Anatomy of a strategic debt casePresented by Colin DalyNorthside Community Law Centre

• Established April 1975 – FLAC initiative to persuade policymakers to introduce a strategic model of legal aid

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Northside Community Law Centre

•3,000 queries per year •Drop in, Advice Clinic, Specialist Clinics

•1/3 Family Law•Social Welfare, Debt, Employment & Housing•58% incomes of less than €15,000 pa•Limits on cases taken – case selection criteria•No waiting lists•Pro Bono assistance

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Strategic CaseworkVolume – evidence of needPrecedent settingAttention to issue

NCLC - Public Interest Law Activities

McCann v The Judge of the Monaghan District Court & ors [2009]

Identification of justiciable issueIdentification of client & best caseExhausting lower Court remediesIssuing ProceedingsLegal ArgumentsEvidenceJudgment Result

Identifying a Justiciable IssueEnforcement of Court Orders Acts 1926 -1940 - Section 6

Research & Commentary‘End Based on Means’ FLAC 2003

Constitutional Protections Arts 34,38 & 40

National Case Law ECHR Act 2003

Art 1 Protocol 4, Art 5, Art 6

International Case Law

Issue in this instance

Debt Enforcement Regime • Instalment Order – not complied with• Order for Arrest & Imprisonment – max 3 months

Debtor not required to appear in Court

Onus of Proof on Debtor to prove failure to pay not due to wilful refusal or neglect

Court could not grant legal aid

Identifying Client, Best Case & Overcoming Barriers

Client referred from MABSFacing ImprisonmentMeans very limitedFacts of case very compellingNever legally advised or represented

Exhausting Alternative Remedies

• Genuine attempt to resolve issue with Creditor

• Application to extend time to appeal decision to the Circuit Court opposed and denied

Issuing Proceedings

• Identifying & Briefing Counsel• Approving Papers • Interlocutory Injunction• Issuing & Serving Proceedings on Multiple

Defendants • Notice Parties – IHRC & Credit Union

Legal Arguments

Plaintiff & IHRC• Constitution

Arts 34,38, 40

• ECHRArt 1 Protocol 4Art 5 & 6

• National Case Law King v AG

• International Case LawBenham v UK, Engel v NetherlandsCotzee v the G’ment of Rep of SA

Defendant & CU• Stood over

constitutionality of the section

Contempt

Judicial Discretion

• Stood over procedure

Evidence

• Caroline McCann Her actions & affect on her & her family

• MABSLocal experience and involvement with client

• FLAC Paul Joyce, Policy & International attitudes

Judgment

Declaration that Section Unconstitutional • Fair Procedures (disproportionate,

imprisonment in default of appearance)• Right to Liberty (disproportionately infringed)

Section 6 quashed

ResultEnforcement of Court Orders (Amendment) Act 2009•Creditor must prove beyond reasonable doubt Debtor has means and has willfully refused or neglected to pay

•Entitlement to Legal Aid

•Attendance of Debtor at Court before imprisonment

•NB Enforcement of Maintenance adversely affected

Conclusions & Lessons Learned

• Support for Client• Relationships• Public Relations Strategy required• Unintended consequences

Further potential cases

• Records of arrest for Debt

• Maintenance Creditors

• Fines

• Mortgage Debt