A Donegal man has sought to get a Civil Restraining Order against a lending institution.
Also known as a ‘Section 28 Order’, it is normally used to direct ‘a person’ to stop engaging in certain unwanted behaviours against another person, such as stalking or harassment.
The unusual case was brought before Letterkenny District Court by a local man who cannot be named.
Solicitor for the plaintiff, Mr Donough Cleary, told Judge Emile Daly his client was seeking the order to prevent a lending institution “using or threatening to use violence or putting his wife in fear.”
The institution was not represented in court.
Judge Daly, however, said it was her opinion that a company could not be subject to a Civil Restraining Order.
“The problem with this act is there is no definition of what a respondent is,” she said.
“Section 28 refers only to a person, but does not define what that is. My concern is that a ‘person’ cannot be body corporate. Is it possible for a body corporate to engage in this conduct?”
You may also be interested in
Judge Daly added the definition of a body corporate means they cannot be accused of an offence.
“There is no identifiable person or accused in this case. If an order is given, it will essentially be against a lending institution.”
Mr Cleary said the order was being sought ‘against the institution’. He added that, because such cases are held in-camera (in private), it’s hard to find precedence.
Judge Daly added there was ‘not a risk of violence’ against the plaintiff or his wife.. However, Mr Cleary said: “There is threat to property. Fear is subjective or objective and Ms …… has a subjective fear.”
The judge indicated it would be ‘disproportionate’ to grant the order in this case, so she was going to refuse.
Mr Cleary countered, however, there ‘is scope to order a body corporate’ to adhere to a restraining order.
Judge Daly responded she would ‘never stop anyone querying this’ and agreed to adjourn the matter to allow Mr Cleary to explore the matter further with his client.
“I’m not going to issue a summons if I feel proceedings are not being correctly brought. It seems to me the court would have to hear from both sides,” she concluded.