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Anatomy of a strategic debt case

This presentation by Colin Daly from the Northside Community Law Centre explores a strategic model of legal aid for debt cases. It discusses the information, advice, and representation provided by the center, as well as their community education, research, and campaigns for law reform. The case study highlights the importance of identifying justiciable issues, exhausting lower court remedies, and effectively arguing legal points. It also examines the constitutional and international protections relevant to debt enforcement regimes. The outcome of the case demonstrates the need for fair procedures and the right to liberty for debtors facing imprisonment. The presentation concludes with lessons learned and future potential cases.

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Anatomy of a strategic debt case

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

  2. 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. Information, Advice & Representation • 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

  4. 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

  5. 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

  6. Identifying a Justiciable Issue Enforcement 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

  7. 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

  8. 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

  9. Genuine attempt to resolve issue with Creditor Application to extend time to appeal decision to the Circuit Court opposed and denied Exhausting Alternative Remedies

  10. Issuing Proceedings Identifying & Briefing Counsel Approving Papers Interlocutory Injunction Issuing & Serving Proceedings on Multiple Defendants Notice Parties – IHRC & Credit Union

  11. 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

  12. Evidence Caroline McCann Her actions & affect on her & her family MABSLocal experience and involvement with client FLAC Paul Joyce, Policy & International attitudes

  13. Judgment Declaration that Section Unconstitutional Fair Procedures (disproportionate, imprisonment in default of appearance) Right to Liberty (disproportionately infringed) Section 6 quashed

  14. 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

  15. Conclusions & Lessons Learned Support for Client Relationships Public Relations Strategy required Unintended consequences

  16. Further potential cases Records of arrest for Debt Maintenance Creditors Fines Mortgage Debt

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