The High Court has ruled that section 6 of the Enforcement of Court Orders Act 1940 is invalid under the Constitution, finding that its safeguards were inadequate where a debtor could be imprisoned for failing to pay instalments. The court quashed a 2005 order committing a woman to prison and the warrant issued to enforce it, because the District Court lacked jurisdiction. It did not decide whether the law was incompatible with the European Convention on Human Rights or whether the woman was entitled to damages.
In a judgment delivered on 18 June 2009, Miss Justice Laffoy found that section 6 breached constitutional guarantees of fair procedures and personal liberty. The case concerned a woman who had not attended the District Court hearings that led to an instalment order and then an order for her arrest and imprisonment. She had been ordered to pay €82 a week towards a debt owed to Monaghan Credit Union. The committal order, made in her absence, provided for one month in prison unless €5,658 was paid.
The judgment described her as having serious literacy difficulties and recurrent psychiatric illness. It found that she could not understand or respond appropriately to the enforcement documents without advice and assistance. She learned of the committal order only when Gardaí came to arrest her in May 2006. The Credit Union and State parties accepted by the hearing that she should not be committed and agreed to the order being quashed.
The judge held that the law allowed a committal order to be made even when the debtor was absent, without a way to establish whether that absence was deliberate. It also placed on the debtor the burden of showing that non-payment was not due to wilful refusal or culpable neglect. The District Court had no scheme through which it could provide State-funded legal aid to an impecunious debtor facing imprisonment.
The court said constitutional safeguards required the debtor to be present unless knowingly absent, to be told about legal representation and provided with legal aid if unable to afford it, and to receive a fair hearing at which imprisonment could be ordered only if non-payment resulted from wilful refusal or culpable neglect. The statute could not be interpreted to supply those protections without rewriting it.
Laffoy found the imprisonment power was also a disproportionate interference with the right to liberty. The statutory process did not require less restrictive measures to be tried first, and did not ensure that inability to pay was established before imprisonment. She did not decide whether imprisonment for deliberate, culpable default should be related to the amount owed.
The court did not rule on Convention compatibility, saying it was inappropriate to do so after finding the provision unconstitutional and before the damages claim was resolved. It directed that further submissions be heard on damages and whether a Convention determination would then be appropriate. Those issues remained open at the end of the judgment.