The Road to Debt Recovery through the Court System

The Road to Debt Recovery through the Court System

Bermuda’s Judiciary has now taken to publishing an annual report (2012 Annual Report (PDF)). One of the more revealing statistics to emerge for 2012 was that over 3,500 cases were commenced in the Magistrate’s Court by parties who were suing for money they claimed they are owed. Nearly 4,000 cases in one year! A huge number when you consider that this lower court only sets aside two days a week (Wednesday and Friday) to hear these disputes in the first or interlocutory instance. This averages out to 32 cases a day.

It therefore has all the appearances of an active and busy court in a forum that is intended to be relatively quick and user-friendly. Parties are welcome to sue and defend claims in Magistrate’s Court without having to hire a lawyer. Typically, the lower court deals with landlord and tenant disputes, breaches of contract and negligence claims. There is, however, a ceiling on claims — they can be no more than $25,000.

Nevertheless, it may still be helpful to seek the advice of an attorney before you launch a claim or prepare to defend one.

Here’s a guide of what to expect in taking your claim to Magistrate’s Court:

1. Complete Ordinary Summons (green form) and pay court fee.  This form is available from the Magistrate’s Court. This form will be in triplicate because one copy is for you to keep, one copy is for the Defendant (the person who the claim is made against) and the other copy is for the court file.
2. The court will issue a case number to your claim and assign a court date on the green form for when you and the Defendant are to return to court. The case number is important because you will need to reference it on any correspondence that is sent to the court.
3. Service of the Ordinary Summons on the Defendant: The Defendant has to be informed that a claim is being made against him and of the date to appear in court; therefore the green form will have to be served on the Defendant. The court can do this or you can hire a private process server to do this on your behalf; a fee will be incurred to serve.
4. First Court Appearance: This date, if both parties appear, is when the Defendant will dispute or admit (in total or partially) the claim.
5. If the Defendant admits the total claim the court will award judgment in your favour. If the Defendant admits part of the claim, the court will award judgment and the balance may proceed to trial. If the Defendant disputes the claim then the court will set give a directions order (the timeline for when documents have to be filed) and will set the matter for trial.
6. If the Defendant is not present on the first court date, you can seek judgment, if the court is satisfied that the Defendant has been served. If judgment is awarded, you must complete a judgment summons (pink form). This form, like the green one, will have to be served on the Defendant.

A further court date will be given for both parties to appear and a payment plan entered into at this court date.

1. If on the second court date the Defendant does not appear (which does sometimes happen).  You can invite the court to issue an arrest warrant.
2. If leave to issue an arrest warrant is given you will need to complete a Warrant for Arrest (blue form). The document will then be left with the court for signing by the Magistrate and handed over to the bailiffs to seek the Defendant and bring them before the courts.

You must bear in mind that either party has the right to make various applications (i.e. to set aside a judgment or to have a claim struck out, if it does not have any merit). These applications will invariably delay the litigation process.

In the instance where a claim is disputed, it may proceed to trial where the judge will hear the evidence, render a decision and a written judgment will be handed down from the Magistrate usually six (6) weeks after the hearing.

Although it can be intimidating, the court is designed to exercise justice and fairness for all parties, including those who choose to proceed without a lawyer. The court understands that both parties want to resolve the issues between them and will seek to do so as expeditiously and as fairly as possible in the best interest of all involved.