Anatomy of a strategic debt case Presented by Colin Daly Northside Community Law Centre

Established April 1975 – FLAC initiative to persuade policymakers to introduce a strategic model of legal aid Information, Advice & Representation Community Education Research & Campaigns for Law Reform Alternative Dispute Resolution 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 Information, Advice & Representation

Education Community (Direct & Indirect) Legal Profession Law Reform Research, Policy, Campaigns Strategic Casework Volume – evidence of need Precedent setting Attention to issue NCLC - Public Interest Law Activities

McCann v The Judge of the Monaghan District Court & ors [2009] Identification of justiciable issue Identification of client & best case Exhausting lower Court remedies Issuing Proceedings Legal Arguments Evidence Judgment Result

Identifying a Justiciable Issue Enforcement of Court Orders Acts 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 MABS Facing Imprisonment Means very limited Facts of case very compelling Never 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 ECHR Art 1 Protocol 4 Art 5 & 6 National Case Law King v AG International Case Law Benham v UK, Engel v Netherlands Cotzee 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 MABS Local 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

Result Enforcement 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