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. 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, 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. 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. 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”
