Commentary on Provisions(1) Diligence on the dependence Section 17 – Provision of debt advice and information package
55.Section 15F of the 1987 Act sets out the procedure to be followed at a hearing on an application for warrant for diligence on the dependence. Diligence on the dependence is a provisional or protective measure which may be utilised by a creditor whilst a court action is ongoing. It allows the creditor to take steps to preserve the debtor’s property so that it will be available to satisfy any claim eventually upheld by the court. Such a hearing on an application takes place in respect of applications where the creditor either does not apply for a warrant to be granted in advance of a hearing or where the court refuses to make an order granting a warrant without a hearing. Subsection (2) of section 15F provides that the court may grant the warrant if it is satisfied as to the matters mentioned in subsection (3) of that section. This section of the Act extends those matters to include, where the debtor is an individual, that the creditor has provided the debtor with a debt advice and information package (meaning the debt advice and information package referred to in section 10(5) of the 2002 Act).
56.Section 15E of the 1987 Act gives the court power to grant a warrant for diligence on the dependence without an initial hearing. Subsection (4) requires the court, on granting warrant for diligence on the dependence without a hearing on the application to fix a date for a hearing under section 15K (recall of diligence on the dependence) and to require the creditor to intimate that date to the debtor and any other interested party. Where a hearing has been fixed under section 15E(4)(a), subsection (5) of that section applies section 15K as if the debtor or a person having an interest had applied to the court for an order under that section. Under section 15K of the 1987 Act, the debtor or any other person having an interest can apply to the court for any order set out in subsection (2). Those orders are an order recalling or restricting the warrant granted, if the warrant has been executed, an order recalling or restricting any arrestment or inhibition so executed, an order determining any question as to the validity, effect or operation of the warrant or an order ancillary to any other order sought. This section would amend section 15K so that, where the debtor is an individual, and the court is satisfied that the creditor has not provided the debtor with a debt advice and information package(4), the court must make an order recalling the warrant and recalling any arrestment or inhibition executed in pursuance of the warrant, and may make any order ancillary to those things. But this provision would only apply where the hearing is a hearing fixed under section 15E(4)(a) (i.e. a hearing fixed by the court on granting warrant for diligence on the dependence without an initial hearing). This section of the Act would also provide that the onus would be on the creditor to satisfy the court that no such order should be made (in line with the other orders made under section 15K).
57.In other words, regardless of whether a warrant is granted without a hearing or not, the creditor will be required to provide the debtor (if the debtor is an individual and not, for example, a company) with a debt advice and information package in advance of the relevant hearing. If the creditor fails to do so then either, in the case of a hearing on the application, the warrant will not be granted, or in the case of a warrant granted without a hearing, the court will recall the warrant (and the arrestment or inhibition executed in pursuance of it).