Enforcement of Court Orders Bill, 1940—Committee Stage.
Sections 1 and 2 agreed to.
SECTION 3.
An application for an examination order may be made at any time while, but not after, the judgment in relation to which such order is sought remains in force.
I move amendment No. 1:—
In line 28, to delete the words "while, but not after" and substitute the words "not more than six years after the date of", and in line 29 to delete the words "remains in force".
The effect of the amendment is to make the section read:
An application for an examination order may be made at any time not more than six years after the date of the judgment in relation to which such order is sought.
Section 15 of the Enforcement of Court Orders Act, 1926, does not specify any time limit for applications for examination orders, but I am advised that there is a possibility that the time limit of six months contained in the Petty Sessions (Ireland) Act, 1851, applies to such applications. Section 3 is intended to clarify the position and to fix a reasonable time limit for applications. I think a time limit of six months would be too short. It might take a creditor six months to locate a debtor, or a creditor might spend six months trying to arrange a settlement with a debtor. At the same time, I think that if a creditor intends to take advantage of the instalment order procedure at all, he should move within a reasonable period.
The proposal contained in the Bill is that an application for an examination order may be made at any time while, but not after, the judgment in relation to which the order is sought remains in force. Since the Bill was introduced I have been advised that the period during which a judgment remains in force is not always the same, and is not always easily ascertainable. I accordingly propose that a time limit of six years should be provided instead.
Amendment agreed to.
Section 3, as amended, agreed to.
SECTION 4.
(1) Whenever an examination order is made after the passing of this Act, an instalment order made in consequence of such examination order shall continue in force until whichever of the following events later happens, that is to say:—
(a) the judgment in relation to which such examination order is made ceases to be in force, or
(b) the expiration of six years from the date of such examination order.
Mr. Boland
I move amendment No. 2:—
To delete sub-section (1) and substitute a new sub-section as follows:—
(1) An instalment order made after the passing of this Act shall continue in force until the expiration of six years from the date thereof and no longer.
The Enforcement of Court Orders Act, 1926, does not put any limit on the period of validity of an instalment order, and there is nothing in it to prevent a debtor from being ordered to pay off a debt in instalments over a period of say 30 or 40 years. The instalment order procedure is an extraordinary remedy for the collection of debts, and I think that some limit should be placed on the period during which a debtor may be ordered to pay instalments. I suggest that a period of six years should be long enough. If the debtor is not able to pay off the debt by instalments in that period, I think that the creditor should either seek some other remedy or forgo the remainder of the debt. Section 3, as it stands, provides that an instalment order shall remain in force until the judgment ceases to be in force, or for six years, whichever is the longer period. As I mentioned in connection with the amendment to Section 3, I am advised that the period during which a judgment remains in force is not always the same, and is not always easily ascertainable, and I accordingly propose that a simple limit of six years should be placed on the validity of instalment orders.
I take it that the Minister in proposing this amendment means that any instalment order, when made, will be restricted to a period of six years.
Mr. Boland
One occasionally sees in the reports of cases which appear in the Press that a judge, in his wisdom in some particular case, fixes a much longer period than six years with a view to facilitating the debtor—in a case in which the creditor had a legal right. Very often the moral rights in the case are with the debtor, and in order to make it easy for the debtor a judge occasionally fixes a period, in respect of the instalment order, which will be within the ability of the debtor to pay. Cases of that kind that occur sometimes outside the country and sometimes inside are reported in the Press. If the judge is now to be restricted to a six year period it is obvious that, if he had in mind the fixing of a much longer period, he could not do so. He would be constrained, under this, to fix a period that might put it beyond the capacity of the debtor to meet the debt. I wonder if the Minister, between this and the Report Stage, would consider a further amendment of this section, with a view to making provision for exceptional cases in which a debtor's capacity to meet whatever instalment order is made against him would be taken into account. The six years is a determinate period and is very satisfactory from that angle. One cannot take an action for debts that are over six years due, unless there is an admission within the period of that indebtedness. While this particular amendment meets the case which the Minister has in mind, it would not meet the case that I have presented to him, namely, the incapacity of a debtor to meet instalments in respect of a debt which would have to be liquidated within six years.
Mr. Boland
I will look into that point.
Amendment put and agreed to.
Question proposed: "That Section 4, as amended, stand part of the Bill."
On that question, I desire to say that it has been felt that, while in certain cases, this might be a quite correct procedure there are certain cases, such, for example, as that given by Deputy Cosgrave in which it might cause hardship. Section 4, dealing with the duration of instalment orders, will require amendment as it is quite inappropriate that an instalment order should lose its force after the expiration of six years from the date of the examination order or after the expiration of six years from the date of the judgment, as will be seen by one example. In the case of Hudson v. Ennis, we have an example of many, wherein there is an instalment order for the payment of £285 at 17/6 per month from which it will be noted that it will take over 27 years to pay it. If the limit of six years stands, the defendant, who happens to be a Civic Guard, need not pay any more after the six years' limit, which would mean that he would only have paid £63, and would then get a clean slate. The plaintiff, who had been severely injured owing to the negligence of the defendant, in not taking care of the car, would, therefore, lose the chance of getting £220, the balance of the damages and costs given by a judgment of the High Court. The Minister will, therefore, see that while some cases might be covered by his amendment, there are others, such as those I have mentioned, where the reverse is quite possible, and these, I believe, ought to be taken into consideration. I hope the Minister will consider between now and Report Stage how far these exceptional cases can be dealt with.
Mr. Boland
That was considered. It was thought undesirable that a man should be subject to the payment of an instalment order during the whole of his life. We have tried to fix the matter up by putting a limit of six years. We think that reasonable. All relevant matters were taken into consideration. A great number of authorities were consulted. The Dáil, of course, is the ultimate authority, but in view of all the circumstances it was thought that the six years was a reasonable time to allow. The point raised by Deputy Cosgrave was a different one. I am sure Deputy Dockrell will agree that it would be rather hard on a man to be liable during the whole of his life for the payment of an instalment order. However, I will look into the matter. I may say, however, that the matter was considered in the light of the six years that we are proposing here.
But surely there ought to be some consideration for the plaintiff who was injured. If the instalment order lasted for six years, the plaintiff's injuiries might also last for six years.
Question put and agreed to.
SECTION 5.
Question proposed: "That Section 5 stand part of the Bill."
On the section, would the Minister consider that the duration of the instalment order should be 12 months after the date of the last payment, or, alternatively, that it should remain in force until it is fully discharged?
Mr. Boland
I was providing that the instalment order should remain in force for six months after the six years. Would that not meet the Deputy's point instead of 12 months?
Apparently the Minister only means to make the instalment order remain in force for six years and six months. The alternative that I am suggesting to him is that special provision should be made for cases on the other side, cases such as the one I have mentioned in which gross hardship was inflicted. I take it that we can keep an open mind on this until the Report Stage of the Bill is reached?
Mr. Boland
I will not object to the 12 months.
Question put and agreed to.
Section 6 put and agreed to.
SECTION 7.
I move amendment No. 3:—
Before Section 7, but in Part I, to insert a new section as follows:—
(1) Immediately after the commencement of this Act the Minister for Justice shall establish and thereafter maintain a register to be styled and known as the register of committed debtors.
(2) The name and address of every person who has been arrested on foot of an order made under Section 6 of this Act shall be entered in such register together with the date of his arrest.
(3) The Minister for Justice shall by order make regulations for the following purposes, that is to say:—
(a) prescribing the form of the register of committed debtors to be kept in pursuance of this section, and
(b) prescribing the matters and things to be entered in such register, and
(c) prescribing the conditions under which such register may be inspected by the public.
I am moving this amendment because it is felt that there should be some record of people who have been committed and that it should be available for people whose business it is to find out such matters. I take it that while there are people who may have entered into commitments, perhaps, too lightly, there are other people who make a practice of doing that and the ordinary trading community should be protected against such people. I ask the Minister to consider this matter favourably. It is most desirable that light—I will not say publicity, because it is only available to people who are looking for it—be available to traders about the status of a person who is obtaining credit. It is to everybody's benefit that accurate and precise information in the case of persons who make a practice of defrauding their trade creditors should be capable of ascertainment and I would like to ask the Minister for favourable consideration for my amendment.
Mr. Boland
I do not think this amendment would be appropriate to this particular Bill. What the Deputy's amendment seeks to do is to protect the public from fraudulent people. I think that would be more appropriate in a Bill dealing with the bankruptcy laws. I will see that the point he makes will be considered during an examination of the bankruptcy laws. I do not think it would be proper to have it in this Bill. I think the Deputy will see that there is a distinction there. The main reason for the introduction of this Bill is to see that steps be taken to facilitate the enforcement of affiliation and maintenance orders. I do not intend to cover the ground that Deputy Dockrell is proposing in this amendment. I am asking him to wait until the Bankruptcy Bill will be brought in. That Bill would be more appropriate than this Bill for the insertion of his amendment.
But the Minister told us that there was no chance of legislation with regard to bankruptcy proceedings being introduced——
Mr. Boland
Not in a short time but that Bill is under consideration. A Bankruptcy Bill will be introduced. I cannot say when.
But that Bill has been under consideration for the last seven years.
I am taking a conservative estimate. As far as I am concerned I see no reason why the bankruptcy laws should not be under consideration. The Minister has made no promise. But surely he does not object to the security that this information would give in the enforcement of court orders. The greatest protection that anybody could have is to find out the people who have defaulted.
Mr. Boland
I do not think this amendment would effect the purpose but, as I say, it will be considered in the other Bill. There has been a little delay, but that delay has not been the fault of the Minister for Justice. There are other people interested in it, and Deputy Dockrell may be able to get in touch with these people.
Will the Minister contribute his portion?
Mr. Boland
Yes, but not in this Bill. I do not think the Deputy should press the amendment.
Will the Minister look into it between now and the Report Stage?
Mr. Boland
I am afraid I cannot undertake to do that. The amendment apparently is in order, but I do not think it is appropriate to this Bill.
Will the Minister keep an open mind on it until the Report Stage?
Mr. Boland
I do not want to mislead the Deputy. I have my mind made up that this amendment is not a matter for this Bill.
All these proceedings in connection with certain debtors might be lessened in number as well as volume if a register of this sort were kept. Deputy Dockrell's real case is that with regard to a certain type of debtor, it is better for him, for the people with whom he deals and for commerce generally, that he would not get the facilities for credit that are open to him. If this register were in existence certain people would exercise greater discretion in the giving of credit.
Mr. Boland
I will keep an open mind on it and consider it between this and the Report Stage.
Amendment No. 3, by leave, withdrawn.
Section 7 put and agreed to.
SECTION 8.
(1) Where a sum or sums payable by virtue of an order made under Section 1 of the Married Women (Maintenance in Case of Desertion) Act, 1886, or under Section 3 of the Illegitimate Children (Affiliation Orders) Act, 1930 (No. 17 of 1930), is or are not duly paid, a justice of the District Court may, on the application of the person to whom such sum or sums is or are payable under such order (in this section referred to as the creditor), by warrant cause the person by whom such sum or sums is or are payable under such order (in this section referred to as the debtor) to be brought before him and thereupon such justice, after hearing the creditor and the debtor and such evidence (if any) as they may respectively adduce, may, if he so thinks proper, either direct such sum or sums together with the costs of such application to be levied by distress and sale of the goods of the debtor or, unless the debtor shows, to the satisfaction of such justice, that the failure to pay was due neither to his wilful refusal nor to his culpable neglect, sentence the debtor to imprisonment for any term not exceeding three months.
(2) Where a justice of the District Court directs, under the foregoing sub-section of this section, that an amount be levied by distress and sale of the goods of the debtor, the following provisions shall have effect, that is to say:—
(a) such justice may require the debtor to enter into a recognisance with sureties to the satisfaction of such justice to appear before such justice on a specified day if such amount is not previously discharged in full either as a result of such levy or otherwise;
(b) if the debtor, on being so required to enter into such recognisance, does not comply with such requirement, such justice may, if he so thinks proper, direct the debtor to be detained in custody and brought before such justice on the said specified day unless he is previously released from custody in pursuance of this section;
(c) if while the debtor is so in custody either—
(i) he enters into a recognisance before a peace commissioner with sureties to the satisfaction of such peace commissioner to appear before such justice on the said specified day if the said amount is not previously discharged as a result of such levy or otherwise, or
(ii) the said amount is discharged in full either as a result of such levy or otherwise,
the debtor shall be released from custody forthwith;
(d) if upon the said specified day the said amount has not been discharged in full either as a result of such levy or otherwise, such justice may, unless the debtor shows to the satisfaction of such justice that the failure to discharge the said amount was due neither to his wilful refusal nor to his culpable neglect, sentence the debtor to imprisonment for any term not exceeding three months.
(3) Whenever the debtor is sentenced under this section to suffer a term of imprisonment he shall be entitled to be released immediately upon payment by him or on his behalf to the district court clerk or to the governor of the prison for the district court clerk of the sum of money specified in that behalf in the order for such imprisonment and consisting of the sum or the total of the sums on account of the non-payment of which the application under this section was made by the creditor and the costs of such application.
(4) All moneys paid under the next preceding sub-section of this section to the District Court clerk (whether directly or through the governor of the prison) by or on behalf of the debtor shall be paid by the District Court clerk to the creditor on demand.
(5) The imprisonment of the debtor under this section shall not operate as a satisfaction or extinguishment of the debtor's liability for payment of any money on account of the nonpayment of which he was sentenced to such imprisonment nor shall such imprisonment deprive the creditor of any other right or remedy for enforcing or recovering payment of such money.
(6) Every distress and sale made in pursuance of a direction given under this section by a justice of the District Court shall be carried out by the under-sheriff.
(7) No application or other proceedings (whether under this section or otherwise) for the recovery of a sum or sums payable by virtue of an order made under Section 1 of the Married Women (Maintenance in Case of Desertion) Act, 1886, or under Section 3 of the Illegitimate Children (Affiliation Orders) Act, 1930 (No. 17 of 1930), shall be maintainable in respect of any such sum which became due and payable on a day more than six months before the institution of such application or other proceedings:
Provided always that, in the case of proceedings otherwise than under this section, the court may, if on account of special circumstances the court so thinks proper, allow such proceedings to be maintained in respect of all or any one or more of such sums which became due and payable as aforesaid.
Mr. Boland
I move amendments Nos. 4 and 5:—
To delete the word "creditor" wherever it occurs in the section and substitute in every case the word "applicant".
To delete the word "debtor" wherever it occurs in the section and substitute in every case the word "defaulter".
These amendments are to delete the words "creditor" and "debtor" wherever they occur. The word "applicant" would be a better word than "creditor" and the word "defaulter" than "debtor." These words are not quite appropriate. I propose to substitute the others where these occur.
The Minister has been very nice in talking about "debtor" and "creditor," and I think he is quite right in that, but I think he ought to try and go a little bit further. Surely in the cases which this section is designed to cover, there ought to be something more than merely taking away the name "debtor" and "creditor." I can thoroughly agree with the Minister in taking away these names and substituting the others. But it ought to be put on a higher or perhaps lower level, and in my opinion it ought to be made a criminal proceeding when there is a default in payment. I would like to ask the Minister how far he is agreeable to consider the unfortunate woman who has been betrayed as if she were a creditor or ordinary trader who had been defrauded of his goods? I think we have sunk very low, and the Minister might, at least, consider how far this matter of defaults under this section should be treated as a criminal proceeding. I would like to put that aspect of the case to the Minister—that he is treating these items as if they were merely traffic in goods instead of traffic in human lives. I would suggest to the Minister that default in such a case ought to be treated as a criminal offence.
Before the Minister replies, I would like to intervene to say I sympathise entirely with Deputy Dockrell's anxiety to make this section as effective as it can be made. But he is quite mistaken if he thinks the Minister is dealing with these matters on the basis that he is trafficking in goods which are offered. I well remember the time when Parties in this House were represented on the Criminal Law Amendment Committee and we found that when dealing with the somewhat unsavoury material of such legislation, our first tendency was to run towards Draconian measures to correct the crimes with which we had been dealing. But we found on close examination of the confidential information before us that the desire, the natural desire, to express the measure of our condemnation of such transactions in a statute often betrayed us into the danger of doing things that would not work out in the way we wanted them. I can assure Deputy Dockrell, with the experience I had of that committee, that if he will allow this matter to stand over and perhaps discuss it with the Minister and his advisers between now and the Report Stage, reasons will be brought before him, which it is not easy to discuss casually in the open forum, to justify what appears to be an unsuitable procedure and to explain the reasons why more severe and reprobating approach is not expedient in all the circumstances. I have no doubt whatever that when Deputy Dockrell has time to examine that in the light of the expert evidence which I am sure the Minister will be glad to place before him, he will share my view that in a difficult situation the Minister is probably adopting the best course.
Amendments put and agreed to.
Section, as amended, agreed to.
SECTION 9.
(1) Where a person is in prison in pursuance of an order of a court made on account of the failure of such person to pay a sum of money, the Minister for Justice may, at any time and for any reason which appears to him sufficient, direct that such person shall be released either (as the said Minister shall think proper) forthwith or after payment of a specified part of the said sum of money.
(2) Whenever the Minister for Justice directs, under the next preceding sub-section of this section, that a person shall be released from prison, such person shall be released in accordance with such direction.
(3) The Minister for Justice shall not direct under this section the release from prison of a person until or unless either the said Minister has consulted the judge or justice by whom the order for the imprisonment of such person was made as to the propriety of such release or the said Minister is satisfied that such consultation is impracticable in the circumstances.
I move amendment No. 6:—
In sub-section (1) to delete all words from the words "at any time" to the word and bracket "proper)" line 5, and substitute the words "on written request of the creditor at whose instance the committal order was obtained or upon certificate of the prison doctor that the continued imprisonment of the debtor is seriously prejudicial to his health or upon direction for cause stated by the justice of the District Court who made the committal order direct that any such person shall be released either."
Mr. Boland
In this case the Deputy proposes to limit the power of the Minister to cases in which there is a written request from the creditor or in which there is a certificate from the prison doctor that the continued imprisonment of the debtor would be seriously prejudicial to his health.
Or upon direction for cause stated by the district justice.
Mr. Boland
The usual procedure would be not to act unless the district justice was prepared to agree. But there may be cases of great urgency, such as a man's wife being in serious danger or something of that kind, where it might be necessary to have a decision quickly. It might be a great hardship if you had the power to release only where you had an order from the district justice or a letter from the creditor or the prison doctor's certificate. There is nobody, I think, who can use that power better than the Minister. He has already got power to exercise the prerogative in other cases. He is not likely to use it lightly. As a matter of fact, I understand it has actually been done, but it is questionable whether there was authority to do it or not. I believe it has happened—not in my time—that debtors have been released, and the question is whether there was really statutory authority for doing it. I think the proposal in the Bill is a reasonable one. I might remind the Deputy how it reads (section read). Deputy Brennan objected to that—he thought it was taking on too much—but I am satisfied that it will not be lightly exercised. I understand that it has happened on a few occasions in the past, and it is considered advisable to have that power. Of course I admit that it can be abused, but I do not think it is likely to be.
Would the Minister say if that power has been exercised except on the ground of ill-health?
Mr. Boland
I understand it has been, at the request of the creditor.
The only one I have practical experience of was entirely on the grounds of ill-health.
Mr. Boland
I understand it has been done at the request of the creditor. There was no statutory authority for doing that, as the law stood.
I agree that there would be no statutory authority for releasing, as the Minister has stated, but the Minister was rather making aspersions on his predecessors by suggesting that they had broken the law. Might I point out to the Minister that in cases where persons were released on the ground of ill-health it was done under the prison regulations, and only under the prison regulations?
Mr. Boland
I can assure the Deputy that I was not thinking of him. I had other predecessors.
It was hitting at Deputy Ruttledge and Mr. Justice Geoghegan as much as me.
Mr. Boland
I had no intention of doing any such thing. It cannot be done legally, as the law stands at present.
Could the Minister say if the Justice who made the committal will be consulted?
Mr. Boland
Certainly, that will be done where it is possible or practicable. That is laid down in sub-section (3). Something might happen and it might not be practicable to do it; but, apart from that, it will be done.
Amendment, by leave, withdrawn.
Section put and agreed to.
SECTION 10.
I move amendment No. 7:—
Before Section 10 to insert a new section as follows:—
Whenever a person who either—
(a) has been imprisoned in pursuance of an order made under Section 6 of this Act and has been released from prison or
(b) has been arrested on foot of an order made under Section 6 of this Act and has been released
he shall, so long as the debt on foot of which the order was made remains unpaid, be guilty of a misdemeanour if he
(i) engages either alone or jointly with any other person in any trade or business under a name other than that under which he previously carried on a trade or business without disclosing to all persons with whom he enters into any business transaction the name under which he carried on a trade or business at the time the order for his imprisonment was made, or
(ii) either alone or jointly with any other person obtains credit to the extent of £10 or upwards from any person without informing such person that he is a released debtor.
The purpose underlying this amendment is that people who have been imprisoned and are released shall not have an absolutely clean sheet to go round defrauding the public again by merely changing their name or by engaging in trade with somebody else so as to constitute a separate firm. If the Minister cannot accept the amendment, I would ask him to accept the principle of it.
Will the Deputy say whether he intends to move amendment No. 8 or not?
Amendments Nos. 7 and 8 are practically the same.
I thought that tabling both might have been an oversight, that one was meant in substitution of the other.
I was only moving amendment No. 7.
Mr. Boland
The same argument applies to this as applied to the keeping of the proposed register, and I do not think there would be any more protection for the trader. There is another objection in this case. It might happen, and has happened, that a pig-headed man might refuse to pay a particular debt that the court ordered him to pay. Such a man might pay his other business debts, but if he was black-listed as a bankrupt, it might happen that such a man would be sent to jail for a particular sum that he disputed, even though the court ordered him to pay it. Deputies can easily imagine such a case happening. He may not be a dishonest man.
How could that happen if the nulla bona decree is produced before an instalment order is made? I understand you cannot get an instalment order until the nulla bona decree is produced.
Mr. Boland
It might be for salary and the man might have no goods.
Would not a lunatic asylum be the proper place for such a person?
Mr. Boland
I have known people who would not pay under such circumstances. There are some cases of that kind, and I can imagine some people in no circumstances agreeing to pay. The court may point to them as the guilty persons, but they would know whether they were guilty or not, and rather than admit that they were, they would not pay. I can imagine that happening. If the matter was considered from that point of view the attitude of such people could be understood. It would be hard to blame them if they were not guilty.
The Minister made a case for a certain type of individual whom he described as a pig-headed person. The idea in this amendment was not to penalise such a person who, in fact, might have a conscientious feeling about a particular debt. I make the Minister a present of that type of case. That is why I asked him if he would accept the principle of the amendment. While that might occur at one end of the section, at the other end are people who make a practice of defrauding their creditors. The Minister ought to be very pleased to penalise that type and, in an offhand way, I suggest that he should take power to waive this section under certain circumstances. The sooner labels are put on professional defaulters in the trading community the better it will be for those who have to pay for their default. In making a case for a certain type of individual I say that the exception proves the rule. I would not like the type of person the Minister has in mind to be penalised. That is not the type that the amendment proposes to deal with. Will the Minister consider it before the Report Stage?
Mr. Boland
I will, but I feel the same towards this amendment as towards the keeping of a register. I will have the matter considered but I am not inclined to deal with it in this Bill. I agree that it is desirable to label people of that type, people who are cheats and will not pay their debts. The proposal would be more appropriate in another Bill. I will consider it seeing that I offered to consider the compilation of a register.
Amendment, by leave, withdrawn.
Amendment No. 8 not moved.
Section 10 agreed to.
Title agreed to.
Bill reported with amendments.
Report Stage ordered for Tuesday, 4th June.
