McCann v Monaghan District Judge

JurisdictionIreland
JudgeMiss Justice Laffoy
Judgment Date18 June 2009
Neutral Citation[2009] IEHC 276
Date18 June 2009
CourtHigh Court
Docket Number[2006 No. 4300
McCann v Judge of Monaghan District Court & Ors

BETWEEN

CAROLINE MCCANN
PLAINTIFF

AND

THE JUDGE OF MONAGHAN DISTRICT COURT, THE COMMISSIONER OF AN GARDA SÍOCHÁNA, THE CHIEF EXECUTIVE OF THE IRISH PRISON SERVICES, THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, IRELAND AND THE ATTORNEY GENERAL
DEFENDANTS

AND

HUMAN RIGHTS COMMISSION AND MONAGHAN CREDIT UNION LIMITED
NOTICE PARTIES

[2009] IEHC 276

[No.4300 P/2006]

THE HIGH COURT

Abstract:

Constitution - Enforcement of court orders - Validity of legislation - Fair procedures - Right to personal liberty - Whether impugned statutory provision capable of being construed in manner consistent with the Constitution - Whether breaching constitutional right to fair procedures - Whether violating guarantee of personal liberty - Whether constituting disproportionate interference with right to liberty - Whether statutory provision constitutional - Proportionality - Whether statutory provision disproportionate - Mootness - Whether live controversy between parties extant - Bunreacht na hÉireann, Articles 34, 40.1.3° and 40.4 - Enforcement of Court Orders Act 1940, section 6

Facts: by virtue of section 6 of the Enforcement of Court Orders Act 1940 a person who fails to discharge a debt may be imprisoned. It provides, inter alia, that "...(b) on the hearing of an application under the next preceding paragraph of this section, the [judge] may, if he so thinks proper but subject to the next following paragraph of this section, order the arrest and imprisonment of the debtor for any period not exceeding three months...(c) the [judge] shall not order the arrest and imprisonment of the debtor under the next preceding paragraph of this section if the debtor (if he appears) shows, to the satisfaction of such [judge] that his failure to pay was due neither to his wilful refusal nor his culpable neglect.". The plaintiff's credit union obtained judgment in default of appearance against her in the sum of €18,063.09. It was subsequently granted an instalment order by the District Court. The plaintiff failed to comply with the instalment order. The credit union then applied for an order under section 6 of the Act of 1940 for her arrest and imprisonment. That order was made by the District Court in her absence. She then brought proceedings in the High Court seeking to have that order quashed. It was contended that the order was contrary to natural justice by reference to her personal circumstances, in particular that she had a depressive illness and was educationally subnormal, which explained her failure to engage with the enforcement process. She also sought a declaration that section 6 of the Act of 1940 was unconstitutional and contrary to the provisions of the European Convention on Human Rights, referring to the principle set out therein of prohibition of imprisonment on grounds of inability to fulfil a contractual obligation. The defendants contended that the proceedings were moot since they consented to the order of the District Court being quashed.

Held by Laffoy J in granting an order that section 6 of the Act of 1940 was invalid having regard to the provisions of Article 34, 40.3 and 40.4.1 of Bunreacht na hÉireann and granting an order of certiorari quashing the order of the District Court that merely quashing the order of the District Court did not address the substance of the plaintiff's complaint in that her right to liberty would be potentially affected by the same legislative procedures which gave rise to the order and there, therefore, remained a live controversy: whether the impugned legislation was valid.

That the words of section 6 were clear and unambiguous in that paragraph (c) thereof did not reverse the onus of proof so that it was borne by the debtor rather than the creditor. Accordingly, it could not be interpreted in a manner consistent with Bunreacht na hÉireann.

That there was fundamental deficiencies in section 6 which rendered it invalid as it violated the debtor's constitutional guarantee of fair procedure as it conferred jurisdiction on the District Court to make an order for the arrest and imprisonment of: (1) a defaulting debtor even if they were not present before the Court and even if the judge was not in a position to determine whether the absence of the debtor was due to a conscious decision and; (2) an impecunious debtor without there being in place some legislative or administrative scheme under which the District Court was empowered to make provision for the legal representation of the debtor at the expense of the State.

Section 6 aimed the sanction of imprisonment ostensibly at the debtor who would not pay but it also struck at those who could not pay and failed to prove that at the hearing due to negative circumstances created by the section itself. Section 6 was a disproportionate interference with the right to liberty as (1) the procedure mandated thereunder was not rationally connected with the objective of procuring the discharge of arrears of debt installments and (2) it did not provide for the consideration of less severe measures prior to imposing the sanction as a last resort where such less severe measures may be found to be insufficient to safeguard the individual or public interest.

Reporter: P.C.

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RSC O.84

UN INTERNATIONAL COVENANT ON CIVIL & POLITICAL RIGHTS ART 11

UN INTERNATIONAL COVENANT ON CIVIL & POLITICAL RIGHTS ART 4.2

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ENFORCEMENT OF COURT ORDERS ACT 1926 S15(3)

DCR O.53 r3(2)

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DCR O.53 r6(1)

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KELLY THE IRISH CONSTITUTION 4ED 2003 PARA 6.2.169

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CONSTITUTION ART 40.3.1

CONSTITUTION ART 40.3.2

CONSTITUTION ART 40.4.1

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 7

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS FOURTH PROTOCOL ART 1

CONSTITUTION ART 40.4

DCR O.46B

DISTRICT COURT (ATTACHMENT & COMMITTAL) RULES 1998 SI 124/1999

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EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6.2

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CONSTITUTION ART 40.3

K (D) v CROWLEY & ORS 2002 2 IR 744 2001/15/4309

DOMESTIC VIOLENCE ACT 1996 S4(1)

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EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S2(2)

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CAFFERKEY v CAMPBELL 1928 IR 444

HARDY v IRELAND 1994 2 IR 551

CONSTITUTION ART 38.1

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