judgment given in such an action will be binding upon all of the individuals represented.
1.2 Do any special regimes apply in specific sectors?
Class actions are not available in The Bahamas per se. As it relates to representative actions, there is no separate legislative regime which governs different sectors and rules related to representative actions apply generally to all sectors.
1.3 Are the courts in your jurisdiction generally considered sympathetic to class actions?
Representative actions are relatively rare in The Bahamas and most of the case law in relation to the same concerns procedural as opposed to substantive matters. However, there is nothing to suggest that the courts of The Bahamas would treat a representative action in a manner which is distinct from the manner in which they treat any other action.
2 Parties
2.1 Who has standing to bring a class action in your jurisdiction?
Any individual may bring a representative action, provided that he or she can establish that:
- the persons represented by him or her share the same or similar interest in the subject matter of the claim;
- the interest in question existed at the time that the litigation was commenced; and
- the relief being sought is likely to be equally beneficial to all members represented.
2.2 Can representative bodies bring class actions in your jurisdiction? If so, which bodies may do so and what is the applicable procedure?
Yes, representative bodies can commence an action within The Bahamas. This is generally done by trade unions or unincorporated associations; however, it may be done by any body of individuals who share a common interest in the litigation. In such cases, the organisation must establish that the individuals who are represented have the same interest in the claim.
The procedure for any type of representative action is commenced by filing and serving an originating summons or a writ of summons on the relevant parties.
2.3 Can parties outside the jurisdiction be members of a class action? What requirements and restrictions apply in this regard?
Foreign nationals are permitted to be represented in a representative action as they are afforded full rights in Bahamian legal proceedings.
There are no requirements or restrictions in this regard, save that the foreign party has a common interest as the person suing in the representative capacity.
2.4 Which parties may be the target of a class action? Can parties outside the jurisdiction be the target of a class action? What requirements and restrictions apply in this regard?
Any party may be the target of the representative action. The only consideration is that the parties represented have a similar interest in the litigation.
The local legislation does not contemplate parties outside of the jurisdiction being made the subject of a representative action per se. However, to the extent that it may be possible, a representative action would be available against a party outside of the jurisdiction on the same basis that any individual could bring a similar action. Most likely such an action will arise where the act or omission has taken place in The Bahamas.
2.5 Do class actions proceed on an opt-in or opt-out basis?
A representative action is brought in the specific name of an individual or smaller group of individuals and will be deemed to be brought by all of the individuals unless such any given individual is expressly excluded. This would tend to suggest that such actions are on an opt-out basis, as it appears that the party bringing the proceedings will have determined the individuals whom he or she is entitled to represent prior to commencing proceedings, and that the onus will be on expressly excluding persons rather than including them. However, this is not expressly clear from the wording of the legislation.
3 Forum
3.1 In what forum(s) are class actions heard in your jurisdiction?
Representative actions are usually heard in the Supreme Court of The Bahamas at first instance. In the particular case of employment disputes, there may be instances where it may be argued that the Industrial Tribunal may be appropriate; however, the legislation which establishes the right to bring representative actions is not directly applicable to the Industrial Tribunal. Certainly, where there are employees who are members of a union, the union may bring an action in the Industrial Tribunal where appropriate on behalf of its members.
3.2 Who hears class actions in your jurisdiction (eg, judges or juries)?
Representative actions are heard by judges in The Bahamas, as all other civil cases are. There is no provision for jury trials outside of the context of criminal proceedings in The Bahamas.
3.3 Is there any opportunity for class action forum shopping in your jurisdiction? If so, what are the implications?
As representative actions are heard in the Supreme Court and by judges solely, forum shopping is not applicable, save to the extent that an action brought by a union on behalf of its members may be considered a representative action, in which case there is an option to bring such an action in the Industrial Tribunal.
4 Bringing a class action
4.1 What is the limitation period for bringing a class action in your jurisdiction? What requirements and restrictions apply in this regard?
There is no specific limitation period ascribed to representative actions and the limitation period in any particular instance will vary based upon the type of claim. Strictly speaking, a representative action will be subject to the same period of limitation as any action which could be brought by an individual and will vary based upon the nature of the claim.
4.2 Do collective actions require certification? If so, what requirements must be met to obtain certification?
There is no certification required of a representative action in The Bahamas.
4.3 What are the formal requirements for bringing a class action?
There are no formal requirements for bringing a representative action in The Bahamas, save that any proceeding which is a representative action must be presented as such in the description of the parties.
4.4 What are the procedural and substantive requirements for bringing a class action? Do any minimum thresholds apply in this regard?
While the court will not likely itself scrutinise whether an action brought as a representative action meets the criteria, the other party to the action is at liberty to challenge the same. If such a challenge is brought, the representative capacity must be established by showing that:
- the persons represented by him or her share the same or similar interest in the subject matter of the claim;
- the interest in question existed at the time that the litigation was commenced; and
- the relief being sought is likely to be equally beneficial to all members represented.
4.5 How are potential class members notified of the proceedings? Is there a deadline by which they must join the class action?
It is arguable that a representative action in The Bahamas will be considered an opt-out proceeding. Accordingly, once a person is established as being a part of a specific group, that person will likely automatically considered to be represented.
4.6 How is jurisdiction over the class action determined?
There is no special or particular jurisdiction over representative actions in The Bahamas, save to the extent that they are provided for under the Rules of the Supreme Court 1978.
4.7 How is the applicable law determined?
There is no special or particular mechanism for determining the law in relation to representative actions and such cases are subject to the general laws of the Commonwealth of The Bahamas.
4.8 Under what circumstances (if any) must security for costs be provided?
In the context of representative actions, the same rules as relate to security for costs will generally apply. In this context, save in circumstances where a representative plaintiff is a company with no local assets, security for costs will be ordered only where the representative party, and likely all of the parties represented, are resident abroad. While there is a provision which states that a nominal plaintiff suing for the benefit of some other person may be liable to an order for security for costs where there is reason to believe that he or she will be unable to pay ordered costs, plaintiffs suing in a representative capacity are excluded. While it is arguable that the term ‘representative capacity' as used in the legislation referring to security for costs is intended to relate to persons such as executors, the fact that a representative plaintiff in the case of a representative action must have his or her own personal interest in the claim would tend to suggest that, in the usual course, security for costs will not be applicable.
5 Disclosure and privilege
5.1 What rules apply to disclosure in your jurisdiction? Do any exceptions apply?
In litigation proceedings, parties who are named in the proceedings have a duty to disclose all documents in their position, custody and control which relate to the matters in question. These parties must provide or make available for inspection all such documents unless such documents are subject to some form of privilege.
The standard position is that all parties must conduct a reasonable search for documents on which they rely, documents that harm their own case and documents that assist the other party's case. However, if agreed between the parties, they can also dispense with disclosure.
5.2 What rules on third-party disclosure apply in your jurisdiction? Do any exceptions apply?
Generally, there is no duty of disclosure on third parties to proceedings.
In order for a third party to have any obligation to disclose, there must be some order of the Supreme Court compelling such disclosure. This is usually accomplished by virtue of:
- a Norwich Pharmacal order; or
- a subpoena.
A Norwich Pharmacal order arises by virtue of a separate action brought by a party for the purpose of compelling a third party to disclose. In a Norwich Pharmacal action, the party seeking disclosure will need to establish the following:
- There is credible claim of wrongdoing committed by an accused person;
- The third party was somehow involved in the wrongdoing;
- The third party facilitated the wrongdoing;
- The party seeking the order has an interest in the case;
- The information sought from the third party is necessary to obtain; and
- The information is not otherwise protected by law.
More commonly, a subpoena is utilised for third-party disclosure and may be obtainable, generally, on the basis that a third party is in possession of information or documents which are germane to the action.
5.3 What rules on privilege apply in your jurisdiction? Do any exceptions apply?
Generally, documents may not be disclosed if they are subject to legal advice privilege or litigation privilege.
5.4 What are the specific implications of the rules on disclosure and privilege in class action proceedings?
There are no specific implications of the rules on disclosure and privilege in representative actions which are distinct from actions in general.
6 Evidence
6.1 What types of evidence are permissible in your jurisdiction? Is expert evidence accepted?
Four general types of evidence that are permissible in The Bahamas:
- Oral evidence: The oral testimony of a witness made on oath in court and put forward as evidence of its truth;
- Witness statements and expert reports: Written statements made by witnesses, including expert reports, which are produced in the proceedings as evidence;
- Real (tangible) evidence: Usually a material object of some kind which is produced for inspection, either to prove that it exists or so that the court can make an inference; and
- Hearsay evidence: Statements not made in oral evidence in the proceedings that are evidence of the matter stated. Hearsay evidence is not always permissible and certain requirements must be met so that it is permissible.
6.2 What is the applicable standard of proof in your jurisdiction?
The standard of proof in civil cases in The Bahamas is on a balance of probabilities – that is, a claimant must be able to establish that it is more likely than not (usually termed a 51% probability) that the defendant has committed the act or omission complained of. This notwithstanding, in certain instances, the burden of proof is shifted to the plaintiff.
6.3 On whom does the burden of proof rest in class action proceedings?
There is no change of the burden of proof in representative action cases, provided that all of the persons represented meet the requirements of similar interests.
6.4 What are the specific implications of the rules on evidence in class action proceedings?
There are no specific implications of the rules on evidence in representative actions that would not ordinarily apply to actions concerning single parties or entities.
7 Settlement
7.1 Can the class action proceedings be discontinued without a full trial? If so, how, and what are the implications?
Once an action has been served on the other party, it can be discontinued with the leave of the court, provided that leave is obtained. In such instances, the plaintiff will likely be liable for the legal costs of the defendant up to the order for dismissal. Provided that there has been no determination on the merits of the action, a party may bring a new action in relation to the claim prior to the expiration of any relevant period of limitation.
Alternatively, the parties to an action may negotiate a settlement at any time, which is usually evidenced by a settlement agreement that precludes the bringing of a future action on the matters covered by the settlement agreement.
7.2 Is court approval of the settlement required? If so, what factors will the court consider in this regard?
There is no express requirement for the approval of a settlement agreement by the court.
8 Court proceedings
8.1 Are court proceedings in your jurisdiction public or private? If the former, are any options available to the parties to keep the proceedings or related information confidential?
Court proceedings are usually open to the public. Should parties wish for a particular action to be private, an application can be made to seal the file, which will also usually entail the public being excluded from actual hearings.
8.2 What approaches do the courts typically take to class action proceedings? Are preliminary issues commonly tried first, or are test cases commonly heard? What are the implications of these different approaches for the proceedings?
The Bahamian courts usually approach representative actions in the same manner as they would an action involving one party against another. There is generally no deviation from the ordinary process, and consequently preliminary issues are ventilated before the court before proceeding with the substantive action.
8.3 How do class action proceedings unfold in your jurisdiction?
Representative actions unfold in The Bahamas in essentially the same manner as other civil actions.
8.4 What is the typical timeframe for class action proceedings?
Save to the extent that there may be some complexities which arise from the representative nature of an action, such cases will proceed on much the same timeframe as other cases – being one to two years from the date of commencement for the completion of trial, with a decision taking six months to a year for a decision to be handed down.
8.5 Is the decision issued in class action proceedings binding on all members of the class?
Decisions in representative actions are binding on all persons represented, save that such decisions cannot be enforced against any represented member not named in the action without the leave of the Supreme Court.
9 Remedies
9.1 What remedies are available in class actions in your jurisdiction?
The remedies available in representative actions are the same as those which would be available to individual litigants and usually involve damages.
9.2 Are punitive damages awarded in your jurisdiction?
In The Bahamas, there is no regime for the award of punitive damages; however, exemplary damages may be ordered in rare cases. The distinction is, broadly, that exemplary damages are intended not to punish a party for the conduct in question, but to create an example to deter the same or similar conduct from other persons/entities in society.
9.3 What factors will the courts consider in deciding on the quantum of damages?
Generally, damages are determined on the basis of special damages and general damages. Special damages are those out-of-pocket quantifiable damages which a claimant can prove; whereas general damages are damages which have occurred but which may not be capable of mere arithmetical calculation.
In determining the measure of damages, the court first looks at the actual loss sustained by a claimant arising from the act or omission of the defendant and then considers whether any act of the claimant materially contributed to the damage.
9.4 How are damages allocated among the members of the class?
Unless the damages were incurred generally to the group represented and cannot readily be separated, once liability is established the damages due to each plaintiff may be assessed.
10 Appeals
10.1 Can the court's decision in the class action be appealed? If so, on what grounds and what is the process for doing so?
A lower court's decision can be appealed to the Court of Appeal on the basis that there has been a material error in considering the facts or the law at first instance.
Provided that the decision is final, a party must file and serve a notice of appeal within six weeks of the date of judgment.
The notice of appeal must set out the grounds on which the appellant is relying for the appeal.
11 Costs and fees
11.1 What costs and fees are incurred when litigating in your jurisdiction? Can the winning party recover its costs?
The court has discretion to order that one party pay some or all another party's litigation costs. The general rule, which is rarely departed from, is that a successful party will be entitled to the costs associated with the litigation. Usually, such costs are ordered to be taxed if not agreed. Where taxation occurs, a party's costs will be set out on an item-by-item basis and scrutinised by the court. Typically, recovery of costs is in the region of 55% to 75% of the costs actually expended.
11.2 How are the costs and fees allocated among the members of the class?
A costs order will be made in favour or against the party actually named in the proceeding as the plaintiff. The allocation or burden of such costs will then be a matter for the representative group among themselves; save that a successful defendant has the right to apply for leave to enforce against any particular member of the representative party.
11.3 What happens if the claim of a class member is withdrawn before the proceedings have terminated?
Provided that the named plaintiff does not withdraw and the class is not reduced below two, the action will proceed as a representative action; although an application may need to be made to amend the action to exclude such person if necessary. In any event, in a representative action the party named in the action is technically a party, so the lack of participation of any person represented should not have a material effect on the action.
11.4 Do the courts manage costs during the proceedings?
Costs are not actively managed by the Supreme Court during proceedings in The Bahamas.
11.5 How do the courts assess the costs and fees at the end of the proceedings?
The courts apply the general rule that the losing party pays the costs of the successful party (in addition to its own costs). These costs are usually awarded on a standard basis, which means that they are recoverable to the extent that they are proportionate, reasonably incurred and reasonable. Where such costs cannot be agreed, they are taxed; in this process, an officer of the court examines a submitted bill of costs and makes a determination as to an appropriate amount.
12 Funding
12.1 Is legal aid available for class actions in your jurisdiction? If so, what requirements and restrictions apply in this regard?
Generally, legal aid is available in The Bahamas via the local law school, but it is usually reserved for persons with limited means. That said, there would be no distinction between providing legal aid to an individual claimant as opposed to a claimant in a representative capacity.
12.2 Are contingency fees and similar arrangements permitted in your jurisdiction? If so, what requirements and restrictions apply in this regard?
Contingency fees are not permitted in The Bahamas.
12.3 Is third-party funding permitted in your jurisdiction? If so, what requirements and restrictions apply in this regard?
There is no express prohibition in The Bahamas against third-party litigation funding, although traditionally the courts have been reluctant to permit certain forms of legal assistance under the doctrine of champerty and maintenance. However, the doctrine of champerty and maintenance technically binds only attorneys so as to exclude contingency fee agreements, and there does not appear to be a prohibition against a third party assisting someone with funding a claim.
12.4 What are the specific implications of such various funding arrangements in class action proceedings?
Litigation funding is not openly common in The Bahamas; this – coupled with the fact that representative actions are relatively rare – makes it difficult to consider any implications of funding arrangements in this jurisdiction.
13 Trends and predictions
13.1 In which areas are class actions most commonly brought? Have there been any major cases of note in recent years?
Representative actions are not common in The Bahamas; however, they are more likely to arise in employment disputes and in pollution-related actions.
13.2 How would you describe the current class action landscape and prevailing trends in your jurisdiction? Are any new developments anticipated in the next 12 months, including any proposed legislative reforms?
Representative actions are not common in The Bahamas. Further, there has been no upward trend in relation to representative actions in recent years. With there being no local advocacy in favour of implementing a more robust class action or collective redress system in The Bahamas, it is unlikely that there will be any developments in this area in the next 12 months.
14 Tips and traps
14.1 What would be your recommendations for the smooth progress of class actions in your jurisdiction and what potential pitfalls would you highlight?
Currently, the law as it stands does not provide a detailed procedure for representative actions. However, as claims are very rarely brought as a class or representative action, the legislature may not deem it necessary or relevant to amend current laws to provide further insight into this action. However, an amendment to the legislation would provide further clarity on damages, costs and fees they relate to class actions.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
