Judiciary Comments: Jailing People Over Debt

July 1, 2014

The judiciary of Bermuda has commented on people being incarcerated for debt, saying under existing law no “debtor should ever be imprisoned solely because they are genuinely unable to pay their debts” and that “imprisonment will only take place where a debtor has deliberately failed to comply with a court order…”

A spokesperson said, “It has recently been suggested that debtors are being incarcerated by the courts for failing to meet their financial obligations and that existing laws which permit this to happen should be repealed.

“Section 2[1] of the Debtors Act 1973 already contains a general prohibition on imprisonment for debt. Section 3 of the Debtors Act 1973 empowers the Court to commit a debtor to prison for failing to pay a judgment debt, but that power cannot be exercised where the reason for non-payment is that the debtor lacks the ability to pay.

“Under existing law, therefore, no judgment debtor should ever be imprisoned solely because they are genuinely unable to pay their debts. Imprisonment will only take place where a debtor has deliberately failed to comply with a court order requiring the debtor to pay a sum the court has determined the debtor is able to pay.”

Chief Justice Ian Kawaley said, “Bermudian civil judges are fully conversant with the longstanding legislative policy that no debtor should be imprisoned solely because of genuine inability to pay. We are also sympathetic to persons who, due to economic conditions beyond their control, find it difficult to pay their debts as they fall due.

“The courts will continue to ensure that imprisonment in civil cases is an exceptional occurrence reserved for debtors who are deliberately flouting orders of the court.

“Civil judges must balance the need for justice for both creditors and debtors, mindful of the fact that the availability of credit in Bermuda requires those extending it to have confidence in the debt collecting efficacy of the courts.”

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Comments (14)

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  1. hmmm says:

    Another PLP OOPS moment.

    • Black Soil says:

      Wayne couldn’t mention ONE person who was locked up only because of debt. And that’s because NO ONE in Bermuda is locked up just because they have unpaid debts.

  2. God bless you judiciary….these people will reward you with the respect you have just exibited.

  3. aceboy says:

    Well Furby…nice try making an issue out of nothing at all.

  4. Serious Though says:

    Thanks

  5. Unbelievable says:

    Uh….so the PLP doesn’t understand how the economy works AND the courts.

    Nice.

  6. Tricks are for Kids says:

    Glad to hear this as there are people that really cannot pay their bills. You may get the odd one or two that like to play the fool and see if they can get over but for the most part there are SOME that are unable to meet their financial obligations.So this is actually GREAT news…..

    On another note I don’t see how anyone having a PERSONAL bill/debt can be a political issue but I will leave that one alone…….

  7. Bee Man says:

    That is BS, I was taken to court and ordered to pay so much a month or face 30 days in prison, no looking into my financial position at all. Go down to magistrates court any morning at 930 and hear for yourselves what happens.
    For once I agree with Furbert.

    • Hmmm says:

      Being that you are not in jail, we can assume you paid the amounts and therefore could afford it ???

      • Bee Man says:

        But there are others who can not afford it and do end up in prison, that is the point. You know what they say about assuming?
        Who do you think pays for them to be in prison?

  8. Valirie Marcia Akinstall says:

    So who, which judge or magistrate, assesses ones ability to pay a debt? How is it assessed? Because I have never seen judges nor magistrates take the time or opportunity to assess the debt and work out a REALISTIC repayment schedule for the debtor. I have never heard of a magistrate or judge then taking the time to give guidance to a debtor that IF, for any reason, you are still unable to pay, please come back to court to be re-assessed by the court in order to avoid imprisonment for failing to comply with the terms of court order.

    So, let’s be VERY clear, it is not the debt, it is failing to comply with the terms of the court order to service the debt. So if a debt is not realistically assessed by the court, then how can it be honestly serviced by the debtor?

    Real case and point, I remember a magistrate once told a woman who had no job, “you are an attractive woman, you should be able to find the means to pay.” The inference was clearly disturbing. Yet the debt was assessed by the magistrate based upon the woman having no job, so once she failed to make the first payment she was in violation of the court order and subject to imprisonment.

    The law must be clear so that magistrates and/or judges do not manipulate vunerable debtors based upon their perceptions of the individuals. As I stated above, how are debtors assessed by the courts in order to repay their debts?

    And when will the courts strike out the fees charged by debt collection agencies that are sometimes four to five times the original debt? And curtain their (debt collectors) unprofessional conduct of both threatening telephone calls and/or one on one confrontational conduct. A debt collector should not have the right or discretion to appear at a person’s place of work, to pressure and/or humiliate that individudal into making payments on and/or outside the court order.

    There should be a code of conduct for debt collection agencies and those who transgress that code of conduct should have their ability to own and/or conduct debt collection agencies recinded or closed down.

    Debtors need to be able to challenge what financial details are collected, stored, made available to third parties and/or have their credit records and financial details purged of any incorrect and/or expired information. In other words, debts that have been fully serviced should not be an active and/or perpetual part of an individual’s credit history or rating.

    London, England

    • HA says:

      So let me get this straight, you have never “seen judges nor magistrates take the time or opportunity to assess the debt and work out a REALISTIC repayment schedule for the debtor. I have never heard of a magistrate or judge then taking the time to give guidance to a debtor” am I correct?

      If that is so true, that is becuase you live in “London, England”. Hard to see any of those things while you are over there. Unless you are referring to before you left the island. Might I ask when was that? Reason being a lot of things have changed over the years including the courts.

  9. smh says:

    Well if somebody owed me $5,000.00 and didn’t repay it im glad I can go down to Mags Crt. No problem with me

  10. Valirie Marcia Akinstall says:

    @SMH…as you should, BUT how many creditors will go into magistrates’ court rather than employ a lawyer and/or debt collection agencies irrespective of the fact that the debt mushrooms from interest and/or penalties that is applied by the lawyers and/or agencies and passed on to be paid by the debtor?

    The whole process needs to be scrutinised and new procedures put in place. There should be new legislation that governs the conduct and fee structures of debt collection agencies and/or fees by lawyers that have very cleverly been passed on to the debtor by way the non-appearance in court of the debtor. Any fee that is initially agreed to between the creditors and lawyers and/or agencies should not be passed it to the debtor hidden in their final bills to the court seeking judgement.

    Legal fees should capped, and the debt collection fees should be struck out irrespective of how many times they come to court on the same matter against the debtor. Individuals and/or companies should not be allowed to profit from the financial devastation of individuals. Collect a legitimate bill owed, NOT profit from the financial ruin of individuals.

    This loophole in legislation needs to be amended. And the process of going into court to seek judgment on an outstanding debt should be simplified so that debt collection agencies and/or lawyers are not needed for this purpose. In future when a creditor chooses to use them they pay for their use exclusively.

    @HA…Rather than just quote me, what changes are there now with regard to debts in the courts? Do you know? If, yes, then contrast and compare the NEW changes against what I have stated in my post.

    And don’t attempt to be clever, why is this a subjective question of when I left Bermuda rather than an objective issue of how the courts can better assess debtors’ abilities to repay their outstanding debts in an honest, timely and realistic manner, not subject to fail as the assessment cannot hold water?

    By the way, is there a standard cost of living means assessment form that is given to ALL debtors appearing before the courts, so that the current financial details of that debtor is properly assessed by the courts? Example, a person appears before the courts for failing to pay outstanding traffic fines, how is his/her ability to pay assessed? Or is it just a fine imposed by the courts that must be paid, and if that is the case, then his/her court fines take precedence, then any commercial debts, then the debtor’s everyday living expenses comes last. How has the courts progressed from that way of assessment from then and now? Please do tell, HA?

    London, England