City of Bridgetown Cooperative Credit Union Ltd v Andrew Daniel

• Jurisdiction: Barbados
• Judge: Weekes, J.
• Judgment Date: 02 April 2025
• Neutral Citation: BB 2025 HC 13
• Court: High Court (Barbados)
• Year: 2025
• Docket Number: CV 828 of 2019

City of Bridgetown Cooperative Credit Union Limited

and

Andrew Daniel

Weekes, J.

CV 828 of 2019

High Court

Appearances:

Ms. Renee Peterkin, Attorney-at-Law for the Claimant.

The Defendant appeared in person.

REASONS

THE APPLICATION

Weekes, J.

1 The Application before the Court is a Judgement Summons filed on the 12th of August 2025, in an attempt to enforce an Order obtained in the matter on the 24th of January 2021, for the payment by the Defendant of the sum of $35,332.04, with interest on the sum of $22,070.81 at the rate of 16% per annum, which accrues at $9.67 per diem commencing on the 25th day of December 2021, until the Judgement Debt and interest have been fully satisfied.

2 The Judgement Summons is unsupported by any evidence from the Claimant.

3 The Court dismissed the Judgement Summons and indicated that reasons for so doing would be given at a later date. These are those reasons.

COMMITTAL AND THE COURT'S JURISDICTION

4 The Debtors Act states that no person may be imprisoned for the non-payment of monies except in accordance with the provisions of that Act [§2 of the Debtors Act].

5 The Debtors Act authorizes the imprisonment for a period of up to 6 weeks for persons who have willfully refused, and who are willfully refusing to pay the sums ordered to be paid under a judgement of a Court.

6 The Debtors Act represents the substantive law which takes precedence over subsidiary legislation such as Rules of Court such as the Supreme Court ( Civil Procedure) Rules, 2008.

THE CRIMINAL NATURE OF THE PROCEEDINGS FOR COMMITTAL AND CONCOMITANT PROCEDURAL SAFEGUARDS

7 The Court finds it necessary to issue guidance to parties who choose to enforce money judgements by way of applications for committal to prison.

8 The High Court of Barbados has accepted as a general proposition that applications for committal for contempt of Court are criminal in nature. This was firmly established in the case of Bailey et v. Walcott (1979) BHC. The standard of proof is that of the criminal law, that is to say, beyond a reasonable doubt. See also Comet Products U.K. Ltd. v. Hawkex Plastics Ltd. and Another [1971] 2 Q.B. 67.

9 Committal proceedings being criminal in nature attract the substantive and procedural safeguards for the benefit of the accused expected in all criminal trials, such as the presumption of innocence and the right to silence as guaranteed under section 18 of the Constitution of Barbados.

10 The Court is guided by the persuasive authority of the decision of the Court of Appeal of England and Wales in Mubarak v. Mubarak [2001] FLR 988. The facts as taken from the head note of the case, were that the Appellant, was a highly successful international jeweller. In 1997 H placed the assets of his business into a discretionary Jersey trust of which he and his wife, the respondent W, and the four children of the family were the original beneficiaries. Later when the marriage was in difficulties, H caused W to be removed as beneficiary of the trust. In 1999 in ancillary relief proceedings brought by W against H, the court ordered, inter alia, that H pay W £4,875,000. H failed to pay the sum in full. W sought a judgment summons under the Debtors Act, 1869 against H and filed an affidavit in support of her application arguing, inter alia, that H had undisclosed assets. H argued that a previous judgment summons had been issued on behalf of W during the currency of a stay of the lump sum order as a device to justify retention of H's passport. That rendered the whole enforcement process abusive. Moreover, H complained that W had failed to give sufficient notice of the case against him. Her affidavit did not reveal anything that had not already been stated in evidence in previous proceedings. He contended that W's actions constituted an infringement of his right to a fair trial under Part 6 of the European Convention on Human Rights. H contended that since a judgment summons was asserting a criminal offence, he was entitled to the minimum rights accorded to anyone charged with a criminal offence by virtue of Part 6(3) of the Convention. It was for W to prove the case against H beyond all reasonable doubt pursuant to Part 6(2), namely that H had undisclosed assets to pay the lump sum order. The court held that the proceedings were not wholly criminal in the sense that the State had to prove H's guilt, but of a hybrid nature. Although it was acknowledged that the burden of proving the case was on W, the court held that she was entitled to proceed on the basis that the figures put forward by H as part of his presentation were valid, unless and until there was evidence produced by H on the judgment summons by way of a full overview of his financial position, which showed something different. H appealed against the judgment summons on the ground that the court had failed to give full appreciation to the terms of Part 6 and recognise the proceedings as criminal ones.

11 The Court of Appeal of England and Wales held the court had failed to recognise that a charge under the Debtors Act, 1869 constituted criminal proceedings for Convention purposes. No recognition was given to the presumption of innocence nor to the fact that the burden was on W to prove default on the part of H pursuant to Part 6 of the Convention. Accordingly, the order for the judgment summons was set aside.

12 The Court of Appeal further held that although a judgment summons application might originate in family proceedings, it was clearly a procedure subjecting the respondent to the risk of the criminal sanction of imprisonment, and was therefore a criminal proceeding. The difficulties of adapting the judgment summons procedure, under the Debtors Act, 1869 to the requirements of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 were considerable, as the judgment summons procedure made no reference to the criminal standard of proof required individuals to incriminate themselves, placed the burden of proof on the person facing committal, and muddled up the two processes of the means enquiry and the subsequent proceedings which might lead to committal. Practice Direction: Committal Proceedings (28 May 1999), which was intended to ensure that proceedings for civil committal would be conducted in a fashion that complied with the Human Rights Act, 1998, applied in the Family Division as in other divisions, and extended to applications under the Debtors Act, 1869, s. 5, although this was not crystal clear from the text of the Practice Direction. The wide application of the Practice Direction was of great importance and needed to be recognised immediately by all family practitioners. The practical effect was likely to be that the Debtors Act, 1869 would become a largely obsolete means of enforcement, as use of the Act in such a way as to comply with the Human Rights Act, 1998 would require the court to reconsider all the issues raised in the original ancillary relief action, with the application of a much higher standard of proof. Issuing a judgment summons would be more or less useless in cases involving fraudulent husbands seeking to conceal assets difficult or impossible to identify specifically.

13 Jacobs J opined at paragraphs 66 and 67 of the report, that since the Debtors Act, 1869 many more remedies have been devised which enable creditors (including those entitled to payments under Family Division court orders) to obtain their money. A freezing order with all the disclosure that can be obtained is an extremely powerful weapon. The remedies available extend to constructive trusts (even those situated abroad) and the obtaining of information by bankers. Other remedies, for example, orders for the production of documents, have been designed to enable creditors to get at the property.

14 The decision in Mubarak, was followed in the case of Quinn v. Cuff [2001] EWCA 36.

15 The Court of Appeal in England in the case of Prest v. Prest [2015] EWCA 714 stated:

“[53] In the course of submissions we were taken to a number of authorities relating to the use of an application for a...