By NEILL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

A prominent broker’s bid to obtain regulatory clarity and generate increased Bahamas-based business from foreign carrierrs has survived the Insurance Commission’s efforts to have its legal challenge struck out.

Justice Simone Fitzcharles, in a June 30, 2026, verdict rejected the insurance regulator’s arguments that she should dismiss Orry J Sands & Company’s attempt for Supreme Court affirmation that it represents Sagicor as a standalone agent rather than as a “branch” of the pan-Caribbean insurance and financial services giant.

The East Shirley Street-based broker is arguing that the outcome of the dispute, which centres on “the correct interpretation of Sagicor’s Bahamas operations” and whether it conducts these as an independent agent or “branch of a foreign company”, is critical to its ambitions to attract more foreign insurance underwriters into this market and increase business for itself.

Its position is that the Insurance Commission’s decade-long belief that it acts as a Sagicor “branch”, rather than as its local agent, is “erroneous” and impacting how the business is registered under the Insurance Act. Justice Fitzcharles wrote that this impacts not only Orry J Sands’ “legal and financial position”, but has wider regulatory implications for the insurance industry and how “foreign companies may conduct business through local agents.

The Insurance Commission, though, had moved to have the 41 year-old agent and broker’s action struck out, or obtain summary judgment in its favour, on the basis that Orry J Sands had no standing to bring such a claim, there were no “reasonable grounds” for launching it, and there was “no real prospect of succeeding”.

Justice Fitzcharles, who ultimately dismissed the regulator’s bid to kill-off the action, said Orry J Sands has been in business since October 1985 and represented both Bahamian and international insurers as “managing” or “exclusive” agents. One such client is Sagicor, for whom it acts as its general managing agent.

The Insurance Act and its accompanying regulations give overseas insurance underwriters the option of registering as either a branch or operating through Bahamian agents and brokers. The September 2, 2016, registration certificate issued by the Insurance Commission to Sagicor identified it as “a branch of a foreign company” - and not operating via an agent - with its main office at Orry J Sands’ address of 300 East Shirley Street.

Sagicor was licensed to offer property, liability, accident, motor, monetary loss, and marine, aviation and transport insurance policies in The Bahamas. “The main difference between the parties is over the designation of Sagicor as a ‘branch of a foreign company’,” Justice Fitzcharles wrote.

“The claimant avers that the defendant has insisted that Sagicor's operations in The Bahamas are carried out as a branch of a foreign company, rather than through the medium of a local agent, Orry J Sands.

“The claimant contends that this is erroneous and the defendant [Insurance Commission] has failed to correct this view although the claimant has attempted over years to persuade the Insurance Commission of The Bahamas that the true interpretation of the facts and law is that Sagicor is an overseas company operating in The Bahamas through the medium of a local agent.”

The judge continued: “In the circumstances, by its originating summons filed on March 30, 2022, Orry J Sands seeks declarations from the court as to the correct interpretation of Sagicor's operations in The Bahamas in order to clarify the distinction between an agency and a branch of a foreign company for the purposes of registration under the Act.

“Such guidance, Orry J Sands submits, will clarify the relationship with Sagicor and future agency relationships that might be entered into between Orry J Sands as general managing agent and foreign insurers who wish to operate through the medium of local agents.” Sagicor is not named as a party to the dispute, but Orry J Sands said it had always been authorised to handle its registration and conduct business on its behalf in The Bahamas.

“The claimant states that the defendant has not explained why it would accept that Orry J Sands has standing to make the application for registration of Sagicor, but challenge the standing of Orry J Sands to dispute the manner in which the defendant has dealt with that application for registration,” Justice Fitzcharles wrote.

“It appears that Orry J Sands as managing agent had exclusive control over all details of the organisation and structure of Sagicor's operations in The Bahamas. Sagicor's policy and practice relating to the settlement of claims was stated to be under the control of Orry J Sands. In addition, Orry J Sands handled registration of Sagicor exclusively.”

Justice Fitzcharles, in rejecting the Insurance Commission’s assertion that the broker and agent had no standing to bring the action, added: “In this case, Orry J Sands does not have a merely financial interest in seeing that what it views as the correct designation of its principal is accurately reflected in the Certificate of Insurance.

“Orry J Sands interest is genuine and direct in the sense that it solely conducts Sagicor's business in The Bahamas. If the defendant characterises this as a ‘branch of Sagicor in The Bahamas’, Orry J Sands is being deemed to be the office of a branch of Sagicor. Orry J Sands contends it is not carrying on the business of providing a branch office for Sagicor. Moreover, Orry J Sands insists that it is not in the business of being the managing general agent of a branch of a foreign insurance company.

“The designation affects the claimant's legal and financial position. Moreover, the broader implications of the declaratory relief sought by Orry J Sands in this matter are such that they may affect the proper regulatory scheme and the circumstances in which foreign companies may conduct business through local agents in the insurance industry in The Bahamas,” the judge said.

“Both the lawful structure of the local agency's arrangements and the proper interpretation of section 28(1) and the registration regime under the [Insurance] Act are affected by the declarations sought by the claimant.”

The Insurance Commission had also argued that Orry J Sands’ action had no chance of success because it was “based on a mistaken reading of the Act” and a “mistaken premise that operating as a branch of a foreign company is inconsistent with carrying on insurance business through an agent”. However, Orry J Sands countered that the dispute goes to the heart of how Sagicor operates in The Bahamas as there is no branch operating from its East Shirley Street offices.

Noting that the Insurance Act contains no definition of a ‘branch’, Justice Fitzcharles wrote: “The Insurance Commission uses the term 'branch' and contends that it is not used as a legal term of art and has no legal effect except to describe a certain situation.

“However, the fact that Sagicor has disagreed and has soon thereafter sought to wind up its affairs in The Bahamas, coupled with the insistence of Orry J Sands in maintaining this application, are factors which reveal that the designation of a foreign insurer as having a 'branch' in The Bahamas, when it is contended it operates through a general managing agency, is not taken lightly.

“In some jurisdictions, in the context of cross-border insurance, the designation of 'branch' may carry regulatory, legal and tax implications, whether it refers to a direct 'brick and mortar' extension of the foreign insurer's head office or not. Further, how the claimant conducts its agency business and advises foreign insurers which approach it to act as general managing agent are some of the factors directly affected by the defendant's designation,” she said.

“In the circumstances, to confer the designation of 'branch' upon the operations of the foreign insurer and the managing general agent without reference to a legal meaning for that term, where such legal meaning may otherwise exist and give rise to other implications, readily invites the enquiry submitted by the claimant.”

Justice Fitzcharles also found that the question of whether, under the Insurance Act, the meaning of ‘branch’ equates to operations through an independent agent, is “ripe for resolution” as she branded the regulator’s dismissal claim “an unwarranted nuclear option”.

Rejecting the other strand of the Insurance Commission’s strike-out bid, she ruled: “I do not agree at this point that the application discloses no reasonable grounds or that the prospects of success are fanciful and not real… Who is right on an interpretation of the Act?

“The answer is not purely academic, and whatever it may be, it seems to me that the issue gives the claimant at least a concrete commercial and regulatory interest. Therefore, I am of the view that the court should answer the questions posed and refrain from short-circuiting the process by a strike-out or summary judgment, both of which are inappropriate in the circumstances.”

Orry J Sands is seeking Supreme Court declarations that Sagicor’s Bahamas general insurance operations are conducted by itself as its local representative, and not as the branch of a foreign company; that Sagicor’s certificate of registration be changed to reflect this; and that a foreign insurer which meets the Act’s requirements can operate as an agent without needing to maintain a Bahamas branch.

Gail Lockhart-Charles KC represented Orry J Sands, while Dawson Malone of Callenders & Co acted for the Insurance Commission.