Seanad Éireann debate -
Tuesday, 30 Mar 1926

Vol. 6 No. 15

PUBLIC BUSINESS. - ENFORCEMENT OF COURT ORDERS BILL, 1926—SECOND STAGE.

MINISTER for JUSTICE (Mr. O'Higgins)

This Bill represents my permanent proposals bearing on the question of the execution of the decrees and orders of the courts. Senators are probably aware that we have been carrying on for the last two or three years with temporary legislation which is due to expire on the 31st March. This Bill is of a permanent nature and it represents the provisions which I consider necessary for the due and proper execution of the orders of the courts. It has been prepared in consultation with many of the under-sheriffs of the country and after a close observance of the working of the temporary Acts. Many of the provisions are simply the incorporation in permanent legislation of certain features of the temporary Acts. It is not proposed to continue the system of assistant under-sheriffs, the reason being that the position with regard to execution of court orders is now down to what may be regarded as practically the normal figure. The arrears on hands when the temporary legislation was passed were 7,500.

The accumulated arrears of decrees at present in the offices of the under-sheriffs have now dropped to less than one-half of that figure, about 3,600, and as judgments come into the hands of these under-sheriffs at an average rate of about 2,000 per month the figures 3,600 would represent very little more than current work. It is very important that there should be no falling back in the matter of the prompt execution of the orders of the court. The whole credit of the country both internal and external, depends in the last resort on the decree and certainly on the degree of expedition with which the orders of the court are executed. Probably one of the few provisions to which I would direct the special attention of Senators is Section 13. Section 13 has been considered by some, members of the Dáil and others, to be a drastic section. It provides that:

No action shall lie against any under-sheriff for or on account of his having taken in execution under any execution order, any goods, animals, or other chattels found in the house or other place of residence or on the lands of the debtor and claimed or alleged (whether such claim or allegation does or does not prove to have been well-founded), to be the property of the wife or husband of the debtor, or to be the property of any parent or child of the debtor for the time being residing in the house or other place of residence of the debtor, and, in lieu of such action against the under-sheriff, the person to whom such goods, animals, or other chattels so taken in execution in fact belonged shall (if such goods, animals, or other chattels should prove not to have been the property of the debtor) be entitled to recover from the debtor by action the value of such goods, animals, and other chattels, together with such damages as such person shall have suffered by reason of such goods, animals, or other chattels having been so taken in execution.

In less formal language the effect of that section is to give to under-sheriffs in the execution of court orders an administrative discretion when faced with a third party claim which they believed to be a bogus claim. I know of no other effective means of dealing with that situation. The bogus third party claim had become a feature well known to every under-sheriff in the country, and the claim in fact and in practice was impossible to rebut. The under-sheriff is handed a decree against A.B. living in such a street. He goes along and on entering the premises casts his eye on a particular article of furniture. The wife or daughter says: "Hands off that; that belongs to me or to my eldest daughter. It was given to her by her uncle." Senators putting themselves in the position of the under-sheriff confronted with that kind of claim will realise that it is impossible to refute, and the bogus third party claim, if allowed to continue—if we were to stereotype the position in our legislation—means in effect that by the simple process of entering such a field any decree of a court can be reduced to so much waste paper. That is the defence of the section.

I agree that as baldly stated there in legal language, it seems a drastic section. My defence is that it is a necessary section and having given much time, thought and trouble to the question I know of no other effective answer to the device of the bogus third-party claim. This vests discretion in the under-sheriffs. If the party to such a claim is bogus, he should be free without having the menace of personal liabilities hanging over him. Instead of that we propose, if a mistake is made and if a wrong in fact occurs that the remedy shall lie against the debtor as if the monies belong to the third party were paid on his behalf, and an action lies for the recovery of such money. Senators might glance at Section 7. It continues the property exemption from seizure under the decrees of the courts to the money value of £15. That was a new feature introduced into the temporary legislation and it is not unreasonable to continue it. The law as I found it originally enabled goods to be seized leaving only to the judgment debtor property to the amount of £5. In view of the very considerable alteration in the purchasing power of money it is not unreasonable to change that £5 to £15.

Part II. of the Bill, which provides for the examination of debtors, is proposed to be continued as a feature of the temporary legislation as it was universally recognised by solicitors practising throughout the country as a most valuable provision. It enables judgment debtors to be summoned before the District Court and to be examined there on behalf of the judgment creditor as to their means, and if the court, having heard the examination, makes an order for payment either by a full order or by instalments and if the judgment debtor fails to comply with that order, then there is power of infringement. The alternative to some such provision is, in fact, that a person not having property—a person, say, living in a hotel—could successfully evade the decrees of the court by simply pleading that he had no goods, whereas, in fact, there are stocks or shares or things of that kind in respect of which he would be in receipt of a very considerable income. This procedure which enables a judgment debtor to be examined before a court as to his means has been found to be very valuable, and it is proposed to continue that as a permanent feature of our legislation. I am not quite sure if there is anything else in the Bill that I ought to direct special attention to, but if Senators have any difficulty perhaps I could deal with them after they have spoken.

Mr. O'ROURKE

I am strongly in favour of this Bill and of the section to which the Minister referred. I would like to know what is the status of the new Court messenger? Is it giving the sheriff's bailiff a new name? If there is any superannuation given under this Bill Senators would like to hear about it, as there should be no question of giving pensions as the result of such legislation. I hope that the Minister when fixing a scale of fees for sheriffs will see that the scale will not be a hardship on the poor. I have heard of fees that were charged within the last few years and they seemed enormous. I know of one case where property was seized and taken to the local pound. After some time the plaintiff in the case agreed to accept £10 and to give back the goods. The defendant, who was a poor man, handed £10 to the sheriff, and after some days the sheriff handed the plaintiff £2 5s. 0d. The plaintiff only got £2 5s. 0d. and the defendant was still nearly as much in debt as he was originally. Up to the present the sheriff fixes any fees he likes. In cases of this kind I think the fee should be reduced to what would be reasonable, especially where small amounts were involved.

Mr. O'FARRELL

This is a Bill for the protection of creditors and for the facilitation of credit transactions. With such objects there would be general agreement. Credit to a certain amount is necessary to commerce, and commerce, of course, is necessary to the life of the nation. It is only as regards certain of the methods adopted with this object in view that I take exception. There is a great body of the general public who are neither creditors nor debtors who require and should obtain protection from an intolerable nuisance. This Bill sets out under Sections 13 and 14 what may become a nuisance and a general menace. This section in a frantic way tries to enable debts of any kind to be collected, if necessary at the expense of the person who is called the debtor. That is the great objection to the Bill.

In the first place it gives the sheriff power to enter into any premises where he might reasonably believe goods belonging to the debtor repose, to break in if necessary, and no action will lie against him. Then he is indemnified from any action in respect of any damage he may do in that way. But Section 13 enables him to take the property of some other person in order to satisfy the debt, and no action will lie against him, provided that the property belongs to the parent, the child, the wife or the husband of the judgment debtor. That sets up a new relationship and a new responsibility between a parent and child and to that extent is revolutionary. It may be a comparatively simple matter in the country, but we know that in cities, because of the housing shortage, families are mixed up in the most interminable way. A newly-married couple may incur debts on their own responsibility and for their own benefit. They may be living in the same house, flat or tenement as their parents, and it is intolerable that the sheriff can seize the property of the father or the mother to satisfy the debt, without any redress to them. Or you may have the case of a wild son who may get in with bad people, into billiard rooms or with drinking companions, and may incur debts with gombeen men and others who are always too ready to advance money at exorbitant rates of interest to anybody if they think they have a reasonable chance of recovering the money and interest. Such a son may incur debts all over the town and the creditor can get a judgment against him and seize his parents' property. One result of that will be the breaking up of a number of families now living together. You are not punishing the judgment debtor at all; you are punishing the innocent person. Simply because some people abuse the existing law is hardly a justification for passing permanent legislation that will be an injustice and a desperate nuisance to a very large section of the community, seeing that only a small minority are affected by these particular abuses. The crowning joke and humbug of Section 13 is the part which says that the person whose property is seized but who does not owe the debt is permitted to pursue the debtor—to pursue the debtor from whom the creditor has not been able to collect the debt. He can chase after him, although he has nothing at all to do with the matter.

One can advance a certain amount of argument in support of this type of legislation as a temporary measure, in very disturbed circumstances or after a civil war. But to make it into permanent legislation in contravention of everything that has gone before in normal times is, I think, an unreasonable and preposterous proposition. One result of it will be that this country will become the El Dorado of gombeen men, of financial jugglers and that type of individual that makes an existence, so to speak, on the border line between ordinary commerce and financial juggling. There is a certain section of people who live by lending money, selling clothes, furniture and so on, on the instalment system at tremendous rates of interest. They give these goods to anybody when they see a reasonable prospect of being able to collect the money, and they do not care from whom they collect it. This has given rise to such desperate abuse in England that Lord Carson, because of his experience in the case of his own son, has been compelled to introduce a Moneylenders' Bill. I do not know what its exact name is, but it is something which does not give that protection to lenders of money at an exorbitant rate of interest that they had under the old law. That Bill is to be passed because it was felt necessary to protect the community from the ravages of people of that kind. Here we are going to give them a beautiful field of operation. But simply because a number of people have failed to pay their Land Commission annuities—because that is the basis of the whole thing— I do not see why the whole community should be held up to such ransom, because in the troubled times, and because they got encouragement for it, people refused to pay their annuities, and some refused to pay their shopkeepers' bills.

An improvement will come. The Minister will attribute it to the fact that this Bill had been in operation, but the improvement will come in the normal course of events. The Minister admitted in the Dáil that he had to issue special instructions to sub-sheriffs that they were to use this clause with great care, seeing its dangerous nature. Does not the fact that the Minister has to give special instructions to the agents of the Government that they are to use this very cautiously show that it is a very dangerous instrument? The prevalence of peace conditions will again encourage credit in any case, and people who stand to gain by lending money, and selling bad furniture and cheap clothes on the instalment system will again begin to traffic in the ordinary way. And they can traffic under this in far more favourable circumstances than they did before. The result will be that people who always pay their debts, or who rarely incur debts, will have to pay for the indiscretions and the irregularities of others. There is to be no action against the sheriff. One realises that the sub-sheriff should not have to be restricted or hampered in the discharge of his duties, but he is a servant of the State. If the servant of an ordinary employer is guilty of some indiscretion the employer is sued. Would the Minister not agree to some half-way measure where, instead of the under-sheriff being sued, the State could be sued, where a claim could be made against the Minister for Justice in the case of goods wrongfully seized? That would at least protect the under-sheriff. It would not unduly hamper him and it would be some sort of protection for the individual. Section 6 provides that in all cases of seizure an itemised inventory shall be prepared and presented to the person from whom the goods were seized within forty-eight hours of the seizure, and Section 8 provides that the sale may take place any time after twenty-four hours. In other words, the itemised inventory may only be presented when the sale has taken place. I think the more reasonable procedure would be to reverse that; let the inventory be given within twenty-four hours and have no sale until after forty-eight hours. The Bill does not say that the sale is to be advertised. It is well-nigh impossible to have any advertisement if the sale takes place after twenty-four hours, and the sheriff may not make the slightest attempt to get the market price for what he has seized. Creditors should be protected, but debtors should get some protection also, and there should be some assurance that goods seized should, as far as possible, be sold at the market price.

Mr. O'HIGGINS

That is why we are dispensing with the advertisement.

Mr. O'FARRELL

So that they will not?

Mr. O'HIGGINS

So that they will.

Mr. O'FARRELL

It is provided that he need not state that it is a sale by the under-sheriff. I think that that is a protection. The goods might be furniture or something of that kind that cannot be sold quickly except at great sacrifice. Then the Bill enables him to sell outside his bailiwick and if necessary outside the Saorstát.

Mr. O'HIGGINS

No.

Mr. O'FARRELL

Then that is an improvement on the previous Bill, but even selling outside the bailiwick is not a particularly desirable thing in peaceable times. Section 20, which enables the judge to make an order whereby the debtor can pay in instalments, is certainly by a long way the best section in the Bill. Sections 15 to 19, which provide for the examination of debtors, are very important sections, and I think that they should meet the position postulated by the Minister, of people making bogus claims in respect of the ownership of furniture and other goods. It is to be assumed that a person would have to give some sort of proof and convince the court that the property belonged to him, and the fact that the debtor is brought before the court, subjected to a strict examination, and can be imprisoned if necessary for unsatisfactory answering, is, I think, the best possible protection. I cannot understand Section 21, and I would be glad if the Minister will explain it: "Proceedings by way of interpleader may be instituted by an under-sheriff before the district court in any case in which the under-sheriff shall have taken in execution or intended execution any goods, animals, or other chattels under any execution order and such goods, animals, or chattels are claimed by some person other than the debtor." If a person says "These goods are mine," is it the sheriff who is to institute proceedings or is it the person himself? I am all in favour of tightening up the machinery and enabling the writs of the courts to run, but I think we can go a little too far in that respect, and I would suggest that a creditor should have to satisfy himself as to the character of the person to whom he gives credit. After all, credit is given not so much on property as on a person's own character. He may have plenty of property and still be of bad character, and the creditor should be made to exercise some sort of discretion and not give credit in the hope and with legislative sanction of being able to collect the debt from somebody else.

Mr. BARRINGTON

While I have no desire to facilitate the class of people that Senator O'Farrell has mentioned, and while I recognise that there may be a certain amount of want of care on the part of certain creditors, I would like very strongly to support the suggestion that has come from Senator O'Rourke. We must recognise that all creditors are not rogues, and that all debtors are not rogues either, and there must be a certain amount of protection for both. I think that they both want a certain amount of protection from the sheriffs. This Bill is giving the sheriffs a great deal more power than they had in the past and if the Minister can see his way to strengthen some of the provisions it seems to me that it would be a very desirable thing. For instance, Section 8 provides that the sheriff shall not allow any unreasonable delay to occur. Now, that is a very vague expression and I would like to know if it can be strengthened. I know of cases where sheriffs find it difficult or inconvenient or unprofitable to execute decrees and they postpone them so long that the decree is practically useless. If that section could be strengthened so as to provide a period in which the sheriff was bound to act it would be most desirable. It would be desirable to prescribe a date beyond which he could not go.

There are many cases where the sheriff has put the bulk of the amount recovered into his own pocket and the creditor has received very little. There is also a great deal in what Senator O'Farrell has said, that frequently the sale of these goods is so hurried that a proper price has not been got for the articles seized. I could mention cases, and I am sure other Senators could also mention cases, in which the sheriffs are supposed to have given themselves a short knock and to have made a considerable amount of money out of these sales. Perhaps these are only rumours, but as a rule there is a certain amount of justification for these rumours, especially as we find them very widespread. There is another question that the Minister alluded to, and that was where a man who was perfectly well able to pay his debts but who, in order to evade payment of the debt, goes to live in a hotel. In other words, by having no goods that are seizable he would be free to evade payment though perfectly solvent. I know that there are many obstinate debtors of that sort in the country who think it rather to their credit than otherwise that they would prefer going to jail before paying a debt. Now, when a case of that kind comes before the court the judge ought to have power to make the man pay for any expenses that may have been incurred because of his action.

Mrs. WYSE POWER

I desire to speak on Section 13 because I am interested in a matter that was strongly fought out as a matter of principle. I refer to the Married Woman's Property Act. It was only after a great deal of pressure that this became law. The effect of that Act was to protect the married woman from extravagance or the debts of her husband Now, this section seems to me to cut across the Married Woman's Property Act entirely. Under that Act a woman makes a sworn affidavit claiming that such and such property is hers. Unless there is something very much behind it she can prove her case. Her property is therefore safe under that Act. Now, under this Bill the sheriff comes in, and I want to know what is her position? If she armed herself with that legal affidavit that the property is hers does the sheriff accept that affidavit before he makes the seizure? That is a point I am anxious to clear up. If the sheriff accepts that, in the circumstances then there can be no objection. On the other hand, if there is no notice taken of her affidavit her property goes to the hammer and then she must go round and sue the debtor. That is all I want to know—does her affidavit secure her under this Bill? I think if in the case of any relative of the debtor such relative gives legal evidence that the proproperty is his, then that property ought not to be seized.

Mr. O'HIGGINS

The first thing I would ask Senators to remember with reference to Section 13 is that it has been operative law for three years, and the second thing which I consider important and to which I would direct their attention is that no single complaint from any person or from any county reached me in connection with its operation. Now that is important. Senators will understand that Ministers received a great many complaints about a great many things and when it can be claimed in connection with that particular provision that under its operation no single complaint, direct or indirect, verbal or by correspondence, reached me or any official of my Department, that is something that ought to weigh with Senators in considering the possibilities and the probabilities in connection with Section 13.

Mr. O'FARRELL

Surely the Minister for Justice does not suggest that there have not been abuses. There are all sorts of abuses about the country, and people never write to the Minister. Humble people would not know who the Minister for Justice was and they would not dream of writing to him.

Mr. O'HIGGINS

The Senator may be right, but it seems to me that wherever there is, and sometimes where there is not, a substantial grievance, that that does find its way to some Minister, who passes it on to some other Minister, either by letter or by personal interview, or it may come to the Minister through the medium of the local T.D. For what it is worth—the Senator may have his own view—but for what it is worth no single complaint reached me or anyone in my Department in connection with that section, which has been operative for three years. Coming closer to the merits of the thing itself, I do not claim it for a second that it is ideal. I directed the specific attention of Senators to the section itself, because I recognised that it is not ideal. But it seemed to me to be a choice between evils—the evil on the one hand of the prevalent and successful bogus third party claim, or on the other hand—and I do not put it higher and I suggest to Senators that they ought not to put it higher—the possibility of a mistake under the provisions of that section as it stands. But at least you do make this provision for a mistake, that you give to the person here who may happen to be wrong statutory right of redress against the judgment debtor. He has only to go to the court and make his claim and his claim is good and valid. I cannot deal in any way with bogus third party claims, and I suggest it is unwise and undesirable to put that very substantial premium on wrong-doing which the law, as it stood before this temporary legislation, did do. Everything in the house belongs to the son or daughter or the wife—belongs to everybody except to the good man of the house, who owns nothing but what he is standing up in.

Mrs. WYSE POWER

But surely the third party must have an affidavit?

Mr. O'HIGGINS

No. The mere verbal claim put up to the under-sheriff has led to a return to the judgment creditor of nulla bona. Human nature is human nature, and the under-sheriff would make that return with the knowledge that, if by chance, he made a mistake, an action would lie against him. He will not proceed, he will prefer to go home and put in a return of nulla bona every time, because the wife or the daughter or the son claims the property as being theirs instead of the property of the judgment debtor.

Mr. O'FARRELL

If the under-sheriff makes no seizure does he get his fees?

Mr. O'HIGGINS

No; not in a case of nulla bona.

Mr. O'FARRELL

Is that not an encouragement to him to make a seizure in order to get his fees?

Mr. O'HIGGINS

The sub-section here makes it clear that there is no intention of imposing an obligation upon the under-sheriff of seizing property other than the property of the judgment debtor. But while the effect of the section is to enable the under-sheriff to proceed, he has a discretion, where he is satisfied that the third party claim is bogus and dishonest. If he has reason to believe it is sound and genuine he will not proceed. In the contingency put by Senator Mrs. Wyse Power, when the woman is armed with an affidavit that certain property is her property, will he go ahead and seize that property that he has reason to believe is hers, and in support of which a substantial affidavit is produced as proof that it is hers? No. When you say that he can do as he likes you are envisaging an impropriety in office. Such a thing will not happen. The under-sheriff will not proceed in the teeth of any substantial evidence that the claim put forward is a good and a sound one. It is the bogus claims put forward, not supported by one shred of evidence, that we are contending against—the claim that the poor man himself owns nothing except what he stands up in and that everything belongs to everybody else.

That is a very common claim and a very successful claim on which the under-sheriff would not proceed and would simply return nulla bona, and the creditor would have to cut his loss. There is no use talking about the gombeen man. This is the case of a man who comes into court, makes his claim, gets his decree against another man who owes him the money, and that money should be paid. These debts are very often for household goods of one kind or another, and every member of the household may be said to have enjoyed them. I am taking the average case, a very common case, where when the officer of the court comes along to seize in default of payment he is told nothing in the house belongs to the debtor but that everything belongs to others than himself. I cannot deal otherwise than by this section with this problem, and it is a very considerable problem—the scandal of the bogus third-party claim. Here it is proposed to give to the officer administrative discretion and to remove him from personal liability if he makes a mistake. Personally I hold the view that very few mistakes will happen in practice, and if a mistake does happen the injured person has the right of redress against the judgment creditor.

I hold the view that very few mistakes will happen in fact or in practice. You provide for the odd case where it may happen that the injured person has a statutory right to redress against the judgment debtor. It is simply a question of weighing the balance of gain, whether it is better to continue any stereotyped scandal or fraud of the third-party claim, or giving in a provision which this admittedly gives a loophole for an occasional wrong. If you leave that loophole, at any rate you go as far as can reasonably be expected to provide a redress by giving a statutory claim as against the judgment debtor in the same way as if the moneys had been paid on his behalf. I think it was Senator O'Rourke who raised the point about the scale of fees. There are, of course, prescribed fees under the temporary legislation, and equally there will be fees prescribed under this Bill. Scales of the kind are generally prepared in close consultation with people competent to form a decision as to what would be reasonable fees. I think there has been no complaint about the scale of fees prescribed under our temporary legislation. The temporary Act expires to-morrow, and when, and if this Act becomes law it will be incumbent on me to prescribe a scale of fees that will operate under this Act.

The chief criticism, as I expected it would, centred on Section 13. I do not complain of criticism of Section 13. I would be rather disappointed in an assembly which allowed that section to pass without comment and criticism, but at the same time after the case had been put and an opportunity had been given of weighing the matter, I would be disappointed with the assembly which did not pass it. Senator O'Farrell made reference to some other portions of the Bill. There was, for instance, Section 21. With reference to an interpleader procedure, where a claim was entered it is open to the under-sheriff to cite the claimant, the judgment debtor and the creditor, who are made parties to the proceedings before the court to enable that claim to be sifted. That is the process of interpleader provided in Section 21. After seizure, when the under-sheriff is in possession of goods, and these goods are formally claimed from him by a third party, he can then cite the third party together with the judgment debtor and creditor before the District Court, and put it up to him to prove his claim to the goods.

Mr. DOWDALL

Is it open to the third party to move an interpleader motion?

Mr. O'HIGGINS

No, the interpleader lies with the under-sheriff.

Mr. DOWDALL

I would ask you to extend it so as to allow a third party to make it.

Mr. O'HIGGINS

That is something I will consider between this and the Committee Stage. Senator Barrington, I think, dealt mostly with the case of the under-sheriff having a decree in his hands and sitting down on it and not executing it. Under the existing law if the under-sheriff allows a decree to lie without being executed it is open to the judgment debtor to obtain an order compelling him to make a return of the decree.

Mr. BARRINGTON

I am aware of that, but it is a difficult and cumbersome procedure. I think some provision should be introduced under Section 8 simplifying the procedure.

Mr. O'HIGGINS

That could be dealt with on the Committee Stage.

Question—"That the Bill be read a Second Time"—put and agreed to.