If You Learn that Someone Has Sued You in Court, How Should You Respond?
If you learn that someone has sued you in court, you may have only a brief time to respond. You will need to prepare legal documents and probably engage a lawyer, all within a matter of days of being served with the legal documents.
- When Does the Court Action Begin?
When someone with a legal claim begins an action, he or she has to file documents with the court. The person with a claim, called a “plaintiff” in legal terms, can file a writ of summons, an originating summons, an originating motion or a petition. (Rules of the Supreme Court, O. 5, r. 1.) Most plaintiffs decide to use a writ of summons.
The plaintiff must arrange to have the writ personally served on you. This means that someone delivers a copy of the document to you or your authorized representative in person (not by email, mail, or leaving a copy on your doorstep). If you believe that you have been served with a writ or other legal document announcing a court action, your next step is to enter an appearance in the court action.
- Entering an Appearance and Preparing a Defence
You have only 14 days after service of the writ of summons to enter an appearance to the writ action. When you were served with the writ, you may have received a “statement of claim” document as well or the statement of claim may have been indorsed on the writ. The statement of claim details the plaintiff’s claim and the loss and damage the plaintiff alleges that he or she has suffered.
Sometimes the plaintiff serves the statement of claim after serving the writ. He or she has 28 days after serving the writ to do so. After the plaintiff serves the statement of claim, the defendant has 14 days to serve a defence on the plaintiff. A defence is a document listing any defences to the claims the plaintiff makes. If you do not enter an appearance within 14 days of service of the writ or you fail to serve a defence within 14 days of service of the statement of claim, then the plaintiff may seek a default judgment from the court.
- Why You Need a Lawyer
A default judgment is very serious. When the plaintiff seeks one, he or she can tell the court that you failed to appear in the case and ask for the court to enter judgment against you. If the court says yes, you could face the enforcement of the judgment against your bank accounts or other assets as a result of ignoring the court action. Since time is short, it is a good idea to contact a lawyer as soon as you receive service of a writ.
To find out more about responding to lawsuits in The Bahamas, visit Gonsalves-Sabola Chambers online or call the office at +1 242 326 6400.
The hiring of an attorney is an important decision that should not be based solely upon the information contained in this website. This website is designed for general information purposes only and the information provided should not be construed to be formal legal advice nor the formation of an attorney/client relationship.
- Published in Bahamian Law, Blog, Civil & Commercial Litigation
Obtaining a Default Judgment in The Bahamas
When a defendant does not respond to a plaintiff’s claims in a court case, the court may grant a default judgment in the plaintiff’s favor. Plaintiffs can use this powerful procedural tool to obtain judgments requiring payment of damages without the need to further pursue absent defendants.
In The Bahamas, plaintiffs can begin lawsuits by several methods, including a writ of summons, an originating summons, an originating motion or a petition. (Rules of the Supreme Court, O. 5, r. 1.) Most plaintiffs use a writ of summons. The writ must be served personally on the defendants, meaning someone delivers a copy of the document to the defendant or an authorized representative of the defendant. A defendant has 14 days after service of the writ of summons to enter an appearance to the writ action. A statement of claim either should accompany the writ or be served on the defendant within 28 days of service of the writ on the defendant. The statement of claim details the plaintiff’s claim and the loss and damage the plaintiff has suffered.
After the plaintiff serves the statement of claim, the defendant has 14 days to serve a defence on the plaintiff. A defence is a document listing any defences to the claims the plaintiff makes. If the defendant does not enter an appearance within 14 days of service of the writ or fails to serve a defence within 14 days of service of the statement of claim, then the plaintiff may seek a default judgment from the court. The method of obtaining default differs depending on the kind of redress the plaintiff seeks.
If the plaintiff seeks liquidated damages, meaning a certain sum of money designated in a contract to be paid for a breach, or another specified sum, then the court can enter a judgment against the defendant for that sum plus interest and any costs incurred. (O. 19, r. 2.) The plaintiff then can seek to enforce the default judgment in the same way as a judgment obtained after a trial.
If the plaintiff seeks unliquidated damages – when the amount of damages cannot be set at an exact number – the plaintiff can enter an interlocutory judgment against the defendant. (O. 19, r. 3.) This means that the plaintiff will have to prove with supporting evidence and the court will have to assess the amount of the damages which the defendant must pay before final judgment can be entered.
If the plaintiff seeks some other kind of relief from the court, such as delivery of goods or possession of land, different court procedures apply for obtaining a default judgment. (O. 19, r. 4-5, 7.) Sometimes statements of claim request several types of relief, in which case the plaintiff can obtain the appropriate relief as described above for each claim. (O. 19, r. 6.) Sometimes plaintiffs sue multiple defendants. If a plaintiff obtains a default against one defendant, the case still moves forward against the other defendants.
To find out more about obtaining default judgments in The Bahamas, visit Gonsalves-Sabola Chambers online or call the office at +1 242 326 6400.
The hiring of an attorney is an important decision that should not be based solely upon the information contained in this website. This website is designed for general information purposes only and the information provided should not be construed to be formal legal advice nor the formation of an attorney/client relationship.
- Published in Bahamian Law, Civil & Commercial Litigation
When an Act Is Intentional, Not Just Negligent
In The Bahamas, the laws distinguish between negligent and intentional acts. Whether an act is negligent or intentional often affects the amount of damages or criminal penalties a person faces. In contrast, if the legal violation of which a person is accused requires an intentional act, but a court finds the person was only negligent, he could be cleared of liability.
Under the law, “intentional” means that an act was performed purposefully. A person acts purposefully when he has the intent to cause harm or offense, or at least the threat of harm or offense, to another. “Negligent” means that a person acted with a lack of reasonable care. Reasonable care refers to the degree of carefulness an average person in those particular circumstances would have taken.
Here is a simple example of the difference between intentional and negligent acts. A driver may run over a person with the intent to kill him. Another driver may reverse into a pole because he was not looking in his car mirrors. The first driver ran over the person on purpose, intending to kill him. The second driver neglected to look in his car mirrors like a reasonable person would have done while backing up.
Two common defences arise to people’s intentional acts. They may assert that they acted in self-defence or were defending another person. They may assert that they acted with consent from the person who was harmed. Both of these defences tend to show that while the person acted intentionally to cause harm, it was done for a good reason. Alternatively, the person may show that he or she had no intent in the first place – his act was merely performed with a lack of reasonable care.
There are many possible defences to a claim of negligence. Defendants try to show that no negligence was committed – that is, there was no duty to take reasonable care, the defendant did not breach that duty, the defendant did not cause the harm, or there was no harm. The court may consider how much and what type of reasonable care the defendant should have taken.
In summary, a purposeful act intended to cause harm is the central difference between intentional acts and mere negligence. A person who is negligent has no intent to cause harm. He or she just failed to take reasonable care under the circumstances.
To find out more about civil and commercial litigation, visit Gonsalves-Sabola Chambers online or call the office at +1 242 326 6400.
The hiring of an attorney is an important decision that should not be based solely upon the information contained in this website. This website is designed for general information purposes only and the information provided should not be construed to be formal legal advice nor the formation of an attorney/client relationship.
- Published in Bahamian Law, Civil & Commercial Litigation
Is There a Minimum Wage in The Bahamas?
Like many other nations, The Bahamas has a minimum wage for employees. The statutory minimum wage was enacted in 2002 as $150 per week or $30 per day or $4 per hour. In 2015, the government raised the minimum wage to $210 per week or $42 per day or $5.25 per hour. Minimum Wages (Increase in Minimum Wages) Order 2015.
The Minimum Wage Act 2002 lists the rules regarding minimum wages. Under the Act, an employee is any person who has entered into a contract of employment, including service and apprenticeship contracts. All employees must be paid the minimum wage, no matter the type of work they do. An employer under the Act is a person, undertaking, corporation, company, public authority or body of persons, and may be the owner of a business in which an employee is employed or a managing agent of that employer.
If an employer enters into a contract with an employee that lists a wage less than the minimum, the employee still must be paid the minimum wage notwithstanding the contract language. Employers found in violation of the Act must pay a $500 fine and pay the employee the difference between wages actually paid and the minimum wage. Employers may not require apprentices to pay them a premium to continue the apprenticeship. Notably, the Minimum Wage Act does not apply to any industrial agreements that existed prior to 2002 and does not apply to children.
The Minimum Wage Act requires employers to keep records showing that they have paid workers the minimum wage. If employers knowingly falsify records regarding minimum wages, they are guilty of an offence and may be fined $5,000. Inspectors may examine employer records and obtain statements from employers to ensure compliance with the Act.
Employers can defend themselves against charges of failing to pay the minimum wage or falsifying records by showing a court that an agent committed the offense and that the employer used due diligence to ensure his own compliance. The agent then may be charged with the offense instead and the employer acquitted. If the employer raises this defence, both the prosecution and the agent can cross-examine the employer and any of his witnesses. They may produce evidence in rebuttal to the employer’s claim.
To find out more about employment law, visit Gonsalves-Sabola Chambers online or call the office at +1 242 326 6400.
The hiring of an attorney is an important decision that should not be based solely upon the information contained in this website. This website is designed for general information purposes only and the information provided should not be construed to be formal legal advice nor the formation of an attorney/client relationship.
- Published in Bahamian Law
Summary Judgment in Bahamian Actions for Specific Performance
When a plaintiff brings an action seeking specific performance of a contract for the sale or purchase of any property, Bahamian court rules permit the plaintiff to apply for summary judgment when the defendant presents no defense to the claim. Obtaining summary judgment means a quick resolution of the case and an order requiring the defendant to perform under the contract.
The following requirements must be met to seek this type of relief from the court. The claim made in the action should request specific performance of the terms of a contract, its rescission, or return or forfeiture of a deposit made. Most importantly, the contract must be for the sale, purchase, exchange, or lease of property. If these requirements are met and the plaintiff believes there is no defence to his claim that the defendant breached the contract, the plaintiff may file an application for summary judgment. (Rules of the Supreme Court, O. 75, r. 1.)
The application, once filed, will be set for hearing, at which the judge will determine whether there is an issue or question in dispute that should be tried. The defendant may present evidence or enter an affidavit at the hearing showing that there is an issue to be tried. Further, the court may order a defendant or its officers to produce documents or to testify at the hearing. If the court rules in the plaintiff’s favor, the defendant will be ordered to perform his obligations under the contract. If not, the action will proceed in court. (O. 75, r. 3, 4.)
Defendants have a fairly low burden to meet to defeat this type of application. They must convince the court that there is some question in issue as to whether they performed their obligations under the contract, or whether they were required to perform by the contract’s terms. They could raise typical defences to contract enforcement such as mistake, duress, or fraud. Importantly, they do not have to prove a defence, just show that there is at least one question to be decided as to their liability.
Plaintiffs considering making an application for summary judgment in a property dispute should know that if the court finds that the application does not follow proper procedure, the plaintiff may be ordered to pay the defendant’s costs of defending the summary judgment application. (O. 75, r. 6.) Defendants should know that if they fail to appear at the hearing, summary judgment will likely be entered against them, but the subsequent judgment may be set aside or varied within the discretion of the court. (O. 75, r. 6.)
To find out more about filing a lawsuit requesting specific performance in The Bahamas, engage an attorney familiar with Bahamian law to represent you. To find out more, visit Gonsalves-Sabola Chambers online or call the office at +1 242 326 6400.
The hiring of an attorney is an important decision that should not be based solely upon the information contained in this website. This website is designed for general information purposes only and the information provided should not be construed to be formal legal advice nor the formation of an attorney/client relationship.
- Published in Business Law, Civil & Commercial Litigation, Mediation
Enforcing a Foreign Judgment in The Bahamas
After a judgment is entered in another country, the person in whose favor the judgment is entered may seek to enforce it in The Bahamas against a person or company based here. For example, the judgment may require a Bahamian company to pay money as a result of a dispute that occurred in another country. However, the person seeking to enforce the judgment faces a few obstacles in The Bahamas.
First, a foreign judgment cannot be immediately enforced by process of execution in The Bahamas. It must either be registered or otherwise given recognition by the Bahamian courts. Some foreign judgments may be registered and then enforced similarly to judgments of Bahamian courts. (Reciprocal Enforcement of Judgments Act.) For judgments that do not satisfy the requirements for registration, the judgment creditor (the person in whose favor the foreign judgment is entered) may commence an action or make a counterclaim in a Bahamian court action based on the judgment debt. Alternatively, the judgment creditor may be able to rely on the foreign judgment as a defence to proceedings regarding the same subject matter as the judgment.
To register a foreign judgment, the creditor must make an application to the Bahamian court within 12 months of the date of the foreign judgment. The judgment must have been made by a superior court in the foreign country or by an arbitrator under circumstances allowing the arbitration award to be enforced in the same manner as a judgment. Further, the judgment must have been obtained in a jurisdiction that has reciprocal enforcement of judgment provisions with The Bahamas – i.e., Barbados, Bermuda, Jamaica, the United Kingdom, Australia, and a few other countries.
If the judgment was made by a court in a jurisdiction that does not have reciprocal enforcement of judgment provisions with The Bahamas, the creditor must commence an action in The Bahamas to enforce the judgment. Creditors commonly encounter problems when they cannot register the judgment because the foreign judgment debtor may have assets in The Bahamas but not reside or carry on business there. As a result, Bahamian courts may not have jurisdiction over the foreign judgment debtor and the creditor may not receive court approval to commence an action against the foreign judgment debtor in The Bahamas. The judgment creditor may however be able to join a necessary co-defendant who is resident within The Bahamas to solve this problem.
Alleged judgment debtors who wish to oppose the enforcement of a foreign judgment against them can raise a few specific defences. They may assert that the foreign court did not have jurisdiction over them; that the foreign judgment was not final and conclusive; that the judgment was not for a fixed amount; that the judgment was obtained by fraud; that the judgment’s enforcement would be contrary to public policy in The Bahamas or contrary to the rules of natural justice; or that the foreign judgment relates to a matter that was previously decided by another court as between the same parties. If these defenses are not raised or if they are found not to have merit, then the judgment creditor will be entitled to summary judgment and can recover its costs of the Bahamian court proceedings from the judgment debtor as part of the judgment debt.
To find out more, visit Gonsalves-Sabola Chambers online or call the office at +1 242 326 6400.
The hiring of an attorney is an important decision that should not be based solely upon the information contained in this website. This website is designed for general information purposes only and the information provided should not be construed to be formal legal advice nor the formation of an attorney/client relationship.
- Published in Blog, Business Law, Civil & Commercial Litigation