District Court Rules

ORDER 51A

ENFORCEMENT OF JUDGMENTS AND ORDERS

1 — DEFINITIONS

1 Definitions

1. In this Order:-

the ‘1926 Act’ means the Enforcement of Court Orders Act 1926 (No 18 of 1926);

the ‘1940 Act’ means the Enforcement of Court Orders Act 1940 (No 23 of 1940);

the ‘1986 Act’ means the Courts (No. 2) Act 1986 (No 26 of 1986);

the ‘2009 Act’ means the Enforcement of Court Orders (Amendment) Act 2009 (No 21 of 2009);

‘debt’ includes any balance of a debt remaining due after payment or recovery of part of the debt originally due;

‘instalment order’ means an order of the Court under section 17 of the 1926 Act for the payment of debt and costs made in examination proceedings;

‘judgment’ includes any order or decree of a competent court;

‘return date’ means the date of the sitting of the Court at which the examination of the debtor is to take place or, as the case may be, at which an application to vary an instalment order is scheduled to be heard.

2 — ENFORCEMENT UNDER THE ENFORCEMENT OF COURT ORDERS ACTS 1926 TO 2009

2 Court venue

2. Proceedings for the enforcement of a judgment under the Enforcement of Court Orders Acts 1926 to 2009 may be brought, heard and determined at any sitting of the Court for the Court area in which the debtor is ordinarily resident.

3 Summons for attendance of debtor and statutory declaration

3. (1) When a debt is due on foot of a judgment of a competent court and the creditor requires the attendance of the debtor before the Court for examination as to the debtor’s means under section 15 (as substituted by section 1(1) of the 1986 Act) of the 1926 Act, the creditor may proceed in accordance with this rule.

(2) The creditor or the creditor’s solicitor may lodge with the Clerk in duplicate for issue a summons in the Form 51A.01, Schedule C and the statutory declaration (in the Form 51A.03, Schedule C, modified as appropriate) required by section 15(2) of the 1926 Act.

(3) The Clerk must enter a return date on the summons and list the matter for hearing.

(4) The creditor must serve the summons on the debtor.

(5) The summons must be served on the debtor in a manner prescribed in Order 41 at least 14 days or, if service is by registered post, at least 21 days, before the return date.

(6) The original of the summons, and a statutory declaration of service of the summons, must be filed with the Clerk at least four days before the return date.

4 Statement of means

4. (1) A summons under rule 3, in addition to requiring the attendance of the debtor in Court on the return date for examination as to his or her means, also requires the debtor to complete and file with the Clerk not less than one week before the return date a statement of means (Form 51A.02, Schedule C) attached to the summons.

(2) The creditor or creditor’s solicitor may, on payment of the prescribed fee, inspect and take or obtain copies of the statement of means at any time after it is lodged.

5 Creditor’s proofs

5. (1) At an examination pursuant to a summons served under rule 3(2) the creditor or creditor’s solicitor must produce to the Court:

(a) the judgment on which the creditor relies or other evidence of the original debt due to the creditor under the judgment,

(b) a certificate in the Form 51A.04, Schedule C signed by the creditor or creditor’s solicitor setting out the amount outstanding at the date of the certificate, and

(c) evidence that the debtor is ordinarily resident in the Court area in which the examination is taking place.

(2) A copy of the certificate referred to in sub-rule (1)(b) must be given to the debtor or debtor’s solicitor before the return date.

6 Instalment order

6. (1) An instalment order may be served on the debtor in accordance with Order 41.

(2) An instalment order continues in force until the expiration of 12 years from the date of the judgment to which it relates, unless the debt and costs payable have been duly paid in full.

(3) No instalment which accrues due under an instalment order after the instalment order ceases to be in force is payable or recoverable.

7 Variation of an instalment order

7. (1) Where a person wishes to apply to the Court under section 5 of the 1940 Act to vary the terms of an instalment order, that person must apply to the Clerk for the issue of a summons in the Form 51A.05, Schedule C, modified as appropriate.

(2) The summons to vary must be served on the creditor or the debtor, as the case may be, in accordance with Order 41.

(3) The original summons and a statutory declaration of service must be lodged with the Clerk at least four days before the return date.

(4) The applicant must serve the order of the Court granting the application to vary on the other party in accordance with Order 41.

(5) An order varying an instalment order does not operate to make the instalment order enforceable after the expiration of 12 years from the date of the relevant judgment.

8 Failure to comply with an instalment order

8. (1) When a creditor wishes to apply for a summons under section 6(1) of the 1940 Act (as substituted by section 2 of the 2009 Act), the creditor may proceed in accordance with this rule.

(2) The creditor or the creditor’s solicitor may lodge with the Clerk in duplicate for issue a summons in the Form 51A.06, Schedule C, modified as appropriate and a statutory declaration (in the Form 51A.03, Schedule C, modified as appropriate).

(3) The Clerk must enter a return date on the summons and list the matter for hearing.

(4) The creditor must serve the summons on the debtor.

(5) A summons issued under section 6(1) of the 1940 Act must be served personally on the debtor (unless the Court directs service otherwise) at least 14 days before the return date of the summons.

(6) The original of the summons, and a statutory declaration of service of the summons, must be filed with the Clerk at least four days before the return date.

(7) An application for a direction under section 6(2)(e) of the 1940 Act that a summons issued under section 6(1) of the 1940 Act be served on the debtor otherwise than by personal service may be made ex parte to the Court at any sitting of the Court.

(8) Where such a direction is given, the summons may, notwithstanding sub-rule (2), be served in accordance with the direction.

(9) Unless otherwise directed by the Court, a notice in writing under section 6(5) of the 1940 Act to the debtor of a new date fixed for a hearing of a summons may be handed by the Clerk to the debtor in Court or sent by ordinary post to the debtor.

(10) Unless otherwise directed by the Court, a notification under section 6(3)(b) of the 1940 Act to the debtor of a new date fixed for a hearing at which the debtor is required to attend must be by notice in writing served personally on the debtor.

(11) A copy of a notice mentioned in sub-rule (10) and a statutory declaration of service of the notice must be lodged with the Clerk at least four days before the new date fixed for the hearing.

(12) Where the Court, in accordance with section 6(7)(b) of the 1940 Act, requests the creditor and the debtor to seek resolution by mediation within such period as the Court may specify, the Court must adjourn the proceeding generally with liberty to re-enter it.

(13) Where the creditor wishes to re-enter the proceeding, he or she must apply in writing to the Clerk for re-entry, certifying in that application that mediation has failed to achieve a resolution.

(14) The Clerk must re-list the proceeding for hearing and must send notice of the re-listing to the debtor, to any solicitor who appeared for the debtor on the initial hearing of the summons, and to the creditor by ordinary post.

(15) The creditor may effect further service of a copy of the notice on the debtor in accordance with sub-rule (2).

(16) Where the Court, being satisfied that (i) the instalment order was duly served on the debtor and (ii) the debtor has failed to comply with the instalment order, is also satisfied, beyond reasonable doubt, on the evidence presented, that the creditor has established that—

(a) the failure to pay the sum in respect of which the debtor has made default is not due to the debtor’s mere inability to pay but is due to his or her wilful refusal or culpable neglect, and

(b) the debtor has no goods which could be taken in execution under any process of the Court by which the judgment, order or decree for the debt was given, and the Court makes an order under section 6(7)(c) or section 6(7)(d) of the 1940 Act, that order must be in the Form 51A.07 or 51A.08, Schedule C, as appropriate.

(17) Where an order is made under section 6(7)(c) of the 1940 Act, any failure by the debtor to comply with a condition of postponement may be proved by statutory declaration of the creditor lodged with the Clerk, and a warrant may issue on lodgment of such proof but the Clerk may, in any case, re-enter the matter before the Court.

(18) A warrant to enforce an order for arrest and imprisonment pursuant to section 6(7) of the 1940 Act must be in the Form 51A.09, Schedule C and may be added to the form of an order under section 6(7)(c) or section 6(7)(d) of the 1940 Act.

(19) Where a debtor wishes to apply to the Court under section 6(9) of the 1940 Act, he or she must apply to the Clerk for re-entry of the matter.

(20) The Clerk must re-list the matter for hearing and must send notice of the re-listing to the creditor and to the debtor by ordinary post.

(21) Where a debtor wishes to apply to the Court under section 6(10) of the 1940 Act, he or she must apply to the Clerk for re-entry of the matter.

(22) The Clerk must re-list the matter for hearing and must notify the creditor, the debtor and the Governor of the prison in which the debtor is imprisoned of the re-listing of the matter by ordinary post and such other means as the Clerk considers appropriate.

(23) No order under sub-rule (16) may be made against a debtor who is a member of the permanent Defence Forces or a reservist for the time being called out on permanent service.

9 No warrant to issue, or warrant to be returned, where an appeal is lodged

9. (1) Where:

(a) a notice of appeal against an order for arrest and imprisonment under section 6(7) of the 1940 Act has been lodged; and

(b) a recognisance (if required) has been entered into; and

(c) the warrant to enforce the order has not been issued, the warrant must not be issued until the appeal has been decided or the appellant has failed to perform the conditions of the recognisance, as the case may be.

(2) Where a warrant to enforce the order has been issued but not executed when a notice of appeal is lodged, the Clerk must forthwith:

(a) notify the Superintendent of the Garda Síochána to whom the warrant was addressed that a notice of appeal has been lodged (and that a recognisance has been entered into, if that be the case); and

(b) request the Superintendent to return the warrant for cancellation by the Court.

10 Clerk to secure return of warrant where amount due is paid to him or her

10. Where a warrant to enforce an order for arrest and imprisonment under section 6(7) of the 1940 Act has been issued but not executed and the amount of the arrears of instalments and costs specified in the order is paid to the Clerk, the Clerk must forthwith:

(a) notify the Superintendent of the Garda Síochána to whom the warrant was addressed that payment has been made; and

(b) request the Superintendent to return the warrant for cancellation by the Court.

11 Notice by Governor of prison to Clerk

11. The Governor of a prison in which the debtor is imprisoned by virtue of a warrant under rule 8 must forthwith on the reception in the prison of the debtor give notice in writing of the reception of the debtor to the Clerk specified in the warrant.

12 Clerk to notify Governor when payment is received and debtor is in custody

12. Where, subsequent to the arrest and imprisonment of a debtor under section 6(7) of the 1940 Act, the amount of the arrears of instalments and costs specified in the order for arrest and imprisonment is paid to the Clerk, the Clerk must:

(a) give a certificate of payment to the person making the payment on behalf of the debtor;

(b) forthwith forward a similar certificate to the Governor of the prison in which the debtor is imprisoned and to the creditor or creditor’s solicitor.

3 — OTHER ENFORCEMENT

13 Attendance of company

13. (1) This Rule applies where—

(a) the Court by witness summons or otherwise makes an order in any proceeding for the production by a company of any document or thing; and

(b) after service of the order the company defaults in producing the document or thing in accordance with the order.

(2) In the circumstances referred to in sub-rule (1), the Court may—

(a) make an order that a named officer of the company produce the document or thing; and

(b) order the company to pay any costs and expenses occasioned by the default.

14 Substituted performance

14. (1) If an order that has been made against a person requires the person to do an act and the person does not do the act, the Court may—

(a) direct that the act be done by a person appointed by the Court; and

(b) order the person against whom the order has been made to pay any costs and expenses occasioned by the default.

15 Enforcement by or against non-party

15. (1) A person not being a party who obtains an order or in whose favour an order is made may enforce the order by the same means as if that person were a party.

(2) If an order may be enforced against a person not a party, the order may be enforced against the person by the same means as if the person were a party.

(3) If an order may be enforced against a company not a party, the processes of enforcement apply to an officer of the company as if the company were a party.

16 Non-performance of condition

16. A person entitled to an order subject to the fulfilment of a condition who fails to fulfil the condition must be taken to have abandoned the benefit of the order, and, unless the Court otherwise orders, any other person interested may take any steps which are warranted by the order or which might have been taken if the order had not been made.

17 Order in aid of enforcement

17. (1) The Court may make any order that it thinks just in aid of the enforcement of a warrant of execution.

(2) An application for an order under sub-rule (1) may be made by a County Registrar or other person to whom a warrant of execution is directed.

18 Provisions of Order 26 to apply

18. The provisions contained in Order 26 (relating to warrants in criminal proceedings) apply to warrants issued under this Order.

19 Registration of judgments of the Court

19. (1) Any judgment or order for costs issued or made by the Court providing for the payment of a sum of money may be registered (under section 25 of the Courts Act, 1981) in the Central Office of the High Court in the like manner as a judgment of the High Court may be registered in that Office.

(2) The practice and procedure in use in the Central Office of the High Court in relation to the registration of judgments of the High Court applies to and must be followed in relation to the registration of a judgment or order of the Court.

20 Enforcement of PIAB orders to pay and judgments of EU courts

20. (1) The provisions of these Rules which relate to the enforcement of any judgment of a court apply, with any necessary modifications, to any order to pay issued by the Personal Injuries Assessment Board under section 38(1) of the Personal Injuries Assessment Board Act, 2003.

(2) Any Form in Schedule C which contains a reference to a judgment may be adapted to refer to an order to pay.

(3) The provisions of this Order which relate to the enforcement of any judgment of a court apply, where and to the extent so provided by these Rules, to a judgment or other instrument issued by a court in a Member State of the European Union other than the State.

[SI 17/14]

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