Select Committee on Enterprise and Economic Strategy díospóireacht -
Thursday, 28 Jul 1994

SECTION 60.

Mrs. O'Rourke

I move amendment No. 174:

In page 37, subsection (1), line 11, after "proceedings" to insert "or any negotiations connected with those proceedings".

It is common sense after "proceedings" in line 1, page 37 to insert "or any negotiations connected with those proceedings". This section reproduces, to a large extent, the provisions of sections 13 and 14 of the Hire Purchase Act, 1946, and the Hire Purchase (Amendment) Act, 1960.

Under subsection (1), an owner who has started legal proceedings under section 59 to recover possession of goods is prohibited from enforcing or attempting to enforce payment other than in those proceedings. The purpose of this amendment is to allow negotiation settlements between the solicitors for both parties to take place while proceedings are in train. The original draft might have prevented it. Ongoing negotiations take place on many matters and can continue while proceedings are in train. It was put to us by members of the legal profession that the Bill as drafted would rule out that possibility.

Mr. M. McDowell

If a settlement was negotiated?

Mrs. O'Rourke

If it was being negotiated on an ongoing basis.

Mr. M. McDowell

Supposing a settlement is negotiated?

Mrs. O'Rourke

Is the Deputy referring to out of court settlements?

Mr. M. McDowell

Where legal proceedings have been settled, the owner shall not enforce other than in those legal proceedings.

Mrs. O'Rourke

The purpose of the amendment is only to allow negotiations outside of court proceedings to continue. We were alerted to the fact that without this provision, the Bill might preclude any such negotiations. I understand that settling out of court is a normal practice.

Mr. M. McDowell

I hope so.

Mr. R. Bruton

Does this mean that the consumer discontinues payments once proceedings are initiated? Would the consumer ultimately be prejudiced by having discontinued payments?

Mrs. O'Rourke

I cannot imagine a situation where a consumer would continue to make payments while a matter is in dispute.

Mr. R. Bruton

If he wants to contest the proposed recovery of the goods, would he not feel that it would be in his interest to be able to say to the court that in the period running up to the hearing he had continued his payments as a gesture of his commitment?

Mrs. O'Rourke

It certainly stands to a person if they can say that they kept up their payments. Proceedings in relation to housing would usually be because the person was in arrears and they could show good intent by trying to catch up.

Mr. R. Bruton

Does that mean that a consumer could not continue his payments?

Mrs. O'Rourke

It does not say that he could not continue but I suppose if a person was in that situation, they would not be making payments.

Mr. R. Bruton

If a person was in arrears and wanted to maintain possession of the goods but proceedings had been initiated, they might want to keep their slate as clean as possible. They would hope to have eaten into the arrears when the case comes to court so they would not be ordered to deliver the goods to the owner.

Mrs. O'Rourke

Because of good behaviour since proceedings were initiated? The provision does not say a person cannot pay if that is what the Deputy is saying.

Mr. R. Bruton

It seems to imply that he can refuse to accept.

Mrs. O'Rourke

I would not accept that meaning of it.

Amendment agreed to.

Mrs. O'Rourke

I move amendment No. 175:

In page 37, subsection (2), line 12, after "action" to insert ", or any settlement,".

This subsection allows the court, whilst awaiting the hearing of an action to recover goods, to make any order it sees fit to protect the goods. The proposal to insert ", or any settlement," follows on from a negotiated settlement between solicitors out of court or people acting on behalf of those involved.

Amendment agreed to.

Question proposed: "That section 60, as amended, stand part of the Bill."

Mr. R. Bruton

The list does not include the court deciding that the agreement should continue and that the hirer should maintain possession of the goods. Are the words "without prejudice to any other power" envisaged to include the judge deciding that as the consumer is making a reasonable effort he can keep the goods and that the agreement can continue subject to the consumer catching up on payments?

Mrs. O'Rourke

The court may modify the terms of the agreement. In any matter interpretation rests with the judge. Paragraph (b) provides that the court may decide to modify.

Mr. R. Bruton

That is only where they are going to hand the goods back to the owner. I presume that "without prejudice to any other power" means that the judge could decide that the consumer could——

Mrs. O'Rourke

Hold on to the goods in question? I am not legally au fait with what precisely the judge would do in such circumstances.

Mr. R. Bruton

Presumably he could find against the owner.

Mrs. O'Rourke

He could of course.

Mr. R. Bruton

The list does not seem to include the possibility of finding against the owner.

Mr. M. McDowell

The list is not exhaustive.

Mrs. O'Rourke

The purpose of going to court is to make an interpretation.

Question put and agreed to.