Examination & Installments
Examination Order
A judgment creditor may summon a judgment debtor to the District Court to be examined as to his means. The procedure starts with a court summons to an individual to be examined as to his means.
The judgment debtor 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.
Examination Summons
If a creditor produces to a Judge of the District Court prima facie evidence—
- that any debt is due to the creditor under a judgment of a competent court, and
- that the person whom the said debt is payable is ordinarily resident in the court district for which the Justice is then sitting, and
- that the debtor has no goods which could be taken in execution under any process of the court by which the said judgment was given,
the Judge may make an examination order. The order requires that the debtor do attend before him on a specified date to be examined as to his means.
Statement of Means
The order requires the debtor not less than one week before the said specified date lodge with the District Court Clerk a statement of means setting forth his assets and liabilities, his income earned and unearned and the means by which it is earned or the source from which it is derived, and the persons for whose support he is legally or morally liable. The creditor is entitled to inspect and take or obtain copies of the statement of means at any time after it is lodged.
On the examination of the debtor as to his means pursuant to an examination order, the statement of means lodged by the debtor shall be received in evidence and the creditor and the debtor may each adduce further evidence as to the means of the debtor, and the debtor may also himself give evidence on oath, and may, whether he gives evidence or not, be cross-examined by or on behalf of the creditor on the statement of means and his evidence (if any).
If the Justice is satisfied on the evidence adduced on the examination as to means that the statement of means lodged by the debtor is false to the knowledge of the debtor in any material particular, the Justice may forthwith order the arrest of the debtor and sentence him to imprisonment with or without hard labour for any term not exceeding three months and the debtor shall be imprisoned accordingly.
Installment Order
The judge may then make an installment order based on what he believes the debtor can afford to pay on foot of the original judgment/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.
A District Judge may make an instalment order for payment in instalments as he believes the debtor can afford it. 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.
An instalment order shall continue in force until the expiration of twelve years from the date of the relevant judgment, order or decree. No instalment which accrues due under an instalment order after such order ceases to be in force shall be payable or recoverable.
An instalment order is not required to be made for payment of the whole of the debt and costs within the period during which such order continues in force.
Variation of Instalment orders.
A Justice of the District Court may, if he so thinks proper on the application of the creditor or of the debtor, do in respect of any instalment order (whether made before or after the passing of this Act) whichever of the following things is applicable, that is to say:—
- where such instalment order requires the debt and costs to be paid in one payment, vary such order so as to provide (in lieu of such payment in one sum) for payment of the debt and costs by such instalments and at such times as such Justice shall in all the circumstances think reasonable;
- where such instalment order requires the debt and costs to be paid by instalments, vary such order in such manner as such Justice may think proper in respect of the number of instalments, the amount of the instalments, or the times at which the instalments are to be paid or all or any two of those matters.
Whenever a Justice of the District Court , whether on the application of the creditor or the application of the debtor, an order varying an instalment order, such Justice may, if he so thinks proper, do either or both of the following things, direct that the costs of the creditor in respect of the application for such variation order shall be part of the costs of the proceedings in the District Court and direct that such variation order shall apply and have effect as from a specified date prior to the date thereof.
Committal Order
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.