A DISTRICT COURT judge has questioned whether it is worthwhile making instalment orders following a recent High Court ruling that it is unconstitutional to jail a person who cannot pay a debt.
At Mullingar District Court yesterday, Judge John Neilan asked if orders were “a nullity if they cannot be enforced” and was critical of banks who did not accept genuine offers of payment from debtors.
His comments come just days after Ms Justice Mary Laffoy’s landmark ruling deeming section 6 of the Enforcement of Court Orders Act 1940 unconstitutional.
If the judgment remained intact, it would have an impact on proceedings under the Family Law (Maintenance of Spouses and Children) Act. He questioned the value of entertaining civil processes if “the engine that brings about its effectiveness is being dismantled”.
Dealing with 24 applications yesterday, Judge Neilan said he would remand all committal and many enforcement matters to the end of November when it may be clear if the Laffoy decision would be appealed to the Supreme Court or if legislators would take action.
He told a married couple before the court, on foot of an enforcement order moved by ACCBank, that there was “uncertainty” about how cases like theirs would proceed. “There are steps,” he said. “You’re in the middle and the next step has been found to be unconstitutional. If the end process is unconstitutional, what’s the point of engaging in the process here?”
He added it was a judge’s obligation to act as “honest broker” between debtors and creditors.
ACCBank had written to the couple stating it was no longer prepared to wait and wished that the full outstanding amount of the debt be paid over. When the couple presented documentary evidence of their offer to make an instalment, the judge was strongly critical of the letter which the bank sent to them, describing it as “threatening”, “bully-boy” and “unacceptable to the court”.
He said one option open to them was to inform the bank that the matter was now before court and “the judge says it is within his sole discretion what happens next”.
He continued: “I am somewhat surprised in one sense and not surprised in another that the ACC have not accepted your genuine offer,” he said, adding that it was time financial institutions, whose CEOs received salaries in the millions, “come to reality”. He criticised the “arrogance of financial institutions who brought this country to its knees” and reminded them that it was the taxpayer who was now funding them. Judge Neilan indicated an appreciation for difficulties encountered by people who were in debt and had to appear before a public forum to “bare their soul.” He urged that they should not “be frightened to come before the court and set out their stall” and that the Money, Advice and Budgeting Services might be able to offer assistance.
He stressed that his comments were directed at banks and not at other creditors and that the court would address “people who have brass necks and owe money”.
The Courts Service has confirmed that following consultation with the president of the District Court, it has written to each chief district court clerk stating that no further committal warrants are to be issued under section 6.