Attachment & Committal I

Overview

Committal to prison can take place where there is deliberate refusal to obey a court order. This is not generally a punishment in the sense that imprisonment for crime is for a particular sentence for a crime that has occurred. Committal for disobedience lasts only for so long as the person deliberately refuses to obey a court order, with which he could comply.

It has been a principle of the legal system for over a hundred years that a person who cannot afford to pay money should not be imprisoned for non-payment. The court will assess the debtor’s ability to pay under the various enforcement proceedings. Generally, enforcement will be not be allowed, unless taking a person\’s basic needs into account they can afford to make payment.  This principle is reflected in the Enforcement of Court order legislation and in the other method involving “attaching” debts and other assets.

The Enforcement of Court orders legislation was recently found unconstitutional and was replaced by newer legislation giving greater protection against the risk that debtor may be imprisoned for non-payment of debt, he can afford to pay. It goes further to ensure that committal to prison is a very last resort against a debtor who deliberately refuses to pay in circumstances where the court determines payment is possible.

Absconding Debtor

There is a procedure for arresting and detaining a debtor, who is about to leave the country to avoid his creditors. The applicant to the court must show there is probable that the defendant is about to leave Ireland and that his absence would materially prejudice the enforcement of a court order.

The court may order arrest and imprison the debtor for a period not exceeding six months. This may be lifted once the debtor gives acceptable security.  There may be issues in relation to the constitutional validity of this process.

Examination and Installment Order

It is possible to summons a judegment debtor to the District Court to be examined as to his means. The judge may then make an installment order on the basis of what he believes the debtor afford to pay, on foot of the original judgement / court order for the debt.  Deliberate failure to comply with this order can be the subject of a further application for committal to prison on the basis of deliberate breach of the order.

The procedure starts with a court summons to an individual to be examined as to his means. He is obliged to file a statement of means in advance of the hearing, together with details of his income, assets, liabilities, and means and details of those for whom he is legally or morally liable to support. There are limited sanctions if the statement is not filed and the court has limited time and powers to investigate the details filed. It is contempt of court to refuse to attend and the person summonsed is obliged to answer all relevant questions.

A District Judge may make an installment order for payment in installments as he believes the debtor can afford.  If the judge believes that the debtor can afford it, he may make an order for payment in a single lump sum. Equally, the judge may grant no order if the judgment debtor has insufficient means.

Committal for Non-Compliance

Generally, an individual cannot be imprisoned for debt. A person may be imprisoned for deliberately refusing to obey a court order where the court has ascertained that they can pay and they refuse to pay. There is a District Court procedure for committal to prison for deliberate non-payment of an installment order.

The procedure for committal was revised because the old law was found to be in breach of a debtor’s constitutional rights. Under the new procedure, if the debtor fails to make payments on an installment order, the creditor can apply to the District Court clerk for a summons directing the debtor to appear before the District Court on a specified date. If the debtor does not appear without a reasonable excuse, a summons can be issued for arrest of the debtor to be brought before the court. Alternatively, a new date can be fixed for a hearing.

The debtor is now entitled to apply for legal aid if he qualifies, in view of the risk of the consequences of non-payment. The judge must explain the consequence of non payment and the possibility of imprisonment. The judge may revisit the installment order or may request resolution by mediation. As a last resort, the judge may, if he considers appropriate, make an order of imprisonment.

The imprisonment order cannot be for more than three months. The order may be postponed so that terms and conditions may be imposed on it. No order of imprisonment may be made unless the judge is satisfied beyond reasonable doubt that the creditor is able to pay, but has deliberately refused or neglected to pay and that no goods are available by which the judgment could be otherwise enforced. The debtor can apply to have the matter reviewed if there are changed circumstances at any time. The  Minister for Justice may direct that any person be released.

Older Circuit Court Procedure

There is a procedure in the Circuit Court by which a person may be committed to prison for the deliberate non-payment of a debt. It must be shown the person has the means to pay and has refused or neglected to do so.  A person can be committed to prison for up to six weeks. The procedure is not often used.

Attachment I

Attachment and committal are proceedings arising on foot of contempt of court, designed to compel compliance with a court order.  Its purpose is coercive and not punitive. Attachment may only be had in respect of orders to do particular things.  It is not generally available to enforce payment of money.  It is available in respect of wilful disobedience to a court order, but not where disobedience is due to negligence or inability to comply.

They may be used where there is an order for payment of money into court, recovery of property (other than land or monies) or requiring a person to do an act (other than payment of money) or refrain from doing act. It may be used against a company which wilfully disobeys an order.

A penal endorsement on the original court order should indicate that if a person fails to obey the order within the time limit specified, he may be subject to the process to compel obedience including imprisonment. Generally, the order requiring the person to do or abstain from doing the act must be served. It might be possible to prove that the person concerned is evading service, but has notice of the order.

Proceedings should be brought before the court making the order itself. An order of attachment is only issued by leave of court on application.  The application is heard by a motion. It may be necessary to obtain an order for substituted service where the person against whom a service attachment is sought, is avoiding enforcement and cannot be served personally.

Attachment II

The order of attachment directs that the person to whom the order is directed be brought before the court to answer the complaint of contempt.  The order is addressed to the Garda Commissioner. In the Circuit Court, it is addressed to the Superintendent for the relevant district).  It orders them to bring the person before the court.

A person brought before the court may be committed for contempt of court.  Alternatively, he may be discharged on such terms as may be imposed.  Imprisonment may be for a definite term or may be until contempt is purged. The person concerned may appear and explain non-compliance. They make representations in mitigation. They may later apply to the court to purge their contempt.

The jurisdiction is to be exercised sparingly. The evidence must be clear. Constitutional considerations require that the person the subject of the proceedings by given a full and fair opportunity to challenge the alleged facts and explain his conduct and any exculpatory factors that may apply.

Committal

A court order requiring a person to do an act other than payment of money, may be enforced by application to the court for committal for contempt of court. The purpose is to exact obedience and uphold the authority of the courts.  A person may be committed summarily and has no right to trial by jury.

A motion is issued for committal.  The relevant facts must be proved.  Proof of service of the order will be required.  A motion for committal is not required in respect of committal in the face of a court or pursuant to an order of attachment.

Generally, a person will not be committed unless his action is intentional or reckless.  A court will generally commit, only where it is likely to achieve obedience to the original order. The order of committal directs arrest of the person and lodgement in imprisonment.  It is addressed to the Garda Siochana.

The person affected may apply to the court for discharge of a committal order.  The court may discharge the committal order on such terms as it orders.

Companies and Corporations

An order against a company or corporation which has willfully disobeyed may be enforced by an order for attachment and committal against its directors and other officers.  The disregard should be deliberate or reckless.  There should be culpable behaviour on the part of the officers, in failing to ensure compliance.

The order must be served personally on the directors or secretary.  It may be enforced by  attachment.  It must be endorsed with a form of notice set out in the court rules

Older Legislation

A person may not generally be  arrested or committed to prison for failure to pay a debt.  This policy was reflected in the Debtors Act, Ireland 1872 and in the Enforcement of Courts Orders Legislation.

Committal to prison is permitted under the Debtors (Ireland) Act for wilful disobedience of certain court orders which are within the capacity of the person to perform.  A court may commit a person to prison up to six weeks under the 1872 Act or until he payment of the sum due if  he makes default in the payment of the debt or installment of a debt, pursuant of any order or judgment of a competent court. The Act applies to orders made in open court. It appears to be limited to High Court orders. There is a discretion to refuse to make an order.

The above provision applies.

It must be shown to the satisfaction of the court that the person has the means (or had the means since the court order) to pay the sum concerned and has refused or neglected to do so.  The order may be made in respect of non-payment of the sum the subject of the order or an instalment.

The procedure is subject to the same Constitutional considerations that apply to the Enforcement of Court Orders Acts. It is likely that the revised due process requirements under that legislation would be required the case of this jurisdiction.  Questions may arise in relation to constitutionality.  The person is likely to be entitled to the opportunity to make representations and be represented.

Copies of the order are delivered to the Garda Commissioner with details of the person against whom it is to be executed.  The person may be arrested and copies of the order are endorsed by the executing officer with the date of arrest and are left with the governor of the prison concerned.

Imprisonment does not extinguish the debt or deprive the person enforcing it of any other remedy. The plaintiff may apply for and pursue such other remedies, as he sees fit contemporaneously or otherwise. Imprisonment is discharged on payment of the debt.