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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Credit Finance Bank Ltd. v. Healy [1987] IEHC 13 (29 January 1987) URL: http://www.bailii.org/ie/cases/IEHC/1987/1987_IEHC_13.html Cite as: [1987] IEHC 13 |
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Credit Finance Bank Ltd. v. Healy [1987] IEHC 13 (29 January 1987)\
CASE STATED
COUNTY OF CORK
DISTRICT COURT AREA OF CORK CITY
DISTRICT NO: 19
CREDIT FINANCE BANK LIMITED
CREDITOR
AND THOMAS F. HEALY
DEBTOR
Judgment of Mr. Justice Blayney delivered the 29th day of
January 1987
The facts giving rise to this Case Stated, which are most unusual, may be summarised as follows. By an Order for arrest and imprisonment under Section 6 of the Enforcement of Court Orders Act 1940, made in a proceeding between the parties referred to above, it was Ordered that the Debtor for his default and failure to pay certain instalments be committed to the prison at Cork and there be imprisoned for the period of one month from the date of his arrest unless he should sooner pay the sum of £1,624-55, being the amount of all instalments and costs accrued before and unpaid at the date of the Order, together with a further sum of £21-65 for costs, making in all the sum of £1,646-20.
The Debtor was arrested and brought to Cork Prison on the 15th November 1985. A week later, on the 22nd November 1985, the Debtor's wife went to the prison and paid the sum of £850-58 to a Clerk at the prison. This sum had been calculated by adding together the figures shown on three Warrants which had been handed in by the Guard who had effected the Debtorfe arrest, and by allowing credit for moneys earned by the Debtor while in prison. On the payment of this sum the Debtor was released. Subsequent to his release, it was discovered that in calculating the amount to be paid the Clerk had mistakenly read the figure in the Order of the 1st May 1985 as being £646-20 instead of £1,646-20. As a result of this mistake, the Debtor had paid £1,000 less than what he ought to have paid, and because of this he was not entitled to be released from prison.
The Debtor, when interviewed, admitted that a mistake had been made and promised to pay the shortfall of £1,000. Notwithstanding this promise, neither this sum nor any part of it has been paid.
In these circumstances an application was made to the District Court by the Notice Party, the Governor of Cork Prison, with the consent of the Creditor, to re-issue H the Warrant for the arrest and imprisonment of the Debtor for the purpose of satisfying the arrears of instalments due. Arising out of the application the Learned District Justice has submitted six questions for determination by this Court. The substantial point raised by the questions is whether the District Court has jurisdiction to re-issue the Warrant and, if so, in what form.
Mrs. Denham, acting on behalf of the Governor of Cork Prison (there being no appearance for any other party) submitted that the District Court had jurisdiction to issue another Warrant for the purpose of rendering effective the original Order. In support of this submission she cited Rex (Shields) .v. Justices of Tyrone 1914 2 I.R. page 89 where Palles C.B. in his Judgment at page 96 dealt with the question of re-issuing a Warrant or issuing a new Warrant to recover moneys due under the Charitable Loan Societies (Ireland) Acts:
"Now, the jurisdiction given under that section (i.e. Section 33 of the Petty Sessions (Ireland) Act 1851) is not necessarily confined to the first warrant, and what we have to determine is whether the words, "it shall be lawful for such justice to re-issue the said warrant again, or to issue any other warrant for the same purpose," are confined to the cases mentioned in the section, or merely regulate the existing jurisdiction of the Court to make these orders effective. I am of opinion that they are not so confined, but that the Court which has power to make the order for payment and to issue a warrant or process of execution to satisfy the judgment, has power to make the execution effective not only by issuing a warrant of execution, but, where it is satisfied that that issue has not been effective, by issuing another warrant."
I do not for one moment take issue with that statement of the law but it was made in a wholly different context, the facts in that case being clearly distinguishable from the facts with which I am concerned. The Warrant in that case was to execute an Order for the payment of money, and it had been returned unexecuted. The issue was whether there was jurisdiction in those circumstances to issue a new Warrant. The Warrant for which application is being made here is a Warrant to commit to prison and it is sought in the place of and in succession to a Warrant that was executed. So the case is distinguishable both in regard to the nature of the Warrant and in regard to the fact that the Warrant had not been executed.
The situation that has arises here is unprecedented and the problem flowing from it has to be determined by considering the precise effect of the Order of the 1st May 1985 and deciding in the light of that whether a new Warrant could be issued. When this is done, it seems to me that the answer is reasonably clear.
The Order directed that the Debtor "be committed to the prison at Cork and there to be imprisoned for the period of one month from the date of his arrest etc.". The first thing to be noticed is that the duration of the imprisonment was not simply to be for "one month". It was one month "from the date of his arrest". So the point of time from i which the period was to run was fixed. It ran from the time the Debtor was arrested. It follows in my opinion that under the Order the Debtor could only be lawfully imprisoned during the particular month which followed the date of his arrest.
The Debtor was arrested on the 15th November 1985. Accordingly, under the Order, he could have been lawfully imprisoned until the 15th December 1985. Once he was arrested, the particular month for which he could be imprisoned was fixed. He could be imprisoned until the 15th December, but at no time after that date. If this is a correct construction of the effect of the Order, as in my opinion it is, there is no doubt as to how the questions that have arisen should be answered. The application to the Learned District Justice to re-issue the Warrant was not made until the 23rd April 1986. This was long after the month had expired during which the Debtor could have been lawfully imprisoned. Because of this, the application should in my opinion have been refused. I leave open the question of what the position might have been if the error had been discovered immediately, and an application had been made before the month had expired to re-issue the Warrant so that the Debtor could be obliged to return to prison until the 15th December 1985. I confine myself to deciding that, at the date the application was in fact made, the Warrant could not have been re-issued nor could any new Warrant be issued, as the period during which the Debtor could have been lawfully imprisoned under the Order had expired.
There are six questions in all set out in the Case Stated, but in view of the answer which I propose to give to the sixth, which will enable the Learned District Justice to give his Judgment in the case, I feel that to answer the others would be a purely academic and unnecessary exercise.
My answer to the sixth question is as follows:
The District Court has not in the circumstances set out in the Case Stated any jurisdiction to re-issue a Warrant or issue a new Warrant for the purposes of satisfying the Judgment or making the Judgment effective.
Dated this 29th day February 1987.