(1) It does not matter where the creditor obtains their Judgment i.e. if the contract is determined in Dublin and if the debtor resides in Cork then the hearing of the enforcement proceedings is in Cork.  (2) It does not matter in which Court the Creditor obtains their Judgment i.e. High, Circuit or District Court the hearing of the enforcement proceedings will be in the District Court.

 

The enforcement proceedings in accordance with these rules begin with a Summons for Attendance of Debtor and Statutory Declaration.

 

The rules provide that whenever a debt is due on foot of a Judgment and the creditor wishes to enforce that Judgment by way of an Instalment Order then that creditor shall seek an examination as to the debtor’s means before the Court.  This begins by preparing and lodging with the Clerk a Summons in duplicate in the form 53.1 Schedule C of the District Court Rules together with the statutory declaration (in the Form 53.2 Schedule C). The Clerk shall list the matter for hearing and, having completed and signed the original, and copy summons, shall issue the Summons to the creditor for service upon the debtor.

 

Service of the summons upon the debtor is in a manner prescribed in Order 10 of the District Court Rules. Service must be at least fourteen days or, if service is by registered post, at least twenty-one days before the date of sitting of the Court at which the examination of the debtor is to take place.

 

When service is successfully completed the original of the summons and statutory declaration as to service are filed with the Clerk at least four days before the said date of sitting of the Court.

 

A Statement of Means accompanies the Summons for Attendance of Debtor when served.  The Statement of Means is in the Form 53.3 Schedule C.  The Statement of Means is to be complete and lodged with the Clerk not less than one week before the date of the said sitting by the debtor.

 

An interesting point to note is that the rules now require the creditor to pay a fee to inspect copies of the statement of means.

 

At the examination of the debtor, the creditor shall produce the following to the Court: the Judgment; a certificate in the form 53.4 schedule C (signed by the creditor setting out the amount outstanding at the date of the certificate) and give evidence that the debtor is ordinarily resident in the Court area wherein the examination is taking place.

 

 

Prior to the date on which the examination is due to take place the debtor is to receive a copy of the certificate mentioned.

 

It is important to note that furnishing the statutory declaration of service may or may not be enough to satisfy the requirement of evidence that the debtor is ordinarily resident in the Court area.  An enquiry agents report or affidavit may also be required.  It may be best practice to have a report or affidavit to accompany the statutory declaration of service.

 

The Law Reform Commission in their consultation paper on personal debt management and debt enforcement note that one of the reasons why a debtor might not turn up in Court at the examination hearing is because the Court hearing is in their home area and they are therefore embarrassed by the situation and do not attend Court.  The new rules do not seem to address this situation.

 

The absence of the debtor from the Court proceedings at the examination hearing does not prevent the Court from making an instalment order against the debtor.

  

At the examination hearing the creditor obtains and Instalment Order.  The Order is in the form 53.5 schedule C. Order 10 of the District Court Rules sets out the requirement for the service of the Instalment Order on the debtor.

An Instalment Order, unless paid in full, continues in force until the expiration of twelve years from the date of the Judgment to which it relates.  Please note that no instalment, which accrues due under such order after the order ceases to be in force, shall be payable or recoverable.

Where a debtor or creditor wishes to apply to the Court to vary the terms of an instalment order, that person shall apply to the Clerk for the issue of a summons in the form 53.6 Schedule C. The summons shall be served upon the creditor or the debtor, as the case may be, in accordance with the provisions of Order 10. When service has been effected, the original summons, together with a statutory declaration as to service thereof, shall be lodged with the Clerk at least four days before the date fixed for the hearing of the application.

An order of the Court granting the application shall be in the form 53.7 schedule C. The applicant shall cause that order to be served upon the other party in accordance with the provisions of Order 10.  An order varying an instalment order shall not so operate as to make the instalment order enforceable after the expiration of twelve years from the date of the relevant Judgment.

Whenever a debtor fails to comply with an Instalment Order, a creditor may apply for a summons on failure to comply with an instalment order.  This is in form 53.8 schedule c of the District Court rules.  The creditor shall prepare and lodge with the Clerk of the District Court a summons in duplicate a statutory declaration in the form 53.9 schedule C. The Clerk shall list the matter for hearing and having completed and signed the original together copy summons, shall issue that summons to the creditor for service upon the debtor.

It is very important to note that the summons on failure to comply with an instalment order is served personally upon the debtor (unless the Judge of the District Court directs service otherwise) at least fourteen days before the date of sitting of the Court at which the debtor is directed to appear.

The creditor must lodge, after serving of the summons on failure to comply with an instalment order on the debtor, with the District Court Clerk the original of the summons together with a statutory declaration as to service thereof at least four days before the said date of sitting of the Court.

The Court shall, should the debtor fail to appear before the District Court, without reasonable excuse, after receiving the summons, issue a warrant for the arrest of the debtor.  The warrant will be in the form 53.10 schedule 10 of the District Court Rules.

A Judge may treat the hearing of a summons on failure to comply with an instalment order as an application for variation of the instalment order.

A Judge may also request the creditor and the debtor to seek resolution by mediation within such period as the Judge may specify.  The Judge can adjourn the proceedings generally with liberty to re-enter them. Where the creditor wishes to re-enter the proceedings, he shall apply in writing to the Clerk for re-entry, certifying in that the application at mediation has failed to achieve a resolution. The Clerk shall re-list the proceedings for hearing and shall send notice of the re-listing in the form 53.11 schedule C to the debtor and to the creditor by ordinary post.

At the hearing of the summons on failure to comply with an instalment, order the creditor must demonstrate to the Court that the debtor has failed to discharge their obligations under the instalment order due to their wilful refusal or culpable neglect and that the debtor has no goods that may satisfy the execution of the Judgment.

The above may sound like a very onerous position for the creditor however; it is worth remembering that the debtor provided the information that resulted in the instalment order.  Thus if it was found at the examination hearing stage that the debtor could only pay a certain sum then this may be evidence enough at the summons on failure to comply with the instalment order stage that the debtor has the means to pay that amount but has refused or neglected to pay that sum.

With regard to the issue of the debtor having no goods to satisfy the Judgment, the returned execution document marked “nula bona” may be evidence enough.  However, as there are now no persons to act as Court messengers or sheriffs in some parts of the country it may be more difficult to do this.  Unless the Court would accept a formal request for goods to satisfy the Judgment from the credit to the debtor being either refused or ignored as satisfactory in place of a document marked “nula bona” then creditors in such positions may face an insurmountable obstacle.

At this stage if the creditor can satisfy the Court as to the requirements set out above the judge may make an order for arrest and imprisonment or an order for arrest and imprisonment with a postponed conditionally.

It is important to note that a judge will not make a conditional postponement order or an order for arrest and imprisonment against a member of the defence forces or a member of the reserve defence forces.

Where the Court makes an order for postponement with condition and the debtor fails to comply with a condition a warrant may issue.  The creditor must prove by statutory declaration that such a failure occurred.  The Court Clerk is to receive the statutory declaration and the Clerk may issue a warrant or re-enter the matter before the Court.

If the Court make an order for arrest and imprisonment with a postponement on condition and the debtor does not comply with the condition if the matter is re-entered before the Court, as the Clerk may do, the Court can treat that hearing as an application to vary provided the debtors circumstances have changed.

A debtor may apply to the Court while in prison for re-entry of the matter provided their circumstances have changed. The Clerk shall re-list the matter for hearing and shall notify the creditor, the debtor and the Governor of the prison of the re-listing.  This is by form 53.16 schedule C and served by ordinary post and such other means, as he considers appropriate.

Where a debtor lodges a notice of appeal, and enters a recognisance (if required), against an order for arrest and imprisonment and the warrant to enforce the order has not been issued.  The warrant will not issue until there is a decision on the appeal or the appellant has failed to perform the conditions of the recognisance, as the case may be.

Where a warrant has issued but not executed when a notice of appeal is lodged, the Clerk shall notify the Superintendent of the Garda Síochána to whom the warrant was addressed to return the warrant for cancellation by the Court.

Where a warrant issues but not executed and the amount of the arrears of instalments and costs is paid the Clerk shall notify the Superintendent of the Garda Síochána and request the return of the warrant for cancellation.

 

Where, subsequent to the arrest and imprisonment of a debtor, the amount specified in the order is paid to the Clerk, the Clerk shall give a certificate in the form 53.17 schedule C to the person making the payment.  The Clerk shall also forward a similar certificate to the Governor of the prison in which the debtor is imprisoned and to the creditor.

Where a debtor submits a false statement of means the Court may order arrest and imprisonment.

 

Warrants issued under these rules shall have the same effect as orders for arrest under criminal proceedings.

The provisions of these Rules shall apply to any order to pay issued by the Personal Injuries Assessment Board.

 

It is also important to note that the provisions of Order 53 of the District Court Rules which relate to the enforcement of any Judgment of a Court shall apply to a Judgment or other instrument issued by a Court in a Member State of the European Union other than the State.

 

Liam Fitzgerald

Associate Solicitor

AB Wolfe & Co.

Debt Recovery Solicitors