Mc Cann -v- Judges of Monahan District Court & Ors, [2009] IEHC 276 (2009)

Docket Number:2006 4300 P
Party Name:Mc Cann, Judges of Monahan District Court & Ors
Judge:Laffoy J.





HUMAN RIGHTS COMMISSION AND MONAGHAN CREDIT UNION LIMITEDNOTICE PARTIESJudgment of Miss Justice Laffoy delivered on the 18th day of June, 2009.

The proceedings

In broad terms, there are two major elements in these proceedings. The first is a challenge by the plaintiff to the validity of an order for her arrest and imprisonment made by the first defendant on 14th November, 2005 (the 2005 order) at the suit of the second notice party (the Credit Union) under the Enforcement of Court Orders Acts 1926 and 1940, ordering that the plaintiff be committed to prison for one month for failure to comply with an instalment order which had been obtained by the Credit Union against her. The second is a challenge by the plaintiff to the validity of the legislation under which the 2005 order was made on the basis that it is invalid having regard to the provisions of the Constitution and that it is incompatible with the European Convention on Human Rights (the Convention).

The current structure of the proceedings, which is somewhat unusual, requires explanation. The plaintiff instituted judicial review proceedings, as applicant, naming an individual Judge as first respondent, for whom, by order of this Court (Quirke J.) made on 5th October, 2006, the first defendant was substituted, and naming the second to sixth defendants as the second to sixth respondents (Record No. 2006/1118 J.R.) and these plenary proceedings contemporaneously on 15th September, 2006. Subsequently, by order of this Court made on 19th October, 2006 the judicial review proceedings and the plenary proceedings were consolidated. The Credit Union was joined as a notice party in the judicial review proceedings by order of this Court (Quirke J.) made on 5th October, 2006. Its role was to meet the challenge to the validity of the 2005 order, should it wish to take it on. However, the Credit Union was not made a defendant to the consolidated proceedings. The second to sixth defendants (the State parties) are before the Court to answer the challenge to the validity of the 2005 order and, in the case of the fifth and sixth defendants, to answer the challenge to the validity of the legislation. There was no participation by or on behalf of the first defendant. The first notice party (the Commission) was given notice of these proceedings pursuant to s. 6 of the European Convention on Human Rights Act 2003 (the Act of 2003) and, having been granted leave to do so, is participating in the proceedings as amicus curiae.

Another unusual feature of these proceedings is the stance adopted by the State parties. On 13th November, 2007, after the defence had been delivered, the Chief State Solicitor wrote to the plaintiff's solicitor setting out the State's position, stating that it was "obliged to defend the constitutional validity of the legislation … and its compatibility" with the Convention and did assert such validity and compatibility. However, it was not seeking to stand over the 2005 order and it was a matter for the Credit Union whether it wished to stand over that order. The Chief State Solicitor confirmed that he had written to the Credit Union setting out the State's position and recommending that, "in the plaintiff's unfortunate circumstances, the Credit Union might consider agreeing to have the order quashed".

As a notice party, the Credit Union did not deliver a defence in the proceedings. However, around the time it was required to exchange written submissions in connection with the imminent hearing of the proceedings, by an open letter of 28th January, 2009 to the plaintiff's solicitor, the Credit Union proposed that an application be made on behalf of the plaintiff for an order of certiorari quashing the 2005 order and stating that the Credit Union would not oppose the application. The proposal was made on the basis that the parties would bear their own costs. It was also suggested that, following the making of the order of certiorari, the proceedings should be remitted to Monaghan District Court with a view to an application being made to vary an instalment order. In its written submissions subsequently delivered, the Credit Union made the practical suggestion that it would not oppose an application for an order of certiorari to quash the 2005 order on the ground that it was contrary to natural justice by reference to the plaintiff's personal circumstances, in particular, that she suffers from a depressive illness of a recurrent nature, which the Credit Union now accepts as a fact, and has educational inadequacies, which the Credit Union implicitly accepts as being an explanation for her failure to engage with the enforcement process in the District Court.

The plaintiff's solicitor responded on 13th February, 2009 rejecting the proposal made on behalf of the Credit Union, stating, inter alia, that the proposal sought to deny the plaintiff the right to pursue reliefs properly raised in these proceedings and of direct and immediate relevance to her. By a further open letter dated 19th March, 2009, the solicitors for the Credit Union clarified the position of the Credit Union. It denied that the 2005 order was obtained in breach of natural justice.

At the hearing of the proceedings, the Credit Union had changed its position somewhat, in that the Court was informed on its behalf that it would consent to the quashing of the 2005 order on the basis of an infringement of natural justice. Further, if the matter was remitted to the District Court under Order 84 of the Rules of the Superior Courts 1986 (the Rules), the Credit Union would undertake to apply to the District Court to have the instalment order varied. The position of the State parties remained that it was not standing over the 2005 order. However, counsel for the State parties, in the absence of instructions, did not commit to identifying the basis on which this Court could quash the 2005 order without opposition.

Counsel for the State parties submitted that, if the 2005 order was quashed, the plaintiff's challenge to the validity of the legislation under which it was made would be moot. He further submitted that, on the basis of the doctrine of judicial restraint, in that event it would not be appropriate for the Court to consider the constitutional challenge or the challenge by reference to the Convention to the legislation. Counsel for the Credit Union adopted those arguments.

The position adopted on behalf of the Commission on the judicial restraint argument was that the adoption by the Court of the State parties' stratagem of allowing the 2005 order to be struck down would not resolve the issues raised in the proceedings, in that there was no guarantee that the plaintiff would be afforded procedural safeguards, if the matter were to be remitted to the District Court. Serious issues arise in relation to the underlying legislation, it was submitted.

It is convenient at this juncture to give an overview of the approach adopted by the Commission in its submissions. Its objective was to assist this Court's determination of the substantive matters in two key areas: the right to a fair trial (including the classification of the proceedings as criminal or civil) in the context of the liberty of the individual being at stake; and the international principle of the prohibition of imprisonment merely on the ground of inability to fulfil a contractual obligation. It was urged by the Commission that the Constitution and the guarantees thereunder should be informed by the Convention and by international treaties ratified by the State, where that is possible.

Both counsel for the Commission and counsel for the plaintiff drew the Court's attention to Article 11 of the International Covenant on Civil and Political Rights (ICCPR), which has been ratified by the State and which provides that no one shall be imprisoned merely on account of inability to fulfil a contractual obligation, a proscription that may not be derogated from even in time of public emergency (Article 4.2). Counsel for the Commission submitted that the legislation being challenged in this case does not incorporate sufficient procedural safeguards to protect against imprisonment merely on the grounds of failure to fulfil a contractual obligation and may, accordingly, be in breach of Article 11. In this context the Court was referred to the concluding observations of the Human Rights Committee, the body at international level entrusted with supervising and monitoring the implementation of the ICCPR in its report of 25th July, 2008, in which it expressed concern that the State, in its replies dated 23rd June, 2008 to issues raised by the Human Rights Committee, "does not intend to amend the laws which may in effect permit imprisonment for failure to fulfil a contractual obligation". There followed a recommendation that the State "should ensure that its laws are not used to imprison a person for inability to fulfil a contractual obligation".

Because of the position adopted by the State parties and the Credit Union, I consider it appropriate to address the issue of mootness and the issue of judicial restraint before addressing the substantive issues. Before addressing those issues, it is necessary to outline the statutory provisions which are impugned in these proceedings and how, in fact, they have been applied to the plaintiff.

The legislation

There are two parallel legislative frameworks in force in this jurisdiction under the provisions of which a person who does not discharge a debt may end up in prison. One is created by sections 6 and 7 of the Debtors Act (Ireland) 1872 (the Act of 1872). The jurisdiction conferred by the Act of 1872 is conferred on the High Court, the Circuit...

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