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Dealing with debt in Scotland

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As an individual of mature years residing north of Hadrian’s Wall my first and only contact with the Scottish courts relates to debt and the Scottish System.

 

Having initially faced the daunting prospect of being part of the court system and as a newbie to the Forum then I thought that it might be useful to post this thread so that others would not need to duplicate my research.

 

My first suggestion is that you have a look at the Shelter advice site which comfortably walks you through the court system

 

http://scotland.shelter.org.uk/advice/advice-4902.cfm

 

Another very helpful site worth looking at is the Govan Community Law centre:

 

Govan Community Law Centre, Glasgow, Scotland | Free legal resources

 

There are 2 main statutes dealing with this subject and these are:

 

The Debtors (Scotland) Act 1987

 

The Debtors (Scotland) Act 1987 was introduced in November 1988 following a report on diligence and debtor protection by the Scottish Law Commission. The report was concerned with reforming diligences commonly used to enforce payment of debts and to remove some of the harsher aspects and social stigma attached to summary warrant action as it existed previously. The resulting Act brought radical changes to the way diligence could be used to recover outstanding debts including tax debts.

 

 

Debt Arrangement and Attachment (Scotland) Act 2002

 

The Debt Arrangement and Attachment (Scotland) Act 2002 introduced two new diligences:

“Attachment/exceptional attachment” in relation to moveable property owned by a debtor

“Debt arrangement scheme” under which individuals could arrange for their debts to be paid under payment programmes.

 

Types of Claims – Sheriff Courts

1. Small claims action.

 

Claims not exceeding £750

It's a simplified court procedure that is quick and easy to use.

2. Summary cause actions

 

Summary cause procedure deals with claims over £750 and up to £1,500.

 

3. Ordinary cause actions

 

Deals with claims that are over £1500.

Also cases that involve complicated civil law. i.e. legal interpretation or judgement

If a case is too complicated for the sheriff court, or if a claim for a lot of money is involved, it'll go to the Court of Session.

 

 

Sheriff officer

Is an officer of the Scottish Sheriff Court, responsible for serving documents and enforcing court orders.

(Nearest English equivalent although vastly different is a bailiff)

 

The jurisdiction of a sheriff officer is limited to the area of their commission (the relevant sheriffdom or Sheriff Court district), unlike messengers-at-arms (the equivalent officers of the Court of Session, who have jurisdiction throughout Scotland).

Both messengers-at-arms and sheriff officers are employed by private businesses or individuals and charge fees that are set by statute.

 

 

 

Summary Warrant: Explanation of the more common terms used

 

The following details some of the more frequently used terms you will encounter in your dealings with the court when summary warrant action is taken against you...

 

Action of furthcoming – a final stage of diligence for whatever has been subject to arrestment being made over to the pursuer. For example, when a bank account has been arrested and attempts to obtain a mandate from the defender to release the arrested funds have proved unsuccessful, this final stage of the diligence allows for the appropriate amount of funds caught in the arrestment being transferred to the pursuer.

 

Arrestment – is the form of diligence whereby a creditor ensures that money (bank accounts) and moveable effects of the debtor (e.g. an insurance policy) that are in the hands of a third party are not made over to the debtor until the debt is paid.

The arresting creditor is known as “the arrestor”, the third party as “the arrestee” and the debtor as “the common debtor”.

Arrestments laid on wages or salaries etc due to the debtor by his employer are known as earnings arrestments.

 

Attachment and auction sale – attachment is a diligence over corporeal moveable property (owned by the debtor alone or in common) for recovery of money owed by the debtor. Attachment is carried out by a sheriff officer who values the articles being attached at the price they are likely to fetch on the open market. An attachment cannot be carried out on a Sunday or on a day that is a public holiday in the area in which the attachment is to be executed or any other day as may be prescribed by Act of Sederunt.

Also it should not be commenced before 8am or continued after 8pm.

The sheriff officer must, within 14 days of the execution of the attachment, make a report of the attachment to the sheriff.

 

The debtor has 14 days from the date of the execution of the attachment to redeem the attached article. If he chooses to do so once payment of the redeemed article has been received from him, the attachment ceases to have effect.

 

If no redemption of the attached goods is requested then the sheriff officer (once he has sent the report of attachment to the sheriff) can make arrangements for the auction of the attached articles.

 

Certificate/Warrant of Intimation – A notice given to all interested parties of a step taken or to be taken in the action.

 

Defender – this is the person against whom the pursuer raises the action in court.

 

Diligence – this is the term used to describe the form of legal procedure which enables the creditor (pursuer) to recover payment from the debtor (defender).

 

Pursuer – this is the person raising the action in the court.

 

Redemption – this is the means by which the debtor redeems the attached article – He has 14 days from the date of the execution of the attachment in which to do this.

 

Summary warrant – a legal document signed by a sheriff allowing recovery of unpaid debts etc by attachment and sale, arrestment or arrestment of earnings.

The pursuer or his legal agent must apply to the court for such authority, certifying that previous demand for payment has been made and that the amount due remains unpaid at the date of their application.

If satisfied that the petition for warrant is in order the sheriff will sign it granting his authority to recover the debt by the following methods

  • attachment and sale
  • arrestment
  • Earnings arrestment.

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Please note that I am a newbie and that this info may well already exist somewhere on the site.

If this is the case then my apologies and I am certain that the Moderators/site helpers will point me in the correct direction and possibly remove this thread...

Any help, advice or constructive criticism is more than welcome. Either here or in a PM.

If it is of any use then I am happy to add to as my experience grows.

 

“Steal written work from anyone and its called plagiarism. Steal from many people and its called research.”

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Please note.

 

After posting the above, I then discovered that there is a whole forest of Scottish information under General, Scotland.

Too busy looking for a particular tree.

Genuine apologies.

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