Monday, October 29, 2018

Constitutional Reform 2018



Events Subsequent to the Delivery of the Report of the Constitutional and Electoral Reform Committee of Anguilla
The Committee was established by letter from the Hon Minister of Home Affairs in September 2015.  Members of the Committee were,
Don Mitchell, CBE, QC, Chairperson
John Benjamin, QC
Hon Evalie Bradley
Keesha Carty
Arielle Gaskin
Marie Horsford
Colville Petty, OBE
Stanley Reid, OBE
Allister Richardson
Kristy Richardson-Harrigan
Conrad Rogers
Statchel Warner
The Committee became functus when it completed its task and delivered its final Report to Ministers of the Executive Council of Anguilla in March 2017, after a year and a half of work.  The Committee disbanded at that point and has never met since. 
Government has not shared any views with the Committee until late last week Friday 26 October when members were sent a draft Order in Council prepared by the FCO proposing amendments to the 1982 Constitution, correspondence between the Chief Minister and the FCO, and a press release indicating the draft Order in Council was to be presented to the House of Assembly on the following Tuesday 30 October.
When the Committee delivered its Report to Ministers, it reminded them that the Report (and its first draft of a new Constitution that would incorporate all of its recommendations) was the result of extensive public consultation.  The Report had the approval of the overwhelming majority of Anguillians who had participated in the exercise by correspondence, attending meetings, and by posts in social media.  If, therefore, they were unable to accept any part of the Committee’s recommendations, it was incumbent on them to go back to the people and explain their rationale for omitting or altering any of the proposals, particularly if they affected the institutions protecting good governance (Chapter 9) or the provisions for securing the public finances of Anguilla (Chapter 10).  They appeared to understand and accept that responsibility.
The Hon Minister of Home Affairs has now shared with the Committee and the public some of the correspondence between the Hon Chief Minister of Anguilla and Lord Ahmad of Wimbledon, Minister of State for the Overseas Territories, on amending the Anguilla Constitution.  In particular we have seen,
(a) Mr Banks’ letter to Lord Ahmad of 29 June 2018;
(b) Lord Ahmad’s letter to Mr Banks of 17 July 2018;
(c) Mr Banks’ letter to Lord Ahmad of 13 August 2018; and
(d) Lord Ahmad’s letter to Mr Banks of 16 October.
In his letter to Lord Ahmad of 29 June Mr Banks proposes that constitutional reform should proceed in two stages.  The first will deal mainly with a number of issues for electoral reform, while the more substantial proposals for reform are to be left for a second stage.  At the top of page 3 of his letter, Mr Banks states,
It is proposed that when this phase is near completion, that our respective Governments will commence discussions in relation to the second phase.  I have therefore attached the report of the Constitutional and Electoral Reform Committee for your perusal of the recommendations, most (but not all) of which have been accepted by our Government.”
It is the final sentence that causes the most concern.  Mr Banks states that his government has not accepted all of the recommendations of the Committee.  But, he nowhere hints which of the recommendations he has not accepted.  He does not acknowledge that he must take any proposal to vary the Report and Recommendations of the Committee to the people whose views are reflected in the Committee’s Report.
Lord Ahmad responds to Mr Banks by letter of 18 July 2018.  He writes,
Noting your comment that not all the Committee’s proposals have been endorsed by your government, I await your further views on the Committee’s proposals for this second stage.
By this language, Lord Ahmad shows that he is aware that the government of Anguilla cannot unilaterally decide to vary the recommendations of the Committee.  But, he appears unaware that the Committee is presently completely without any authority to agree changes.  Changes will require the consent and agreement of a substantial portion of Anguillians.  That is a role for Government.  They want to make changes.  They should go to the people and explain what changes they want, and attempt to secure the consent of the people to those changes.
Let us hope and trust that Lord Ahmad will remind the Anguilla government that any changes to the Recommendations must be put to the people, discussed with the people, and their consent and agreement secured.  This can be done in the same way that the Committee went about discussing the original proposals with the people, explaining them, taking their views into account, and finally arriving at a point where the Committee could be confident it had the consent of a majority of the people who participated in the exercise.
We must hope that the FCO will not be complicit in any effort by any Anguilla administration to water down the “checks and balances” provisions, the “watchdog measures” and the “institutions promoting good government” that the Report recommended be installed in any revised new Constitution.
One possible outcome of this imbroglio may be that the Anguilla government will persuade the FCO to sign this Order in Council giving them more jobs and positions and generally making the politicians happy, and the exercise will end there.  If either the local government or the FCO are unhappy with some of the good government provisions that they propose be left for the second stage, then if government is not able to secure the consent of the people, the reform project will die a silent death.
Given the proven skill of the local authorities in creating elaborate smoke screens and running rings around UK officials, we should not be holding our breath.  The frustration of the good government proposals may well be the main object of this exercise.  Only time will tell.

Sunday, October 28, 2018

Debtor's Jail


Debtor’s Prison in St Kitts, Nevis and Anguilla
The Background
Imprisonment for debt in the islands of St Kitts, Nevis and Anguilla has been abolished for over 100 years.  Prior to the year 1889 the most common method of enforcing a judgment for money was by way of imprisonment.  Besides the writ of fieri facias (by which the debtor’s personal possessions could be seized and sold) the most usual way to collect a judgment debt was to seize the person of the debtor and imprison him in the hope of coercing him to sell his real and other property to settle his debt.  Unlike today there was at that time no need to allege that the debtor had behaved dishonestly in order to obtain a writ of arrest to enforce a judgment debt.
The dispatches of the Governors back to the Secretary of State in London remark that common debtors on occasion filled the prisons of Basseterre and St John's, Antigua.[1]  Reform eventually came to the Leeward Islands by way of introducing the UK reforms of some 20 years earlier.
The Debtor’s Act of the Leeward Islands,[2] which came into effect in St Kitts on 31 December 1888, instituted a major reform in the law applicable to civil debts.  This Act was based on the Debtor’s Acts of 1869 and 1878 of the United Kingdom.  The purpose of the Act was to clear the prisons of persons imprisoned for debt.  From the date of the Leeward Islands Act no debtor may be imprisoned in St Kitts and Nevis save under the limited procedure authorised by the Act.  The rule now is that no person may be arrested or imprisoned for making default in the payment of money, save in certain specific cases such as failure to pay a fine, as explained below.
The principle which the law seeks to enforce is that if any merchant gives credit to a customer who does not have the means to pay for the goods bought, then that is a risk that the merchant chose to take.  If any money lender hands over to a borrower a sum of money without taking adequate security for the loan, then that is a risk that the money lender chose to take.  The careless creditor is not to be permitted to come to law and expect to find a summary procedure that allows him to enforce his reckless transaction by the imprisonment of the impecunious debtor.
The Oral Examination Procedure
The rules of the High Court include a procedure for conducting an Oral Examination of a judgment debtor who is not paying his debt.  The Oral Examination is not a method of enforcement of a judgment.  It is merely a tool to assist a legal practitioner to determine which method of enforcement to use.  It is a particularly valuable tool where the judgment creditor does not know the nature and location of the assets or income of his judgment debtor.  Oral Examinations are governed by Part 44 of the Civil Procedure Rules, 2000.  The mechanism is explained in the English Supreme Court Practice.  It is essentially as follows.  The legal practitioner for the judgment creditor, by an application without notice, obtains from a judge an order for the Oral Examination of the judgment debtor.  That order in Form 14 is served personally on the judgment debtor at least 7 days before the date fixed for the examination.  At the same time, a draft financial position notice in Form 16 requiring the judgment debtor to complete a statement of his financial position is served.  An affidavit of service must be filed not less than 3 days before the date fixed for the examination.
The examination is conducted normally by the Registrar or Master.  The judgment debtor is examined as to his means to pay by his lawyer and cross-examined by the lawyer for the judgment creditor.  The Registrar or his clerk writes out the evidence of the judgment debtor on loose sheets of paper.  At its conclusion the statement is read back to the judgment debtor, who then signs it.  The record of the evidence of the judgment debtor is placed on the court file.  Parties may receive a copy of it from the Registrar on payment of any necessary photocopying fee.  A copy of it may be exhibited in due course with any affidavit supporting a method of enforcement that may subsequently be applied for.  After the completion of the Oral Examination procedure, the legal practitioner for the judgment creditor is expected to decide which of the various enforcement options provided by the rules he will use.
No order of imprisonment can be made under or subsequent to the Oral Examination procedure.  Even if an offer of payment is made by the judgment debtor and accepted at the Oral Examination, and an order is made, that order is not enforceable by imprisonment.  The creditor’s lawyer must follow up the Oral Examination proceedings by an application for one of the enforcement proceedings provided for in the rules.  These procedures include a writ for the sale of personal property, a charging order on shares in companies, or an order for the sale of any land discovered in the Oral Examination.  A consent order for payment of a judgment debt made under one of these procedures must be given effect by obtaining a further order under a Judgment Summons.  A breach of such a consent order cannot be followed by a Motion for Contempt and the imprisonment of the defaulting judgment debtor.  This is a consequence of the provisions of the Debtor’s Act.
The Judgment Summons Procedure
Part 52 of CPR 2000 is the rule governing the issue of a Judgment Summons in the jurisdiction of the Eastern Caribbean Supreme Court.  Part 52.1 applies to applications to commit to prison a judgment debtor for non-payment of a debt “where this is not prohibited by any relevant statute”.
The most relevant statute is of course the Debtor’s Act.  This Act abolished imprisonment for debt except in six specific cases.  They are set out in section 3.  They are:
(1) default in the payment of a fine or penalty;
(2) default in the payment of a sum recoverable summarily before a Magistrate;
(3) default by a trustee ordered by the Court to pay any sum;
(4) default by a solicitor in payment of costs for misconduct;
(5) default in payment for the benefit of creditors of any portion of a salary in respect of which a court having jurisdiction in bankruptcy is authorised to make an order; and
(6) defaults in payment of sums in respect of payment of which orders are in this Act authorised to be made.
We are interested in the exception found at paragraph (6) which covers judgment debtors.  Section 4(1) of the Act governs committal to prison for non-payment of a judgment debt.  It provides that the court may commit a judgment debtor to prison for a term not exceeding 6 weeks.  There are conditions that must be satisfied.  The order (a) must be made by a judge (b) in open court (c) by an order showing on its face the ground on which it is issued.  Further, (d) the court can only make such an order where it is proved to the satisfaction of the court that the person making default has or has had since the judgment the means to pay the debt and has refused or neglected to do so.
Section 4(3) authorises the judge to exercise his jurisdiction under this section in Chambers or otherwise in the prescribed manner.  However, section 4(1), as we have seen, requires the order committing the judgment debtor to be made in open court.  In my day as a legal practitioner, that order for imprisonment was obtained by a contempt motion heard in open court on what was called “Motions Day”.  Now, under Part 52.4 on hearing the Judgment Summons the judge may make a suitable order for payment of the judgment debt by a particular date or by specified instalments under penalty as provided by the Debtor’s Act.  The subsequent application for the committal to prison of a defaulting debtor is explained below.
Imprisonment in the High Court under the Judgment Summons Procedure
CPR 2000 is a form of subordinate legislation made by the Chief Justice, and is subject to the substantive law of the Debtor’s Act.  So, Part 52 must be read in conjunction with the Debtor's Act and the rules made under it.  In particular, the Debtors (Committal) Rules govern the procedure for enforcement of an order for payment and committal made by a judge under a Judgment Summons.[3]  CPR 2000 does not amend or replace the Debtor’s Act and the Rules made under it.  Where Part 52 appears to conflict with the u, then Part 52 must give way.  However, I do not believe there is any conflict between the two.
Part 52.2 provides for all applications to commit a judgment debtor to be made by way of a Judgment Summons in Form 21.  The summons must state certain particulars.  Sub-rules 3, 4 and 5 provide for the service and hearing of the summons and the enforcing of any instalment order.  This is in accordance with the Debtor’s Act.
In following the procedure under Part 52.2, a careful legal practitioner will bear the Debtors (Committal) Rules in mind when applying for the imprisonment of a judgment debtor.  Sub-rule 2 requires that the application to commit the judgment debtor to prison must be made by summons and shall specify certain particulars.  By sub-rule 3 the service of the summons must be personal unless the judge is satisfied that the judgment debtor is evading service.  Sub-rule 4 provides that proof of the means of the debtor shall, whenever practicable, be given by affidavit.  In High Court proceedings, the affidavit must be sworn by the client or someone else knowledgeable about the debtor’s affairs, not by the legal practitioner or his clerk, as is sometimes done in the Magistrate’s Court.  Where it appears to the judge that the debtor or other person should attend court but is absent, the judge may order the person's attendance for the purpose of being examined on oath.  Sub-rule 5 provides that the judge may then make an order of committal in Form A in the Schedule to the rules.  These Debtor’s Act provisions are all essentially the same as those in Part 52.
The hearing of a Judgment Summons cannot be carried out by a Master or the Registrar.[4]  While a Registrar or Master frequently handles Oral Examinations, only the judge is permitted to hear a Judgment Summons.  This is a consequence of the penal implications of an order made in this proceeding.
The judge may not make a suspended committal order on the first or other early hearing of a Judgment Summons.  This would conflict with Sub-rule 2 of the Debtor’s (Committal) Rules. 
Where there has been default in any order for payment under the Judgment Summons, the judgment creditor must follow the provisions of Part 53 to obtain a committal order.  Part 53 provides the requirements that the judgment creditor must meet before the judgment debtor may be committed.  These are essentially the same as the provisions of the Debtor’s (Committal) Rules.  So, at Part 53.3, (a) the original order made by the Judge on hearing the Judgment Summons must have been served personally on the judgment debtor.  (b) The order must have been endorsed with a penal notice.  If the penal notice is missing, the order is ineffective.  (c) There must have been sufficient time after service of the order afforded to the judgment debtor to comply.  (d) The Summons applying for the committal order must specify the exact nature of the alleged breach, (e) be verified by affidavit, and (f) be served, and (g) there must be an affidavit of service.
To recap, the Oral Examination procedure is not a mechanism for obtaining an order for periodic payments by a judgment debtor although such an order is sometimes obtained by consent.  Any such order made by a Master or Registrar is unenforceable.  Any attempt to enforce it by imprisonment is an illegal avoidance of the protections introduced by the Debtor’s Act.
It is not open to a court to imprison a debtor for contempt (in a case where the debtor failed to pay an instalment on a judgment) otherwise than as permitted by the Debtor’s Act.  Even when the court is satisfied that the judgment debtor has the means to pay the debt but he has failed to pay it, in the absence of a final order under a Judgment Summons, he may not be imprisoned.  The flouting of an order to pay a judgment debt can only be properly adduced under the Judgment Summons procedure.  That is the correct proceeding, not because it is right or just, but because the Debtor’s Act says so.  Until the Debtor’s Act is overturned by parliament it remains binding law.  An illegal imprisoning of a judgment debtor by a Judge may have the consequence of making the State liable to the debtor in a claim for damages.
Once the detailed provisions of the Debtors (Committal) Rules and Part 53 of CPR 2000 are followed by the legal practitioner for the judgment creditor, and credible evidence of wilful default (in paying the amounts ordered by the judge to be paid at the earlier hearing of the Judgment Summons) is produced to the judge, a committal order can be requested.
Where the debtor’s Oral Examination produced evidence of his ownership of land or valuable personal possessions, the court will expect alternative enforcement proceedings to be preferred instead of pursuing an order for imprisonment.  If the debtor has failed to comply with an order for payment by instalments, and additionally owns property, the court will expect the property to be proceeded against before an application for a Judgment Summons is made.  Committal for contempt of court as a method of collecting a judgment debt is the last recourse available to a judgment creditor, and will be sparsely awarded.
Don Mitchell
17 September 2018
A revised version of an October 2010 paper delivered to the Antigua and Barbuda Bar Association:
30 October 2018
Revised again for use in a panel discussion on Radio ZIZ of St Kitts on the topic of “Debtors’ Jail”


[1]      Additionally, the Quaker missionary John Candler who visited the West Indies in 1841 reported that 6 of the 56 prisoners in the Basseterre jail at the time of his visit were debtors.
[2]      An Act of the Federal Assembly of the Colony of the Leeward Islands [No 2/1888].
[3]      Made on 24 November 1890 under section 8.
[4]      Practice Direction 2 of 2007 made by the Chief Justice under Part 4.2(2) of CPR 2000.

Thursday, September 27, 2018

Anguilla's Slow Recovery


The US swiftly recovered from the 2008 financial crisis mainly due to quantitative easing, when the US Treasury printed hundreds of billions of dollars to pump into the stock market.  In Britain the Bank of England printed money for government to buy up the failing UK banks.  By contrast, in Anguilla the Eastern Caribbean Central Bank and the local government stood by as the two domestic banks continued to lend hundreds of millions of dollars to borrowers who would never be able to repay their loans.  The shareholders had no idea what was going on.
The National Bank of Anguilla (NBA) was held by 4,000 shareholders in an island with a population of 14,000.  In 2008 its assets stood at over EC$1 billion.  That was the last year the bank held an Annual General Meeting of its shareholders.
In 2008 Flag Luxury Resorts, the major real estate development company on the island, collapsed.  When its 400 workers were sent home, approximately 25% of the private sector became unemployed overnight.  Loans that had previously been faithfully serviced immediately became bad loans.
2008 was the last year that NBA published its accounts.  No annual general meeting was held after that date.  It was rumoured the Central Bank had rejected the company’s accounts.  No explanation was forthcoming.
In 2013 the Central Bank moved in on NBA and another private bank putting them into conservatorship.  The uncomprehending islanders were told it was to save the banks.  Local deposits were safe.  By contrast, the international depositors in the seized banks were not so lucky.  They had no access to their funds amounting to many tens of millions of US dollars. The result is expensive litigation in the courts of Anguilla and New York.
In 2016 government announced its banking solution.  The good assets of the two banks were transferred to a new bank with government as its sole shareholder.  The bad assets were transferred to an asset management company which would try to collect.
Prudential guidelines mandate that no more than 5% of bank loans are permitted to be in default.  By the time the Central Bank moved in 2013, some 50% of NBA’s $1 billion in loans were non-performing.  At all times, the board of directors were well aware of this.  Only one of them resigned.
When asked why they had taken no steps to collect on the bad loans before the Central Bank moved in, the directors privately explained they were between a rock and a hard place.  If they wrote off the bad loans and placed the debts in the hands of the lawyers, half the capital of the banks would be written off.  The sale of the loan securities would ruin the defaulting borrowers.  The borrowers were their ex-schoolmates, if not their brothers and sisters.  With the collapse of Flag, the market for real estate was depressed.  Nothing could sell.  Further, the law protecting borrowers was so restrictive that the banks had no chance of selling the securities to repay the bad debts.  That was the rock.  The alternative was to continue as before, hope the economy would turn around, and all the bad debts would become good once again.  This was the hard place.  The banks might be lost, but there was no down side for the directors personally.  They chose this option.
Up to today, not even the names of the major defaulters are published so fingers can be pointed.  They continue to sit in the front pew in church, and to take the head of the table at social events.
It gradually dawned that there was no question of punishing any of the management or the directors of the two closed down banks.  Whatever investigations took place, government kept the results secret.  We were told that people’s banking business was confidential.  No one went to gaol.  No one got sued.  After all, any negligent bank officers and directors are close family and associates of legislators, ministers, Permanent Secretaries, and senior police officers.  There will never be any report on who was to blame for Anguilla’s fall from financial grace.  No one will ever be punished for the loss of the banks.
Gradually a palpable sullenness has come to dominate the mood of most Anguillians.  The lack of confidence of Anguillian society in its leadership is as thick as cold porridge.
We hear on the radio complaints that the EC$800 million public debt will burden generations-to-come.  We hear from lawyers that the confiscation of the international depositors’ funds will kill confidence in Anguilla’s banks.  Anguillians’ eyes glaze over as we listen even without taking it in.
We hear the loudest voices on radio talk-shows warning of coming Armageddon.  Loudmouths spout obviously made-up conspiracy theories.  Some of the worst of the defaulting borrowers have led what little protest there has been against the way government took over the banks.  Their brazenness contrasts with the humility of the average Anguillian left to contemplate the unexplained loss of their nest eggs of investment.
Meanwhile, Anguillians who previously held EC$1 billion in bank capital now hold worthless shares in the old banks that have been stripped of their assets.  Only the receivers benefit from the continuing liquidation of the two banks at the rate of hundreds of US dollars an hour.  Soon there will be nothing left.  The 5,000 Anguillians who held some EC$30 million in an earlier failed investment company promoted by NBA can only shake their heads in pain as the directors continue to pretend to be directing.
In September 2017 Hurricane Irma wiped out our private and public infrastructure.  The total damage suffered is estimated to be close to EC$900 million dollars.  Anguillians got up and dusted ourselves off.  Mainly using our private resources, we rebuilt our private properties.  We were called resilient.  Perhaps we were just numb from the earlier financial beating we suffered.  We shareholders lost a billion dollars with the 2013 collapse of NBA alone.
Local hardware stores and supermarkets become more and more run-down, as Chinese financed replacements flourish.  Since 2008 several hundred Chinese migrants appear to have benefited from our liberal work permit policy.  On every street corner, new Sports Bars bearing bright signs illustrated with paintings of scantily dressed ladies on them flourish.  They employ large numbers of desperate Venezuelan and Santo Domingo girls imported with the permission of an acquiescent government.  Disillusioned Anguillians walk past these new business opportunities every day on our way to church or work.
The one bright star was the Social Security Fund.  The Board holds the monies in the Fund in trust for the workers of Anguilla to whom the benefit of the monies belong.  The monies are to be invested so the fund grows and produces profits for future generations to benefit.  The most sacred duty of a Social Security Board is to protect the Fund against attempts by desperate governments to dig their shovel into it.  Government has an unlimited number of worthwhile projects for the public good that need funding.
So, it was as if an anaesthetising hypodermic needle had been inserted into our collective spines when earlier this week we heard a government minister claiming proudly on radio that he had convinced the Anguilla Social Security Board to let him have $5 million (US or EC was not revealed) of the Fund to invest in purchasing private land to enlarge his favourite public project in his constituency.  The Board has not confirmed this is true.  The Board has not said it is not true.  Clearly such a use of Social Security funds will produce no income and is not a real investment for the benefit of the workers.  Even though the payment was legal, it is a shocking betrayal of the workers.  It is a dangerous precedent.  This is how the run on Social Security starts.  It starts with $5 million.  Then, $10 million is needed for something else.  The law is changed to make it possible.  Anguillians are paralysed by fear at the prospect.  If the Fund can be so easily dipped into by one smooth-talking minister, then nothing in Anguilla is sacred any longer.  All is lost.
Now government has announced that it has committed to selling the major part of its shares in the national electricity company, the water company, and the new bank.  These are all exciting new opportunities we are told.  We shake our heads in disbelief on hearing this.  The blows we have received over the last decade have drained us of resources.  We have no money left over to invest in these projects.  We are not just dispirited, we are gutted.
It is incredible that anyone would believe that Anguillians would take another chance of investing our remaining savings in any local public company ever again.  The Chinese will have to be invited in if government is to have any chance of unloading its shares.

Monday, September 17, 2018

Debtor's Prison


The Background
Imprisonment for debt in the islands of St Kitts, Nevis and Anguilla has been abolished for over 100 years.  Prior to the year 1889 the most common method of enforcing a judgment for money was by way of imprisonment.  Besides the writ of fieri facias (by which the debtor’s personal possessions could be seized and sold) the most usual way to collect a judgment debt was to seize the person of the debtor and imprison him in the hope of coercing him to sell his real and other property to settle his debt.  Unlike today there was at that time no need to allege that the debtor had behaved dishonestly in order to obtain a writ of arrest to enforce a judgment debt.
The dispatches of the Governors back to the Secretary of State in London remark that common debtors on occasion filled the prisons of Basseterre and St John's, Antigua.[1]  Reform eventually came to the Leeward Islands by way of introducing the UK reforms of some 20 years earlier.
The Debtor’s Act of the Leeward Islands,[2] which came into effect in St Kitts on 31 December 1888, instituted a major reform in the law applicable to civil debts.  This Act was based on the Debtor’s Acts of 1869 and 1878 of the United Kingdom.  The purpose of the Act was to clear the prisons of persons imprisoned for debt.  From the date of the Leeward Islands Act no debtor may be imprisoned in St Kitts and Nevis save under the limited procedure authorised by the Act.  The rule now is that no person may be arrested or imprisoned for making default in the payment of money, save in certain specific cases such as failure to pay a fine, as explained below.
The principle which the law seeks to enforce is that if any merchant gives credit to a customer who does not have the means to pay for the goods bought, then that is a risk that the merchant chose to take.  If any money lender hands over to a borrower a sum of money without taking adequate security for the loan, then that is a risk that the money lender chose to take.  The careless creditor is not to be permitted to come to law and expect to find a summary procedure that allows him to enforce his reckless transaction by the imprisonment of the impecunious debtor.
The Oral Examination Procedure
The rules of the High Court include a procedure for conducting an Oral Examination of a judgment debtor who is not paying his debt.  The Oral Examination is not a method of enforcement of a judgment.  It is merely a tool to assist a legal practitioner to determine which method of enforcement to use.  It is a particularly valuable tool where the judgment creditor does not know the nature and location of the assets or income of his judgment debtor.  Oral Examinations are governed by Part 44 of the Civil Procedure Rules, 2000.  The mechanism is explained in the English Supreme Court Practice.  It is essentially as follows.  The legal practitioner for the judgment creditor, by an application without notice, obtains from a judge an order for the Oral Examination of the judgment debtor.  That order in Form 14 is served personally on the judgment debtor at least 7 days before the date fixed for the examination.  At the same time, a draft financial position notice in Form 16 requiring the judgment debtor to complete a statement of his financial position is served.  An affidavit of service must be filed not less than 3 days before the date fixed for the examination.
The examination is conducted normally by the Registrar or Master.  The judgment debtor is examined as to his means to pay by his lawyer and cross-examined by the lawyer for the judgment creditor.  The Registrar or his clerk writes out the evidence of the judgment debtor on loose sheets of paper.  At its conclusion the statement is read back to the judgment debtor, who then signs it.  The record of the evidence of the judgment debtor is placed on the court file.  Parties may receive a copy of it from the Registrar on payment of any necessary photocopying fee.  A copy of it may be exhibited in due course with any affidavit supporting a method of enforcement that may subsequently be applied for.  After the completion of the Oral Examination procedure, the legal practitioner for the judgment creditor is expected to decide which of the various enforcement options provided by the rules he will use.
No order of imprisonment can be made under or subsequent to the Oral Examination procedure.  Even if an offer of payment is made by the judgment debtor and accepted at the Oral Examination, and an order is made, that order is not enforceable by imprisonment.  The creditor’s lawyer must follow up the Oral Examination proceedings by an application for one of the enforcement proceedings provided for in the rules.  These procedures include a writ for the sale of personal property, a charging order on shares in companies, or an order for the sale of any land discovered in the Oral Examination.  A consent order for payment of a judgment debt made under one of these procedures must be given effect by obtaining a further order under a judgment summons.  A breach of such a consent order cannot be followed by a Motion for Contempt and the imprisonment of the defaulting judgment debtor.  This is a consequence of the provisions of the Debtor’s Act.
The Judgment Summons Procedure
Part 52 of CPR 2000 is the rule governing the issue of a Judgment Summons in the jurisdiction of the Eastern Caribbean Supreme Court.  Part 52.1 applies to applications to commit to prison a judgment debtor for non-payment of a debt “where this is not prohibited by any relevant statute”.
The most relevant statute is of course the Debtor’s Act.  This Act abolished imprisonment for debt except in six specific cases.  The exceptions are set out in section 3.  They are:
(1) default in the payment of a fine or penalty;
(2) default in the payment of a sum recoverable summarily before a Magistrate;
(3) default by a trustee ordered by the Court to pay any sum;
(4) default by a solicitor in payment of costs for misconduct;
(5) default in payment for the benefit of creditors of any portion of a salary in respect of which a court having jurisdiction in bankruptcy is authorised to make an order; and
(6) defaults in payment of sums in respect of payment of which orders are in this Act authorised to be made.
We are interested in the exception found at paragraph (6) which covers judgment debtors.  Section 4(1) of the Act governs committal to prison for non-payment of a judgment debt.  It provides that the court may commit a judgment debtor to prison for a term not exceeding 6 weeks.  There are conditions that must be satisfied.  The order must be made by a judge in open court by an order showing on its face the ground on which it is issued.  Further, the court can only make such an order where it is proved to the satisfaction of the court that the person making default has or has had since the judgment the means to pay the debt and has refused or neglected to do so.
Subsection (3) authorises the judge to exercise his jurisdiction under this section in Chambers or otherwise in the prescribed manner.  However, subsection (1), as we have seen, requires the order committing the judgment debtor to be made in open court.  In my day as a legal practitioner, that order for imprisonment was obtained by a contempt motion heard in open court on what was called “Motions Day”.  Now, under Part 52.4 on hearing the Judgment Summons the judge may make a suitable order for payment of the judgment debt by a particular date or by specified instalments under penalty as provided by the Debtor’s Act.  The subsequent application for the committal to prison of a defaulting debtor is explained below.
Section 5 of the Debtor’s Act authorises the judge hearing a Judgment Summons, instead of making a committal order, with the consent of the judgment debtor, to make a Receiving Order against him.  He is deemed at that time to have committed an act of bankruptcy.  Bankruptcy has serious consequences: it has always been viewed as an offence against the state.  Bankruptcy proceedings are proceedings by which the state through the agency of the trustee in bankruptcy assumes control over a debtor's assets.  The advantage to the judgment creditor of bankrupting a debtor is that the burden of proving his assets or lack of them passes to the debtor.
The Debtor’s Act at section 9 et sec deals with bankruptcy.  The bankrupted debtor commits a crime punishable with imprisonment merely by concealing one of his assets.  The procedure involves the prosecution of the fraudulent bankrupt and his conviction before a jury.  The last time a bankrupt was hanged in England for failing to disclose an asset was one John Perrott in the year 1761.[3]
The second exception recognised by section 3 of the Debtor’s Act is the more summary procedure in the Magistrate’s Court for imprisonment of a judgment debtor.  The Magistrate's Code of Procedure came into effect in the Leeward Islands in the year 1892.[4]  The civil jurisdiction of the Magistrate is governed by sections 142 et sec.  There were no civil procedure rules made under the Code, but the Code provided that the Rules made under the Summary Jurisdiction Act should apply to proceedings in the Magistrate's civil court.
Section 153 of the Magistrate's Code of Procedure provides a summary mechanism in the magistrate’s court for imprisoning a judgment debtor.  After the Magistrate has entered a money judgment against the judgment debtor, the judgment creditor takes out a magisterial Judgment Summons.  The creditor then examines the debtor in court as to his means.  On being satisfied as to the debtor's ability to pay, the Magistrate makes an order for periodic or other payment.  In the event that this order is disobeyed, the creditor applies for a Defaulting Debtor Summons.  On hearing this summons, the Magistrate must be satisfied by evidence led by the creditor that the debtor has the means to pay and yet has wrongfully defaulted.  No affidavit is filed, only oral evidence given as to the means of the debtor to pay.  This evidence must be given by someone knowledgeable as to the means of the debtor, who has the right to cross-examine and to give evidence on his own behalf.  The Magistrate may, if satisfied from the evidence as to the dishonesty of the debtor, commit the debtor to prison for up to 6 weeks.  The debtor is not committed to prison for the debt, but for wilfully and maliciously flouting an order of the court.
Imprisonment in the High Court under the Judgment Summons Procedure
Part 52 we have seen is the rule governing the issue of a Judgment Summons in the High Court.  It is a form of subordinate legislation made by the Chief Justice, and is subject to the substantive law of the Debtor’s Act.  So, Part 52 must be read in conjunction with the Debtor's Act and the rules made under it.  In particular, the Debtors (Committal) Rules govern the procedure for enforcement of an order for payment and committal made by a judge under a Judgment Summons.[5]
Part 52.2 provides for all applications to commit a judgment debtor to be made by way of a Judgment Summons in Form 21.  The summons must state certain particulars.  Sub-rules 3, 4 and 5 provide for the service and hearing of the summons and the enforcing of any instalment order.
A careful legal practitioner will follow the Debtors (Committal) Rules in applying for a Judgment Summons.  Sub-rule 2 requires that the application to commit the judgment debtor to prison must be made by summons and shall specify certain particulars.  By sub-rule 3 the service of the summons must be personal unless the judge is satisfied that the judgment debtor is evading service.  Sub-rule 4 provides that proof of the means of the debtor shall, whenever practicable, be given by affidavit.  In High Court proceedings, the affidavit must be sworn by the client or someone else knowledgeable about the debtor’s affairs, not by the legal practitioner or his clerk, as is sometimes done in the Magistrate’s Court.  Where it appears to the judge that the debtor or other person should attend court but is absent, the judge may order the person's attendance for the purpose of being examined on oath.  Sub-rule 5 provides that the judge may then make an order of committal in Form A in the Schedule to the rules.  These provisions are all essentially the same as those in Part 52.
The hearing of a Judgment Summons cannot be carried out by a Master or the Registrar.[6]  While a Registrar or Master frequently handles Oral Examinations, only the judge is permitted to hear a Judgment Summons.  This is a consequence of the penal implications of an order made in this proceeding.
If the judge makes a suspended committal order on the first or other early hearing of a Judgment Summons, and there has been default, the judgment creditor must follow the provisions of Part 53 in obtaining a committal order.  Part 53 provides the requirements that must be met before a judgment debtor may be committed.  So, at Part 53.3 the original order made by the Judge on hearing the Judgment Summons must have been served personally on the judgment debtor.  The order must have been endorsed with a penal notice.  If the penal notice is missing, the order is ineffective.  There must have been sufficient time after service of the order afforded to the judgment debtor to comply.  The application for the committal order must specify the exact nature of the alleged breach, be verified by affidavit, and be served, and there must be an affidavit of service.
The Oral Examination procedure is not a mechanism for obtaining an order for periodic payments by a judgment debtor although this is sometimes done.  Any such order made by a Master or Registrar is unenforceable.  Any attempt to enforce it by imprisonment is an illegal avoidance of the protections introduced by the Debtor’s Act.
It is not open to a court to imprison a debtor for contempt (in a case where the debtor failed to pay an instalment on a judgment) otherwise than as permitted by the Debtor’s Act.  Even when the court is satisfied that the judgment debtor has the means to pay the debt but he has failed to pay it, in the absence of a final order under a Judgment Summons, he may not be imprisoned.  The flouting of an order to pay a judgment debt can only be properly adduced under the Judgment Summons procedure.  That is the correct proceeding, not because it is right or just, but because the Debtor’s Act says so.  Until the Debtor’s Act is overturned by parliament it remains binding law.  An illegal imprisoning of a judgment debtor by a Judge may have the consequence of making the State liable to the debtor in a claim for damages.
Once the detailed provisions of the Debtors (Committal) Rules and Part 53 of CPR 2000 are followed by the legal practitioner for the judgment creditor, and credible evidence of wilful default produced to the judge, a committal order can be requested.
Where the debtor’s Oral Examination produced evidence of his ownership of land or valuable personal possessions, the court will expect alternative enforcement proceedings to be preferred instead of pursuing an order of imprisonment.  If he has failed to comply with an order for payment in instalments, and additionally owns property, the court will expect the property to be proceeded against before an application for a Judgment Summons is made.  Committal for contempt of court as a method of collecting a judgment debt is the last recourse available to a judgment creditor, and will be sparsely awarded.  Imprisonment for the debt itself has been abolished in St Kitts and Nevis for over one hundred years.
Don Mitchell
17 September 2018
A revised version of an October 2010 paper delivered to the Antigua and Barbuda Bar Association:


[1]      Additionally, the Quaker missionary John Candler who visited the West Indies in 1841 reported that 6 of the 56 prisoners in the Basseterre jail at the time of his visit were debtors.
[2]      An Act of the Federal Assembly of the Colony of the Leeward Islands [No 2/1888].
[3]      Halsbury's Laws of England, 2nd Edition, Vol 2, page 4 dealing with “Bankruptcy and Insolvency”.
[4]      An enactment of the Leeward Islands Federal Legislature [10/1891] which came into effect on 10 February 1892.
[5]      Made on 24 November 1890 under section 8.
[6]      Practice Direction 2 of 2007 made by the Chief Justice under Part 4.2(2) of CPR 2000.