The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

An ex-Senate president has suffered a setback in her bid to collect a $186,809, eight year-old debt from a fellow attorney by having her sent to Fox Hill Prison for 21 days.

Acting Appeal Justice, Milton Evans, has “stayed” a Supreme Court ruling that found Debra Rose in “contempt of court” for failing to comply with an August 10, 2015, judgment requiring her to settle monies owed to Lady Sharon Wilson, wife of Sir Franklyn Wilson.

The “stay” was granted on the basis that Ms Rose’s main appeal “had a good chance of success”, given that Lady Sharon had failed to provide evidence showing she had breached the Debtors Act.

This requires proof that a person has the means to settle the debt, but has “willfully” refused to do so, before they can be committed to prison for contempt of court. Acting Justice Evans ruled the absence of such evidence was sufficient to keep Ms Rose from the three-week stay at Fox Hill that was ordered by the Supreme Court on January 15, 2018.

That ruling, by Justice Ian Winder, was itself “stayed” for 60 days to enable Ms Rose, who represented the late Anna Nicole Smith’s mother in the now-famous 2007 court battle over custody of her granddaughter, “to purge her contempt”.

Instead, Ms Rose and her attorney, Bahamas Bar Association president, Khalil Parker, used the time provided to lodge an appeal against the committal order on the basis that there had been no “willful contempt” in the absence of any proof she had the means to settle the debt.

Noting that the $186,809 “has still not been paid”, Acting Justice Evans said there was “no dispute” that the initial judgment was outstanding. “It is also not disputed that the appellant [Ms Rose] has failed to pay the said sum to the respondent [Lady Sharon], who has been kept out of those winnings for more than eight years,” he added.

Acting Justice Evans identified the basis of the Supreme Court’s committal Order as the finding that “there appears to be real property in [Ms Rose]” based on evidence provided by Lady Sharon and her attorney.

This formed the basis of Mr Parker’s challenge, with the Court of Appeal verdict recording: “He contended that the respondent’s [Lady Sharon’s] application before the court below contravened the provisions of the Debtors Act prohibiting the arrest or imprisonment of persons for making default in the payment of sums of money, the present case not falling within any of the statutory exceptions.”

Mr Parker also argued that the evidence supporting efforts to commit Ms Rose to prison “was woefully inadequate and provided no reasonable or lawful basis for the said application”, describing the basis of Justice Winder’s ruling as “unreasonable”.

He added that Ms Rose was “entitled to the full protection of the Debtors Act”, which states that only persons with the means to pay who defy a court judgment be sent to prison.

Lady Sharon’s attorney, Trevor Lightbourn, argued that the effect of any “stay” would only be to delay payment, thereby creating “a risk of injustice”. He added that the evidence showed Ms Rose had “at least a case to answer”, and that as an attorney she had sufficient opportunity to earn money to satisfy the debt.

Mr Lightbourn also argued that the burden fell on Ms Rose to disprove the evidence against her, yet she made no attempt to answer it at the Supreme Court level.

Rejecting these arguments, Acting Justice Evans said Mr Lightbourn admitted that the suggestion Ms Rose owned property to satisfy the debt - which was relied upon by the Supreme Court - came from him and not from any document or witness evidence.

“It follows then that none of the authorities which Mr Lightbourn has provided alters my view that, having regard to the clear wording of the Debtor’s Act, the jurisdiction to commit for non-payment of a debt shall only be exercised where it is proved to the satisfaction of the court that the person making default either has, or has had since the date of the order of judgment, the means to pay the sum in respect of which he has made default, and has refused or neglected, or refuses or neglects to pay the same,” Acting Justice Evans ruled.

“In my view it is clear that there was no evidence before the learned judge with regard to the means of the appellant [Ms Rose], and the learned judge in my view could not properly find that the appellant had the means to pay but had failed to do, and that her conduct was contumacious to the extent of warranting committal.

“In these circumstances I am of the view that the appellant has a good, arguable case, and the appeal lodged by her has a good chance of success.”