Attachment & Committal II

Attachment and Committal

Attachment and committal is a method or process for execution of civil judgements and orders It is also employed for punishing other instances of contempt of court. The purpose of the process is to compel compliance with the judgment. It is not a criminal process nor is it punitive in nature

A writ of attachment directs the sheriff to attach a person and bring him before the court in relation to an alleged contempt.  The leave of court is required for the issue of a writ of attachment.  It should be made on notice for the party to whom it is directed. Unless the application is made promptly, the right to seek attachment may be lost.

An order of attachment directs that the person against whom the order is directed shall be brought before the Court to answer the contempt in respect of which the order is issued. An order for committal may be made on foot of application to the court. Notice of that application must be served on the person who is sought to be committed.

An order of committal shall direct that upon his arrest the person against whom the order is directed shall be lodged in prison until he purges his contempt and is discharged pursuant to a further order of the Court.

Save in respect of committal for contempt in the face of the Court or committal as above, no order of attachment or committal shall be issued except by leave of the Court to be applied for by motion on notice to the party against whom the attachment or committal is to be directed.

With limited exceptions, attachment is not available for payment of a money, sum or debts. It may be made in respect of the order

• requiring the defendant to do any act, other than payment money;
• require a person to refrain from doing an act;
• against the officers of a company which wilfully disobeys an order;
• for payment of monies into court

In lieu of ordering attachment or committal to the court made in some cases, grant an injunction in order to prevent the repetition of contempt.

Application

An application for a writ of attachment is made by motion on notice.  The grounds and evidence on which it is based must be set out in the affidavit. The affidavit must prove service of the judgement or order and the default made. Where the basis is disobedience of an order of the court, particulars of the alleged breach must be set out.

In the case of an order for payment of money, it must be shown that the order is such that it falls within one of the limited exceptions to the general prohibition on imprisonment for debt.

Service of the motion for attachment or committal must be proved, if the party who is sought to be attached does not appear.  Personal service is required unless  substituted service has been ordered where Respondent is evading service of the order

Order Issues

In the case of a prohibitory order which has been made, but not drawn up, it is enough to show the person had notice of it, provided that the formal service should be affected as soon as possible.  A prohibitory notice does not require a special endorsement.

A mandatory injunction which is prohibitory may be enforced by obtaining an order, setting a time limit for compliance and proceeding for committal on proof of personal service of both orders, provided that the supplemental order has a penal notice.

Where an act is required by the order to be done within a particular time, it must be personally served within that time.  Where an undertaking to do an act within a particular time is embodied in the order, it may be enforced by way of committal without service.

If the undertaking is positive and does not set a time limit within which the act is to be done, the order must be served personally fixing a time in which the act must be done. It must be duly endorsed or a further day order must be obtained and served personally before attachment will issue.

Where there is undertaking to pay money into Court and no time limit is fixed, an order must be obtained and served personally.

Service of an order for discovery, interrogatories or inspection made against a party or his solicitor is sufficient to allow an application for attachment for disobedience of the order.

An application and order for substituted service of the order may be made and grated ex parte (unilateral).  Personal service may be dispensed with if it is shown that the respondent is evading service.

An order extending time to do an act must be served personally.  A duplicate of the order extending time must be produced at the time of the service.

Committal

Committal may be available for breach of an order

• requiring the defendant to do any act, other than payment money;

• requiring a person to refrain from doing an act;

Proof of default is required where a prohibitory order is disobeyed. The full some facts constituting disobedience must be set out. The notice of motion must be served personally unless substituted service is ordered.

Copies of the affidavits and exhibits need not be served in a motion for committal. They may be required in the case of a motion for attachment.

In the case of contempt in the face of the court, no notice is necessary.  Some opportunity must be given to answer the contempt. Subject to this, the person concerned may be committed summarily.

An order for a committal must be made by a judge. The order may commit the party in contempt to prison for a fixed period or until he discharges or purges his contempt.  In the case of contempt, before (in the face of the court), the court will take cognisance of the facts before it, and may sentence the person concerned to a fixed term immediately.  It may impose a fine at the discretion of the Court, as an alternative or in addition to committal and attachment.  It may require security for good behaviour.

The costs of an application for attachment and committal are at the discretion of the court.  The respondent may be made liable for the costs if he has been guilty of contempt.  A person who has purged his contempt may not be detained in person, because he had not paid the costs associated with the contempt.

Post Committal Order

The general position is that a party who has been found to have been in contempt may not take proceedings or be heard in the matter until he purges his contempt.  He may not appeal from an order until he purges the contempt.  There are exceptions.  He may appeal with a view to setting aside the order and which his contempt is based.

He may be allowed to prosecute his action where the defendant has not applied to stay the proceedings.  In general terms, he will not be allowed to proceed where his contempt impedes the course of justice and there is no other way of securing his obedience.

A writ of attachment is executed by the sheriff by lodging the person who has been attached in prison.  He is to remain there until an order is made for his discharge.  A sheriff is not bound at common law to bring the person before the court unless he is so directed.

An order for attachment is in force for one year. A further order is required if it has not been executed in this period.  The person in contempt is removed to a prison, and to remain there until an application is made for discharge.  If the sentence is for a fixed period, he is to remains there until this period expires.

Where the contempt is criminal, the officer executing the order may break an outer door at common law.  Persons committed for contempt were, historically kept in different conditions to persons convicted of criminal offences under prison rules.

An application to discharge a person from a custody or imprisonment by reason of attachment and committal is made by motions or summons.  It may be based on evidence that the person concerned has purged his contempt or on the basis of a flaw in the proceedings.

Notice of the application must be given to the other party. Motions for the discharge of persons who are imprisoned are given priority by the courts.

Where a person has been committed for a fixed period for criminal contempt, the Minister of Justice may reduce the sentence.  Where the orders for attachment or committal is made to uphold the authority of the court, it may have to consider the person who has been sufficiently punished, discharge him.

The order for discharge may and usually will order the prisoner to pay the costs caused by the contempt. In civil cases, the discharge is not made conditional on payment.  In a criminal case, imprisonment may be imposed by way of a fine in the alternative.