Man unlawfully jailed for failure to pay debt released by High Court

A man was recently released on bail from Mountjoy Prison by the High Court following an application brought by FLAC, the access to justice organisation, in a case that highlights major failings in adherence to the law surrounding debt enforcement in Ireland.

The man’s case was back before the High Court last week where he was given unconditional release. He had been sentenced on 21 March in the District Court for failure to make court-ordered instalment payments on a judgment debt. The man, who has significant health issues, was then arrested on the order of the presiding judge, brought to a Garda station and removed to Mountjoy Prison to serve a week in prison.

The man had spent two nights in Mountjoy before an application to the High Court resulted in his release on bail. It had been argued that the presiding judge had not applied two safeguards required under legislation in circumstances where a person faces prison for failure to meet the terms of an Instalment Order:

  1. Legal aid must be offered to the debtor, and that
  2.  A judge may not make any order to imprison unless he or she is satisfied that the creditor has shown beyond a reasonable doubt that the debtor failed to pay due to his or her “wilful refusal or culpable neglect”.

Counsel on behalf of the man highlighted to the High Court that the warrant for his imprisonment signed by the District Court judge was incorrect, as it recorded that these two safeguards were adhered to, when an audio recording of the proceedings confirmed that they were not. Counsel also pointed out that the whole hearing in the District Court, resulting in the imprisonment of the man, took no more than three minutes. In 2009, in the case of McCann v Judge of Monaghan District Court and Others, the High Court declared Section 6 of the Enforcement of Court Orders Act 1940 to be unconstitutional on the grounds that it allowed for the imprisonment of a debtor in his or her absence where he or she had failed to make court ordered instalment payments on a judgment debt.

To comply with this finding, the Enforcement of Court Orders (Amendment) Act 2009 was put in place. It allows for a debtor who has failed to make court-ordered instalment payments to be summoned before a court to explain non-payment, and also prescribed the two legislative safeguards mentioned above.

Further legislation passed in 2015, The Civil Debt (Procedures) Act 2015, should have removed all possibility of a person being imprisoned on foot of a debt but this has not been commenced by the Minister for Justice & Equality.

In addition, a 2009 FLAC report, To No One’s Credit, focused on reforming other key failures in the law on the enforcement of judgment debts by instalment. One of these was that a court Instalment Order should never be made in a debtor’s absence and without full detail of the debtor’s financial circumstances. This and other FLAC recommendations were endorsed by the Law Reform Commission in its 2010 report on Personal Debt and Debt Management.

Click here for FLAC’s Press Release.

Click here for FLAC’s 2009 report, To No One’s Credit.



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