Committal for Debt
Older Legislation
A person may not generally be arrested or committed to prison for failing to pay a debt. This policy is reflected in the Debtors Act, Ireland, 1872 and the Enforcement of Courts Orders Legislation.
Committal to prison is permitted under the Debtors (Ireland) Act for wilful disobedience of certain court orders that are within the person’s capacity to perform. A court may commit a person to prison for up to six weeks under the 1872 Act or until he pays the sum due if he defaults in the payment of the debt or instalment of a debt pursuant to 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.
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.
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 with respect to 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 in 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.
Failure to Comply with Instalment order.
Where a debtor is liable, by virtue of a District Court instalment order, to pay a debt and costs either in one payment or by instalments and the debtor fails to make the payment or fails to pay any one or more of the instalments due while that order is in force at the time or times appointed by it, the creditor may, at any time while it is in force or within 12 months after it has ceased to be in force, apply to a District Court clerk for the District Court area where the debtor resides for a summons directing the debtor to appear before the District Court.
A summons to appear shall—
- be issued by the District Court clerk concerned,
- contain details of the consequences, under this section, of a failure to comply with an instalment order and in particular the possibility of imprisonment,
- provide information in ordinary language of the options available to the judge of the District Court under subsection (7) at the hearing of the summons,
- state that the debtor may be arrested if he or she fails to appear before the District Court as directed, and
- be served on the debtor by personal service, unless the judge of the District Court directs otherwise.
Failure to Appear
If a debtor fails, without reasonable excuse, to appear before the court in answer to the summons, on the application of the creditor, the judge of the District Court, if satisfied that the debtor was served properly issue a warrant for the arrest of the debtor, or if the judge thinks it appropriate in all the circumstances, fix a new date for the hearing at which the debtor will be required to attend and direct that he or she be notified of that date.
A debtor arrested shall be brought as soon as practicable before the District Court.Where a debtor is arrested and brought before the District Court ), the judge shall fix a new date for the hearing of the summons and direct that the creditor be informed by the District Court clerk by notice in writing of the date so fixed, and shall explain to the debtor in ordinary language that he or she  is entitled to apply to the court for a certificate of legal aid and  must attend before the court at the date next fixed for the hearing of the summons. It must explain the consequences, which may follow a failure  to comply with an instalment order and in particular the possibility of imprisonment, or  to attend before the court as required.
At the hearing of the summons, where both the creditor and the debtor are present in court, before hearing their evidence, the judge shall explain to the debtor in ordinary language  that he or she is entitled to apply to the court for a certificate of legal aid and the consequences, under this section, which may follow a failure to comply with an instalment order, and in particular the possibility of imprisonment.
Hearing
On hearing the creditor and the debtor and such evidence, if any, as they may respectively adduce, a judge may, if he or she is satisfied that the debtor has failed to comply with the instalment order—
- treat the proceedings on the summons as an application under section 5 for a variation of the instalment order, in which case section 5 applies as if the proceedings were such an application,
- if he or she considers it appropriate, request the creditor and the debtor to seek resolution by mediation, within such period as the judge may specify and, if not resolved by that method and within the period so specified, the creditor may apply to the District Court clerk concerned to re-enter the proceedings,
- if he or she considers it appropriate, and , make an order fixing a term of imprisonment for any period not exceeding 3 months (which order shall specify the amount of the outstanding debt and costs, including the costs of that order), and postpone the execution of that order until such time and on such conditions, if any, as to the payment of the outstanding debt and costs as he or she thinks just, or
- if he or she considers it appropriate, order the arrest and imprisonment of the debtor for any period not exceeding 3 months (which order shall specify the amount of the outstanding debt and costs, including the costs of that order), and the debtor shall be arrested and imprisoned accordingly.
A judge shall not make an order for imprisonment (immediate or postponed/ conditional) unless he or she is satisfied, beyond reasonable doubt, on the evidence presented, that the creditor has established that—
- the failure to pay the sum in respect of which the debtor has made default is not due to his or her mere inability to pay but is due to his or her wilful refusal or culpable neglect, and
- the debtor has no goods which could be taken in execution under any process of the court by which the judgment, order or decree for the debt was given.
Where an order fixing and postponing a term of imprisonment has been made with a condition as to payment of the debt and costs by the debtor, he or she may, if his or her ability to comply with the terms of the order has changed, apply to the District Court clerk concerned to re-enter the matter and the District Court judge, on notice to the creditor, shall deal with the matter as if it was an application under section 5 for a variation of an instalment order.
Imprisonment
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.
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.
Rights on Imprisonment
Where a debtor is imprisoned on foot of an order mahe or she—
- may, if his or her ability to re-pay the outstanding debt and costs as specified in that order has changed, apply to the District Court clerk concerned to re-enter the matter and the District Court judge, on notice to the creditor, shall deal with the matter as if it was a re-hearing of the summons , and
- is entitled to be released immediately upon payment by him or her or on his or her behalf to the District Court clerk concerned or to the Governor of the Prison for the District Court clerk, of the sum of money consisting of the amount of all instalments of the debt and costs which have accrued before, and are unpaid at the date of such order.
All moneys paid under this section to the District Court clerk (whether directly or through the Governor of the Prison) by or on behalf of a debtor shall be paid by the clerk to the creditor on request.  Failure by a debtor to comply without reasonable excuse, constitutes contempt of court, and the District Court judge may deal with the matter accordingly.
At the hearing of the summons, where both the creditor and the debtor are present in court, before hearing their evidence, the judge shall explain to the debtor in ordinary language  that he or she is entitled to apply for legal advice and legal aid under the Civil Legal Aid Act 1995, and  the consequences, which may follow a failure to comply with an instalment order.
On hearing the creditor and the debtor and such evidence, if any, as they may respectively adduce, a judge may, if he or she is satisfied that the debtor has failed to comply with the instalment order—
- treat the proceedings on the summons as an application for a variation of the instalment order, in which case section 5 applies as if the proceedings were such an application, or
- if he or she considers it appropriate, request the creditor and the debtor to seek resolution by mediation, within such period as the judge may specify and, if not resolved by that method and within the period so specified, the creditor may apply to the District Court clerk concerned to re-enter the F10[proceedings.]
Entitlement to legal aid.
If it appears to a judge of the District Court in proceedings on a summons that the means of a debtor are insufficient to enable him or her to obtain legal aid, the judge shall, on application being made by the debtor in that behalf, grant to the debtor—
- a certificate for free legal aid (in this section referred to as a ‘ debtor’s legal aid certificate’),
- where the debtor appeals an order for his or her imprisonment and applies to the judge for legal aid in connection with the appeal, a certificate for free legal aid in respect of the appeal (in this section referred to as a ‘ debtor’s legal aid (appeal) certificate’), or
-  where the judge refers a question of law arising in the proceedings to the High Court by way of case stated or states a case in relation to the proceedings for the opinion of the High Court and the debtor applies to the judge for legal aid in connection with that reference or case stated, a certificate for free legal aid in respect of the reference or case stated (in this section referred to as a ‘ debtor’s legal aid (case stated) certificate’).
Where a certificate has been granted the debtor concerned shall be entitled to legal aid and to have legal representation assigned to him or her for that purpose.  Where a debtor, in respect of whom an order for imprisonment is made, is refused a debtor’s legal aid (appeal) certificate, he or she may apply for the certificate to the court to which an appeal from imprisonment lies either by letter addressed to the registrar of that court setting out the facts of the case and the grounds of the application, or to the court itself.
Release
Where a person is in prison under an order of a court made on account of the failure of the person to pay a sum of money, the Minister may, at any time and for any reason which appears to him or her sufficient, direct that the person be released either (as the Minister thinks proper) immediately or after payment of a specified part of that sum of money.
The Minister may, before releasing a person , if he or she considers it appropriate and proper in all the circumstances consult with the judge who made the order for imprisonment of the person. Where the Minister directs that a person be released from prison, the person shall be released in accordance with the direction.