Court Orders in the lower Courts
District and Circuit Court practice and procedure in relation to the issue and enforcement of court orders is broadly similar to that in the High Court. The District and Circuit Court Rules make specific provision for the enforcement of their respective court orders, which differ in some respects to the High Court rules, set out in the section on the enforcement of judgments.
The District and Circuit Court orders are usually made at the end of the hearing. Judgement is not usually reserved for consideration. Formal written judgements are not usually be given, although the judge may give a summary of his findings and his decision on their legal consequences.
Reasons for Judgments
The judge may reserve judgment if he or she needs to deliberate on the matters concerned. If the judgement is reserved, it must be entered in a register of reserved judgements. If the judgement is not given within a certain period, the Court Service must list the proceedings before the judge, and give notice of the listing to the parties and the President of the District or Circuit Court. The parties will generally attend the hearing at which reserved judgement is given. However, the court may give judgment and issue an order in their absence.
There is a broad constitutional duty on a judge to give reasons for his decision. It should indicate the arguments, which were accepted and rejected and in so far as possible in the circumstances, the reason for the decision. The extent of the requirement for reasons depends on the circumstances.
Where there is a straightforward contest as to what has happened, a brief decision may suffice. If a more complex argument is made, the judge should explain his decision in terms that show the acceptance or rejection of the arguments made. The European Convention on Human Rights obliges courts to give reasons for decisions, having regard to the nature and circumstances of the case.
District Court Order
A District Court judgement takes effect immediately unless a stay is placed on its enforcement. This may happen on the application of either party. It is a matter for the court, whether or not to grant a stay. The court may impose such time limits, terms and conditions on the stay, as it sees fit.
In the case of a money judgement where the court is satisfied that the defendant is unable to discharge the full sum due by immediate payment, for reasons which are not due to his misconduct or default, and there are grounds for granting an extension, the court may stay execution of the judgement on such terms as it sees fit. There may be a requirement that the money is paid in instalments. It may be provided that on failure to pay an instalments, the whole amount becomes due.
Where an order is made for recovery of rates, it may be ordered may be made that the sum is to be paid at once. In default of payment, the sum may be levied by distress and sale of goods and by taking of moneys of the person against whom the order is made.
Recording the Order
The District Court Rules provide that the judge shall on pronouncing a decision, cause a memorandum of the decision to be entered in the minute book or charge sheet. The District Court Clerk will enter a note of the decision on the court file. The court order will usually be drawn up on the basis of this memorandum.
A District Court order in a civil matter, is referred to as a decree. A decree may be made against one party to proceedings and dismissed against another. Decrees may be made against each party, in which event they are referred to as cross decrees. The court may onan application, order that they be set off or that the balance be paid.
Parties to an action may embody their settlement in an agreement and have it made a rule of court. Where a person is not represented, the decrees will be signed and consent shall be proved to the court or by affidavit prior to the court making a decree. Where the parties are legally represented, the consent may be given by their representative.
Execution and Enforcement
The order / judgement itself has a 12-year life. Interest on the judgment has a life of 6 years. A District Court decree / order for the recovery of money may require sheriffs and county registrars to take goods in execution to satisfy the debt, costs, VAT and interest. A warrant is added to the decree or dismiss. Where the warrant is for payment of money, the person to whom the warrant is addressed may sell goods by auction within a period fixed by the warrant, and if not fixed within 5 days from which they are seized.
Unless the sum for which the warrant is issued and the expense of taking and keeping the goods are paid before the sale, the goods are to be sold. The surplus after payment of the judgement and all expenses incurred in auctioning, taking and keeping the goods, is to be paid to the persons from whom they were seized.
There is a procedure for attachment and committal before the District Court. A person who is in contempt under a court order, may be ordered to appear before the court. If he fails or refuse to explain his contempt to the satisfaction of the court, he may be committed to prison until his contempt is purged. This is a civil matter and thus is not subject to criminal law protections or procedures.
An application for attachment and committal must be served personally, unless the court for good reason, otherwise directs. In advance of bringing proceedings for attachment and committal, a copy of the court order must be served. This may be by personal service, if possible. The order must contain a penal endorsement specifying the time within which the relevant act is required to be done. The penal endorsement must state that if the order is disobeyed, that the person to whom it is addressed may be imprisoned of fined or compelled to obey it.
Circuit Court Orders
The Circuit Court rules in respect of orders and judgements are broadly similar to those in the District Court. Where the court makes an order, the registrar records the terms of the order and drafts a document to reflect it. Once prepared, the order is made available in the Circuit Court Office. An order requiring something to be done requires a penal endorsement.
The rules in respect of consent orders are similar to the position above. A judgement by consent, may be available from the Circuit Court Office, provided that all parties are of full age and consent to the making of the order. The consent may relate to debt, breach of contract, delivery of goods, ejectment or rent. The only conditions must relate to the suspension of enforcement or payment in instalments.
Execution in the Circuit Court
The Circuit Court execution order is a separate document to the judgment / decree. An execution order may be issued at the request of the parties from the Circuit Court office. The execution order enables the sheriffs or outside Dublin, the County Registrars to seize goods in satisfaction of the debt. A requisition for an execution order must be lodged in the Circuit Court office.
The execution order directs the sheriff to levy the money due together with interest, costs, value added tax etc. Goods or moneys, including financial instruments, may be seized, This does not apply to certain items such as tools and equipment. See our section on enforcement by the Sheriff Enforcement.
The Circuit Court rules make provision for orders for the possession of lands. Where an order is made to the possession or delivery of land, an execution order may not issue until proof has been given that the order has been served and disobeyed.
Where an order is made for recovery of any property other than money or land, the Circuit judge, may on an application of the claimant, may issue an order that the delivery of the property without the option to retain the same upon payment of money. If the property cannot be found, the sheriff may be ordered to seize all goods, chalets and land, until the property is delivered or returned. Alternatively, at the option of the claimant, the sheriff may levy the claimant’s goods for the value of the assessed property.
Where an order is made against a partnership, execution may issue against the property of the partnership and against persons who have appeared who have failed to make a defence or who have admitted that they are, or have been determined to be partners. If a person has obtained an order which he claims to be entitled to enforce against another member of the partnership or firm, he may apply to the court for leave to do so.
An execution order remains enforceable for one year after issue. Thereafter, it may be renewed. The judgement on which it is based remains in place for 12 years. Interest on arrears of a judgment debt are barred form enforcement after six years.
The procedure for attachment and committal in the Circuit Court is broadly similar to that in the District Court. The copy of the order must be served on the defendant and must contain a penal endorsement.
Attachment of Debts
The Circuit Court Rules make provision in respect for garnishment of debt and other sums due to the defendant. An application may be made by one party, either before or after examination of the debtor by the court, for an order, that sum due to the judgment debtor, should be appropriated in satisfaction of the judgement. The court has discretion as to whether to grant an attachment of debts receivable.
There is no general attachment of earnings order procedure, in the Circuit Court or in the District Court. Wages and salary may not be attached, unless the judge is satisfied that a sufficient amount is left for the judgment debtor to maintain himself and his dependents. The order may be varied on an application.
The application for the attachment of debts by garnishee involves two steps. The first is a one sided application, seeking a conditional order. This must be based on evidence of the debt due and the debts to be attached. The garnishee debtor must be situated within the jurisdiction. Evidence must be given that the principal order was not been enforced by way of sheriff seizure.
The garnished debtor may wish to dispute the liability and is entitled to appear on the return date and explain why the order may be discharged. The conditional order granted at the one-sided application, must be served on the garnishee and the judgment debtor personally, unless otherwise directed. On the hearing day, the garnishee or judgment debtor may make representations. Where the court if it is satisfied may order execution to levy in the amount due from the garnishee or such amount as is required to satisfy the principal.
The Circuit Court Rules provide for a procedure in the Circuit Court for equitable execution. See generally the section of enforcement in respect of equitable execution. Equitable execution involves the appointment of a receiver over the attached property by way of enforcement. This facilitates enforcement against certain intangible assets.
The procedure is broadly similar to that in respect of attachment of a debt. The first stage is a one-sided application, which results in a conditional order. The conditional order is served on the relevant parties and will be made absolute unless they appear and make representations, which the judge accepts.
The court must be satisfied that the assets may be assigned. The assignment must be over a specific property only rather, than the entire assets of the debtor. An order will not be made if it is futile. As with other such orders, an application may be made to amend or vary them.
Effect of Order
Once a court order is issued, it is generally final and binding between the parties, in relation to the matter it deals with. The finality of an order, is subject to the possibility of an appeal. A court order may be set aside in certain exceptional circumstances, such as having been obtained by fraud or dishonesty.
The District and Circuit Courts may correct immaterial errors, slips and accidental omissions in a court order. The error must be an oversight or obvious mistake, and in no way go to the merits of the matter. The court itself may amend the order, even after it has been finalised in order to correct such an error. This may be done only for the purpose of rectifying the decision intended or for correcting an accidental slip.
Interest may be awarded under the Courts Act, on a money judgment. Where the claim is for a sumo f money, the judge may also order interest at the rate per annum specified by law. Where, as is commonly the case, the particular contract or the general late payment legislation provides for interest, then the judge may choose not to exercise his discretionary power to avoid interest.
Setting Judgment Aside
Where a judgement has been obtained without an Intention to Defend (in the District Court) or and appearance / Defence (in the Circuit Court) being entered (in default) an application may be made to have the judgment set aside. The application must be made to the court to vary or set aside the decree for good cause. Fraud, surprise, mistake or other reason may suffice. The original order is not suspended, unless the sum ordered to be paid, is lodged in court.
If an order was not obtained in compliance with the rules or there were some patent irregularity, such as defective service, the court will more readily set aside the order. Where a judgement is regular, but an appearance was not made, the matter of setting aside the order will be at the discretion of the court.
The reasons for default must be specified in the application to set the order aside. The motion to set aside the judgment must itself, be on notice to the claimant. The court must be satisfied that there is a valid and bona fide defence. The merits of the defence are highly relevant. If there was a good reason for failing to defend, the court is likely to exercise its discretion, in the interest of doing justice. The judgement may be satisfied in such terms as the court decides, including terms in relation to costs.