# Credit Union Loan and Court today. How I got on



## cavan1212 (13 Sep 2010)

_(Moderator note: moved from another thread) _
I must say I have found this tread very useful, and has some what put my nerves at ease..
I am due in court in the morning, my first step in facing up to my debt as I can not hide/bury my head in the sand hoping it will just go away.

I have completed the statement of means and attached a personal budget and lodged it with the court last week.
.
My wife and I are both on social welfare and have a recently new born son (5 months) we also do not own a house and are currently renting (with rent allowence) however we are currently constanly broke from week to week. 
We do not drink nor socialise ie go out for meals/pubs etc, once a month we'd go the cinema or lunch in the local pub as our treat. 

I am being realistic the an installment order of €10 a week would drastically effect our lifes. €10 may not seem a lot to some people but when you have to count 1cents, and 5cents on a Monday to get a bottle of milk or a sliced pan, a tenner is a lot of money. So I am hoping that the judge is understanding and does not impose an order which i can not pay back. 

I have dug my head in the sand the past year or 2 but am now hoping to face up to this debt and others which I will be contacting after court tomorrow. 

The amount owed is €6134.64 plus €327.75 cost and expenses dated 22nd April 2010 HOWEVER i received a letted dated 7 September 2010 stating amount due €6506.79 with interest of €141.18 @8% from May to September total amount €6647.97. 

I remember reading on other threads that the district court deals with amount less than €6k odd, I can not remember exact figor but I think it was €6350, will this mean tomorrows case will be passed on to the other court??

thanks in advance for any information/advice


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## cavan1212 (14 Sep 2010)

Just to follow up, 

What an awful experience, firstly when my name was called I stood up and made my way to the witness box, about 5 feet away from it I stood, the banks sol and judge spoke in a lanuage i did not understand about advodaviate and lodgements, I was left standing like a fool. The judge then asked was I here, I said yes, he then went on to question me where I was stood, in the middle of the court, not in the witness box. When I tried to explain certain things he spoke over me moving on to his next question or point. He was in no way sympatecic. He would not look at my documents I brought to court, balance sheet, letters from other solicitores and companies I owe money to.
He lectured me and the court on the state of the social welfare system saying that we pay too much and said if I crossed the boarder its only £60 a month. 

He wouldnt let me explain that i also had other debts arising to a hell of a lot more than this one and asked how much i could pay back weekly. I said between 10-15 possible 20 euro a week max and he said NO. He ordered for me to pay 25euro a week.

I then asked could the interest be frozzen as and from today, and he said that because I had previously worked in banking that I shouldnt be asking him that question and that I should know the answer and to contact the bank myself.

He ordered 100 be paid monthly, I then said that I honestly would not be able to keep up this amount if i was to face up to other debts that I want to sort out. He just said, that is the amount order and that I have to pay it. 

He did knock off the costs ( I think) and mumbled a load of other stuff which I have no idea what he siad. 

Furthermore I have no idea who I am supposed to pay this money too, how i am supposed to pay it and when I have to start paying it, I was just left to walk out of the court none the wiser as to what was going on.

Overall I wished I had never gone today and just continued to ignore all post that comes through the door !!!


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## Brendan Burgess (14 Sep 2010)

Hi Cavan

Sorry to hear that.

I don't think it's typical. Most judges are more sympathetic to the borrower who shows up. 

Despite the terrible experience, you did the right thing showing up. If you hadn't , he would have given a bigger order against you.

Brendan


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## pixiebean22 (14 Sep 2010)

Cavan that sounds awful and what a terrible way to treat you.

For him to order you to pay something you can't afford makes absolutely no sense to me whatsoever.


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## Marietta (14 Sep 2010)

In situations such as what Cavin has just experienced in the court system,  is there any recourse for the person to go back and get someone to explain the outcome of the case in plain language?


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## Marietta (14 Sep 2010)

cavan1212 said:


> He lectured me and the court on the state of the social welfare system saying that we pay too much and said if I crossed the boarder its only £60 a month.


 

It was none of the judge's business to lecture you on the Irish Welfare system and although it may be less across the border, it is a different country and jurisdiction and alot of other variables come into play.


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## Brendan Burgess (14 Sep 2010)

Cavan

Did you speak with MABS? 

If you struggle with the instalment order, you can apply for a variation.

Brendan


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## Tessi (14 Sep 2010)

Hi cavan1212

I am waiting to get a letter for a court date and am wondering where you went to court?  How long was the process etc.  I also think the judge should be accountable for his ignorance and disrespect just like any other citizin in a job.  He has a job to do and its not to treat people like he was some dictator and we were scum.  I really hope you get sorted?


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## cavan1212 (14 Sep 2010)

@ Brendan, I haven't as of yet contacted MABS, but I am gathering all my documentation of monies owed and bills and hope to drop into my local office in the next week or two, when I know the total amount of what I owe.

Thanks for the information on the "variation" I was not aware of what I could do next, I have google searched trying to find out but to no success. I will google variation now and read up on it. 

thanks


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## cavan1212 (14 Sep 2010)

@ Tessi, I recieved a letter dated 01/06/10, ENFORCEMENT OF COURT ORDERS ACT 1926, SUMMONS FOR ATTENDANCE OF DEBTOR. stating that I was to attend court on todays date. This was delivered to me in person by a person who said he was the District Court Clerk, I was caught unawares and did not actually ask for identification, so I am just taking it for granted that it was indeed the clerk. 

The court process was as follows:

Summons stated court starts at 10.30am

I arrived 10.15

I was told by clerk who called to house to ask the court clerk what time roughly I would be called so that if it was after lunch I could head off for a while. The clerk was no where to be seen. I seen a local guard and asked him where she would be he went and checked and said she's probably making tea, he asked me was it a charge or a summons I was here for, I said summons and he said it will probably be after lunch as he does the charges first.

11.25 the judge appears from his chambers

He starts on the summons first, 2-3 strikeouts, an unemployed man oweing more than my amount was asked how much he could pay he said €100 a month, judge ordered €175 a month. This man had a totally household income of only €300 odd a week to the best of my knowledge.

I was then called, my story above and the whole process last no longer than 5-7 mins although to me it felt more like 30 mins..

Best of luck with your issues, if you wish to PM me I will be more than happy to help or answer more questions


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## cavan1212 (14 Sep 2010)

I'd like to also add that the whole proceedure was humiliating. I have never been to a court or have not had any dealings with the guards other than the standard dealings like road checkpoints etc. I think that be seated next to criminals some handcuffed to guards, some that if you seen coming towards you on the street youd cross the road if not the right setting for these types of cases. 

I think it would be less stressful and humiliating if these cases were heard in private or at the very least at the end of court and if needs be in front of the defendants who are in the same boat. 

Are we "criminals" too for falling on hard times, are we a required to have the presence of what must have been 15-20 guards all in uniform getting paid by taxpayers to listen to these case's while waiting for their case to come up. To me it would make sense that the criminal cases be heard first and that all these guards could go back on  duty and not spend the morning having a joke and a laugh with each other.


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## number7 (14 Sep 2010)

It would also help to retain some dignity if the judges started on time and at least advised what would be heard pre lunch and post lunch rather than having a packed court room for the day.

Judges like that should not be allowed to judge.


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## Padraigb (14 Sep 2010)

I am sorry your court experience was so awful, cavan1212. District Justices are a mixed group, and it sounds like you got one of the more unsympathetic ones. 

There is something from which you can draw an almost perverse consolation: your financial situation can hardly get worse. They can't take from you money that you don't have. So do your best, and leave it at that.

Look after the really important things, like your own well-being and that of your family. 

Thank you for coming back to tell us about things on a day that obviously did not go very well. Let us hope that a visit to MABS will help you get things back on track.


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## Brendan Burgess (15 Sep 2010)

Hi Cavan

I can't find anything online explaining what to do from a debtor's perspective. 

Call [broken link removed]on 1890 350 250

The best explanation I can find is from a creditor's point of view: 




> Where a debtor or creditor wishes to apply to the Court to vary the  terms of an instalment order, that person shall apply to the Clerk for  the issue of a summons in the form 53.6 Schedule C. The summons shall be  served upon the creditor or the debtor, as the case may be, in  accordance with the provisions of Order 10. When service has been  effected, the original summons, together with a statutory declaration as  to service thereof, shall be lodged with the Clerk at least four days  before the date fixed for the hearing of the application.
> An  order of the Court granting the application shall be in the form 53.7  schedule C. The applicant shall cause that order to be served upon the  other party in accordance with the provisions of Order 10.  An order  varying an instalment order shall not so operate as to make the  instalment order enforceable after the expiration of twelve years from  the date of the relevant Judgment.
> Whenever a debtor fails to  comply with an Instalment Order, a creditor may apply for a summons on  failure to comply with an instalment order.  This is in form 53.8  schedule c of the District Court rules.  The creditor shall prepare and  lodge with the Clerk of the District Court a summons in duplicate a  statutory declaration in the form 53.9 schedule C. The Clerk shall list  the matter for hearing and having completed and signed the original  together copy summons, shall issue that summons to the creditor for  service upon the debtor.
> It is very important to note that  the summons on failure to comply with an instalment order is served  personally upon the debtor (unless the Judge of the District Court  directs service otherwise) at least fourteen days before the date of  sitting of the Court at which the debtor is directed to appear.
> ...


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## cavan1212 (15 Sep 2010)

thanks brendan


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## browtal (15 Sep 2010)

Hello, I am so sorry that you had this experience.  It is a shame that these judges represent us in this manner. I recently read about a new bill that would make judges accountable - does anybody know what this is likely to consist of, accountable for what?
You are a decent citizen trying to do your best. Few judges would fault you. Do your best.  If that is the best that judge could do - he does not measure up to your standards. Mabs are very good. Citizens  Best wishes Browtal


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## Time (15 Sep 2010)

OP, you need to issue a variation summons to get that order reversed.


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## Penny_Less (16 Sep 2010)

That is very frightening.  I hope everything gets sorted for you and your family.


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## Brendan Burgess (16 Sep 2010)

From the Debt Recovery Handbook
Author: Colman Curran
Publisher: Round Hall Press 

Note: 
The book is published by Round Hall Press and is now slightly out  of date - the chapter on judgment mortgages has been overtaken by the new Land  & Conveyancing Law Reform Act 2009 and the new Committals process is as yet,  substantially untried.

 ENFORCEMENT OF JUDGMENT: _INSTALMENT ORDERS _​ 
*11–01* Among the more commonly used methods of enforcing a judgment against  an individual is that of the instalment order process. This is a remedy where a  judgment debtor can be examined as to his means in the district court  irrespective of which court issued the original judgment. The examination will  always be in the district court area where the judgment debtor resides. The  process is governed by the Enforcement of Court Orders Acts 1926 and 1940.  

*11–02* Following the assessment of the Debtor’s income, assets and  expenditure, the district court judge can make an appropriate Instalment Order,  directing that the debtor make periodic payments to the creditor. In this way  the creditor can get phased payments in respect of the judgment debt, interest  & costs, based on the debtor’s means. Failure on the part of the debtor to  make the payments ordered is a statutory contempt of court. If the judgment  debtor does not comply, the creditor used to be able to make an application to  the district court to have the debtor committed to prison for a period to be  specified by the judge, in order to “purge” his contempt but this process has  recently been declared unconstitutional by the high court. The instalment order  process is favoured by banks and credit institutions as a means of recovering  small and medium sized debts, such as judgments arising out of credit card  debts, hire purchase default, personal loans, etc. Although the requirement for  court appearances can make the process both expensive and tedious, banks (or  other organisations with high volumes of debts such as utility companies) may  engage in the process to advertise the adverse effects of default to compliant  customers. 

*Procedure*

*11–03* A  Summons for Attendance of the debtor is prepared in duplicate and lodged in the  appropriate district court office with the original decree/execution order/FIFA,  etc. The Summons for Attendance must be accompanied by an Application for the  Summons of Attendance of Debtor, which is usually signed and sworn by the  solicitor for the creditor. 

*11–04* The  summons is returned by post in duplicate with the appropriate court hearing date  inserted and one copy of this is served by registered post on the judgment  debtor. It requires him to prepare a written statement of means detailing his  income, assets and liabilities and to appear before the district court on the  specified date. The second signed copy should be lodged in the court office by  the solicitor for the judgment creditor not less than 4 days before the hearing.  Unfortunately,  debtors often ignore the requirement to prepare or file a statement of means and  simply show up in court to be examined.​ 

*The  Instalment Order Hearing*

*11–05*  Assuming the debtor attends at the hearing – and often they do not – the Debtor  will be examined by the court as to his circumstances including what he does for  a living, whether he owns property, what liabilities he has, etc. The solicitor  for the judgment creditor will have an opportunity to cross examine him. The  judgment debtor may also be legally represented but this is unusual. There is no  requirement for a creditor witness to attend. 

*11–06*  Usually the judge will make an order - an Instalment Order - that the debtor  discharges the debt on the basis of a weekly or monthly amount, which he/she  feels the debtor can realistically afford to pay to the judgment creditor. NOTE:  The plaintiff’s solicitor is expected be able to give the court some information  in relation to the debtor’s circumstances and on that basis suggest an  appropriate instalment amount to the court.    
The hearing will proceed in the debtor’s absence once good  service is proven and judges do not make instalment orders against debtors who  can prove that they are on social welfare.

*Service of the Instalment Order*

*11–07* If  an Instalment Order is granted, it should be prepared in duplicate by the  plaintiff’s solicitor and lodged in the district court office for signing. It is  then returned and one copy must be served on the judgment debtor.  
It will usually specify a time when the first payment  becomes due and this is usually 7 days after service of the Instalment Order on  the debtor. 

*11–08*  There is a lobby which advocates the repeal of the Enforcement of Court Orders  Acts 1926 and 1940 and it has been suggested that the current procedure should  be replaced by an attachment of earnings/social welfare payments system.  However, whilst this may be effective against those in receipt of a wage or  social welfare payments, it may not be effective against the many judgment  debtors who are self-employed. ​​ ​ 
​ ​ 
​ 
*Change in the law  re Committals*

*11-09* In a judgment given by Laffoy J. in  the _Caroline McCann_ case in the High  Court on the 18 June 2009, the applicant obtained – in judicial review  proceedings – an order quashing a committal order of Monaghan District Court,  providing for her arrest and imprisonment for arrears of instalments not  paid.  Judge Laffoy ruled that the  legislation that allowed the District Court to make such an order - section 6 of  the Enforcement of Court Orders Act 1940 - was unconstitutional on a number of  grounds, chiefly that the legislation breached the applicant’s rights to fair  procedures and personal liberty under the Constitution. 

*11-10* The decision was given in judicial  review proceedings taken by the applicant against a number of State entities,  including the District Court Judge, the Garda Commissioner, the Prison Service,  the Minister for Justice and the Attorney General. 

*11-11* In the absence of an appeal, it  seems that the declaration of unconstitutionality of section 6 amounts to a  judicial death certificate for the provision itself. Obviously, section 6 deals with the  committal order part of the procedure – and the decision will not affect a  creditor's entitlement to obtain an instalment order. 

*11-12  *The following is a description of the process for  committal prior to the June, 2009 High Court decision referred to above. The  government has introduced new legislation which anticipates a different form of  committal process which incorporates aspects of the process which obtained  before June 2009. 

*Position Prior to the Caroline McCann  case*
*11-13*  Prior to Laffoy J.’s High Court decision, if a debtor failed to make the  instalment payments as ordered, then the creditor could request the District  Court office to issue a Committal Summons with a view to having the debtor  jailed for contempt. In practice this was only done when  sufficient arrears of unpaid instalments had built up to make the process  worthwhile but this process has now been declared to be unconstitutional. 

_Committal Hearings  _
*11-14* At the committal hearing the  creditor would have a witness present in court, to give evidence of the default  in question i.e. that the debtor failed to comply with the Instalment Order.  Most district judges were reluctant to make a Committal Order unless it could be  shown that there had been wilful failure or neglect on the part of the judgment  debtor. Some judges treated committal applications as  applications to vary the instalment order in order to avoid making a committal  order at all. If the debtor could not convince the court as to why he  should not be imprisoned, then an order committing him to prison for contempt  for up to ninety days, would often be made against him. Somewhere between three  and fourteen days was more the norm. 

_Imprisonment of  Debtor_
*11-15* Many judgment creditors were in the  habit of stopping at the point of obtaining a committal order and did not lodge  the order and warrant to imprison the debtor to avoid the final step of  imprisonment. The Gardai were also often reluctant arrest and imprison people  for debt although the way arrest warrants were dealt with varied between Garda  stations. Often criticised as being a draconian method for the enforcement of a  judgment, committal was seen sometimes as the only effective method against  “won’t pay” hardened debtors and it took the intervention of the Gardai before  they would be prepared to make a payment proposal. 

*11-16* The fact that the Debtor served  time in prison for contempt arising out of the non payment of instalments on the  Instalment Order, did not forgive the debt and the creditor could still pursue  other remedies to recover the judgment debt. 


*New Legislation to Replace  existing Committal Rules: Enforcement of Court Orders (Amendment) Act  2009*
*11-17  *The 2009 Act amends Sections 6 and 8 of the  Enforcement of Court Orders Act 1940.  It allows a creditor to issue a summons  to bring a debtor to court if he has defaulted on an instalment order.  

*11-18* It will have the effect of ensuring that if a  debtor does not appear in Court having defaulted on an instalment order, a  warrant can be issued to arrest him/her and bring him/her before the court. This  will enable the court to hear both the debtor’s and the creditor’s case and  satisfy itself whether the debtor has wilfully refused to pay and that all other  steps possible, including instalment payments and mediation, have been taken to  recover the debt. 

*11-19*  The new act empowers the court to make various orders to  include a variation of the original instalment order, directing mediation  between the parties, sentencing a debtor to prison with a stay of execution  provided the debtor follows court directions regarding payment or simply order a  prison sentence.  However, in a departure  from the previous committal system, the court will not imprison the debtor  unless it is satisfied that s/he has the means to pay. There is also a new  provision for legal aid in circumstances where the debtor is at risk of  imprisonment.

*11-20*  Announcing the Government’s approval, the Minister said: *"**This provision is part of the framework  used in civil disputes in relation to debt enforcement. It is used sparingly by  the courts, even prior to the recent High Court judgment. However its value is  its persuasive power – people tend to settle up when they know they are at risk  of prison. I think it is important for the sake of small creditors and  especially for family law maintenance disputes, to bring certainty to the  current situation, while taking account of the High Court’s view that people who  can’t afford to pay shouldn’t be imprisoned.  These amendments will achieve that  and I am satisfied they are warranted**."*

*11-21       *The  Law Reform Commission has published a wide ranging consultation paper on  personal debt management and enforcement in September 2009.  The Report  recommends an emphasis on non-judicial debt settlement processes, certain  changes to debt enforcement and efforts to distinguish between those who cannot  pay and those who will not pay.  The  Report also questions the usefulness of imprisonment in the context of debt  enforcement.

*Alternatives*
*11-22* The Government could also consider Attachment of Earnings orders  which are widely available in other jurisdictions or privatisation of the  Sheriff’s role as has occurred in England. It is important that there  is an effective sanction for non payment of debt to avoid the cost of default  being passed on to innocent parties.
​


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## Brendan Burgess (16 Sep 2010)

Reproduced with the permission of the author: 

CHAPTER 18
​ WHEN  ACTING FOR A DEFENDANT​ ​ There are no  specific rules as to how to advise a defendant in debt collection litigation  because the circumstances will vary in each case.  There are some general issues which should be  checked out prior to responding to the plaintiffs claim and some of these are  set out below.  A defendant will often be  trying to settle at a discount and the skill involved in advising him is to find  the best point at which to settle and at the lowest cost.  Defending a case can also involve some  experience and intuition too.  For  example if a company without tangible assets owes a debt in the region of  €12,000.00 and the plaintiff threatens to wind it up, it will be apparent to an  experienced practitioner that there is little reality in the threat given the  cost of bringing a petition relative to the size of the debt.   

*Does the Plaintiff  Exist?*

*16–01* If the plaintiff is a company, the debtor should conduct a companies  office search against it initially to establish that it is properly registered  at the time of the proceedings and also at the time of the contract and delivery  of the goods or services which are the subject matter of the contract.  If the plaintiff is not properly constituted,  the defendant may be able to stop the proceedings on procedural  grounds.

*Has the Correct Defendant  been identified?*

 The Plaintiff  may believe that he has been dealing with a sole trader whereas the contract may  legally be with a company.  Sometimes  Plaintiffs mistakenly sue the wrong legal person or legal entity and this matter  should be clarified at the outset when advising a defendant.  If the wrong legal entity has been sued, the  wronged party can apply to have the proceedings struck out with costs against  the plaintiff.

*Is Service  Good?*

*16–02* If the defendant is a company, it should satisfy itself that the  proceedings have been served at its registered office.  Proceedings served at a trading address which  is not the registered office are not properly served unless an appearance is  entered by the defendant that rectifies this defect.  As always, if there is a doubt as to the  validity of service of the proceedings, practitioners should be careful about  entering an appearance.

*Jurisdiction*

*16–03* The endorsement of claim should also specify why it is that the  plaintiff is suing in the particular jurisdiction, e.g. defendant  resides/operates a place of business there.   Practitioners should check with clients that this is, in fact, true.  Also, if there is a formal contract, it may  have a choice of law or a jurisdiction clause and this should be investigated to  make sure that the proceedings have been brought in the correct  jurisdiction.  Again, practitioners  should exercise care before entering an appearance which acknowledges the  jurisdiction of the court. 

*Relevant  Legislation*


 Practitioners  should advise defendants if their statutory rights have been infringed during  the pre-legal or legal debt collection process.   Relevant legislation would include The Statute of Limitations Act – is  the debt more than six years old? (the estate of a deceased debtor can only be  sued within two years of the date of death); the Data Protection Act – has the  creditor obtained information about the debtor improperly?; unfair terms in  contracts legislation – is the contract legal?; consumer legislation – have the  terms of the Consumer Credit Act been complied with by a bank?; have the banking  small business and mortgage codes issued by the Financial Regulator been  complied with?, etc.


*Notice for  Particulars*

*16–04* A defendant should seek particulars of the debt claimed to include a  breakdown of how the total is made up, how interest has been calculated and  whether proper credits have been allowed if appropriate.  It may be that a defendant has a right of set  off regarding all or part of the debt.  A  defendant should satisfy himself that he understands fully the extent of the  claim and all of its elements and that the factual matters pleaded in the claim  are correct.  A plaintiff should answer  the defendant’s reasonable questions about the claim and should not apply for  judgment without having done so.  A  defendant should warn a plaintiff that if he does so apply for judgment, without  providing such reasonable answers, then the defendant will seek to set aside  that judgment and will rely on the letter he is sending to ground an application  for the costs of having to so set it aside.   

*Part-Payment/Settlement*

*16–05* If part of the debt is admitted by a defendant, that amount should  be paid if possible so that the court case will be about the disputed amount  only.  This  may have the effect of making it necessary to transfer proceedings to a lower  court, depending on the remaining value of the plaintiff's claim.  This can have important costs consequences  for a client.  At  this point, it may be appropriate to make without prejudice settlement offer of  the admitted part of the debt together with part of the sum in dispute to buy  off the risk and cost of court proceedings.   
 If the full  amount tendered cannot be paid all at once, a phased payment arrangement over a  number of months could be offered.  This  may be attractive to a plaintiff who is not sure of how strong his case is.  If the plaintiff refuses the phased payment  proposal, a defendant can attend court and ask the court to make an instalment  judgment and vouch his circumstances in writing in support of such an  application.  Alternatively, if judgment  is being given against him in court, he can request a stay on execution to  enable him to assemble enough money to pay the debt.

*Defending a  Case*

*16–06* If the entire debt is disputed, the defendant should inform the  plaintiff in writing and say that a default judgment application should not be  made.  On  receipt of clear instructions to act on behalf of a properly served defendant, a  practitioner should enter an appearance as soon as possible to prevent the  plaintiff obtaining judgment in default.   If the debt falls within the High Court jurisdiction, this will mean the  plaintiff has to set his case down for hearing before the Master.  In these circumstances, a plaintiff may be  more amenable to settlement.  Plaintiffs  will wish to avoid the costs and the time it will take to get the case listed  for hearing coupled with the costs of the inevitable adjournments.  

*16–07* Any  case where a defendant is incorrectly sued or does not owe the debt should be  defended vigorously.  Often however,  there are borderline cases where there is a dispute between the parties, perhaps  in respect of the goods or services provided.   In such cases it is necessary to strike a balance between the defendant’s  entitlement to refuse to pay the sum demanded arising out of the alleged  negligence/breach of contract of the plaintiff, and the costs he will incur in  defending the action, which will be compounded if he loses following a full  trial of the matter.  The eventual  outcome of such litigation is never certain.

*Counterclaims*

A  defendant may feel that there is some or no merit in a plaintiff’s claim and a  practitioner will have to prepare a defence based on those instructions.  Sometimes a defendant may say that whilst  there is some merit in the plaintiffs claim, he has a counterclaim against the  plaintiff which would have the effect of either abating the amount of the  plaintiffs claim or eliminating it altogether.   Such a counterclaim is included in a defendant’s written defence.  The counterclaim should clearly articulate  why the defendant says that the plaintiff owes him money in the same way that  the plaintiffs indorsement of claim articulates the principal cause of  action.  For example a defendant may  assert that a certain element of product supplied by a plaintiff was supplied on  a sale or return basis and that he is due credits arising from the return of  products which have not been allowed by the plaintiff.  Another example might be where a plaintiff  provided a service such as the installation of software and because one of the  software modules would not operate, the defendant may be due an appropriate  credit.

If  a defendant raises a counterclaim in a defence or by way of replying affidavit,  it is open to a plaintiff to seek further particulars of the nature of the  counterclaim and subsequently file a formal defence to the  counterclaim.

*Practitioners should  note*

*16–08* Practitioners acting for defendants should be especially careful to  keep in touch with the plaintiff or plaintiff’s solicitor and make sure that a  default judgment application is not made because a time limit has expired.  They should also advise their defendant  clients of the consequences of judgment to include the extra interest &  costs and the types of enforcement activity which can be expected if the  judgment debt is not paid.  

*Application to Set  a Default Judgment Aside*


 If a default  judgment is obtained against a defendant an application can be brought to set it  aside in order to file a defence.  The  court will assess any such application on its merits taking factors such as bad  service of the summons, delay on the part of the defendant, evidence of  intention to defend, etc. into account.   If the court accedes to the set aside application, it will normally  impose conditions such as lodgement of part or all of the judgment amount, and  costs of the application to set aside may be awarded against the  applicant/defendant.  Generally  the longer it takes the defendant to apply to  set aside, the more onerous the conditions imposed by the court will  be.

*Appeals*


 If a defendant  is unhappy with a judgment given against him he can appeal within the specified  timeframe and have another day in a higher court on the merits of the case.  Practitioners should note that an appeal is  no bar to enforcement of the original judgment unless a stay has been placed on  that judgment.


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## Time (16 Sep 2010)

Instalment orders are not appealed to the circuit courts, they can be varied to nil by the district courts by issuing a variation summons and filing the necessary statements of means.


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## Brendan Burgess (16 Sep 2010)

Hi Time

Would you like to write a Key Post in plain English guiding debtors through the process? 

As far as I can see, it doesn't exist and would be very useful. 

Brendan


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## Time (16 Sep 2010)

No problem. I shall be happy to do so.


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## agentino (5 Oct 2010)

Hi Time,
Would be very interested in reading your summation if you get the chance to put it up


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## dereko1969 (5 Oct 2010)

it's up there already -
http://www.askaboutmoney.com/showthread.php?t=143928


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