Part 50 – Attachment of Debts

Scope of this Part

50.1

1. This Part provides a procedure under which a judgment creditor can obtain payment of all or part of a judgment debt from a person who owes the judgment debtor money.
2. In this Part –
   • “attachment of debts order” means the order served on a garnishee attaching a debt in the garnishee’s hands;
     “garnishee” means a debtor in whose hands a debt has been attached; And
   • “proper officer” means the officer of the court who is responsible for the custody of funds in court.
3. The attachment of debts order may require the garnishee to pay enough to satisfy the fixed costs of the attachment of debt proceedings as well as the judgment debt.
   • Part 65, Appendix A sets out the fixed costs.

Circumstances in which court may make order for attachment of debts

50.2

1. The attachment of debts procedure may not be used if the order is to pay money into court.
2. An attachment of debts order can be made only against a garnishee who is within the jurisdiction.
3. An attachment of debts order may not be made to attach debts due from the Crown.
   • Rule 59.7(3) provides an alternative procedure in this situation.
4. A debt may be attached if it –
   1. is due or accruing to the judgment debtor from the garnishee on the date that the provisional order under rule 50.3 is served on the garnishee; or
   2. becomes due or accrues due to the judgment debtor at any time between the service of the provisional order under rule 50.3 and the date of the hearing.

Procedure – making of provisional order

50.3

1. An application by a judgment creditor for an attachment of debts order must be in the appropriate practice form.
2. The application may be made without notice but must be supported by evidence on affidavit.
3. If the court considers that on the evidence submitted the judgment creditor is entitled to an attachment of debts order, it must make a provisional order.
4. The court must do this without a hearing.
5. The court office must state in the provisional order the date, time and place of the hearing.

Money in bank accounts, etc.

50.4

1. An attachment of debts order may be made in respect of any type of debt but includes money standing to the credit of any account of the judgment debtor with a bank or other financial institution.
2. An attachment of debts order must not require a payment that would reduce below EC$50 the amount standing in the name of a judgment debtor in an account with a bank or other financial institution.

Joint funds

50.5

1. This rule applies where an application is made to attach a fund which is owned jointly by the judgment debtor and another person or persons.
2. The evidence in support of the application must state –
   1. details of the joint fund;
   2. the names and addresses of the person or persons who own the fund jointly with the judgment debtor; and
   3. if the applicant claims that the judgment debtor is entitled to more than an equal share in the fund – the grounds for that claim.
3. Each owner of the fund must be served with the provisional attachment of debts order and the evidence in support.

Presumption of equal shares in joint funds

50.6

1. The general rule is that a fund held jointly by the judgment debtor and another person or persons is to be presumed to be owned in equal shares.
2. Any person served under rule 50.5(3) may apply to the court to determine the actual beneficial entitlement of each owner of the joint fund.

 Attachment of debts owed by firm

50.7

1. This rule applies to the attachment of debts due or accruing due from a firm carrying on business within the jurisdiction.
2. Such debts may be attached even if one or more members of the firm is resident outside the jurisdiction.
3. A provisional order under rule 50.3 must be served on –
   1. a member of the firm; or
   2. some other person having the control or management of the partnership business;  in the jurisdiction.
4. Any member of the garnishee may attend a hearing of an application for an attachment of debts order.

Service of provisional order

50.8

1. The judgment creditor must serve the provisional attachment of debts order.
2. It must be served first on the garnishee at least 21 days before the hearing. It must be served personally on the garnishee unless the garnishee is a body corporate.
3. If the garnishee is a bank or other financial institution, the provisional attachment of debts order must be served at its principal or registered office and also the branch at which the judgment debtor’s account is kept, if that address is known to the judgment creditor.
4. Secondly, the order must be served on the judgment debtor.
5. It must be served on the judgment debtor at least 7 days after it has been served on the garnishee and not less than 7 days before the hearing.

Effect of provisional order

50.9

1. This rule sets out the effect of a provisional attachment of debts order.
2. The order becomes binding on the garnishee as soon as it is served on the garnishee.
3. The garnishee does not then have to pay the judgment creditor anything except to the extent that the garnishee’s debt to the judgment debtor is greater than the amount of the attachment of debts order.
4. However, if the garnishee pays anyone but the judgment creditor the garnishee may have to make further payment to the judgment creditor in accordance with the terms of any final attachment of debts order that the court may make.

Hearing to consider making final order

50.10

1. At the hearing fixed by the provisional order the court, if satisfied that the order has been properly served, may –
   1. discharge the provisional order;
   2. give directions for the resolution of any dispute; or
   3. make a final attachment of debts order.

Claim to a debt by person other than judgment debtor

50.11

1. This rule has effect where the court is aware from information supplied by the garnishee or from any other source that someone other than the judgment debtor –
   1. is or claims to be entitled to the debt; or
   2. has or claims to have a charge or lien on it.
2. In this rule –“lien” means a right to retain possession of goods to protect a debt.
3. Where this rule has effect, the court may require the judgment creditor to serve notice of –
   1. any hearing fixed by the court; and
   2. the application for an attachment of debts order; on any person who may have such an interest as is set out in paragraph (1).
4. The notice must be served personally unless the person is a body corporate.
5. Notice must also be served on the –
   1. garnishee; and
   2. judgment debtor.
6. A notice under this rule must contain a warning to every person on whom it is served that, if that person does not attend court, the court may proceed to decide the issue in that person’s absence.

Enforcement against garnishee

50.12

1. If a garnishee does not fulfill the terms of an attachment of debts order, the judgment creditor may issue enforcement proceedings against the garnishee.

Discharge of garnishee’s debt to judgment debtor

50.13

1. This rule has effect where –
   1. an attachment of debts order is enforced against the garnishee; or
   2. the garnishee pays money to the judgment creditor in compliance with an attachment of debts order.
2. The garnishee’s liability to the judgment debtor is then discharged to the extent of the amount paid by, or recovered from the garnishee.
3. This rule has effect even if the court later sets aside the attachment of debts order or the original judgment or order.

Costs of attachment of debts proceedings

50.14

1. This rule contains general provisions about the costs of attachment of debts proceedings.
2. The judgment creditor’s costs are those fixed by Part 65, Appendix A unless the court makes some other order in which case it must assess the costs.
3. The judgment creditor may retain the costs out of the money recovered through the attachment of debts order.
4. The costs are to be taken to have been paid to the judgment creditor before any payment in respect of the judgment debt.
5. A garnishee who appears at attachment of debts proceedings may deduct the garnishee’s costs before paying any sum over to the judg­ment creditor in pursuance of the attachment of debts order.
6. Costs payable under paragraph (5) must be assessed under rule 65.11 if not agreed.

Money in court

50.15

1. An attachment of debts order may not be made in respect of money in court standing to the credit of the judgment debtor.
2. The judgment creditor may however apply for an order that a sufficient amount of the money in court to satisfy the judgment and the fixed costs of the application be paid to the judgment creditor.
3. Notice of the application must be given to the proper officer and any person who has an interest in the fund.
4. Until hearing of the application the money to which it relates must not be paid out of court.
   • Part 65, Appendix A sets out the fixed costs.