A FATHER of two jailed over failing to continue paying instalments on a €7,000 Credit Union car loan after he was made redundant has been freed by order of the High Court.
The man, who has no previous convictions, took out a €7,000 loan with Carlow credit union in 1998 to buy a car and insurance. He made a number of repayments before being made redundant from his employment as a tiler. He, his partner and two children derive their entire income from social welfare.
The credit union later secured an order requiring him to pay weekly instalments of €40 from August 2006.
After he failed to abide by the instalment order, the credit union secured the order committing him to prison.
The man had not attended the committal hearing and was placed on a three-month waiting list when he sought legal aid in late November, 2008. His application for aid came through earlier this month after he was jailed.
Carlow Credit Union was a notice party to yesterday’s application and submitted the issue as to the legality of the detentions were between the man and the State. The credit union had always tried to engage with the man, counsel said.
Conor Devally SC, for the man, argued the whole point of the law should be to prevent people being sent to jail “just for being poor”. The days when people were jailed for being poor were reminiscent of Dickensian times and should be “behind us”, he added.
Mr Justice Iarfhlaith O’Neill yesterday granted an application for the release of the man, who has been imprisoned since May 3rd last, on a one month sentence. His partner had raised some €2,000 from relatives after he was jailed but could not raise the full sum due, the court heard.
While finding the man had not made out a case for breach of fair procedures or natural justice, the judge said his concern was how the District Court judge exercised his jurisdiction when making the order committing the man, who had not attended court, to prison.
The District Court had to be satisfied failure to pay instalments was due to “wilful refusal” or “culpable neglect”, he said.
In this case, the committal order stated the man had failed to satisfy the court his failure to pay was due to wilful refusal or culpable neglect, inferring the District Court imposed an onus of proof on to a debtor in that regard.
To shift the burden of proof in what had become criminal proceedings was “impermissible” and the committal order was therefore unlawful, Mr Justice O’Neill ruled.
The judge directed the State to pay the costs of the proceedings as the problem lay in the operation of the legislation.
The case is the third in recent weeks in which persons jailed over a debt have challenged their detention on grounds related to the operation of Section 6 of the Enforcement of Court Orders Acts which provides a person may be jailed where a District Court is satisfied non-payment of a debt is due to wilful refusal.
