You learn that your debtor is about to skip the country, leaving you to pursue your claim in a foreign court - an expensive and inconvenient alternative at the best of times. What can you do?
Our law provides a drastic remedy, with a suitably impressive and ominous Latin name: “Arrest tanquam suspectus de fuga”. In a nutshell, a court may in appropriate circumstances order your debtor to be arrested and detained until he/she pays the debt or provides sufficient security for it.
The High Court recently expressed strong doubts as to whether this “draconian” remedy, with its violation of personal freedom, will pass Constitutional muster. However the Court did not have to make a definitive pronouncement in that regard, as it found that in any event the creditor had failed to prove that the debtor was departing the country with the intention “to evade or delay payment”.
Critically, it is the intention of the departure that is relevant, not the effect. So the fact that the debtor had made substantial preparations to return to his home country was not a deciding factor – it was an “already planned innocent departure”, and arrest could not therefore be justified.
What you have available to you here is of course a very powerful weapon, and your reward for using it correctly could well be full payment. But it has its risks – if you fail (a particular danger in view of the Constitutional challenges likely to be levelled at the procedure’s core validity) you might face a substantial damages claim in addition to a lot of legal costs. Tread carefully!