James Simpson v Selecta Insurance and Reinsurance Company (Caribbean) Ltd

• Jurisdiction: Saint Kitts and Nevis
• Court: Court of Appeal (Saint Kitts and Nevis)
• Judge: Farara JA
• Judgment Date: 17 October 2025
• Judgment citation (vLex): [2025] ECSC J1017-1
• Docket Number: NEVHCVAP2025/0010

Between:

James Simpson

Appellant

and

Selecta Insurance and Reinsurance Company (Caribbean) Limited

Respondent

[2025] ECSC J1017-1

Before:

The Hon. Mde. Esco Henry Justice of Appeal

The Hon. Mr. Gerard St. C. Farara Justice of Appeal [Ag.]

The Hon. Mr. Reginald T. A. Armour Justice of Appeal [Ag.]

NEVHCVAP2025/0010

THE EASTERN CARIBBEAN SUPREME COURT

IN THE COURT OF APPEAL

(CIVIL DIVISION)

Interlocutory Appeal — Contempt Order — Committal Order — Rule 53.4 of the Civil Procedure Rules (Revised Edition) 2023 — Section 3(1) and 4 (1) (b) of the Debtors Act — Whether the Committal Order was procedurally unfair and ought not to have been made — Whether the Committal Order was manifestly unfair

This is an appeal from a committal order made by a learned judge of the High Court of Justice in Nevis in the Federation of St. Christopher and Nevis in Claim No. NEVHCV2022/0161 (“the Claim”). The parties in the Claim are the respondent, Selecta Insurance and Reinsurance Company (Caribbean) limited (“Selecta”), as claimant, and Bank of Nevis International Limited (“BONI”), as defendant. The appellant James Simpson, was at all material times the acting chief executive officer of BONI and one of its directors. James Simpson

By the committal order the judge ordered that the appellant be committed to His Majesty's Prison, Basseterre, St. Kitts for a period of 7 days from the date of the said order for the failure of the BONI to comply with the terms of the order of the court in the said proceedings dated 5 ^th March 2025 that BONI is to pay the sum of US$3,017,909.88 into court by 12 ^th March 2025 (“the Contempt Order On 2 ^nd May 2023 the respondent, Selecta, obtained a judgment in default of defence against BONI in the Claim for damages to be assessed.. The assessment of damages first came before the leaned judge on 18 ^th December 2024 who made an order which, in part, recited: ‘ AND UPON Counsels for the Claimant and the Defendant agreeing that the Defendant [BONI] has acknowledged that it holds the sum of US$3,017,909.88 on the account held in the name of the Claimant.’ By the said order — iIt was ordered that BONI shall pay the sum of US$3,017,909.88 into the Nevis High Court by 3 ^rd January 2025; and the hearing of the assessment of damages was fixed for 3 ^rd February 2025 via zoom (“the !8 ^th December Order”).

This position remained unaltered until the assessment of damages came up before the learned judge for hearing on 3 ^rd February 2025, at which hearing BONI made an application for its adjournment. The order made on 3 ^rd February 2025 recited that BONI had not paid the sum of US$3,017,909.88 into court by 3 ^rd January 2025 as ordered by the court on 18 ^th December 2024. Accordingly, it was ordered that BONI shall pay the said sum into court by 17 ^th February 2025, and the hearing of the assessment of damages fixed for 5 ^th March 2025 (“the 3 ^rd February 2025 Order”).

On 3 ^rd March 2025 the respondent, Selecta applied to the High Court for an order pursuant to Rule 53.2 of the Civil Procedure Rules (Revised Edition) 2023 (“CPR”) that BONI pay the said sum of US$3,017,909.88 into court by a specified time and that the said order be endorsed with penal notices against the appellant, James Simpson, and Stephen Agbeyegbe, the chief executive officer and chief operations officer respectively of BONI (“the 3 ^rd March Application”). At the hearing on 5 ^th March 2025 regarding both the assessment of damages and the 3 ^rd March 2025 Application, at which the appellant was not present, the learned judge made certain orders (‘the 5 ^th March 2025 Order’). The 5 ^th March 2025 Order recited:

“AND UPON HEARING Counsel for the Defendant indicate that she has received no instructions on the Claimant's application dated 3 ^rd day of March 2025 and or reasons for the Defendant's failure to make the payment of US$3,017,909.88 into Court in keeping with the order of 3 ^rd February 2025.”

By the 5 ^th March 2025 Order, it was ordered:-

“(1) the Respondent [BONI] is ordered to pay the sum of US$3,017,909.88 into the Nevis High Court by 4 pm on 12 ^th March 2025.

(2) This order shall be served personally on James Simpson, the Chief Executive Officer and Steven Agbeyegbe Chief Operation Officer of the Respondent.

(3) Costs are awarded to the Applicant [the respondent] in the sum of EC$1,500.00.

(4) The hearing of the Claimant's assessment of damages is fixed for hearing on 18 ^th March 2025 via zoom at 8:20a.m.”

The 5 ^th March Order also contained penal notices directed (respectively) to the appellant, James Simpson, and Stephen Agbeyegbe, informing them individually that should BONI fail to comply with the payment in the sum ordered to be paid into court by the 5 ^th March Order they may be liable to be imprisoned or to have an order of sequestration made in respect of their property.

On 10 ^th March 2025 BONI filed an application for the learned judge to recuse himself in the said proceedings (“the Recusal Application”), which application was supported by the affidavit of Temitope Elugsobon. On 20 ^th March 2025, directions were given by the leaned judge for BONI to file any further affidavit in support of its Recusal Application; the respondent was ordered to file and serve any Part 53 application on or before 27 ^th March 2025; and these two matters were fixed for hearing by the judge on 2 ^nd April 2025. The Committal Order arose from an application by the respondent filed on 24 ^th March 2025 (“the 24 ^th March Application”) in the Claim seeking –

“(1) A declaration that BONI is in contempt of court having breached the Orders of the court granted on 18 ^th December 2024, 3 ^rd February 2025 and 5 ^th March 2025. (2) an order that James Simpson, Chief Executive Officer of BONI, be committed to prison for failure to comply with the terms of the Order dated 5 ^th March 2025, that BONI pay the sum of US$3,017,909.88 into the Nevis High Court by 4 p.m. on 12 ^th March 2025.”

The Committal Application was served on the appellant on 25 ^th March 2025. On 1 ^st April 2025 the appellant filed an affidavit in the proceedings below in which he admitted that he is the Chief Executive Officer and a director of BONI, having held these positions, respectively, from November 2021 and September 2020. The appellant also admitted that he had been served with the 5 ^th March Order (with penal notice) on 12 ^th March 2025, that is, the very same day that the said order required BONI to pay the sum of US$3,017, 909.88 into court by 4:00pm. As it turned out the appellant was actually served with the said order in the afternoon of 12 ^th March 2025 at a time after the banks were closed.

The Committal Application, the Recusal Application and the assessment of damages came before the learned judge on 2 ^nd April 2025. These applications were adjourned to 2 ^nd May 2025. The appellant was present in court on 2 ^nd May 2025. The learned judge first dealt with the Recusal Application which was later dismissed. Next the judge dealt with the Committal Application. At the hearing of the Committal Application the appellant was called as a witness and his affidavit filed on 1 ^st April 2025 tendered as his evidence in chief. He was then cross-examined by counsel for the respondent/claimant. At the conclusion of the proceedings the learned judge made the Committal Order dated 2 ^nd May 2025 against the appellant. Pursuant to the Committal Order, the appellant was imprisoned on 2 ^nd May 2025 for a period of 7 days

The appellant on 6 ^th May 2025 appealed against the making of the Committal Order. In his notice of appeal, the appellant relied on 6 grounds of appeal. However, at the hearing of the appeal learned counsel for the appellant informed the Court that the 6 grounds of appeal can be 4ummarized or condensed into one ground namely: ‘The Committal Order is procedurally unfair and ought not to have been made.’

Held: allowing the appeal, setting aside the Committal Order, and ordering the respondent to pay the appellant's costs of the appeal to be assessed by a judge of the High Court if not agreed by the parties within 21 days that:

• 1. The expression “judgment debtor” in Rule 53.4(a) and (c) and elsewhere in Part 53, means the person, in this matter BONI, who is the subject of the 5 ^th March Order for payment of the stipulated sum into court by the date and time specified therein. It is BONI which is the person who is liable to enforcement under the said order. Therefore, BONI falls squarely within the definition of “judgment debtor” under Part 53.

  Rule 53.4 (a) and (c) of the Civil Procedure Rules (Revised Edition) 2023 applied.

• 2. Rule 53.4(c) applies not to service of the order on the officer of the body corporate, but on the “judgment debtor”, that is, the body corporate itself, which is required or obligated to pay the money judgment or to make payment in accordance with an order for payment. It is the body corporate that is mandated to comply with the order to do the act. It is also required pursuant to Rule 53.3(a) that the order endorsed with a penal notice be served personally on the body corporate and, pursuant to Rule 53.4(c), “in sufficient time to give the judgment debtor a reasonable opportunity to do the act” before the expiration of the specified date and time. Once there has been compliance with the mandatory requirements as to service on the judgment debtor and on the named officer of the body corporate, subject to Rule 53.5(2), the court may proceed to find the body corporate and its named office in contempt, subject to any reasonable explanations or reasons for their non-compliance, and to make in its discretion a committal order against the named officer. It is also a requirement under Part 53 that the order endorsed with penal notice must be served on the officer named in the order and who is the subject of a penal notice directed to him or her pursuant to Rule 53.4(a). Once service has been effected on the body...