Discovery in Aid of Execution

Context

Execution is the process by which court orders are enforced and implemented. Court orders are not implemented automatically. Generally, the party who seeks enforcement must take the initiative unless the defendant complies with the order voluntarily.

There are incentives for voluntary compliance in terms of costs, credit rating and avoidance of the intrusion of the various means of enforcement.  There is a range of execution methods that may be deployed against a noncompliant judgment oblige (usually not necessarily the defendant).

The defendant who deliberately refuses to perform an order which he is capable of performing, other than for a money judgment, may be committed to prison for contempt. There is a range of options or by an application can be made to take or attach his assets.

The enforcement of court order is not undertaken by An Garda Síochána. There are sheriffs in Dublin and Cork and County registrars outside of Dublin are responsible for the ultimate execution of court order.

Practical difficulties of enforcement have been encountered in recent time. In certain counties, the sheriffs and county registers office does not have the staff to enforce judgment and order. In some cases, the orders have been returned on the basis that the requisite manpower is not available.

Rationale

Discovery in aid of execution facilitates disclosure of assets for the purpose of further execution.  It may be a precursor to use of further remedies against intangible assets, such as garnishee proceedings, charging orders and the appointment of a receiver by way of equitable execution.

Third parties may be ordered to attend.  This may be required, where they have information directly relevant to the assets of the individual.  This may include jointly held assets.  The court may order production of evidence of ownership of assets.

There are different procedures where the judgment is not for money.  Where there are difficulties arising from enforcement of a non-money judgment, the parties interested may apply to the court for an order for examination.  The judge may order the party affected by the judgment to attend for examination.  The procedure is not as commonly used.  The application for discovery must justify the need for invoking the process.

See the separate section on the enforcement of court orders through District Court examination and installment order procedure.  Under the procedure, a creditor who holds a judgment for a debt from any court may apply to the District Court office for a summons requiring the debtor to attend for examination as to his means.

Discovery in Aid

There are High Court and Circuit Court procedures for discovery in aid of execution. The purpose is to bring the defendant/judgment debtor court for examination as to his assets and means in order to assist in the process of execution of a money judgment.

The procedure is applicable to money and non-money judgment. It is a flexible procedure to overcome any difficulty which may arise in the enforcement of an order. The court has a wide discretion in relation to making orders in order to give effect to execution. The application may be made by any interested party are not necessarily the judgment creditor only.

The application is made to the relevant court by the judgment creditor. An order is sought which may require attendance and examination of the debtor as well as production of proof of assets.

Where the judgment is against a company, the order may be addressed to the directors, secretary and other officers.

A order may be made against a third party, subject to the court’s discretion. This may include, for example co-owners of assets owned by the defendant’s,, the defendant’s spouse and other with intimate knowledge of the defendant’s means and assets.

The procedure is not limited to money judgments and the ascertainment of the defendant / judgments debtors’  means and asset. Where an order has been made for sale of property, the defendant may be obliged, for example, to produce details of deeds and  other title information for the purpose of giving effect to the order for sale.

Generally, the enforcement process must be initiated, for example by service of the order and the defendant with the requisite endorsement.

Debtors Act Application

The initial application is made ex parte before a judge in the High Court. In the Circuit Court, the County Register has powers to summons a person to be examined an oath as may be deemed necessary. The application for discovery is usually made to the Circuit Court or High Court judge.

The application will set out the circumstances of the judgment,  the failure of satisfaction together with the basis of the application. The application for an order for discovery in aid of execution is usually founded upon a difficulty in or obstacle to obtaining execution without discovery.

The order sought may be set out. It will often  require the  attendance of the judgment  debtor or  a named third party for examination on oath. It may seek production of books, records and other materials as may be required.

This order of foot of the one sided (ex parte) application will be required to be served on the judgment debtor The order may provide for a special means of service on and the defendant or other requisite person. Personal service would generally be required, but this may be dispensed with where there is a particular difficulty.

The order must include a penal endorsement. The penal endorsement specifies that an application may be made for committal of the judgment debtor or named respondent in default of obedience to the order.

The examination of the defendant / judgment debtor or other respondent may be made as to the assets and means of the debtor for the purpose of satisfying the judgment. Cross examination maybe allowed. The judgment debtor / respondent must answer on pain of committal  or other sanction for contempt of court.

The costs of the application or matter for the discretion of the judge.

Even where there has been a stay on judgment, the judgment creditor is entitled to enforce and utilise discovery in aid of execution.  It is applicable to money judgments and judgments for damages.

District Court Examination

The proceedings are taken in the area where the defendant ordinarily resides.Unlike the procedure under the Debtors (Ireland) Act, it is available only against a natural person and not a corporation, such as a company.

The application for the summons must be supported by a statutory declaration confirming the debt is due and must set out the place of residence of the debtor.  It must be served on the debtor at least 14 or 21 days, personally or by registered post before the sitting.

The judgment debtor must file a statement of means in a scheduled form.  It is to set out his assets and liabilities, incomes and means from each and all sources.  It is to set out particulars of the persons whom the debtor is legally and morally obliged to support.

Installments

At the examination, the debtor may satisfy the judge he is not able to pay the debt in a single instalments.  If the judge is satisfied that the debtor is able to pay the debts  (in the context of his debts generally) in one or more instalments, if may make a instalment order in the amount which it determines that he can afford to pay. The court may refuse to grant an installment order if it concludes the debtor does not have the means to pay it.

If the debtor does not lodge a statement of means and fails to attend, the court shall order the debtor to pay the debt  in a single instalment and may award the costs to the creditor.

It the court is satisfied that the defendant / debtor’s evidence is false or misleading to his knowledge, it may order the debtor to be arrested and sentence him to imprisonment for up to three months.

An application may be made to vary an installment order by the debtor or creditor.  An application is made to the  District Court to the other party (judgment creditor / judgment debtor). The matter is heard before the judge who may take account of a change in circumstances and make an amended order.

An installment order continues for 12 years after the date of the judgment or until discharge of the debt.

There is a right of appeal to the Circuit Court against the making of an installment order.

Where there is a failure to pay the installment order in accordance with the terms, the creditor may make an application to the District Court for arrest and imprisonment.  An order may not be made against members of the Permanent or Reserve Defence Forces.  The application for imprisonment must be issued and served on the defendant.

If the court is satisfied that the instalment order was affected and the debtor has failed to comply with the order, it may make a committal order.

See the other sections on the revisions made to this legislation, following a partial finding of unconstitutionality.

Committal Order

The court may order arrest and imprisonment of the debtor within a period up to three months.  Such an order may not be made if it is shown or appears to the judge the failure was due neither to wilful refusal or culpable neglect.  The court may treat the application for committal as an application for variation of the installment order.

A warrant for imprisonment is addressed to the Garda Siochana for execution and delivery of the debtor to prison.  If it is not executed, the Gardia must certify the reason for non-execution on returning the warrant.  It may be re-issued by the court.

A committal order is punitive in nature.  It may not be issued more than once in respect of payment of the same debt or instalment. It is in essence committal contempt, in the non-payment of an instalment which  the Court has determined to be affordable. If the debtor did not attend the instalment order application, then an order for payment in a single payment may have been made without his ability to pay being determined.

Where a creditor enters an agreement for a settlement of the debt which is fulfilled in whole or in part, he is likely to be deemed to waive his right to enforce.

There is an appeal against a committal order.  This does not act as a stay on execution unless the court so orders.

A debtor who has been is entitled to be realease on payment of these sums due together with costs and such other sum if any as the judge may deem reasonable.

The judge may direct release of a person who has been committed.  He may do so for any reason deemed sufficient.  The direction may be made on the basis of payment of part of the sum due.

A direction is not to be made without consulting the judge unless the Minister is satisfied that such consultation is impracticable.