The Law Centre was instructed to act for the plaintiff in the landmark judgement in McCann v The Judge of Monaghan District Court & Ors1, The case resulted in the striking down of Section 6 of the Enforcement of Court Orders Acts 1926 & 1940 as repugnant to the Constitution. Judgement was delivered by Laffoy J, 18th June 2009.
In this case a Credit Union obtained an order from the District Court under section 6 of the Act to have Ms McCann arrested and imprisoned for one month for failing to pay arrears of €5,658.00 in instalments previously ordered by the Court to the Credit Union. This order specified that she should be incarcerated in Mountjoy jail unless the arrears were paid. Ms McCann did not attend Court and was unaware of the existence of this order until the Garda Síochána arrived at her home. The Gardaí, however, granted the plaintiff time to seek financial and legal advice.
Ms McCann was a single mother of two children. Her only source of income was social welfare payments, including child benefit. She had attended school for a short time but had limited literacy abilities. Additionally, she had a history of psychiatric illness and alcohol abuse. In assessing her financial situation MABS estimated that she would only be in a position to repay €10.00 per week. MABS requested the Credit Union not to proceed with the committal order but this offer was rejected. MABS then referred the matter to the Law Centre which launched a challenge to the legality of the order itself and the constitutional validity of Section 6 of the Principal Act.
CLM Northside’s input
The plaintiff contended that Section 6 of the Act contravened the protection afforded to her under the Constitution and the European Convention of Human Rights. The plaintiff submitted that, under Section 6, the ‘schema of the enforcement process suffers from a fatal lack of safeguards for a debtor, because the operative ability to stop an order from being made under Section 6 depends on the debtor appearing before the District Court’ and that she had not been actively informed of her entitlement to free legal aid and representation. The Irish Human Rights Commission, acting as amicus curiae in this case supported this contention. The plaintiff also argued that statutory provisions for enforcing a debt under the Act were invalid due to a lack of opportunity for the debtor to re-enter court after the committal order was made. The plaintiff also argued that Section 6 of the Act was repugnant to the Constitution which demands that the burden of proof must lie on the party seeking to deprive one of their liberty and that the relevant standard of proof was the same as applied in criminal proceedings, i.e. beyond reasonable doubt. The term of imprisonment levied in the plaintiff’s case was also argued to be disproportionate to the amount of the debt.
Laffoy J held that Section 6 of the Principal Act was invalid with regard to the provisions of the Constitution, specifically Articles 34.40.3 and 40.4.1. Accordingly, the District Court was found to have no jurisdiction to make the 2005 committal order against the plaintiff, thus an order of certiorari was granted quashing that order, due to lack of jurisdiction.
The clear finding that Section 6 of the Principal Act was unconstitutional resulted in the implementation of the Enforcement of Court Orders (Amendment) Act 2009 (the 2009 Act). The 2009 Act amends the principal Act to ensure that if a debtor does not appear in Court, a summons can be issued and a bench warrant issued to compel their attendance before any order for committal will be made. The court must satisfy itself as to whether the debtor has wilfully refused to pay and that all other steps possible, including instalment payments and mediation, have been taken to recover the debt. The Court has the discretion to grant legal aid for the representation of the debtor and the burden of proof shifts to the creditor to prove beyond a reasonable doubt that the debtor has the means to pay. This legislation significantly improves debt enforcement law and provides for greater protection of those experiencing problems.