AN UNEMPLOYED mother of four with psychiatric problems who was jailed last week for a month over non-payment of a €1,500 credit card debt was freed yesterday by order of the High Court.
The woman’s solicitor, Declan Fahy, told the court in an affidavit she had said she saw an advertisement for credit cards from MBNA Bank while an inpatient in a psychiatric hospital and had applied for a card, claiming to be working in a factory.
Mr Fahy said the 33-year-old was given a credit card by MBNA bank with a credit limit of €1,500. She had used that facility, did not reply to correspondence relating to her debt, and did not attend any court hearing in that regard.
The woman was on disability benefit and her husband was long-term unemployed on social welfare and the family’s total weekly income was €464, he added. The woman was also being pursued by Bank of Ireland over a €2,000 loan, some of which she had repaid, he said.
Mr Fahy said the woman remained under psychiatric care and had received medication while in prison. She had been diagnosed with cervical cancer two years ago, had had a hysterectomy and was still under review for recurrence.
The first time she realised she was to be imprisoned over the debt was when she was arrested on May 13th last and detained in the Dóchas Centre in Mountjoy Prison, he said.
Lawyers for the woman yesterday applied to the High Court for an inquiry, under Article 40 of the Constitution, into the lawfulness of her detention. Counsel for the woman said Section 6 of the Enforcement of Court Orders Acts provided a person may be imprisoned over non-payment of a civil debt for a maximum three months but also provided the court must be satisfied the person had wilfully refused to pay or had engaged in culpable neglect.
There was an issue in relation to placing the onus of proof on to the debtor and a challenge to the constitutionality of Section 6 had recently been heard by the High Court, with judgment reserved.
In this case, the woman had applied for a credit card while an inpatient in a psychiatric hospital, was not in court when the imprisonment order was made and her lawyers were unaware of any efforts to tell her about her right to legal representation at that hearing. In light of such matters, it was contended the detention was inappropriate.
Mr Justice O’Neill directed an inquiry should be held, and when that inquiry began later yesterday, he was told by Conor Devally SC, for the woman, the issue related to whether the onus of proof in relation to non-payment of a debt was correctly applied on to his client. His client had incurred a debt to MBNA which in turn appeared to have assigned the debt to Cash Flow Services.
Counsel for the governor of the Dóchas centre said the woman was being held under a warrant which, on its face, appeared lawful.
Michael Lynn, for Cash Flow Services, a notice party to the proceedings, said his client had no objection to the woman’s release.
Mr Justice O’Neill said there were a number of aspects to the case, including natural justice issues and whether there was any jurisdictional basis for the woman’s detention. “Without further ado, I will direct her release,” he said.
In a letter issued later yesterday, solicitors for Cash Flow Services said they had written to the woman several times seeking payment of the debt, together with serving legal proceedings on her, but had never received any reply.
They had no prior knowledge of the woman’s personal circumstances, the solicitors said. Had they been so aware, they “would not, under any circumstances”, have proceeded down the route of seeking a committal warrant.
