Injured and left out in the cold

Dear Mrs Macaulay,

I broke my hand and foot in a motor vehicle accident in 2009 as a result of the actions of a Jamaican man who is a Green Card holder in the United States. He was visiting Jamaica when he drove on the wrong side of the road. The matter was taken before the Supreme Court and he was to pay me $4,000,000, but to date I have only received in total $750,000, which was paid in small instalments over a four-year period. He refuses to pay because he is living in the United States and says no action can be taken against him there.

My attorney advised me that he will have to visit Jamaica for any further action to be taken against him.

I find this really disturbing because after I have suffered so much and spent so much money, I just have to sit back and wait while this man might not come back to Jamaica.

My question is, can anything else be done, even in the United States?

It is very distasteful when a person, a judgement debtor, seeks to take advantage of not being within the jurisdiction to try to avoid meeting their legal obligation pursuant to a judgement with awards for damages, by refusing to pay up as they believe themselves to be outside the reach of the court and so untouchable. In certain circumstances they may be, but in other circumstances they may be wrong.

You did not say which state your judgement debtor resides in, so I cannot tell you whether it is one of those which has a reciprocal agreement with Jamaica for the enforcement of each of their judgements by the other’s court. It is not an insurmountable problem because your lawyer can call the Ministry of Foreign Affairs and Foreign Trade and ascertain whether the state where the judgement debtor resides has such an agreement with Jamaica. If it does, then your lawyer can apply for and obtain a certified copy of the judgement and formal orders and a certificate of the particulars of the action, including the causes of the claim and the rate of interest ordered to be paid on the sum awarded in the judgement. Your lawyer can then proceed to have the judgement sent to the relevant court where the judgement debtor resides, to be enforced, and application can be made, if considered necessary, to have his salary garnished for fixed monthly or other periodic sums collected and paid into the court there and then directly to you.

If he is not in a state with a reciprocal agreement with Jamaica, then the above will not apply, so you must try something else. Such processes can be pursued under the provisions of the Judgement (Foreign) (Reciprocal Enforcement) Act.

You have also not mentioned whether the judgement debtor owns any property in Jamaica and whether this was investigated to ascertain the real fact. If he owns stocks, shares, monies in bank accounts, and they are in his name or are held in trust for him, you as a judgement creditor can apply to the Supreme Court for an order that such stocks and/or shares and/or funds stand charged with the payment of the judgement debt and all interest thereon. The first application for this must be made ex parte, which will order the judgement debtor to show cause why the charging order should not be made by the court, and it will also restrain the directors of the relevant companies from transferring his stock or paying any dividends to him, until the order is made absolute or discharged. This process falls under the Judgement Lien Act.

Then if the above two proceedings are not viable, but you discover that he owns and is the registered owner of real property here on the island, then pursuant to the Supreme Court of Jamaica Civil Procedure Rules 2002, your lawyer can take the procedural steps to obtain an order for the sale of the property with orders of the manner of sale and for your judgement debt and all interests and costs attendant to the investigation to find the property, and for the pursuit of this form of application which you were forced to engage in, to be paid to you. Directions for the securing of any surplus of the sale price after all sums due to you and those related to the sale are met should also be made.

If it turns out that he does not own any real property here or none could be found but it is discovered that he has personal property, like a vehicle and/or other personalty with value, your lawyer can, pursuant to the same Supreme Court Rules, apply for such personal properties to be confiscated and for an order for their sale and the consequential orders as to payment of your debt or some part of it, as is appropriate. He can also apply for him to be committed to prison for his failure and/or refusal to discharge his obligation pursuant to a valid court order after he made only a small part payment of the judgement sum.

If all these legal steps cannot assist you, then since he is merely Green Card holder, you may wish to consider informing him that since he has been refusing to pay you what he was ordered to do in the lawful judgement of the Supreme Court here, you would contact the immigration authorities of the United States and make a complaint against him about his contempt of the judgement and orders of the court. As you know, immigration grants of all kinds, especially those permitting residence and permission to work, depend on the satisfaction of the authorities that the person is a law abiding person, without any stain of unlawful conduct. I believe that on receiving this information from you, your judgement debtor would definitely make arrangements with you to clear up his debt.

Finally, you may wish to consider pursuing him in the US court in the state in which he resides, which you can do, as an action for payment to you of the balance of the debt, which he would be estopped from denying because he already paid you $750,000, leaving a balance of the capital sum of $3,250,000 plus interest and subsequent costs due and owing. This would be in the circumstance that there is no reciprocal agreement between that state and Jamaica. It would mean that you have a hearing/trial there, wherein it would be like a retrial, and during which you can rely on the certified copy of the judgement and orders and the certificate of the Supreme Court for their persuasive effects. I mention this last as you will have to retain attorneys in the US to act for you and it could be costly even with a contingency fees arrangement.

I am not a US attorney and certainly have no knowledge of the laws of his residential state there. This I merely make as a suggestion, unlike the others above based on Jamaican legal provisions, that you may wish to find out whether the laws there would permit you to apply to get your judgement sum and how this could be done. You would of course, have to pay for such advice.

Margarette May Macaulay is an attorney-at-law, Supreme Court mediator, notary public, and women’s and children’s rights advocate. Send questions via e-mail to allwoman@jamaicaobserver.com; or write to All Woman, 40-42 1/2 Beechwood Avenue, Kingston 5. All responses are published. Mrs Macaulay cannot provide personal responses.

DISCLAIMER:

The contents of this article are for informational purposes only, and must not be relied upon as an alternative to legal advice from your own attorney.