Cultural Identity

THE ROLE OF CULTURAL IDENTITY IN ANGUILLA’S NATIONAL DEVELOPMENT

Introduction

The term culture refers to an integrated pattern of knowledge, belief and behaviour.  A people’s culture consists of their language, ideas, beliefs, customs, taboos, codes, institutions, tools, techniques, works of art, rituals, ceremonies, and other related components[1].  The development of a people’s culture is said to depend upon their capacity to learn and to transmit knowledge to succeeding generations.

So, is there something that we can call Anguillian culture?  In answering that question, we must acknowledge that we all approach the subject with innate prejudices and preferences.  Any answer will be by its nature subjective.  There is no objective answer.  Does the fact that I am not a born-Anguillian make the formulation of an answer easier or more difficult?

What does ‘culture’ mean to us?  Culture does not have the same meaning for everyone.  Not all Anguillians share the same culture.  The culture of the Anguillian child consigned to Zenaida Haven[2] is far removed from the culture of the Anguillian academic.  The one is a culture of bare survival in a hostile world.  The other is a culture of the appreciation of the finer things that life and the human intellect have to offer.  The two are as far apart as can be.  Some will consider the making of corn dumplings an aspect of culture.  Others will scorn dumplings and look for fine fare.  Is there any point in debating which is the more authentic form of Anguillian culture?

Anguilla as a unique island society may reasonably be said to have its own particular culture, or socio-cultural system.  It overlaps to some extent with other systems.  We share our majority religious beliefs with the Judeo-Christian world, though there is a growing Muslim population.  The majority of our people accept the variety of rituals and beliefs developed in the 20^th century in the Bible Belt of the southern States of the USA.  We share in the West Indian colonial experience of slavery and the plantation system of exploitation.  We are part of the English-speaking world, and are firmly rooted in the Americas.  In this so-called age of globalization we listen to US and Jamaican music.  We dance to a US and Caribbean-inspired choreography.  We dress in a combination of New York chic and Los Angeles ghetto.  The fear is that with a population of fewer than 15,000 souls it is difficult to justify the continued survival of the “Guillie” culture against the massive onslaught of Black Entertainment TV and the ubiquitous music video.  We can be certain that the struggle will be well worth the effort.

“If you do not know where you come from, you will not know where you are going to”[3]

Until the early 20^th century, Anguilla had no organised form of government.  It was run by a mid-level civil servant from St Kitts, usually a physician or an administrator.  There was no real court, felons being sent to St Kitts for trial by jury.  The St Kitts administrator acted as Magistrate, trying summary offences and hearing small debt cases.  Roads were rudimentary.  Public electricity had to await the Anguilla Revolution of 1967.  Brackish water was piped from four Amerindian wells to stand-pipes along the main road.  You collected your own rain water that fell on your roof.  You built the biggest cistern you could afford, or you learned to drink the salty public supply.

The history of the early colonial era contains the seeds of official contempt and disregard for the needs and aspirations of the Anguillians.  After the first settlement of 1650 by landless refugees from Barbados and St Kitts, no Governor in Chief visited Anguilla for nearly 100 years.  The islanders exported none of the traditional plantation crops or other primary produce, save very infrequently.  Anguilla was not treated as a real colony because it never contributed to the imperial economy.  Nor did Anguilla serve any strategic purpose.  Its settlers were considered of so little account that the authorities in both Antigua, the head of the Leeward Islands government, and London, could not be bothered to make any arrangement during the first 175 years for its proper administration.  The consequence has been a simmering sense in Anguilla of abandonment by all outside authorities, and a deep seated awareness of the need for self-reliance, that characterise the Anguillian political psyche to this day. 

Between 1650, the date of settlement, and 1978, the birthdate of Anguilla’s luxury tourism industry, there were few West Indians who had to struggle to make ends meet as did Anguillians.  It was said of Dominica that the land was so fertile and the rainfall so continuous that you had only to throw a stick onto the ground and it would sprout and put down roots.  Not so in Anguilla.  Anguilla is a semi-arid, scrub-covered, flat little island with no weather of its own[4] and few resources for her people.  We survived by exporting small stock, pigeon peas, corn and sweet potatoes to our neighbouring islands.  Smuggling came easily to the more enterprising of our ancestors.  Boat building was a major industry for those who had the talent and skills.  Fishing put meat on the table.  Everyone engaged in subsistence-agriculture to put vegetables alongside the fish.  In the driest years it was corn porridge for breakfast, corn dumplings for lunch and fish and fungi for supper.  Our ancestors’ fruit was the occasional wild berry picked while pulling goats from one spot to another in the family’s ‘bush land’.

The journals of the early Christian Missionaries and Ministers who visited Anguilla during the 17^th and 18^th centuries generally depicted a people who, while suffering from the greatest extremes of poverty and deprivation, hungered for knowledge and learning.  The Blue Books of colonial statistics submitted by the St Kitts administration to London each year during the 19^th century show large numbers of children in Anguilla attending the Methodist and Anglican schools.  There were no government schools until the 20^th century.  Yet, an education was valued by the residents as essential if their children were to have a better chance in life than they had had.

The church played an important cultural role as well as an educational one.  It provided a route for ambitious young men to better their conditions and to administer to the needs of the island’s inhabitants.  The first black Methodist Minister in the West Indies was the Anguillian John Hodge who went to New York to be ordained by John Wesley himself.  Rev John Hodge returned to Anguilla where he built the Methodist Church at The Valley in 1821 with the help of the slaves and other members of his congregation.  He spent his entire ministry between Anguilla and St Martin. 

Dr Benjamin Gumbs-Hodge, who flourished in the 1820s, was the first medical doctor[5] known from Anguilla, but he was not the last.  As a percentage of population, there is not likely to have been another West Indian island which has over the centuries produced a greater number of doctors, lawyers, preachers and civil servants who served with distinction throughout the region.  The simple schools established by the Ministers of Religion and their spouses in the 18^th and 19^th centuries were invariably described as over-subscribed.  Dr Samuel B Jones[6] describes Anguilla in the 1920s as spending more money per capita on education than the nearby islands of Antigua and St Kitts.  Education was for many Anguillians the one guaranteed route out of poverty and unemployment and into a career and a relatively prosperous life. 

In the years just prior to the Anguilla Revolution the material hardships of the Anguillians had not altered much.  Long hours of back-breaking labour in the semi-arid fields produced little but corn, sweet potato and pigeon peas.  For a few short weeks once a year, a few hardworking salt pickers of South Hill and North Hill villages supplemented their meager income by reaping salt in the Road Pond.  Other than that, the only source of cash lay overseas.  Emigration was the one hope for the ambitious and enterprising young person.  Life at home had been characterised by deprivation and want.  A good basic education would provide envied positions as teachers, preachers and civil servants in the colonial administration.  There was nothing to look forward to at home in Anguilla.

The character and nature of the Anguillian individual has evolved through hundreds of years of colonial neglect, absence of natural resources, and the struggle to survive.  The harsh features of Anguilla’s society and economy from the days of settlement to the late 20^th century moulded the Anguillian of yesterday.  It produced positive and good features such as thrift and adaptability.  But this harshness also produced negative and harmful characteristics, such as envy and dishonesty.  These are all to be seen today.

The Anguilla Revolution, its positive and its negative cultural contributions

The Anguilla Revolution of 1967 saw Anguillians seize their future in their own hands and throw off the burdens of St Kitts administration.  There was no support from either Britain or the other islands of the West Indies for the Revolution.  The other islands feared what they considered the threat of ‘fragmentation’.  Britain was attempting to shed her last colonies in the West Indies by pushing them first into ‘associated statehoodship’, and then, hopefully, into full independence.  With the ‘winds of change’ blowing through Africa and the Americas, she was not looking for another colony.  However, the Anguillians were determined to separate from St Kitts.  A few young men, mainly from Island Harbour and East End villages, incensed at their local beauties parading themselves in swim-suits on stage at the 1967 Statehood Celebrations, rioted.  The Anguilla Revolution was born out of this mundane event[7].

The Anguillian leaders formed a ‘Peacekeeping Committee’ which took over the management of Anguilla after the St Kitts administration and policemen had been evicted.  They had been spurred on by a number of motives, some commendable and others not so commendable.  Some of them were original thinkers and political philosophers of merit.  Atlin Harrigan was the writer, Bob Rogers was the agitator, while Ronald Webster was the steely-willed leader.  Atlin, with the financial help of locals and foreigners, published his influential newspaper The Beacon.  In his regular columns he set out eloquently the aspirations of the Anguillians for self-government.  Few of his fellow citizens took up the intellectual challenge.  There was to be no intellectual foundation to the Anguilla Revolution: no Benjamin Franklin, Thomas Paine, or Thomas Jefferson of Anguilla.  There were some men of immense integrity in Anguilla’s leadership who made not a penny, and were as straight as a ruler.  Other revolutionary leaders were more interested in making money by selling licenses and concessions. 

“My plenty made me poor”[8]

The next wave of damage to the culture of self-reliance and perseverance that had characterized previous generations of Anguillians came with the development of the luxury tourism industry of Anguilla.  The 1970s saw the opening of resorts such as Cul-de-Sac, Cinnamon Reef, and Shoal Bay Villas hotels.  Regular jobs and steady incomes from the private sector became possible for the first time in Anguilla’s history.  The spin-off in car rentals, lobster and fish sales to foreign and local restaurants took off.  Large numbers of both men and women gained employment in industry for the first time.  Indeed, many were finding steady employment in Anguilla for the first times in their lives.  Within a decade the homes of even the most illiterate manual worker from Island Harbour to West End could boast a deep freeze as well as a refrigerator.  By the 1990s there was a TV in every bedroom plus the kitchen.  Hip Hop culture was all the rage.  Anguilla’s culture of poverty and deprivation was rapidly being replaced by a popular US mass-media driven culture of consumerism and vulgarity.

Anguillians have never examined the malign and adverse impact of the unintellectual and avaricious nature of some of our more recent leaders on the island’s fragile socio-political culture.  If only chance had provided us with more enlightened leaders! Anguilla had no one willing and able to lay an intellectual foundation for the birth of this new nation-in-the-womb.  We stepped off into comparative self-government on the wrong foot.  It would be completely mean and insulting for us to pour scorn on our fathers of the nation.  But, the truth is that the fishermen and goat-keepers who were the fathers of our nation had little formal education,[9] and no grounding in the principles of good governance.  The British administrators who took charge completely failed to introduce them to such notions.  The result of this lack of preparation was inevitable.  The dominating political philosophy of our leadership became the enjoyment of copious quantities of sexual favours, monetary gifts, and the use and abuse of power.  Our parents and grandparents had emphasized thrift and self-improvement, an education and a career.  We, their children, aspire instead to sell sex, marijuana and cocaine to the tourist girls, and bundles of Chinese-manufactured trinkets to the old ladies, on Shoal Bay Beach. 

Traditional Anguillian culture has some deep roots.  One of them is the ownership of land.  With the destruction of the plantation economy in Anguilla in the 1830s, and its replacement by a subsistence economy that lasted to the 1970s, the land was distributed among those who lived here.  Some families acquired land by purchase and others by inheritance.  Throughout the 19^th century, Anguillians, poor as we were, were known as a landed people.  It was said that we were cash-poor but land-rich.  In the 1920s and 30s, hundreds of acres changed hands for tens of pounds sterling.  By the 1960s, values had hardly increased.  An acre was now valued in the hundreds of EC dollars.  By the 1990s, an acre of land on the beach was selling at over US$1 million.  There followed a frenzy of land marketing.  Now, we hear the complaint that Anguillians are running out of land.

There were few Anguillians in the 1980s and 1990s who were not tempted to sell their ancestral lands.  Many of us did so.  Only a few obeyed the rule, “If you must sell land, sell it for years, not forever.”  A long lease of building land for 60 years, or of a house or apartment for 20 years turns the real estate into currency as readily as an outright sale.  It may be gone for this generation and the next, but it comes back to the family. 

It may not be fair to compare the Websters, Hodges, Gumbs, Richardsons and Brooks to the Duke of Westminster.  But, I am going to do it anyway.  The present Duke and his family’s Grosvenor property company control assets in London that were estimated to be worth £6.8 billion in 2010.  This family company traces its roots back to the 17^th century.  When Sir Thomas Grosvenor married Mary Davies in 1677 she brought to the marriage 500 acres on the outskirts of early London.  Today these 500 acres have been absorbed into the heart of an expanded London.  They include the most expensive office and residential properties in fashionable Mayfair and Belgravia.  These 500 acres and the rental properties built on them have remained in the family ever since they were acquired.  They are held in trust by the present Duke for future generations of the family.  They are the source of the family fortune.  Today they bring in rents of many millions of pounds every week.  When one of his condos in Mayfair comes on the market, it sells for upwards of £5 million.  No one is surprised to learn that what is being sold is nothing but a lease for 20 years.  People line up to purchase since there is no other way to own an apartment in Mayfair.  Why has it proven so difficult for Anguillians to learn such a simple lesson?

There was a time when our ancestors struggled to improve their chances for success in the outside world.  With the break-up of the West Indies Federation in 1962 into individual colonies that have since gone into independence, it is no longer easy for us to emigrate to practise our professions and occupations in other islands.  Immigration rules are enforced everywhere.  Now, we hear complaints that Anguillians aspire to become hotel managers, restaurant chefs, recording artists, and aeroplane pilots.  Reading and writing are not essential skills for one to rise to the top in many of these modern occupations.  Everything changed with the development of an up-market tourism industry in the 1980s.  Anguilla’s economy was catapulted from the 19^th century into the 21^st, hardly stopping for the 20^th.  The result is that Anguilla’s modern socio-political culture is new and unsettled.  There has not been enough time for binding conventions and new social structures to develop.  Anguillian culture may be said to be essentially that of a frontier society: unsettled, shifting, brash and unruly.

Literacy levels in Anguilla have fallen from a peak in the 1950s and 60s.  Now, the average public servant can hardly write a complete sentence without at least one grammatical and punctuation error.  The Anguilla public service is viewed by all administrations as a sponge to soak up school leavers who are not capable for one reason or another of finding employment in the private sector.  The semi-literate Anguillian demanding his or her rights is not a pretty sight.  “I born here” is put forward as some sort of qualification for a job, and a justification for an unwillingness to pay taxes or hospital fees.  “No one can tell me what to do on my property” has triumphed over the introduction of planning laws.  Was the lack of intellectual depth to the Anguilla Revolution responsible for the current rebellious attitude and the rejection of authority that is so widespread?  Certainly, these attitudes were popularized and rewarded during and after the Revolution.  The result has been that for the past two generations we Anguillians have been brought up to believe that we acquire undeserved rights from the accident of birth.  We claim to be entitled to be put first and to hold the best jobs, qualified or not.  Arrogance and ignorance have replaced ambition and a drive to succeed. 

The Church in Anguilla bears a large portion of the responsibility for the descent of Anguillian values during the latter part of the 20^th century.  The Enlightenment of the 17^th and 18^th centuries was a period in which ideas concerning God, reason, nature, and man were synthesized into a worldview that gained wide acceptance.  Revolutionary developments in art, philosophy and politics ensued.  Central to Enlightenment thought was the use and celebration of reason.  Reason is the power by which we can understand the universe and improve our own condition.  The greatest goals of the rational man are considered to be knowledge, freedom and happiness.  If you were to ask a class of 18-year old Anguillian students, as I have done, how many of them believe that humans and other apes evolved from a common ancestor, you would be lucky to get more than 10% agreeing.  It is almost as if the Enlightenment passed us by, leaving us in perpetual intellectual darkness.

Given Anguilla’s economic straits throughout the early period under review, it should perhaps not surprise us that the Enlightenment came and went without any impact on our culture.  No aspect of Romanticism touched us, though the Reign of Terror did result in the last violent French invasion of Anguilla in 1798.  As Anguilla’s best and brightest, who managed to take advantage of what little education was available from the Church Schools, moved abroad to better themselves, Anguilla as a nation-to-be remained a cultural backwater stuck in time.  Other than The Beacon of the Anguilla Revolution, no successful[10] newspaper was to be published on the island until The Light and The Anguillian at the end of the 20^th century.  No Anguillian has published[11] any significant study of the culture, economy or history of the island.  The learned journals of West Indian science, economics, history and society are devoid to this day of any mention of developments in Anguilla.  Culturally, Anguilla does not make any mark on the region or on the world.

“Know thyself”[12]

The year 2006 was a wake-up call for those concerned about Anguillian culture and values.  Ten of our young men, ten times more than in most previous or subsequent years, were gunned down or disappeared in drug-related violence.  Five of those deaths and disappearances occurred in Anguilla itself and five were scattered between St Kitts, Nevis and St Maarten.  Anguillian adults looked on in rising shame and horror as the luxury hotels of Viceroy and Flag were permitted by our government to be built using ‘slave labour’.  The first hotel employed almost exclusively workers from India and the second from China, all at scandalously low wages.  Anguilla shared in the world economic boom which was not to crash until the year 2008 when Anguilla’s new culture of greed and avarice received its greatest shock from which we are still recovering.

Anguillians, we boast, do not read.  While the statement is generally true, it ought not to be a boast.  “Reading”, as the Anguilla Public Library radio jingle reminds us daily, “is fun-damental”.  The public library is a bank wherein is housed the sum total of human knowledge.  It is an exceptional bank.  It is the only one where each withdrawal adds to the total amount on deposit.  The mother and father who do not read stories at night to their child as they put it to bed, is guilty of more than child cruelty and abandonment.  They should stand condemned for child abuse.  Such abandonment is a commonplace event in Anguilla, so much so that it is hardly remarked on.  The vast majority of Anguilla’s children today are brought up by the television.  Unlike the way their parents were themselves brought up, they are members of the ‘latchkey’ generation.  After school, the average Anguillian child must lift the latch himself and let himself into the empty house.  With both parents working two jobs to bring home the Nike shoes and the latest electronic gadget demanded by their children, the children are left to bring up themselves.  When no one reads a child to sleep, no love of books and of learning is engendered.  When grandparents and parents are not at home to pass on values to a child, to reassure it of its intrinsic worth and to assure it of unrestricted love, it grows up without the ability to love or to hold and to pass on worthwhile values.  The result is the semi-literate society that we are left with in Anguilla today.  The children are without culture, we say.

Many of the positive features of Anguilla’s traditional culture remain.  Our people are characterized by Independence of Spirit.  Never having been under the thumb of absentee proprietors or sugar barons, Anguillians are unique in the whole West Indies for owning their own land.  With the only financial institution for a long time being a savings account at the Post Office, there is no tradition of borrowing.  The sea and that inherited property had to be sufficient to exist on.  The first Anguilla-born doctors went to elementary school barefooted.  They never got to watch The Simpsons on television, but so excelled at reading, writing and computing that they blew away all the competition and gained the needed Leeward Island scholarships to go away and study.  Their footsteps are followed by the hundreds of modern Anguillian students who take up the scholarships that are offered by the local government, and, after completing their education, return home to take up the challenge of developing their country.

While borrowing has undoubtedly increased, the spirit of Sacrifice remains.  The traditional “Child, you have to learn to do without … until you can afford it” still resonates in each adult’s ears.  A drive around the island will show that this ethic survives today.  The unfinished houses, with their rusty rebar reaching for the sky until another round of fresh funding arrives, show the determination of the Anguillians to build upwards when the time comes. 

The Good Samaritan ethic still flourishes.  One hundred years ago it was almost unheard of for you to pass a bicyclist disabled with a flat tire.  You brought out your own patching kit to assist.  You would not let a tired, returning fisherman tug and pull up his row boat onto the beach by himself.  As then, today a stronger and fitter neighbour thinks nothing of rushing to your house in the teeth of a hurricane with hammer, nails and timber to help to board up your flapping windows.  Nor is there ever a question of payment.  Today, we recognize the Jollification, when everyone joins in a house building or the planting or reaping of a field, as a fundamental part of the Anguillian culture.

Anguillians, of necessity, know the virtues of Hard Work.  There are 80-year old homes still standing after 30-odd hurricanes.  The men who built them walked miles to and from work and used only hand tools.  They survived on the meager diet of the times, but they were far fitter than their descendents today.  Their genes ensure that today’s Anguillian quickly learns from study or an apprenticeship to fill almost any position available in modern industry today.  So, we feel disappointed and let down when we hear the hotelier let it slip that he would rather hire anyone else but an Anguillian either to build or to run his complex.

Anguillians can be argumentative, contrarian and paradoxical by nature.  Because of the humiliating treatment endured at the hands of St Kitts and other governing bodies we can seem to be overly sensitive to dealings that are even well-intentioned.  The collective feeling towards tourism tends to be somewhat schizophrenic.  Gratitude for its presence is offset by occasional rancour and suspicion.  Yet, historically, Anguillians are the warmest, most welcoming, and best mannered of islanders.  Our Native Charm is frequently referred to in the tourist literature.  We look both friend and stranger in the eye and bid them an earnest Good Morning or Good Afternoon! And, we expect a similar response.

Visitors have remarked on the personal Warmth shown by Anguillians among themselves.  A European may greet a long lost schoolmate with a sober, “How do you do?” The Anguillians, by comparison, will enthusiastically hug each other, clap each other on the back, and slap themselves on the thigh, when they meet after a separation.  As for the Anguillian feeling for their island home, there is no equivalent.  Although Anguillians long grew up knowing they were going to have to leave the island to better themselves, their sense of devotion to it, and once away, their sense of exile, have always been remarkable.  Today, fewer leave, and when they do, after perhaps preparing themselves for a profession, a trade, or a skill, they now return since there is a better life to return to than before.  Even those who cover their bets for future prosperity with a British, Canadian or US passport and citizenship pride themselves on being forever Anguillian.  That, perhaps, is the best summation of the Anguillian culture.

A speech delivered to a youth group at the Church of God (Holiness) at Pope Hill at the request of the Department of Youth and Culture

18 March 2011

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[1]       New Encyclopaedia Britannica (Chicago, 15^th edition) 1992.

[2]       Anguilla’s juvenile rehabilitation centre.

[3]       Frequently-used saying by “Yanchie” Richardson on his radio call-in programme “The Mayor’s Show” on Kool-FM Radio, 103.3fm, on Saturday Mornings at 9:30 am.

[4]       According to the High School Geography text book of my day, while St Kitts and Nevis had mountains that caused rain to fall, Anguilla had to be content with whatever the passing cloud systems chose to let drop.

[5]       He was also the first Anguillian representative in the St Kitts House of Assembly in 1825 and in subsequent years.

[6]       In his Annals of Anguilla (Basseterre: Labour Spokesman) 1931.

[7]       According to Louvan Webster an eye-witness of the events, in a private conversation.

[8]       Translation of “Inopem me copia fecit” (Ovid, Metamorphoses).

[9]       One exception was Walter Hodge, who was a college-educated engineer, and another was the Rev Leonard Carty, who was an ordained Methodist Minister.

[10]     Rev Wilbert Forker published The Times for a short period during the early 1970s, and Felix Fleming and his son James published the Vantage newspaper for some two years in the late 1980s.

[11]     Other than the valuable monographs by Colville Petty OBE and Nat Hodge MBE. But, these mainly deal with the Anguilla Revolution and its aftermath.

[12]     Socrates’ main maxim for his life. His best known pronouncement is “The unexamined life is not worth living”. Life is not something just to be lived by blindly following base instincts, popular convictions and time-honoured customs. The good life is a life that questions and thinks about things. It is a life of contemplation, self-examination, and open-minded wondering. The good life is an inner life, the life of an inquiring and ever-expanding mind: http://faculty.frostburg.edu/phil/forum/SocratesLife.htm

Oral Examinations and the Judgment Summons

[1]     I have been asked to speak to you this afternoon on the twin subjects of the procedure for oral examination of a judgment debtor and the judgment summons procedure.

The Procedure for Oral Examination of a Judgment Debtor.

[2]     Oral examinations are governed by Part 44 of CPR 2000.  An oral examination is notoriously not a method of enforcement of a judgment.  It is merely a tool to assist an attorney to determine which method of enforcement to use.  It is a particularly valuable tool where the judgment creditor is ignorant of the nature and location of the assets, income and liabilities of his judgment debtor.  After the completion of the oral examination procedure, the attorney for the judgment creditor is expected to decide which of the various enforcement options provided by the Rules he will invoke.

[3]     The oral examination procedure is described in the English Supreme Court Practice.  It is essentially, as follows.  The attorney for the judgment creditor, by an application without notice, obtains from a judge an order for 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.

[4]     The examination is conducted normally by the Registrar.  The judgment debtor is examined by his attorney and cross-examined by the attorney for the judgment creditor.  The Registrar or her clerk writes out the evidence of the judgment debtor on loose sheets of paper, and at its conclusion reads it back to the judgment debtor, who is then asked to sign it.  The statement 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 with any affidavit supporting a method of enforcement that may subsequently be filed.

[5]     Rule 44.6 introduced a novel provision that did not exist previously under the 1964 Rules of the Supreme Court: power for the Registrar to record an agreement that the judgment debt be paid by instalments.  The Registrar may draw an order to that effect, which will be served in the usual way. 

[6]     It is important to note that such a consent order under Rule 44.6 is not enforceable in the same way as an order made under a judgment summons.  Due to the restrictions on imprisonment for non-payment of a civil debt established by the Debtor's Act, which we shall examine below, any non-compliance with such an agreement or consent order must be followed by the necessary judgment debtor summons for any order to be enforceable by imprisonment.

[7]     A careful attorney will follow up the oral examination proceedings by an application for one of the enforcement proceedings provided for in the Rules.  Even if an offer is made and accepted at the oral examination, the subsequent order of the Judge, Master or Registrar is not enforceable by imprisonment.  It should be buttressed and given effect by obtaining an order for a judgment summons and having the judge make any order on those subsequent proceedings.  Of course, the attorney for the judgment creditor is free to select any of the other enforcement procedures.

Judgment Debtor Summons procedure

[8]     In the Leeward Islands prior to 1889, the most common method of enforcing a judgment for money was by way of imprisonment.  Before the reforms of the nineteenth century, access to a debtor’s property in satisfaction of a judgment debt both in England and in the Leeward Islands was limited.  Besides the writ of fieri facias, there was only the remedy of imprisoning the debtor in the hope of coercing him to sell his real and other property to settle his debt.  At that time there was no need to allege that the debtor had behaved dishonestly in order to obtain a writ of arrest to enforce a judgment debt.  Reports of the Governors of the Leeward Islands back to the Secretary of State in London remark that common debtors on occasion filled the prisons of Basseterre and St John's[1].  Reform eventually came by way of introducing the UK reforms to the Leeward Islands.

[9]     The Debtor’s Act[2], which came into effect on 31 December 1888, instituted a major reform in the law applicable to civil debts in the Leeward Islands.  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 that Act no debtor may be imprisoned in the Leeward Islands 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.

[10]   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 took.  The careless creditor is not to come to law and expect to find a summary procedure to permit him to enforce his reckless transactions by the imprisonment of the impecunious debtor

[11]   CPR 2000, Part 52 is the Rule governing the issue of a Judgment summons in the jurisdiction of the Eastern Caribbean Supreme Court.  Rule 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.

[12]   The most relevant statute is the Debtor’s Act.  By this Act, the Leeward Islands followed the UK precedent in abolishing imprisonment for debt, except in certain specific cases.  The exceptions are set out in section 3.  They are:

(1) default in the payment of a 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.

[13]   We are interested in the exception found at paragraph (6).  Section 4(1) of the Act governs committal for judgment debts.  It provides that the court may commit a judgment debtor to prison for a term not exceeding 6 weeks.  There are conditions.  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.

[14]   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 the old days that order was obtained by a contempt motion heard in open court on what was called “Motions Day”.  I am not certain that this practice still continues under the new Rules.

[15]   Section 5 of the Debtor’s Act is an important section, but I believe it is seldom used in the Leeward Islands.  The section 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. 

[16]   Bankruptcy 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 of bankrupting a debtor is that the burden of proving his assets or lack of them passes to the debtor. 

[17]   The Debtor’s Act at section 9 et sec deals with persons adjudged bankrupt.  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 1761[3]. 

[18]   The second exception recognised by section 3 of the Debtor’s Act is the summary procedure for imprisonment of a judgment debtor in the Magistrate's Court.  The Magistrate's Code of Procedure[4] came into effect in the Leeward Islands in the year 1892.  The civil jurisdiction of the Magistrate is governed by sections 142 et sec.  There were no civil procedure rules made under the Act, but the Code provided that the Rules made under the Summary Jurisdiction Act should apply to proceedings in the Magistrate's civil court. 

[19]   Section 153 of the Magistrate's Code of Procedure provides a summary mechanism for imprisoning a judgment debtor.  Basically, after the Magistrate has entered a money judgment against the judgment debtor, the judgment creditor takes out a judgment summons.  The debtor is then examined as to his means by the creditor before the Magistrate.  On being satisfied as to the debtor's means, 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, if satisfied that the debtor has the means and has wrongfully defaulted, may commit the debtor to prison for up to 6 weeks. 

[20]   When I practised in the Magistrate’s Court in Basseterre in the period 1971-1976 this evidence was frequently given by the attorney for the creditor going into the box and being sworn.  He would repeat as evidence some hearsay given to him by his client.  The Magistrate would listen to the excuses of the judgment debtor and, if he thought it appropriate, strong-arm the debtor into making a promise to pay by a certain date failing which he was to be imprisoned for 6 weeks or until he sooner paid the debt.  Imprisonment is subsequently secured by the attorney for the creditor applying for a Warrant of Commitment by which the debtor is imprisoned by the Bailiff without any further hearing. 

[21]   The summary procedure described above was never permitted in the High Court.  I do not know if it still continues in the Magistrate’s Court.  Perhaps unsurprisingly, some attorneys who practise in both the Magistrate's Court and the High Court, have been known to be tempted to apply the principles and procedures of the Magistrate’s Court to the judgment summons procedure in the High Court.

[22]   To emphasise how abhorrent it is to the common law courts to countenance the imprisonment of a judgment debtor for failure to pay the debt, it may be worthwhile noting that in the UK the Judgment Summon procedure for civil debt has been abolished since the early twentieth century.  You will not find detailed notes in the UK Supreme Court Practice of any edition subsequent to the First World War on the judgment summons procedure, as you will for the oral examination.  Unlike the Eastern Caribbean, the judgment summons is retained in the UK only for cases of wilful failure to pay a tax debt and similar matters. 

[23]   Rule 52 is the rule governing the issue of a judgment summons in the High Court.  It is to be read in conjunction with the Debtor's Act and the rules made under it.  In particular, the Debtors (Committal) Rules[5] govern the procedure for enforcement of an order made by a judge under a judgment debtor summons.

[24]   Rule 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[6].  The Rule proceeds in sub-rules 3, 4 and 5 to provide for the service, and hearing, of the summons, and the enforcing of any instalment order.

[25]   The extent to which Rule 52 of CPR 2000 can have provided an entirely new procedure for the issue of a judgment summons is open to doubt.  CPR 2000 was made by the Chief Justice and two judges of the court, being the rule-making authority under section 17 of the West Indies Associated States Supreme Court Order 1967 (the Courts Order).  The Courts Order does not empower the authority to amend either a substantive Act or the Rules that may have been made under it.  It is not even clear if the intention was for CPR 2000 Rule 52 to amend or replace the Debtors (Committal) Rules made under the Debtor's Act.  A proper reading of Rule 52 would seem to require that it be read and interpreted in accordance with the Debtor's Act and the Rules made under it, ie, the Debtors (Committal) Rules.

[26]   A careful attorney will follow the Debtors (Committal) Rules in applying for a judgment summons.  Rule 2 requires that the application to commit the judgment debtor to prison must be made by summons and shall specify certain particulars.  By Rule 3 the service of the summons must be personal unless the judge is satisfied that the judgment debtor is evading service.  Rule 4 provides that proof of the means of the debtor shall, whenever practicable, be given by affidavit.  The affidavit should be sworn by the client or someone else knowledgeable about the debtor’s affairs, not by the attorney 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, the judge may order the person's attendance for the purpose of being examined on oath.  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 Rule 52.

[27]   Rule 52 of CPR 2000 introduces some novel features to the judgment summons procedure.  They did not exist under the previous 1964 Rules.  To the extent that these new features protect the debtor, no complaint of substance can be made, as they will not offend against the Debtor’s Act.  To the extent that they may impose new burdens on the debtor, their validity is open to question as described above.  So, Rule 52.4 permits orders for periodic payments to be made, with the hearing of the judgment summons adjourned to a later date presumably to see if the judgment debtor is complying.  Rule 52.5 provides that imprisonment is not automatic in the event of default. 

[28]   The practice of delegating judgment summonses to a Master or the Registrar that had begun to creep in after the advent of CPR 2000 is not a proper one[7].  While the Registrar or Master frequently handles oral examinations only the judge should hear a judgment summons.

[29]   If a suspended committal order has been made on a judgment summons, and there has been default, the judgment creditor must follow the provisions of Rule 53 in obtaining a committal order.  Rule 53 provides the requirements that must be met before a judgment debtor may be committed.  So, at Rule 53.3 the original order under Rule 52 must generally have been served personally on the judgment debtor.  The order must have been endorsed with the usual penal notice.  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.

[30]   In conclusion, the oral examination procedure should never be used as a mechanism to obtain an order for periodic payments by a judgment debtor.  In my opinion, such an order is unenforceable as being an illegal avoidance of the protections introduced by the Debtor’s Act since 1888.  An illegal imprisoning of a judgment debtor may have the consequence of making the State liable to a claim in damages. 

[31]   There is a contrary view popularly held by judges and attorneys throughout the region.  It is that it is open to a court to imprison for contempt in a case where there is a failure or refusal to pay a judgment or an instalment on a judgment in circumstances where the court considers that the judgment debtor has the means to pay the same and an order has been made, and served, and then flouted.  In my humble opinion that is a wrong view if we are considering any proceedings other than a judgment summons.  When I began the practice of law in the High Court some 39 years ago, that was the conventional wisdom.  The interpretation and practice of the law has only been altered in the succeeding years.

[32]   It is my opinion that evidence of 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. 

[33]   To admit otherwise, to permit what may be described as a back-door mechanism for imprisoning judgment debtors who fail or neglect to pay their judgment debts, would be to subvert the reforms to the enforcement regime introduced by the Debtor’s Act over one hundred years ago.  It would make it virtually unnecessary for a judgment creditor to go through the more onerous procedures introduced by the Debtor’s Act.  Every judgment creditor would prefer the easier procedure of obtaining a consent order under the oral examination procedure, and then to have the debtor imprisoned on some proof short of that required under the judgment summons procedure.

[34]   Finally, once the detailed provisions of the Debtors (Committal) Rules and Rule 53 of CPR 2000 are followed by the attorney for the judgment creditor, and credible evidence of wilful default produced to the judge, there should be no difficulty in obtaining a committal order.  Of course, 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.

A talk to the Antigua and Barbuda Bar Association on Thursday, 28 October 2010

- By Justice Don Mitchell CBE (Retd)

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[1]      The Quaker missionary John Candler who visited the West Indies in 1841 reported 6 of the 56 prisoners in the Basseterre gaol at the time of his visit to be debtors.

[2]      An Act of the Federal Assembly of the Colony of the Leeward Islands [No 2/1888] which came into effect on 31 December 1888.

[3]      Halsbury's Laws of England, 2^nd 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]      It may be worth noting here that there appear to be two printer's errors in sub-rule 2:  (i) The sub-rule (2) commences with the words “The court order must” when what is meant is “The court office must”.  Then, paragraph (c) reads “return the order” when what is meant is “return the summons”.  It can be certain that these printing errors do not aid in the interpretation of the Rule.

[7]      Practice Direction 2 of 2007 made by the Chief Justice under Rule 4.2(2) of CPR 2000.