Committal for Contempt

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 a 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 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 methods involving “attaching” debts and other assets.

Parts of the Enforcement of Court orders legislation were found unconstitutional and were replaced by newer legislation, giving greater protection against the risk that the 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.

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 the 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