Spotlight - the imprisonment of Civil Debtors

This Spotlight is the last in a series of Spotlights examining the issue of indebtedness in Ireland.

Over one hundred years after the practice of imprisoning debtors was abolished in Ireland, debtors unable to meet their financial obligations still face the risk of imprisonment where they default on a court instalment order. According to the Law Reform Commission an average of 200 persons per year (276 in 2008) are imprisoned in Ireland in connection with civil debt.

With household debt, including mortgages, currently standing at €147 billion stakeholders are calling for the reform of our entire debt enforcement process so that it focuses more on practical resolution than punishment.

Imprisonment is classically regarded as a legal sanction imposed on a person found guilty of a criminal offence. The justifications for its use and the indicators of its success are based primarily on principles such as punishing and/or rehabilitating the offender and the subsequent rate of re-offending. Seldom do we associate it with people struggling to repay mortgages, car loans, student loans or simple household debts. Loans and credit are regarded as purely contractual/commercial arrangements where civil law remedies exist to protect the rights of those injured by any breach.

Despite abolishing imprisonment for debt over one hundred years ago Ireland retained the sanction as part of its debt enforcement process. Consequently debtors defaulting on repayments could find themselves faced with the prospect of imprisonment.

The Enforcement of Court Orders Act 1940 drew a distinction between debtors who genuinely could not afford to repay their debts (can’t pay debtors) and those who had the means to repay but deliberately refused to do so (won’t pay debtors). The recent case of McCann however highlighted that despite the intention of the Legislature many can’t pay debtors were still being imprisoned for failing to comply with the terms of a court instalment order.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Cathal N. Young, O'Reilly & Co. Solicitors & Notaries Public in Dublin | Attorney Advertising

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