{"id":36225,"date":"2025-04-01T14:17:06","date_gmt":"2025-04-01T14:17:06","guid":{"rendered":"https:\/\/www.cdr-news.com\/cdr-essential-intelligence\/fraud-asset-tracing-recovery\/\/"},"modified":"2025-04-04T13:24:10","modified_gmt":"2025-04-04T13:24:10","slug":"bermuda","status":"publish","type":"product","link":"https:\/\/www.cdr-news.com\/cdr-essential-intelligence\/fraud-asset-tracing-recovery\/bermuda\/","title":{"rendered":"Bermuda"},"content":{"rendered":"

Important legal framework and statutory underpinnings to fraud, asset tracing and recovery schemes<\/strong><\/h2>\n

Bermuda\u2019s constitution establishes the Supreme Court as the primary court of first instance and the Court of Appeal as the court with jurisdiction to hear appeals from judgments of the Supreme Court.\u00a0 The Judicial Committee of the Privy Council is Bermuda\u2019s final court of appeal.\u00a0 The common law, the doctrines of equity, and the Acts of the Parliament of England of general application that were in force in England at the date Bermuda was settled, 11 July 1612, have force within Bermuda pursuant to the Supreme Court Act 1905 (subject to the provisions of any acts of the Bermuda Legislature).<\/p>\n

A range of remedies, familiar to practitioners in other common law jurisdictions, are available to litigants in fraud, asset tracing and recovery cases in Bermuda.\u00a0 These include actions for information, such as Norwich Pharmacal<\/em> and Bankers Trust<\/em> orders, actions to protect and guard against the dissipation of assets, such as freezing orders and other injunctive relief, and actions to enforce judgments awarded against wrongdoers, including the ability to appoint equitable receivers over assets, garnishee orders, and orders for the seizure and sale of assets in satisfaction of judgments.<\/p>\n

Victims of fraud can make claims for unjust enrichment, breach of trust, breach of fiduciary duty, conversion, dishonest assistance, breach of contract, misrepresentation, as well as a host of other actions ordinarily available in the equitable jurisdictions in the High Court of England and Wales and other parts of the Commonwealth.<\/p>\n

Case triage: main stages of fraud, asset tracing and recovery cases<\/strong><\/h2>\n

Victims of fraud seeking to protect their interests and enforce their rights in Bermuda should consider the following key stages in their claim: investigation; preservation of assets; the action\/claim; and enforcement.\u00a0 Because of the complex and often fluid nature of fraud, these issues will need to be considered in the round by any potential litigant.\u00a0 The particular circumstances arising in connection with a claim may require certain stages to be considered, and actions to be taken in connection with such stages; in tandem with, or in advance of, other actions.\u00a0 For the purposes of this chapter, however, we will consider these stages in turn.<\/p>\n

Investigation<\/strong><\/p>\n

In cases of suspected fraud, the speed and accuracy with which parties are able to discover information can be crucial to the successful outcome of a claim.\u00a0 Such matters are paramount at the early stages of a claim in order to discover, protect and recover assets.\u00a0 There are several avenues available to a litigant to gather such information.\u00a0 The following are worth closer review.<\/p>\n

Public sources of information<\/em><\/strong><\/p>\n

When a company is the target of an investigation or a potential action, litigants can search and obtain from the public records of the Registrar of Companies, amongst other things, the location of the company\u2019s registered office (crucial for the effective service of documents in litigation), registered charges (note that registration is voluntary), winding-up notices, share capital information, the memorandum of association, the company\u2019s name (and any previous names), and its registration number.\u00a0 The Companies Act 1981 obliges companies to maintain registers of both the shareholders and the appointed directors and officers of that company, which must be kept at the company\u2019s registered office, and which are generally available for inspection by any member of the public.\u00a0 The Registrar of Companies launched an online company registry system in June 2021.\u00a0 This online registry allows the public to view all corporate registers maintained by the Registrar of Companies, and statutory filings and applications can also now be made online.<\/p>\n

The Supreme Court (Records) Act 1955 also gives any person the right to request to inspect and take copies of originating process and any orders on the court file in respect of pending cases, and there is a broader right of access in respect of historic cases and material which has been referred to in open court, subject to the payment of the requisite fee and other stated exceptions.<\/p>\n

The Public Access to Information Act 2010 also provides a right of access to information held by a government body.\u00a0 This can be used to great effect in a myriad of circumstances; however, certain kinds of information are subject to exemptions under this legislation.<\/p>\n

Disclosure<\/em><\/strong><\/p>\n

Pre-action disclosure is not generally available in Bermuda and, in the context of fraud and asset tracing claims, may not always be the most desirable route for seeking and receiving disclosure of key information.\u00a0 Ex parte<\/em> applications seeking the types of orders described below, when coupled with orders sealing the court file and \u201cgagging\u201d orders preventing the subject of the applications from \u201ctipping off\u201d the subject of the underlying claims, are available in Bermuda.<\/p>\n

Norwich Pharmacal<\/em> orders are available in Bermuda.\u00a0 If the court is satisfied that there is a good arguable case that wrongdoing has occurred, it has the power to order third parties mixed up in the wrongdoing, albeit innocently, to provide documents or information which may identify the wrongdoer.<\/p>\n

Bankers Trust <\/em>orders can also be sought, to require banks to provide records that would allow the assets of the ultimate wrongdoer to be traced.\u00a0 The Bermuda court has extended the effect of such orders beyond banks holding the proceeds of fraud, to include a defendant against whom the fraud has been alleged [Crowley Maritime Corporation v International Marine Assurance Group Ltd <\/em>[1988] Bda LR 42].\u00a0 There is no requirement to show involvement in the wrongdoing \u2013 unlike the Norwich Pharmacal<\/em> jurisdiction.<\/p>\n

The Bermuda courts have applied the principles set out in the case of Anton Piller K G v Manufacturing Processes Ltd<\/em> [1976] 1 All ER CA, making orders granting plaintiffs the right to enter and search a defendant\u2019s premises for the purposes of preserving critical evidence for the trial of the substantive claim [Crane and Dutyfree.com Inc v Booker and HS & JE Crisson Ltd<\/em>. [1999] Bda LR 51].\u00a0 Anton Piller<\/em> orders, particularly when made on an ex parte<\/em> basis, can be extremely useful tools for litigants dealing with less than scrupulous actors in a fraud and asset tracing context.<\/p>\n

Undertakings as to damages are ordinarily required as a condition upon which such orders are normally granted \u2013 particularly when such orders are granted on an ex parte<\/em> basis.\u00a0 The ordinary rules concerning the requirement to give full and frank disclosure also apply.<\/p>\n

Preservation of assets<\/strong><\/p>\n

Bermuda courts have jurisdiction to grant injunctive relief.\u00a0 Orders can be made on an interlocutory basis to maintain the status quo<\/em> until a party\u2019s substantive rights can be ascertained.\u00a0 An application for an injunction can be made prior to the commencement of proceedings, after proceedings have started or after trial; for example, in aid of preservation of assets pending the enforcement of a judgment.<\/p>\n

Interim injunctions can be granted on an ex parte<\/em> basis or on an inter partes<\/em> basis.\u00a0 The Bermuda court will assist litigants seeking to protect assets from being dissipated pending the outcome of underlying proceedings.\u00a0 The basis upon which the Bermuda Supreme Court\u2019s common law power to grant injunctive relief, including prohibitory injunctions requiring a party to refrain from doing something and mandatory injunctions requiring a party to do something, does not materially differ from the UK and other Commonwealth jurisdictions.\u00a0 This includes worldwide Mareva<\/em> injunctions [see Griffin Line Trading LLC v Centaur Ventures Ltd and Daniel James McGowan<\/em> [2020] Bda LR 38].<\/p>\n

The courts will often make orders for specific discovery concerning the assets which are the subject of a freezing order.\u00a0 Such orders, in addition to providing a clear picture of the assets in the defendant\u2019s possession, their location and their ownership, can also provide key insight with regard to the compliance (or not) with the terms of any order by the defendant during the progress of the substantive claim.\u00a0 Such orders can, and often are, endorsed with a penal notice.\u00a0 Non-compliance with such orders so endorsed can result in contempt of court proceedings and, ultimately, committal in some circumstances.<\/p>\n

The claim<\/strong><\/p>\n

A party equipped with sufficient information about the target of its claim and the location and value of assets, and having taken steps to preserve those assets pending the outcome of the substantive action, can make a substantive claim in the Supreme Court.<\/p>\n

Typically, civil proceedings brought in the Supreme Court may be commenced by writ, originating summons, originating motion or petition.\u00a0 In respect of claims related to fraud and asset tracing, such actions are usually founded in equity and\/or the common law, and are therefore normally begun by filing a generally endorsed writ of summons which names the parties to the action and provides very brief details of the relief sought.\u00a0 If the defendant defends the claim, a generally endorsed writ must then be supplemented by a statement of claim in which the initiating party provides the facts upon which it relies to found its action.<\/p>\n

A plaintiff seeking to recover assets lost can rely on actions similar to those available to litigants in England and Wales.\u00a0 Such actions commonly may include an action for conversion, unjust enrichment, breach of contract, fraudulent misrepresentation or an action for breach of trust or fiduciary duty and are often brought together as concurrent causes of action [see Ivanishvili and Ors v Credit Suisse Life (Bermuda) Ltd <\/em>[2022] Bda LR 28, a fraud-related claim brought by Credit Suisse Life customers which included claims for misrepresentation, breach of contract, breach of fiduciary duty and breach of statutory duty].<\/p>\n

In circumstances where the vehicle used to perpetrate the wrongdoing is a Bermuda company, litigants may look to the Companies Act 1981 for relief.\u00a0 The Minister of Finance has a statutory power under section 110 of the Companies Act 1981, on his own volition or on the application of \u201cthat proportion of members of a company, as in his opinion warrants the application\u201d to appoint one or more inspectors to investigate the affairs of a company and to report on their findings.\u00a0 This remedy is not available in respect of exempted or permit companies.<\/p>\n

Insolvency proceedings, allowing for the court to appoint and empower Joint Provisional Liquidators (JPLs<\/strong>) for the purpose of working with (or in some cases in place of) management of the company to secure the assets of the company for the benefit of its creditors, can be instituted where appropriate.\u00a0 Where a company is insolvent and\/or it is otherwise just and equitable that it be wound up, and the petitioner in a winding-up petition can demonstrate that there is a real risk that the company\u2019s assets are at risk of dissipation to the detriment of the creditors, the Bermuda court has the power to appoint JPLs on an ex parte <\/em>basis, whilst the underlying winding-up petition is afoot.\u00a0 In Re North Mining Shares Company Limited<\/em> [2020] Bda LR 8, the Supreme Court found:<\/p>\n

\u201cThe appointment of a provisional liquidator can sometimes be described as a draconian measure employed by the court to paralyse the directors of a company from their ability to deal with and dispose of the company\u2019s assets.\u00a0 In such cases, the appointment of a provisional liquidator is ordinarily ordered on an urgent ex parte <\/em>basis to enable swift and unforeseeable seizure of the control of the company\u2019s assets by the provisional liquidators.\u00a0 The underlying purpose here is to protect the interest of the company\u2019s creditors who are at risk of not being repaid their debts due to the likely dissipation of the company\u2019s assets.\u201d<\/p>\n

The appointment of JPLs pending the winding up of a company is a discretionary measure available to the court, and the exercise of that discretion will ordinarily require there to be a good case for saying that a winding-up order will ultimately be made.\u00a0 [See Raswant v Centaur Ventures Ltd & Ors<\/em> [2019] Bda LR 67.]\u00a0 A company should take a neutral position to a winding-up petition, including when an application is made on just and equitable grounds [see Spanish Steps Holdings Ltd. v Point Investments Ltd.<\/em> [2021] Bda LR 97].<\/p>\n

Enforcement<\/strong><\/p>\n

A domestic judgment can be enforced in various ways under Bermuda law, provided the judgment is for a sum of money payable on a certain date.\u00a0 A writ of fieri facias<\/em>, which is a direction to the court-appointed bailiff to seize the property of the judgment debtor in execution of the judgment to satisfy the sum of the judgment debt, together with interest and the costs of execution, can be issued.\u00a0 The court can also make an order for committal, grant garnishee orders and\/or a writ of sequestration in aid of enforcement, amongst other things.<\/p>\n

A money judgment entered against a party in the Supreme Court may be entered as a charge over that party\u2019s real property.\u00a0 An application for the appointment of a receiver over that property can be made.\u00a0 The Rules of the Supreme Court 1985 (RSC<\/strong>) also provide for an application for the appointment of a receiver over property by way of equitable execution.\u00a0 The court needs to be satisfied that it is reasonable to make such an appointment, taking into account the amount of the judgment debt owed and the costs of appointing the receiver.\u00a0 The jurisdiction is flexible; in a recent Supreme Court decision, it held, in the context of the enforcement of an arbitration award, that it was just and equitable to appoint receivers over the operating profit of a hotel in Panama, but not the revenues, due to concerns that may unduly impinge on existing hotel management at excessive cost [Trump Panama Hotel Management LLC & Anor v Hotel TOC Inc & Ors <\/em>[2023] SC (Bda) 74 Civ].<\/p>\n

The Judgments (Reciprocal Enforcement) Act 1958 (1958 Act<\/strong>) allows judgments for the payment of money (including arbitration awards which would be enforceable as a judgment in the UK) from the superior courts of the UK to be enforced by registration of the judgment in the Supreme Court at any time within six years after the date of the judgment.\u00a0 The Governor can also declare the application of the 1958 Act to other territories.\u00a0 So far, orders have included many countries within the Commonwealth.<\/p>\n

A foreign judgment which does not fall within the 1958 Act can be enforced in Bermuda under common law where the foreign court had jurisdiction over the debtor according to Bermuda\u2019s conflict of law rules.\u00a0 Formal pleadings must be filed in the Supreme Court.\u00a0 The debt obligation created by the foreign judgment can form the basis of a cause of action.\u00a0 There is no requirement for the creditor to re-litigate the underlying claim which gave rise to the foreign judgment.\u00a0 A foreign judgment obtained where the foreign court had no jurisdiction over the debtor according to Bermuda\u2019s conflict of law rules is not enforceable in this way and fresh substantive proceedings would be necessary in Bermuda seeking to prove once again the debt.<\/p>\n

A company truly and justly indebted to a creditor can be the subject of winding-up proceedings under the Companies Act 1981.\u00a0 A statutory demand which has been left at the company\u2019s registered office (for example) and which remains unsatisfied for a period of 21 days is evidence of that company\u2019s insolvency for the purposes of founding a winding-up petition.<\/p>\n

JPLs appointed under Bermuda\u2019s insolvency regime can be provided with broad powers to, inter alia<\/em>, set aside transactions which are voidable under the Companies Act 1981, investigate the affairs of the company, and bring actions against current or former directors of the company for breaches of directors and\/or fiduciary duties, as well as other common law claims typically used to trace assets for the purposes of the enforcement of such claims.<\/p>\n

The Bermuda courts are empowered by the doctrine of comity and Bermuda\u2019s common law insolvency regime to issue letters of request to courts in jurisdictions where the company may have assets or other relevant interests, which request that the JPLs\u2019 appointment and powers \u2013 in so far as they can in that jurisdiction \u2013 be recognised for the purposes of, inter alia<\/em>, carrying out their role of getting in and preserving the assets of the company for the benefit of the creditors [Re North Mining Shares Company Limited<\/em>].<\/p>\n

Parallel proceedings: a combined civil and criminal approach<\/strong><\/h2>\n

Victims of crime can complain to the police by attending any police station.\u00a0 In the ordinary course, a complaint is investigated after it is made by way of initial written statement \u2013 usually recorded and taken down in the presence of police investigators.<\/p>\n

A complaint to the Bermuda Police Service can provide a resolution for victims of fraud.\u00a0 The Bermuda Police Service is a highly sophisticated, well resourced, independent investigatory body with particular expertise in detecting and gathering evidence in support of criminal prosecutions.\u00a0 In addition to general powers of investigation, Bermuda\u2019s statutory framework provides specific powers to the Police Service allowing for the gathering of information \u2013 beyond those available to private citizens.<\/p>\n

The Proceeds of Crime Act 1997 has been described by the Bermuda Supreme Court as being \u201c\u2026designed to create a comprehensive and rigorous legislative framework designed to both prohibit money laundering activities and facilitate vigorous and effective enforcement action to investigate such activities, prosecute offenders and seize the proceeds of criminal conduct\u201d.\u00a0 [Fiona M. Miller v Emmerson Carrington<\/em> [2016] Bda LR 122.]<\/p>\n

The court in Carrington<\/em> went on to say this about the wide range of powers provided to law enforcement under the Proceeds of Crime Act 1997:<\/p>\n

\u201c\u2026 it equips the law enforcement authorities with the ability to acquire the most important tool for enforcing the Act: information.\u00a0 Powers which interfere with privacy rights in the public interest include the powers conferred on the Supreme Court to make production orders (sections 37\u201338), issue search warrants (section 39), and compel Government Departments to produce information (section 40).\u00a0 Customer information orders are provided for by section 41A-41G, with jurisdiction conferred on both the Magistrates\u2019 Court and the Supreme Court.\u201d<\/p>\n

In addition to the Proceeds of Crime Act 1997, Bermuda\u2019s Companies Act 1981 provides for specific criminal offences that may be committed by directors of companies, including falsifying records and altering documents relating to the company\u2019s affairs.\u00a0 Other Bermuda legislation dealing with crime in the area of fraud include the Criminal Code Act 1907 and the Bribery Act 2016.<\/p>\n

Civil proceedings based on facts which concern a criminal complaint can be advanced simultaneously.\u00a0 The court retains a general discretion to stay the civil proceedings pending the outcome of the criminal complaint.\u00a0 When considering an application for a stay, the court will consider the fair trial rights of the defendant and, in particular, whether there is a real risk that those rights would be prejudiced.\u00a0 In an application for a stay, the burden for demonstrating that the rights of the defendant would be prejudiced is on the applicant [Hiscox Services Ltd et al v Y. Abraham<\/em> [2018] Bda LR 88].<\/p>\n

Key challenges<\/strong><\/h2>\n

From a practical perspective, concurrent criminal and civil proceedings in respect of the same set of facts can be difficult.\u00a0 When a criminal case is referred to the authorities, there can be a sense that the plaintiff\/victim has lost control over the investigation or process which is left in the hands of a third party.\u00a0 Frustration may arise at a lack of progress or attention given to the issue.\u00a0 In a civil context, the plaintiff\/victim maintains the control and can decide what steps to take; however, they also bear the burden of costs of taking those steps at the outset, and the breadth of search and seizure powers is more limited than the police\u2019s investigation powers.<\/p>\n

Cross-jurisdictional mechanisms: issues and solutions in recent times<\/strong><\/h2>\n

The 1958 Act provides that judgments for the payment of money from many Commonwealth countries and territories can be enforced by registration of the judgment in the Supreme Court.\u00a0 A foreign judgment which does not fall within the 1958 Act can be enforced in Bermuda under common law.<\/p>\n

The Bermuda Supreme Court has also granted interim injunctive relief in support of foreign proceedings.\u00a0 This jurisdiction can be usefully exercised, for example, to prevent the sale of shares in a Bermuda company by the company pending the outcome of US or Hong Kong proceedings.\u00a0 Provided the court is satisfied of the usual test for the granting of an injunction and the court has jurisdiction over the defendant, if the court considers that the granting of the relief sought would be considered judicial assistance the court can exercise its discretion to make such an order [ERG Resources LLC v Nabors Global Holdings II Limited<\/em> [2012] Bda LR 30].<\/p>\n

Where it appears necessary for the purposes of justice, the RSC Order 39 provides the Supreme Court with the power to make an order for the examination on oath before a judge, an officer or examiner of the court or some other person, at any place.\u00a0 Part IIC of the Evidence Act 1905 and RSC Order 70 provide a statutory footing for the Supreme Court to make an order for evidence to be obtained in Bermuda for use in other jurisdictions.<\/p>\n

Using technology to aid asset recovery<\/strong><\/h2>\n

More businesses have now developed business platforms and user interfaces for completely digital transactions.\u00a0 This produces a larger trail of information from which litigants can trace funds and assets.<\/p>\n

Litigators are making increased use of artificial intelligence (AI<\/strong>) to assist in cases requiring complex evidence as to transactional activity and the trail of money.\u00a0 The tools being used range from discovery software, with AI facilitating searches and metadata extraction, to more specific tools which siphon information from the internet and publicly available sources to fit together pieces of the evidential puzzle, and predict the missing pieces when the full picture is not immediately clear.\u00a0 In addition to this, forensic IT specialists are often drawn on to analyse data on servers and databases which may provide a picture as to who is communicating with each other, and what data has been extracted from servers.<\/p>\n

Highlighting the influence of digital currencies: is this a game changer?<\/strong><\/h2>\n

Bermuda\u2019s Digital Asset Business Act 2018 (DABA<\/strong>) marked the first time a legislature created a legal framework to regulate digital asset businesses.\u00a0 DABA\u2019s enactment has led to an increased number of entities moving to Bermuda to benefit from operating in a sophisticated regulatory environment, which in turn has created a virtuous cycle of higher market confidence and business activity.<\/p>\n

Digital assets are susceptible to theft through the hacking of exchange wallets, personal wallets or any other methods of digital asset storage or transfer, as well as fraudulent entities that are designed to persuade retail investors, usually through advertisements, to participate in schemes that encourage investors to believe that they hold assets that are accruing value.\u00a0 DABA seeks to protect against that through various regulations, but that is not to say that these concerns are completely eliminated.<\/p>\n

The Courts in Bermuda have not yet published any decisions relating to digital currencies, but with an increase in activity in the sector it is not expected to be far away.\u00a0 The interim remedies likely to be required in cases involving digital assets are: (1) worldwide freezing orders to restrain defendants (including \u201cpersons unknown\u201d) and third parties (for example, digital asset custodians\/exchanges) from disposing of or dealing with assets in any way; (2) Bankers Trust<\/em> disclosure orders and\/or potentially Norwich Pharmacal<\/em> orders to compel any digital asset holding company that has been identified as the custodian of a wallet to disclose certain payment-related information about the account holders, including all of the \u201cKnow Your Customer\u201d information they have in relation to those who control the wallets; and (3) service of Bermuda proceedings abroad.<\/p>\n

Once the assets are identified, substantive claims are likely to seek compensation for restitution of unlawful gains and for the tort of conversion.\u00a0 If the ultimate beneficiaries can be identified, claims for deceit and restitution can be brought directly against these parties to recover the sums due and\/or digital assets, plus interest and any expenses incurred in the recovery process (including legal fees).<\/p>\n

Recent developments and other impacting factors<\/strong><\/h2>\n

The Personal Information Protection Act 2016 (PIPA<\/strong>) came into full force on 1 January 2025, after amendments were introduced in June 2023 to harmonise PIPA with the Public Access to Information Act 2010.\u00a0 PIPA attempts to clearly delineate the uses an organisation may make of the personal information it collects and the rights that individuals have in respect of their personal information.\u00a0 While PIPA generally restricts the uses an organisation may make of personal information to those which are clearly disclosed in the applicable \u201cprivacy statement\u201d, it carves out several exceptions, including by permitting the use of personal information \u201cfor the purpose of detecting or monitoring fraud or fraudulent misuse of personal information\u201d.<\/p>\n

Broadly speaking, in addition to providing general protections concerning the capture, processing and use of information, as companies and service providers implement more stringent protections around that information, PIPA and the safeguards it requires will assist in mitigating the risk against cybercrime to the ultimate benefit of Bermuda and its people.<\/p>\n","protected":false},"excerpt":{"rendered":"

Important legal framework and statutory underpinnings to fraud, asset tracing and recovery schemes Bermuda\u2019s constitution establishes the Supreme Court as the primary court of first instance and the Court of Appeal as the court with jurisdiction to hear appeals from judgments of the Supreme Court.\u00a0 The Judicial Committee of the Privy Council is Bermuda\u2019s final […]<\/p>\n","protected":false},"featured_media":0,"parent":36179,"template":"","meta":{"inline_featured_image":false},"product_brand":[],"product_cat":[3223],"product_tag":[],"class_list":{"0":"post-36225","1":"product","2":"type-product","3":"status-publish","5":"product_cat-fraud-asset-tracing-and-recovery","7":"first","8":"instock","9":"downloadable","10":"virtual","11":"taxable","12":"purchasable","13":"product-type-simple"},"yoast_head":"\nFraud, Asset Tracing & Recovery 2025 | Bermuda<\/title>\n<meta name=\"description\" content=\"This article explores fraud in Bermuda, discussing legal frameworks, 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