In some cases, it is necessary to resort to the legal system to obtain payment. The Irish legal system is very similar to the English legal system. A debt can be collected through the judicial system in Ireland in one of the three courts. The jurisdictional limits of the courts are as follows; the District Court where the claim does not exceed €15,000 the Circuit Court where the claim does not exceed €75,000 and the High Court for all other claims. The Commercial Court is a division of the High Court and hears disputes of a commercial nature where the value of the claim is at least €1 million. The procedures are very similar to the English system: A writ is issued and the defendant has a period of time from the date of service of the proceedings to enter a notice of intention to defend.
Forms of Enforcement
The obtaining of a judgement, as in England, does not guarantee the collection of the debt. In some cases it results in the debt being paid but in many instances the judgement needs to be enforced. The creditor can consider the following enforcement options:
Registration of Judgement
The creditor can threaten to register the judgement in the central office of the High Court. The threat can produce the appropriate response from the debtor as the registration will be picked up and published by trade magazines and by specialist trading gazettes such as Stubbs or Experian. These gazettes have a large circulation in Ireland and are widely read.
The Sheriff
A judgement can be sent to the county sheriff with a request that he attend at the defendant’s premises and either collect the debt or remove and dispose of sufficient assets of the defendant of which to discharge the debt to the creditor.
Examination Order
This only applies where the debtor is an individual. The defendant may be required to attend in court and be cross examined as to his financial circumstances. At the examination hearing the judge may make an installment order setting out the number and value of the installments by which the debt is to be discharged.
A Committal Order
This also only applies where the debtor is an individual. If the defendant defaults in making payments as directed by the court then the creditor can apply for a committal order to have the defendant committed to prison for non payment of the order.
Garnishee Orders
Where a judgement creditor knows that a third party owes his judgement debtor monies the creditor can apply to the court for an order that the third party – the "Garnishee" – pay the creditor the said sums.
Winding-Up Petition
This procedure is similar to the English procedure.
Discovery against a Limited Company
It is possible to take proceedings under the Debtors (Ireland) Act, 1872 and have any officer of a limited liability company appear in court and to be cross examined as to the assets of the company. This procedure can produce the necessary information required by the creditor in considering whether to proceed for an order for the winding-up of a debtor company.
Judgement Mortgage
Provided the debtor owns property which is free of other charges, this is the best method available for securing and guaranteeing the future payment of the judgement. It is possible to convert a judgement into a mortgage by preparing and registering an affidavit of judgement on the defendants property. The judgement mortgage can be enforced if necessary, by applying to court for a Well Charging Order and Order for sale of the debtors property.
For further information, contact Jim Stafford or Jonathan Foley of Friel Stafford, 44 Fitzwilliam Place, Dublin 2. Tel: 01 661 4066. Fax: 01 661 4145
Email: jonathan.foley@frielstafford.ie