Seanad debates

Tuesday, 7 July 2009

Enforcement of Court Orders (Amendment) Bill 2009: Committee Stage

 

12:00 pm

Photo of Eugene ReganEugene Regan (Fine Gael)

Does the Minister of State appreciate that if we had been allowed sufficient time, we could have dealt with this attachment procedure in this Bill and would not have to wait for it to be dealt with in further legislation?

Senator Alex White made the point, as have I, that the language used by Ms Justice Laffoy in her judgment is quite clear. There is no ambiguity in the language. She held that in circumstances in which a debtor has some resources to meet the debt a statutory scheme, which did not require the creditor to seek redress by attaching those resources, does not impair the debtor's right to liberty as little as possible. There is a proportionality issue involved. That is the expressed language used. I have read out the language used and Senator White has read out an excerpt from the judgment.

The point originally made by the plaintiff in the McCann case was that rather than ploughing ahead for committal, it would have made more sense to attempt to attach the debtor's resources, which were social welfare payments, thereby rendering the application for committal a genuine last resort, something required by the application of the doctrine of proportionality to the constitutional right to liberty.

An attempt to address this has been made in the Bill, to which the Minister of State referred, in the new section 6(8)(b). Subsection (8) states:

A judge shall not make an order under [the] subsection [in regard to imprisonment] unless he or she is satisfied, beyond reasonable doubt, on the evidence presented, that the creditor has established...(b) the debtor has no goods which could taken in execution under any process of the court by which the judgement, order or decree for the debt was given.

That does not deal with the issue. The reference to "no goods" is a reference in one way to that fieri facia procedure, whereby a sheriff returns a warrant of execution marked "no goods". It is a specific procedure. In her judgment Ms Justice Laffoy referred specifically to attachment of monetary resources. The new section 6(8)(b) does not deal with that. It does not involve an attachment of monetary resources or income such as social welfare payments or employment income. It does not seek to envisage a garnishee type procedure where payments are falling due to the debtor and there can be an attachment. Given that this is what was suggested by the plaintiff in the McCann case and given that it was certainly what Ms Justice Laffoy had in mind and expressly set out in her judgment, this is the real difficulty in terms of the drafting of the Bill.

Notice taken that 20 Members were not present; House counted and 20 Members being present,

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