I have recently attended a Bermuda Court hearing in which a senior member of the Bermuda Bar (acting for a Defendant) tried to persuade the Court, at the outset of his own oral submissions, that the Plaintiff’s Counsel’s Reply speech should be tightly limited by the Court so that it might only relate to any ‘fresh point of law’ or ‘authority not previously cited’.
The Court left its determination of that issue open, as a matter of practical case management, preferring to cross that bridge once it came to the commencement of any potential Reply.
This is not the first time that a forensic argument has taken place before the Bermuda Court as to the proper role or scope of a Reply speech in Bermuda Court proceedings – and the fact that the point is so often taken leaves me with the impression that there might be some misunderstanding on the part of certain members of the Bar (whether they are local or visiting from overseas) as to the proper scope and purpose of a Reply.
It is possible that I am mistaken, but to my mind, it is important to appreciate that there are two kinds of Reply, depending on the type of hearing that is taking place:
(1) the first is a full, substantive Reply (i.e. a closing speech), which is the right of the Plaintiff (or such other party as bears the burden of proof) at a trial;
(2) the second is a narrow legal Reply, which is the right of a party who would not ordinarily have the last word/closing speech, to reply on a fresh ‘point of law’ or new ‘authority’ introduced or referred to by the other party.
There is surprisingly little guidance in the Rules of the Supreme Court, in the Practice Directions, and in the case law, as to the proper role and scope of a Reply speech, over and above RSC Order 35 rule 7. That rule, however, expressly applies to proceedings at trial, and it is unclear to what extent it applies to the hearing of interlocutory applications, or even final, substantive hearings which proceed purely by reference to written affidavit evidence but without live testimony and oral cross-examination of witnesses (i.e. applications for judicial review or statutory appeals).
There is also very little guidance, as far as I can see, as to the proper scope of an appellate reply in the Court of Appeal for Bermuda (and even in the Privy Council) – an issue which can get particularly complicated in those cases where there are cross-appeals or multiple parties.
In any event, it might be said that the strict forensic logic of RSC Order 35, rule 7 has been eroded, to some extent, by the increased prominence of written advocacy (in the form of Written Submissions and Skeleton Arguments), the Overriding Objective, and the Court’s duty of active case management. For example, it might well be said that, in most cases (particularly cases heard before a professional Judge, rather than a lay jury), it really should not matter which party or advocate is given ‘the last word’, provided that the parties and their advocates are given a fair amount of time and equal opportunity to address the Court (and to deal with any ‘new’ points of law that might arise at the very last minute).
For those who may be interested, RSC Order 35 rule 7 provides as follows:
“35/7 Order of speeches
7 (1) The judge before whom an action is tried (whether with or without a jury) may give directions as to the party to begin and the order of speeches at the trial, and, subject to any directions, the party to begin and the order of speeches shall be that provided by this rule.
(2) (3) Subject to paragraph (6) the plaintiff shall begin by opening his case.
(3) If the defendant elects not to adduce evidence, then, whether or not the defendant has in the course of cross-examination of a witness for the plaintiff or otherwise put in a document, the plaintiff may, after the evidence on his behalf has been given, make a second speech closing his case and the defendant shall then state his case.
(4) If the defendant elects to adduce evidence, he may, after any evidence on behalf of the plaintiff has been given, open his case and, after the evidence on his behalf has been given, make a second speech closing his case, and at the close of the defendant’s case the plaintiff may make a speech in reply.
(5) Where there are two or more defendants who appear separately or are separately represented, then—
(a) if none of them elects to adduce evidence, each of them shall state his case in the order in which his name appears on the record;
(b) if each of them elects to adduce evidence, each of them may open his case and the evidence on behalf of each of them shall be given in the order aforesaid and the speech of each of them closing his case shall be made in that order after the evidence on behalf of all the defendants has been given;
(c) if some of them elect to adduce evidence and some do not, those who do not shall state their cases in the order aforesaid after the speech of the plaintiff in reply to the other defendants.
(6) Where the burden of proof of all the issues in the action lies on the defendant or, where there are two or more defendants and they appear separately or are separately represented, on one of the defendants, the defendant or that defendant, as the case may be, shall be entitled to begin, and in that case paragraphs (2), (3) and (4) shall have effect in relation to, and as between him and the plaintiff as if for references to the plaintiff and the defendant there were substituted references to the defendant and the plaintiff respectively.
(7) Where, as between the plaintiff and any defendant, the party who would, but for this paragraph, be entitled to make the final speech raises any fresh point of law in that speech or cites in that speech any authority not previously cited, the opposite party may make a further speech in reply, but only in relation to that point of law or that authority, as the case may be“.