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Subject to subsections (3) to (5) below and to section 14 of this Act, on an application by the debtor, the court or the First-tier Tribunal, on granting decree for payment of any principal sum of money, shall, if satisfied that it is reasonable in all the circumstances to do so, and having regard in particular to the matters mentioned in subsection (1A) below, direct that any sum decerned for in the decree (including any interest claimed in pursuance of subsections (6) and (7) below) or any expenses in relation to which the decree contains a finding as to liability or both such sum and such expenses shall be paid— as the court or the First-tier Tribunal may specify in the direction.
by such instalments, commencing at such time after the date of intimation by the creditor to the debtor of an extract of the decree containing the direction, payable at such intervals; or
as a lump sum at the end of such period following intimation as mentioned in paragraph (a) above,
A direction under subsection (1) above shall be known as a “time to pay direction”.
The matters referred to in subsection (1) above are—
the nature of and reasons for the debt in relation to which decree is granted;
any action taken by the creditor to assist the debtor in paying that debt;
the debtor's financial position;
the reasonableness of any proposal by the debtor to pay that debt; and
the reasonableness of any refusal by the creditor of, or any objection by the creditor to, any proposal by the debtor to pay that debt.
Where a court or the First-tier Tribunal grants a decree which contains a finding as to liability for expenses but does not at the same time make a time to pay direction, then (whether or not the decree also decerns for payment of the expenses), it shall not at any time thereafter be competent for the court or the First-tier Tribunal to make a time to pay direction in relation to those expenses.
Where a court or the First-tier Tribunal grants a decree which contains a finding as to liability for expenses and makes a time to pay direction in relation to those expenses but— in relation to so much of the time to pay direction as relates to the expenses, the reference in subsection (1) above to the date of intimation of an extract of the decree containing the direction shall be treated as a reference to the date of intimation of an extract of a decree decerning for payment of the expenses, being an extract specifying their amount.
does not decern for payment of the expenses; or
decerns for payment of the expenses as taxed by the auditor of court or auditor of the Court of Session but does not specify the amount of those expenses,
It shall not be competent for the court or the First-tier Tribunal to make a time to pay direction—
where the sum of money (exclusive of any interest and expenses) decerned for exceeds £10,000 or such amount as may be prescribed in regulations made by the Lord Advocate;
where the decree contains an award of a capital sum on divorce or on the granting of a declarator of nullity of marriage;
in connection with a maintenance order;
in an action by or on behalf of the Commissioners for Her Majesty’s Revenue and Customs for payment of any sum recoverable under or by virtue of any enactment or under a contract settlement;
in connection with a liability order within the meaning of the Child Support Act 1991;
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in an action for payment of—
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car tax due under the Car Tax Act 1983 ;. . .
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in an action by or on behalf of Revenue Scotland for payment of any sum recoverable under or by virtue of the Revenue Scotland and Tax Powers Act 2014 (asp 16) or any other enactment in respect of a devolved tax, under a contract settlement or under a settlement agreement,
Without prejudice to section 2(5) of this Act, interest payable under a decree containing a time to pay direction (other than interest awarded as a specific sum in the decree) shall not be recoverable by the creditor except in accordance with subsection (7) below.
A creditor who wishes to recover interest to which subsection (6) above applies shall serve a notice on the debtor, not later than the date prescribed by Act of Sederunt or the First-tier Tribunal for Scotland Housing and Property Chamber (Procedure) Regulations 2017 occurring— stating that he is claiming such interest and specifying the amount of the interest claimed.
in the case of a direction under subsection (1)(a) above, before the date when the last instalment of the debt concerned (other than such interest) is payable under the direction;
in the case of a direction under subsection (1)(b) above, before the end of the period specified in the direction,
Any sum paid by a debtor under a time to pay direction shall not be ascribed to interest claimed in pursuance of subsections (6) and (7) above until the debt concerned (other than such interest) has been discharged.
In paragraph (d) of subsection (5) above, “contract settlement” means an agreement made in connection with any person's liability to make a payment to the Commissioners for Her Majesty's Revenue and Customs under or by virtue of any enactment.
In paragraph (da) of subsection (5)—
“settlement agreement” has the meaning given by section 246(1) of the Revenue Scotland and Tax Powers Act 2014 (asp 16).
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While a time to pay direction is in effect, it shall not be competent—
to serve a charge for payment; or
to commence or execute any of the following diligences— to enforce payment of the debt concerned.
an arrestment and action of furthcoming or sale;
an attachment;
an earnings arrestment;
an adjudication for debt,
a money attachment;
a land attachment;
a residual attachment,
While a time to pay direction is in effect an arrestment used on the dependence of the action or in security of the debt concerned shall remain in effect— but, while the direction is in effect, it shall not be competent to commence an action of furthcoming or sale following on such an arrestment.
if it has not been recalled; and
to the extent that it has not been restricted under subsection (3) below,
The court or the First-tier Tribunal may, on making a time to pay direction, recall or restrict an interim attachment or an arrestment of the kind described in subsection (2) above.
Where the arrestment which remains in effect as mentioned in subsection (2) above is an arrestment such as is mentioned in subsection (1) of section 73J of this Act, while the time to pay direction is in effect—
it shall not be competent to release funds under subsection (2) of that section; and
the period during which the direction is in effect shall be disregarded for the purposes of determining whether the period mentioned in subsection (3) of that section has expired.
If an interim attachment or an arrestment of the kind described in subsection (2) above is in effect, the court or the First-tier Tribunal may order that the making of a time to pay direction and the recall or restriction of the interim attachment or arrestment shall be subject to the fulfilment by the debtor of such conditions within such period as the court or the First-tier Tribunal thinks fit; and, where the court or the First-tier Tribunal so orders, it shall postpone granting decree until such fulfilment or the end of that period, whichever is the earlier.
While a time to pay direction is in effect an interim attachment shall remain in effect—
if it has not been recalled; or
to the extent that it has not been restricted under subsection (3) below.
Where a time to pay direction is recalled or ceases to have effect, otherwise than— the debt in so far as it remains outstanding and interest thereon, whether or not awarded as a specific sum in the decree, shall, subject to any enactment or rule of law to the contrary, become enforceable by any diligence mentioned in subsection (1)(b) above.
under section 12(2)(a) of this Act; or
by reason of the debt concerned being paid or otherwise extinguished,
Where— the clerk of court, sheriff clerk or, in relation to time to pay directions made by the First-tier Tribunal, a member of administration staff of the First-tier Tribunal shall intimate the fact of that recall or cessation to the arrestee.
a time to pay direction is recalled or ceases to have effect as mentioned in subsection (5) above; and
an arrestment such as is mentioned in section 73J(1) of this Act is in effect,
The court which granted a decree, or the First-tier Tribunal, where it has made an order, containing a time to pay direction may, on an application by the debtor or the creditor—
vary or recall the direction if it is satisfied that it is reasonable in all the circumstances to do so; or
if an interim attachment or an arrestment in respect of the debt concerned is in effect, recall or restrict the interim attachment or arrestment.
If an interim attachment or an arrestment in respect of the debt concerned is in effect, the court or the First-tier Tribunal may order that any variation, recall or restriction under subsection (1) above shall be subject to the fulfilment by the debtor of such conditions as the court or the First-tier Tribunal thinks fit.
The clerk of court, sheriff clerk or, in relation to time to pay directions made by the First-tier Tribunal, a member of administration staff of the First-tier Tribunal shall as soon as is reasonably practicable intimate a variation under subsection (1) above to the debtor and to the creditor, and the variation shall come into effect on the date of such intimation.
If, on the day on which an instalment payable under a time to pay direction becomes due, there remains unpaid a sum, due under previous instalments, of not less than the aggregate of 2 instalments, the direction shall cease to have effect.
If at the end of the period of 3 weeks immediately following the day on which the last instalment payable under a time to pay direction becomes due, any part of the debt concerned remains outstanding, the direction shall cease to have effect.
If any sum payable under a time to pay direction under section 1(1)(b) of this Act remains unpaid 24 hours after the end of the period specified in the direction, the direction shall cease to have effect.
Where— if under subsections (1) to (3) above the direction ceases to have effect in relation to the sum payable under either of the decrees, the direction shall also cease to have effect in relation to the sum payable under the other decree.
a decree for payment of a principal sum of money contains a finding as to liability for expenses and decree for payment of the expenses is subsequently granted; and
a time to pay direction is made in relation to both the principal sum and the expenses,
Subject to section 14 of this Act, this section applies to a debtdue under a decree or other document in respect of which —
a charge for payment has been served on the debtor;
an arrestment has been executed; or
an action of adjudication for debt has been commenced.
Subject to subsections (4) and (5) below, the sheriff or the First-tier Tribunal, on an application by the debtor, shall, if satisfied that it is reasonable in all the circumstances to do so, and having regard in particular to the matters mentioned in subsection (2A) below, make an order that a debt to which this section applies (including any interest claimed in pursuance of subsections (6) and (7) below) so far as outstanding, shall be paid— as the sheriff may specify in the order.
by such instalments, commencing at such time after the date of intimation in accordance with section 7(4) of this Act ... to the debtor of the order under this subsection, payable at such intervals; or
as a lump sum at the end of such period following intimation as mentioned in paragraph (a) above,
An order under subsection (2) above shall be known as a “time to pay order”.
The matters referred to in subsection (2) above are—
the nature of and reasons for the debt in relation to which the order is sought;
any action taken by the creditor to assist the debtor in paying that debt;
the debtor's financial position;
the reasonableness of any proposal by the debtor to pay that debt; and
the reasonableness of the objection by the creditor to the offer by the debtor to pay that debt.
It shall not be competent for the sheriff or the First-tier Tribunal to make a time to pay order—
where the amount of the debt outstanding at the date of the making of the application under subsection (2) above (exclusive of any interest) exceeds £10,000 or such amount as may be prescribed in regulations made by the Lord Advocate;
where, in relation to the debt, a time to pay direction or a time to pay order has previously been made (whether such direction or order is in effect or not);
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in relation to a debt including any sum recoverable by or on behalf of the Commissioners for Her Majesty’s Revenue and Customs under or by virtue of any enactment or under a contract settlement;
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in relation to a debt including any sum recoverable by or on behalf of Revenue Scotland under or by virtue of the Revenue Scotland and Tax Powers Act 2014 (asp 16) or any other enactment in respect of a devolved tax, under a contract settlement or under a settlement agreement,
in relation to a debt including—
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car tax due under the Car Tax Act 1983; . . .
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Where in respect of a debt to which this section applies— it shall not be competent for the sheriff or the First-tier Tribunal to make a time to pay order in respect of that debt until the diligence has been completed or has otherwise ceased to have effect.
there has been a poinding of articles belonging to the debtor and a warrant of sale has been granted in respect of them but has not been executed; articles belonging to the debtor have been attached and notice of an auction given under section 27(4) of the Debt Arrangement and Attachment (Scotland) Act 2002 (asp 17) but no auction has yet taken place;
moveable property of the debtor has been arrested and in respect of the arrested property—
a decree in an action of furthcoming has been granted but has not been enforced; or
a warrant of sale has been granted but the warrant has not been executed; or
money owned by the debtor has been attached and removed;
a decree in an action of adjudication for debt has been granted and the creditor has, with the debtor’s consent or acquiescence, entered into possession of any property adjudged by the decree or has obtained a decree of maills and duties, or a decree of removing or ejection, in relation to any such property, land owned by the debtor has been attached and an order under section 97(2) of the Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3) (in this Part, the “2007 Act”) granting warrant for sale of the land has been made but that warrant has not yet been executed; or
property owned by the debtor has been attached by residual attachment and a satisfaction order under section 136(2) of the 2007 Act has been made but not yet executed,
Without prejudice to section 9(12) of this Act, interest payable under a decree for payment of a debt in respect of which a time to pay order has been made (other than interest awarded as a specific sum in the decree) shall not be recoverable by the creditor except in accordance with subsection (7) below.
A creditor who wishes to recover interest to which subsection (6) above applies shall serve a notice on the debtor not later than the date prescribed by Act of Sederunt or by rules made under section 68 or paragraph 4 of schedule 9 of the Tribunals (Scotland) Act 2014 occurring— stating that he is claiming such interest and specifying the amount of the interest claimed.
in the case of an order under subsection (2)(a) above, before the date when the last instalment of the debt (other than such interest) is payable under the order;
in the case of an order under subsection (2)(b) above, before the end of the period specified in the order,
Where, in respect of a debt to which this section applies, an arrestment such as is mentioned in subsection (1) of section 73J of this Act has been executed, the sheriff or the First-tier Tribunal may make a time to pay order in respect of that debt only if less than 8 weeks of the period mentioned in subsection (3) of that section have expired.
Any sum paid by a debtor under a time to pay order shall not be ascribed to interest claimed in pursuance of subsections (6) and (7) above until the debt concerned (other than such interest) has been discharged.
In paragraph (d) of subsection (4) above, “contract settlement” means an agreement made in connection with any person's liability to make a payment to the Commissioners for Her Majesty's Revenue and Customs under or by virtue of any enactment.
In paragraph (da) of subsection (4)—
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An application for a time to pay order shall specify, to the best of the debtor’s knowledge, the amount of the debt outstanding as at the date of the making of the application and shall include an offer to pay it—
by specified instalments, payable at specified intervals; or
as a lump sum at the end of a specified period.
The ... duty under section 96(2)(b) of this Act on the sheriff clerk or, in relation to time to pay directions made by the First-tier Tribunal, a member of administration staff of the First-tier Tribunal to assist the debtor in the completion of certain forms shall, in relation to a form of application for a time to pay order, consist of a duty to assist him in the completion of the form in accordance with proposals for payment made by the debtor.
On receipt of an application for a time to pay order, the sheriff or the First-tier Tribunal shall, if the application is properly made and unless it appears ...that the making of a time to pay order would not be competent, make an interim order sisting diligence as provided for in section 8(1) of this Act.
The sheriff may or the First-tier Tribunal, where the debtor is unable to furnish the necessary information, make an order requiring the creditor, within such period as may be specified therein, to furnish to the sheriff or the First-tier Tribunal such particulars of the decree or other document under which the debt is payable as may be prescribed by Act of Sederunt or rules made under section 68 or paragraph 4 of schedule 9 of the Tribunals (Scotland) Act 2014.
If a creditor fails to comply with an order under subsection (4) above the sheriff or the First-tier Tribunal may, after giving the creditor an opportunity to make representations, make an order recalling or extinguishing any existing diligence, and interdicting the creditor from executing diligence, for the recovery of the debt.
Where the sheriff or the First-tier Tribunal makes an interim order under subsection (3) above, the sheriff clerk or, in relation to time to pay directions made by the First-tier Tribunal, a member of administration staff of the First-tier Tribunal shall as soon as is reasonably practicable—
serve a copy of the application for the time to pay order on the creditor informing him that he may object to the granting of the application within a period of 14 days after the date of service;
serve on— a copy of the interim order; and
the creditor; and
where an arrestment such as is mentioned in section 73J(1) of this Act is in effect, the arrestee,
serve on the creditor a copy of any order under subsection (4) above.
If no objection is made in pursuance of section 6(6)(a) of this Act, the sheriff or the First-tier Tribunal shall make a time to pay order in accordance with the application.
If such an objection is made, the sheriff or the First-tier Tribunal shall not dispose of the application without first—
giving the debtor an opportunity to make representations; and
if agreement is not reached as to whether a time to pay order should be made or as to its terms, giving the parties an opportunity to be heard.
Where the sheriff or the First-tier Tribunal refuses to make a time to pay order, he shall recall any interim order under section 6(3) of this Act.
The sheriff clerk or, in relation to time to pay directions made by the First-tier Tribunal, a member of administration staff of the First-tier Tribunal shall as soon as is reasonably practicable—
intimate the decision of the sheriff or the First-tier Tribunal on an application for a time to pay order (including any recall of an interim order under subsection (3) above) to the debtor , the creditor and, where an arrestment such as is mentioned in section 73J(1) of this Act is in effect, the arrestee; and
if the sheriff or the First-tier Tribunal has made a time to pay order, inform the creditor of the date when he intimated that fact to the debtor.
While an interim order under section 6(3) of this Act is in effect it shall not be competent in respect of the debt—
to give, in relation to any articles which have been attached, notice of an auction under section 27(4) of the Debt Arrangement and Attachment (Scotland) Act 2002 (asp 17);
to attach in execution of the decree any articles which have been attached by interim attachment;
to execute an earnings arrestment;
subject to subsection (1A) below, where an arrestment of property belonging to the debtor (other than an arrestment of earnings in the hands of his employer) has been executed before or after the making of the interim order, to commence an action of furthcoming or sale, or to grant decree in any such action which has already been commenced, in pursuance of that arrestment;
to execute a money attachment;
to commence an action of adjudication for debt or, if such an action has already been commenced, to take any steps other than the registration of a notice of litigiosity in connection with the action, the obtaining and extracting of a decree in the action, the registration of an abbreviate of adjudication and the completion of title to property adjudged by the decree.
An interim order under section 6(3) of this Act shall come into effect on intimation to the creditor under section 6(6)(b) of this Act and shall remain in effect until intimation of the sheriff’s or the First-tier Tribunal’s decision on the application for a time to pay order is made to the debtor and the creditor under section 7(4)(a) of this Act.
Where the arrestment mentioned in subsection (1)(c) above is an arrestment such as is mentioned in subsection (1) of section 73J of this Act, while the interim order is in effect—
it shall not be competent to release funds under subsection (2) of that section; and
the period during which the order is in effect shall be disregarded for the purposes of determining whether the period mentioned in subsection (3) of that section has expired.
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Where, before the interim order is made—
a notice of land attachment is registered, it shall not be competent to take any steps other than—
serving, under subsection (5) of section 83 of the 2007 Act, a copy of that notice; and
registering, under subsection (6) of that section, a certificate of service; or
a land attachment is created, it shall not be competent to make, under section 97(2) of the 2007 Act, an order granting a warrant for sale of the attached land.
Where, before the interim order is made, a residual attachment order has been made, it shall not be competent—
to take any steps other than serving, under section 133(1) of the 2007 Act, a schedule of residual attachment; or
to make, under section 136(2) of the 2007 Act, a satisfaction order.
While a time to pay order is in effect, it shall not be competent—
to serve a charge for payment; or
to commence or execute any of the following diligences— to enforce payment of the debt concerned.
an arrestment and action of furthcoming or sale;
an attachment;
an earnings arrestment;
an adjudication for debt,
a money attachment;
a land attachment;
a residual attachment,
On making a time to pay order, the sheriff in respect of the debt—
shall make an order recalling any existing earnings arrestment;
where the debt is being enforced by a conjoined arrestment order, shall—
if he, or another sheriff sitting in the same sheriff court, made the conjoined arrestment order, vary it so as to exclude the debt or, where no other debt or maintenance is being enforced by the order, recall the order;
if a sheriff sitting in another sheriff court made the conjoined arrestment order, require intimation of the time to pay order to be made to a sheriff sitting there who shall so vary or, as the case may be, recall the conjoined arrestment order;
where an action of adjudication for debt has been commenced, shall make an order prohibiting the taking of any steps other than the registration of a notice of litigiosity in connection with the action, the obtaining and extracting of a decree in the action, the registration of an abbreviate of adjudication and the completion of title to property adjudged by the decree; where a notice of land attachment has been registered under section 83(1)(c) of the 2007 Act, shall make an order prohibiting the taking of any steps other than—
the serving, under subsection (5) of that section, of a copy of the notice; and
the registration, under subsection (6) of that section, of a certificate of service;
may make an order recalling an attachment;
where a residual attachment order has been made under section 132(2) of the 2007 Act, shall make an order prohibiting the taking of any steps other than the serving, under section 133(1) of the 2007 Act, of a schedule of residual attachment;
may make an order recalling or restricting any arrestment other than an arrestment of the debtor’s earnings in the hands of his employer.
may make an order recalling an interim attachment;
If an interim attachment, an attachment or such an arrestment as is mentioned in subsection (2)(e) above is in effect, the sheriff or the First-tier Tribunal may order that the making of a time to pay order, the recall of the interim attachment or the attachment or the recall or restriction of the arrestment shall be subject to the fulfilment by the debtor of such conditions as the sheriff or the First-tier Tribunal thinks fit.
On making a time to pay order, the First-tier Tribunal in respect of the debt—
must make an order recalling any existing earnings arrestment,
where the debt is being enforced by a conjoined arrestment order, must—
if the First-tier Tribunal Housing and Property Chamber made the conjoined arrestment order, vary it so as to exclude the debt or, where no other debt or maintenance is being enforced by the order, recall the order,
if either— made the conjoined arrestment order, require intimation of the time to pay order to be made to the other Chamber or to the sheriff who must so vary or, as the case may be, recall the conjoined arrestment order,
another Chamber of the First-tier Tribunal, or
a sheriff sitting in the sheriff court,
where a notice of land attachment has been registered under section 83(1)(c) of the 2007 Act, must make an order prohibiting the taking of any steps other than—
the serving, under subsection (5) of that section, of a copy of the notice, and
the registration, under subsection (6) of that section, of a certificate of service,
where a residual attachment order has been made under section 132(2) of the 2007 Act, must make an order prohibiting the taking of any steps other than the serving, under section 133(1) of the 2007 Act, of a schedule of residual attachment,
may make an order recalling an interim attachment,
may make an order recalling an attachment,
may make an order recalling or restricting any arrestment other than an arrestment of the debtor’s earnings in the hands of the debtor’s employer.
Subject to subsection (4A) below, where the sheriff or the First-tier Tribunal does not exercise the powers conferred ... by subsection (2)(cb), (d) or (e) above to recall a diligence, the sheriff or the First-tier Tribunal shall order that no further steps shall be taken by the creditor in the diligence concerned other than, in the case of an attachment, making a report of attachment under section 17 of the Debt Arrangement and Attachment (Scotland) Act 2002 (asp 17) or applying for an order under section 20(1) of that Act.
Any order made under subsection (2) or (4) above shall specify the diligence in relation to which it is made.
The sheriff or the First-tier Tribunal shall not make an order under subsection (2)(cb), (d) or (e) above without first giving the creditor an opportunity to make representations.
Where, in relation to an arrestment such as is mentioned in subsection (1) of section 73J of this Act, the sheriff or the First-tier Tribunal does not exercise the power conferred ... by subsection (2)(e) above to recall that arrestment, the sheriff or that tribunal shall make an order—
prohibiting, while the time to pay order is in effect, the release of funds under subsection (2) of section 73J of this Act; and
providing that the period during which the time to pay order is in effect shall be disregarded for the purposes of determining whether the period mentioned in subsection (3) of that section has expired.
The sheriff clerk or, in relation to time to pay directions made by the First-tier Tribunal, a member of administration staff of the First-tier Tribunal shall, at the same time as intimation is made under section 7(4)(a) of this Act—
intimate any order under subsection (2) or (4) above to the debtor and the creditor and the order shall come into effect on such intimation being made to the creditor;
intimate any order under subsection (2)(a) or (b) above to the employer; and
where any order under subsection (4A) above is made in relation to an arrestment such as is mentioned in section 73J(1) of this Act is in effect, intimate that order to the arrestee.
While an order under subsection (4) above is in effect it shall not be competent ...—
to sell articles which have been attached (other than by virtue of section 20(1) or 22(3) of the Debt Arrangement and Attachment (Scotland) Act (asp 17);
to grant a decree of furthcoming or sale of arrested property.
For the purposes of section 24 of the Debt Arrangement and Attachment (Scotland) Act 2002 (asp 17), the period during which an order under subsection (4) above is in effect shall be disregarded in calculating the period during which an attachment to which the order applies remains in effect.
Where, before the making of a time to pay order in respect of a debt, a charge to pay that debt has been served—
if the period for payment specified in the charge has not expired, the charge shall lapse on the making of the order;
if that period has expired, nothing in the time to pay order nor in any order under this section shall affect retrospectively the effect of the charge in the constitution of apparent insolvency within the meaning of section 16 of the Bankruptcy (Scotland) Act 2016.
If, when a time to pay order in relation to a debt is made, any diligence enforcing it is in effect which is not specified in an order under subsection (2) or (4) above, the diligence shall remain in effect unless and until it is recalled under section 10(4) of this Act.
Where a time to pay order is recalled or ceases to have effect, otherwise than— the debt in so far as it remains outstanding (including interest thereon, whether or not awarded as a specific sum in the decree) shall, subject to any enactment or rule of law to the contrary, become enforceable by any diligence mentioned in subsection (1)(b) above; and, notwithstanding section 25 of the Debt Arrangement and Attachment (Scotland) Act 2002 (asp 17), in this subsection “diligence” includes, where the debt was, immediately before the time to pay order was made, being enforced by an attachment in any premises, another attachment in those premises.
under section 12(2)(a) of this Act; or
by the debt payable under the order being paid or otherwise extinguished,
The sheriff or the First-tier Tribunal may, on an application by the debtor or the creditor—
vary or recall a time to pay order if the sheriff or the Tribunal is satisfied that it is reasonable in all the circumstances to do so; or
if an interim attachment, an attachment or an arrestment in respect of the debt is in effect, recall the attachment or recall or restrict the arrestment.
If an interim attachment, an attachment or an arrestment in respect of the debt is in effect, the sheriff or the First-tier Tribunal may order that any variation, recall or restriction under subsection (1) above shall be subject to the fulfilment by the debtor of such conditions as the sheriff or the First-tier Tribunal thinks fit.
The sheriff clerk or, in relation to time to pay directions made by the First-tier Tribunal, a member of administration staff of the First-tier Tribunal shall as soon as is reasonably practicable intimate a variation under subsection (1) above to the debtor and to the creditor, and the variation shall come into effect on the date of such intimation.
Where, after a time to pay order has been made, it comes to the knowledge of the sheriff or the First-tier Tribunal that the debt to which the order applies is being enforced by any of the diligences mentioned in section 9(1)(b) of this Act which was in effect when the time to pay order was made, the sheriff or the First-tier Tribunal, after giving all interested parties an opportunity to be heard, may make—
an order recalling the time to pay order; or
any of the orders mentioned in subsection (2) or (4) of section 9 of this Act; and that section shall, subject to any necessary modifications, apply for the purposes of an order made under this paragraph as it applies for the purposes of an order made under either of those subsections.
If, on the day on which an instalment payable under a time to pay order becomes due, there remains unpaid a sum, due under previous instalments, of not less than the aggregate of 2 instalments, the order shall cease to have effect.
If at the end of the period of 3 weeks immediately following the day on which the last instalment payable under a time to pay order becomes due, any part of the debt payable under the order remains outstanding, the order shall cease to have effect.
If any sum payable under a time to pay order under section 5(2)(b) of this Act remains unpaid 24 hours after the end of the period specified in the order, the order shall cease to have effect.
While a time to pay direction or a time to pay order is in effect, the creditor shall not be entitled to found on the debt concerned in presenting, or in concurring in the presentation of, a petition for the sequestration of the debtor’s estate.
A time to pay direction or a time to pay order shall cease to have effect—
on the granting of an award of sequestration of the debtor’s estate;
on the granting by the debtor of a voluntary trust deed whereby his estate is conveyed to a trustee for the benefit of his creditors generally; or
on the entering by the debtor into a composition contract with his creditors.
No right or remedy of a creditor to enforce his debt shall be affected by— except as expressly provided in this Part of this Act.
a time to pay direction;
a time to pay order; or
an interim order under section 6(3) of this Act,
The recall— shall not prevent the creditor therein from being ranked by virtue of that arrestment or attachment pari passu under paragraph 1 of schedule 7 of the Bankruptcy (Scotland) Act 2016 on the proceeds of any other arrestment or attachment .
on the making of a time to pay direction or an order under section 3(1) of this Act, of an arrestment; or
on the making of a time to pay order or an order under section 10(1) of this Act, of an arrestment or an attachment ,
It shall be competent to make a time to pay direction or a time to pay order only in relation to a debtor who is an individual and only if, and to the extent that, the debtor is liable for payment of the debt concerned in either or both of the following capacities—
personally;
as a tutor of an individual or as a judicial factor loco tutoris, curator bonis or judicial factor loco absentis on an individual’s estate.
A time to pay direction or a time to pay order shall cease to have effect on the death of the debtor or on the transmission of the obligation to pay the debt concerned during his lifetime to another person.
Where a time order for the payment by instalments of a sum owed under a regulated agreement or a security has been made under section 129(2)(a) of the Consumer Credit Act 1974 it shall not thereafter be competent to make a time to pay direction or a time to pay order in relation to that sum.
In this Part of this Act—
an extract of a document which is registered for execution in the Books of Council and Session or the sheriff court books;
“net earnings” has the meaning given to it in section 73(1) of this Act;
an order or determination which by virtue of any enactment is enforceable as if it were an extract registered decree arbitral bearing a warrant for execution issued by the sheriff;
an adjudication under section 23 of the Conveyancing (Scotland) Act 1924 (adjudication to recover arrears of ground annual);
section 225 of the Revenue Scotland and Tax Powers Act 2014 (asp 16).
In sections 1 to 4 of this Act—
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
In sections 5 to 14 of this Act—
“dwellinghouse” includes a caravan, a houseboat and any structure adapted for use as a residence;
in relation to any sum payable as a pension within the meaning of subsection (2)(c) below, means the person paying that sum; and
for the purposes of paragraph 3 of Schedule 1 to the Car Tax Act 1983 and paragraph 6 of Schedule 7 to the Value Added Tax Act 1983, the Commissioners of Customs and Excise;
“enactment” includes an Act of the Scottish Parliament and any enactment comprised in subordinate legislation under such an Act;
an order granted by a court in Scotland for payment of a periodical allowance on divorce or on dissolution of a civil partnership or on the granting of a declarator of nullity of marriage or of nullity of a civil partnership, or for aliment;
a maintenance decision (within the meaning of regulation 2 of the International Recovery of Maintenance (Hague Convention 2007) (Scotland) Regulations 2012 (S.S.I. 2012/301) or maintenance arrangement (within the meaning of Article 3(e) of the Hague Convention) which is registered in the sheriff court under the Hague Convention.
a decree of the Court of Teinds;
a document or settlement which by virtue of an Order in Council made under section 13 of the Civil Jurisdiction and Judgments Act 1982 is enforceable in Scotland,
“contract settlement” means any agreement made in connection with any person's liability to make a payment to Revenue Scotland under or by virtue of the Revenue Scotland and Tax Powers Act 2014 (asp 16) or any other enactment in respect of a devolved tax,
The following articles belonging to a debtor shall be exempt from poinding at the instance of a creditor in respect of a debt due to him by the debtor—
clothing reasonably required for the use of the debtor or any member of his household;
implements, tools of trade, books or other equipment reasonably required for the use of the debtor or any member of his household in the practice of the debtor’s or such member’s profession, trade or business, not exceeding in aggregate value £500 or such amount as may be prescribed in regulations made by the Lord Advocate;
medical aids or medical equipment reasonably required for the use of the debtor or any member of his household;
books or other articles reasonably required for the education or training of the debtor or any member of his household not exceeding in aggregate value £500 or such amount as may be prescribed in regulations made by the Lord Advocate;
toys for the use of any child who is a member of the debtor’s household;
articles reasonably required for the care or upbringing of a child who is a member of the debtor’s household.
The following articles belonging to a debtor shall be exempt from poinding if they are at the time of the poinding in a dwellinghouse and are reasonably required for the use in the dwellinghouse of the person residing there or a member of his household—
beds or bedding;
household linen;
chairs or settees;
tables;
food;
lights or light fittings;
heating appliances;
curtains;
floor coverings;
furniture, equipment or utensils used for cooking, storing or eating food;
refrigerators;
articles used for cleaning, mending, or pressing clothes;
articles used for cleaning the dwellinghouse;
furniture used for storing—
clothing, bedding or household linen;
articles used for cleaning the dwellinghouse; or
utensils used for cooking or eating food;
articles used for safety in the dwellinghouse;
tools used for maintenance or repair of the dwellinghouse or of household articles.
computers and accessory equipment;
microwave ovens;
radios;
telephones;
televisions.
The Lord Advocate may by regulations add to the list set out in subsection (2) above, or delete or vary any of the items contained in that list.
If, on an application made within 14 days after the date of the execution of the poinding— the sheriff is satisfied that the article is exempt from poinding under this section, he shall make an order releasing the article from the poinding.
by the debtor or any person who owns a poinded article in common with the debtor; or
by any person in possession of a poinded article,
No poinding shall be executed on Sunday, Christmas Day, New Year’s Day, Good Friday or such other day as may be prescribed by Act of Sederunt.
The execution of a poinding shall not— unless the officer of court has obtained prior authority from the sheriff for such commencement or continuation; and any rule of law which prohibits poindings outwith the hours of daylight shall cease to have effect.
be commenced before 8 a.m. or after 8 p.m.; or
be continued after 8 p.m.,
Subject to subsection (2) below, notwithstanding any warrant authorising him to open shut and lockfast places, an officer of court shall not enter a dwellinghouse to execute a poinding if, at the time of his intended entry, there appears to him to be nobody, or only children under the age of 16 years, present there unless, at least 4 days before the date of his intended entry, he has served notice on the debtor specifying that date.
If it appears to the sheriff, on an application made to him by the officer of court (which shall not require to be intimated to the debtor), that the requirement of service under this section would be likely to prejudice the execution of the poinding he may dispense with such service.
The officer of court shall be entitled to poind articles only to the extent necessary to ensure that the sum recoverable at the time of the sale would be realised if they were sold at the values fixed under section 20(4) of this Act.
In executing a poinding, an officer of court shall be entitled to proceed on the assumption that any article in the possession of the debtor is owned by him unless the officer of court knows or ought to know that the contrary is the case.
The officer of court shall not be precluded from relying on the assumption mentioned in subsection (2) above by reason only of one or both of the following circumstances—
that the article belongs to a class which is commonly held under a hire, hire-purchase or conditional sale agreement or on some other limited title of possession;
that an assertion has been made that the article is not owned by the debtor.
The procedure in a poinding shall be in accordance with this section and section 21 of this Act.
Before executing the poinding, the officer of court shall— but it shall not be necessary for the officer of court to make public proclamation of the poinding or to read publicly the extract decree containing the warrant to poind and the execution of the charge relating thereto.
exhibit to any person present the warrant to poind and the certificate of execution of the charge relating thereto;
demand payment of the sum recoverable from the debtor, if he is present, or any person present appearing to the officer of court to be authorised to act for the debtor; and
make enquiry of any person present as to the ownership of the articles proposed to be poinded, and in particular whether there are any persons who own any articles in common with the debtor,
The officer of court shall be accompanied at the poinding by one witness.
The poinded articles shall be valued by the officer of court according to the price which they would be likely to fetch if sold on the open market unless he considers that the articles are such that a valuation by a professional valuer or other suitably skilled person is advisable, in which case he may arrange for such a valuation.
The officer of court shall prepare a schedule (referred to in this Part of this Act as “the poinding schedule”), in the form prescribed by Act of Sederunt, which shall specify—
the identity of the creditor and of the debtor;
the articles poinded, and their respective values;
the sum recoverable; and
the place where the poinding was executed.
On completion of the valuation the officer of court shall—
along with the witness sign the poinding schedule;
deliver the poinding schedule to any person in possession of the articles or—
where the poinding was executed in a dwellinghouse or other premises, leave it in the premises; or
in any other case, deliver it to premises occupied by that person;
if the person in possession of the articles is not the debtor and it is reasonably practicable, serve a copy of it by post on the debtor;
inform the debtor (if present) of his right to redeem poinded articles under section 21(4) of this Act;
inform any person present who owns any poinded article in common with the debtor of his right to redeem poinded articles under section 41(2) and (3)(a) of this Act; and
inform the debtor (if present) and any person present who owns any poinded article in common with the debtor, or who is in possession of any poinded article, of his right to apply for an order releasing articles from poinding under section 16(4), 23(1) or 41(3)(b) of this Act.
The officer of court shall leave poinded articles at the place where they were poinded, except that where that place is not a dwellinghouse or other premises, if he considers it necessary for their security or the preservation of their value and there is insufficient time to obtain an order under section 21(1)(a) of this Act, he shall remove them at the creditor’s expense—
to the nearest convenient premises belonging to the debtor or to the person in possession of the articles; or
if no such premises are available, to the nearest suitable secure premises.
The sheriff, on an application by the creditor, the officer of court or the debtor intimated in accordance with subsection (2) below, may at any time after the execution of a poinding make an order— and a decision of the sheriff under paragraph (b) above for the immediate disposal of articles shall not be subject to appeal.
for the security of any of the poinded articles; or
in relation to any of the articles which are of a perishable nature or which are likely to deteriorate substantially and rapidly in condition or value, for their immediate disposal and, in the event of their disposal by sale, for payment of the proceeds of sale to the creditor or for consignation of the proceeds in court until the diligence is completed or otherwise ceases to have effect,
An application for an order under subsection (1)(b) above— at the time when it is made.
by the creditor or the officer of court, shall be intimated by him to the debtor;
by the debtor, shall be intimated to the creditor or the officer of court,
It shall not be competent for an officer of court in executing a poinding to examine a person on oath as to the ownership of any article.
Subject to subsection (1)(b) above, the debtor shall be entitled, within 14 days after the date of execution of the poinding, to redeem any poinded article at the value fixed under section 20(4) of this Act; and the officer of court shall mention any such redemption in his report under section 22 of this Act or, if he has already made that report, shall report the redemption as soon as is reasonably practicable to the sheriff.
The officer of court shall, on receiving payment from the debtor for the redemption under subsection (4) above of a poinded article, grant a receipt in the form prescribed by Act of Sederunt to the debtor; and the receipt shall operate as a release of the article from the poinding.
Subject to section 29(2)(b) of this Act, the revaluation in the same poinding of an article which has been valued under section 20(4) of this Act shall not be competent.
A poinding shall be deemed to have been executed on the date when the poinding schedule has been delivered, or left on the premises, in pursuance of section 20(6)(b) of this Act.
Subject to subsection (9) below, at any time before the execution of a poinding on behalf of a creditor, an officer of court shall, if requested to do so by any other creditor who has delivered to him a warrant to poind, conjoin that creditor in the poinding.
It shall not be competent for an officer of court to conjoin a creditor in a poinding in respect of a debt for which the creditor holds a summary warrant.
The officer of court shall, within a period of 14 days after the date of execution of the poinding (or such longer period as the sheriff on cause shown may allow on an application by the officer of court) make to the sheriff in the form prescribed by Act of Sederunt a report of the execution of the poinding which shall be signed by the officer of court and the witness who attended the poinding.
The officer of court shall note in the report under subsection (1) above any assertion made before the submission of the report that any poinded article does not belong to the debtor.
The sheriff may refuse to receive a report on the ground that it has not been made and signed in accordance with subsection (1) above, and if the sheriff refuses to receive a report on that ground the poinding shall cease to have effect.
The sheriff clerk shall intimate a refusal under subsection (3) above—
to the debtor; and
if he is a different person from the debtor, to the person in possession of the poinded articles.
Any rule of law whereby the sheriff may refuse to receive a report of the execution of a poinding on a ground other than one specified in subsection (3) above shall cease to have effect.
The sheriff may, on an application made within 14 days after the date of execution of a poinding by the debtor or any person in possession of a poinded article, make an order releasing an article from the poinding if it appears to the sheriff that its continued inclusion in the poinding or its sale under warrant of sale would be unduly harsh in the circumstances.
Where the sheriff has made an order under subsection (1) above he may, notwithstanding section 25 of this Act, on an application by the creditor or by an officer of court on his behalf, authorise the poinding of other articles belonging to the debtor on the same premises.
If, at any time before the sale of the poinded articles, the sheriff is satisfied that the poinding is invalid or has ceased to have effect he shall, on his own initiative or on an application by the debtor, make an order declaring that to be the case, and may make such consequential order as appears to him to be necessary in the circumstances.
Without prejudice to section 16(4) of this Act, it shall not be competent for the sheriff to make an order under subsection (1) above on the ground that any poinded article is exempt from poinding under that section.
At any time before an application is made under section 30 of this Act for a warrant of sale, the sheriff may, on an application by the debtor, recall a poinding on any of the following grounds—
that it would be unduly harsh in the circumstances for a warrant of sale of the poinded articles to be granted;
that the aggregate of the values of the poinded articles fixed under section 20(4) of this Act was substantially below the aggregate of the prices which they would have been likely to fetch if sold on the open market; or
that the likely aggregate proceeds of sale of the poinded articles would not exceed the expenses likely to be incurred in the application for warrant of sale and in any steps required to be taken under this Part of this Act in execution of such a warrant, on the assumption that that application and such steps are unopposed.
The sheriff shall not grant an application on the ground mentioned in subsection (3)(c) above if an order for further poinding of articles belonging to the debtor has been authorised under section 23(2), 28(6) or 29(2), or has become competent by reason of section 9(12), 28(2), 40(5) or 41(6), of this Act.
The sheriff shall not make an order under subsection (1) above, recall a poinding or refuse an application under this section without first giving the debtor and the creditor—
an opportunity to make representations; and
if either party wishes to be heard, an opportunity to be heard.
The sheriff clerk shall intimate to the debtor any order made under subsection (1) above by the sheriff on his own initiative.
Subject to sections 9(12), 23(2), 28(2) and (6), 29(2), 40(5) and 41(6) of this Act, where articles are poinded in any premises (whether or not the poinding is valid), another poinding in those premises to enforce the same debt shall not be competent except in relation to articles which have been brought on to the premises since the execution of the first poinding.
Where a caravan, houseboat or other moveable structure which is the only or principal residence of the debtor or another person has been poinded the sheriff, on an application by the debtor or that other person made at any time after the execution of the poinding and before the granting of a warrant of sale, may order that for such period as he shall specify no further steps shall be taken in the poinding.
In calculating under section 27(1) or (2) of this Act the period during which a poinding in respect of which an order has been made under subsection (1) above shall remain effective, there shall be disregarded the period specified in the order.
Subject to subsections (2), (3) and (5)(a) below, a poinding shall cease to have effect on the expiry of a period of one year after the date of execution of the poinding, unless before such expiry an application has been made under section 30(1) of this Act for a warrant of sale in relation to the poinded articles.
The sheriff, on an application by the creditor or by an officer of court on his behalf made before the expiry of the period mentioned in subsection (1) above and before an application has been made under section 30(1) of this Act, may extend that period— for such further period as he considers reasonable in the circumstances.
where he considers that, if the said period is extended, the debtor is likely to comply with an agreement between the creditor and the debtor for the payment of the sum recoverable by instalments or otherwise; or
to enable further proceedings to be taken in the diligence where the termination of the poinding would prejudice the creditor and the creditor cannot be held responsible for the circumstances giving rise to the need for the extension,
The sheriff may grant further extensions under subsection (2) above, on application being made to him before the expiry of the previously extended period.
The decision of the sheriff under subsection (2) above shall not be subject to appeal, and shall be intimated to the debtor by the sheriff clerk.
Where, within the period mentioned in subsection (1) above or within that period as extended under subsection (2) above, an application is made—
under subsection (2) above—
if the application is made on the ground referred to in paragraph (a) of that subsection, the poinding shall, if the date of disposal of the application is later than 14 days before the poinding is due to expire, continue to have effect until 14 days after that disposal;
in any other case, the poinding shall continue to have effect until the disposal of the application;
under section 30 of this Act for a warrant of sale, the poinding shall, if the sheriff refuses to grant a warrant of sale, continue to have effect—
until the period for leave to appeal has expired without an application for leave having been made;
where an application for leave to appeal is made, until leave has been refused or the application has been abandoned;
where leave to appeal has been granted, until the period for an appeal has expired without an appeal being made; or
where an appeal against the decision is made, until the matter has been finally determined or the appeal has been abandoned; or
under section 30 of this Act for a warrant of sale, the poinding shall, if the sheriff grants a warrant of sale, continue to have effect—
if the articles are sold, or ownership passes to the creditor under section 37(6) of this Act, until the date of such sale or such ownership passing; or
if the articles are not sold, or ownership does not pass to the creditor, until the expiry of the period specified for the warrant sale in the warrant of sale.
Without prejudice to subsection (7) below, if a report has been made to the sheriff under section 36(2) of this Act, the poinding shall continue to have effect for a period of 6 months after the date when the latest such report was made.
Where, within the period specified for the warrant sale in the warrant of sale, or within the period mentioned in subsection (6) above, an application is made under section 35 of this Act for a variation of the warrant of sale, the poinding shall cease to have effect—
if the sheriff refuses to grant a variation— or on such later date as the sheriff may direct;
when the period for leave to appeal has expired without an application for leave having been made;
where an application for leave to appeal is made, when leave has been refused or the application has been abandoned;
where leave to appeal has been granted, when the period for an appeal has expired without an appeal being made; or
where an appeal against the decision is made, when the matter has been finally determined in favour of the sheriff’s decision or the appeal has been abandoned,
if the sheriff grants a variation—
where the articles are sold, or ownership passes to the creditor under section 37(6) of this Act in the period specified for the warrant sale in the warrant of sale as so varied, on the date of the warrant sale or of ownership so passing;
where the articles are not sold and ownership does not pass to the creditor within that period, on the expiry of that period.
The debtor or the person in possession of poinded articles may move them to another location if—
the creditor or an officer of court on behalf of the creditor has consented in writing to their removal; or
the sheriff, on an application by the debtor or the person in possession, has authorised their removal.
Where poinded articles have been removed under subsection (1) above, an officer of court may, under the same warrant to poind, again poind any of the articles so removed and, notwithstanding section 25 of this Act, any articles which were not so removed, whether or not they were previously poinded; and, on the execution of any such further poinding, the original poinding shall be deemed to have been abandoned.
The removal, except in accordance with this Part of this Act, from any premises of poinded articles by— shall be a breach of the poinding and may be dealt with as a contempt of court.
the debtor; or
any person, other than the creditor or an officer of court, who knows that the articles have been poinded,
Where articles have been removed from premises otherwise than in accordance with this Part of this Act, the sheriff, on an application by the creditor—
may, subject to subsection (5) below, make an order requiring the person in possession of the articles to restore them to the premises from which they were removed within a period specified in the order; and
if an order under paragraph (a) above is not complied with, and it appears to the sheriff that the articles are likely to be found in premises specified in the application, may grant a warrant to officers of court— and such a warrant shall be authority to open shut and lockfast places for the purpose of its execution.
to search for the articles in those premises; and
to restore the articles to the premises from which they were removed or to make such other arrangements for their security as the sheriff may direct,
Where it appears to the sheriff, on an application made to him by any person having an interest, that any article which has been removed from premises otherwise than in accordance with this Part of this Act has been acquired for value and without knowledge of the poinding, he shall—
refuse an order under subsection (4)(a) above relating to that article;
recall any such order which he has already made; and
make an order releasing the article from the poinding.
Where articles have been removed from premises otherwise than in accordance with this Part of this Act in circumstances in which the debtor is at fault the sheriff, on an application by the creditor or by an officer of court on his behalf, may, notwithstanding section 25 of this Act, authorise the poinding of other articles belonging to the debtor in the same premises.
The removal of poinded articles to another location shall not have the effect of releasing the articles from the poinding.
The wilful damage or destruction of poinded articles by— shall be a breach of the poinding and may be dealt with as a contempt of court.
the debtor; or
any person, other than the creditor or an officer of court, who knows that the articles have been poinded,
Where poinded articles have been damaged or destroyed the sheriff, on an application by the creditor or by the officer of court on his behalf, may—
where the debtor has been at fault, authorise the poinding of other articles belonging to the debtor in the premises in which the original poinding took place; and
in any case, authorise the revaluation of any damaged article in accordance with section 20(4) of this Act.
Where a third party, knowing that an article has been poinded—
wilfully damages or destroys it; or
removes it from premises in breach of a poinding, and— the sheriff may order the third party to consign the sum mentioned in subsection (4) below in court until the completion of the sale or until the poinding otherwise ceases to have effect.
it is damaged, destroyed, lost or stolen; or
it is acquired from or through him by another person without knowledge of the poinding and for value,
The sum to be consigned in court under subsection (3) above shall be—
where the article has been damaged but not so damaged as to make it worthless, a sum equal to the difference between the value of the article fixed under section 20(4) of this Act and the value of the article as so damaged;
in any other case, a sum equal to the value fixed under that section.
Any sum consigned in court under subsection (3) above shall, on the completion of the sale or on the poinding otherwise ceasing to have effect, be paid to the creditor to the extent necessary to meet the sum recoverable, any surplus thereof being paid to the debtor.
A creditor shall not be entitled to sell articles poinded by him unless, on an application by him or by an officer of court on his behalf, the sheriff has granted a warrant under this section (referred to in this Act as a “warrant of sale”).
The sheriff may refuse to grant a warrant of sale—
on his own initiative or on an objection by the debtor—
on the ground that the poinding is invalid or has ceased to have effect;
on a ground mentioned in section 24(3)(b) or (c) of this Act;
on an objection by the debtor, on the ground that the granting of the application would be unduly harsh in the circumstances.
The creditor or officer of court, when making an application under subsection (1) above, shall serve a copy thereof on the debtor together with a notice in the form prescribed by Act of Sederunt informing him—
that he may object to the application within 14 days after the date when it was made; and
of his right to redeem poinded articles under section 33(2) of this Act.
The sheriff shall not— without first giving the parties an opportunity to be heard.
refuse to grant a warrant of sale on his own initiative; or
dispose of an application under subsection (1) above where the debtor has objected thereto in accordance with subsection (3)(a) above,
It shall not be competent for the sheriff to refuse to grant a warrant of sale on the ground that any poinded article is exempt from poinding under section 16 of this Act.
Where the sheriff refuses to grant a warrant of sale, the sheriff clerk shall intimate that refusal to the debtor and, if he is a different person from the debtor, to the person in possession of the poinded articles.
A sale under a warrant of sale shall be known as a “warrant sale”.
Every warrant of sale shall provide that the warrant sale shall be by public auction and shall specify the location of the sale in accordance with section 32 of this Act.
A warrant of sale shall—
appoint an officer of court to make arrangements for the warrant sale in accordance with the warrant;
specify a period within which the warrant sale shall take place; and
empower the officer of court to open shut and lockfast places for the purpose of executing the warrant.
Where the warrant of sale provides for the sale to be held in premises other than an auction room, it shall appoint to conduct the warrant sale—
if the aggregate of the values of the poinded articles fixed under section 20(4) of this Act exceeds £1,000 or such other sum as may be prescribed by Act of Sederunt and a person who carries on business as an auctioneer is available, that person;
in any other case, the officer of court appointed under subsection (2) above or another suitable person.
A warrant of sale which provides for the warrant sale to be held in premises other than where the poinded articles are situated shall also empower the officer of court appointed by the warrant to remove the poinded articles to such premises for the sale.
The warrant of sale shall not provide for the warrant sale to be held in a dwellinghouse except with the consent in writing, in a form to be prescribed by Act of Sederunt, of the occupier thereof and, if he is not the occupier, of the debtor.
Subject to subsection (3) below, where articles are poinded in a dwellinghouse and any consent required under subsection (1) above is not given, the warrant of sale shall provide for the warrant sale to be held in an auction room specified in the warrant.
Where— if the creditor is able to offer suitable premises in which the warrant sale could be held, the warrant of sale shall, subject to subsection (1) above and subsections (4) and (5) below, provide for the sale to be held in those premises, but otherwise the sheriff shall refuse to grant a warrant of sale.
articles are poinded in a dwellinghouse and any consent required under subsection (1) above is not given; and
it appears to the sheriff that, if the sale were to be held in an auction room, the likely proceeds of the warrant sale would not exceed the expenses of the application for warrant of sale and the expenses likely to be incurred in any steps required to be taken under this Part of this Act in the execution of the warrant on the assumption that that application and any such steps are unopposed,
Subject to subsection (5) below, the warrant of sale shall not provide for the sale to be held in premises (other than a dwellinghouse or an auction room) which are occupied by a person other than the debtor or the creditor except with the consent in writing, in a form to be prescribed by Act of Sederunt, of the occupier thereof.
Where the occupier of premises (other than a dwellinghouse or an auction room) where poinded articles are situated does not give his consent under subsection (4) above to the holding of the warrant sale in those premises, the warrant of sale may, if the sheriff considers that it would be unduly costly to require the removal of the poinded articles to other premises for sale, nevertheless provide that the warrant sale shall be held in the premises where they are situated.
In this section “occupier”, in relation to premises where there are 2 or more occupiers, means each of them.
Where a warrant sale is to be held in premises other than where the poinded articles are situated, the officer of court may, in pursuance of section 31(4) of this Act, remove to those premises only such poinded articles as, if sold at their values fixed under section 20(4) of this Act, would realise in total the sum recoverable at the time of the sale; and shall release the remaining poinded articles from the poinding.
Subject to section 21(1) of this Act, the debtor may, within 7 days after the date when a copy of an application for warrant of sale has been served on him, redeem any poinded article by paying to the officer of court a sum equal to its value fixed under section 20(4) of this Act.
The officer of court shall, on receiving payment from the debtor under subsection (2) above, grant a receipt in the form prescribed by Act of Sederunt to the debtor; and the receipt shall operate as a release of the article from the poinding.
The creditor and the debtor may by agreement release articles from the poinding.
Any release or redemption of poinded articles under this section—
shall be mentioned in the next subsequent application (if any) which is made for warrant of sale or for variation of warrant of sale; or
if it takes place after an application for warrant of sale (or variation thereof) has been made and before it has been disposed of, shall be reported as soon as is reasonably practicable by the officer of court to the sheriff; or
in any other case, shall be mentioned in any report of sale.
The officer of court appointed under section 31(2)(a) of this Act to make arrangements for the warrant sale shall—
as soon as is reasonably practicable intimate to the debtor and, if the person in possession of the poinded articles is not the debtor, to that person, the date arranged for the warrant sale; and
not later than the date of intimation under paragraph (a) above, serve a copy of the warrant of sale on the debtor and any such person.
Where the warrant sale is not to be held in the premises where the poinded articles are situated, the officer of court referred to in subsection (1) above shall, not less than 7 days before the date arranged for the removal of the poinded articles from those premises, intimate to the debtor and, if he is not the debtor, to the person in possession of the poinded articles—
the place where the sale is to be held; and
the date arranged for the removal.
The sheriff clerk shall arrange for such particulars of the warrant of sale as are prescribed by Act of Sederunt to be displayed on the walls of court.
The warrant sale shall be advertised by public notice and, where the sale is to be held otherwise than in an auction room, the public notice shall be as directed by the warrant of sale.
Where the warrant sale is to be held in premises not belonging to the debtor, the public notice under subsection (4) above shall not name him or disclose that the articles for sale are poinded articles.
Where the warrant sale is to be held in premises other than the debtor’s premises or an auction room, any public notice of the sale shall state that the articles to be sold do not belong to the occupier of the premises where the sale is to be held.
Where, for any reason for which neither the creditor nor the officer of court is responsible, the arrangements made for the warrant sale cannot be implemented in accordance with the provisions of the warrant of sale, the sheriff may, on an application by the creditor or by the officer of court on his behalf, grant a variation of the warrant of sale.
Subject to subsection (3) below, the sheriff may, on his own initiative or on an objection by the debtor, refuse to grant an application under subsection (1) above on the ground that—
the poinding is invalid or has ceased to have effect; or
the proposed variation is unsuitable.
It shall not be competent for the sheriff to refuse to grant an application under subsection (1) above on the ground that any poinded article is exempt from poinding under section 16 of this Act.
Section 32 of this Act shall apply to a warrant of sale as varied under this section.
A creditor or officer of court who makes an application under subsection (1) above shall at the same time—
serve on the debtor a copy thereof together with a notice in the form prescribed by Act of Sederunt, informing him that he may object to the application within 7 days after the date of such service; and
serve on any other person in possession of the poinded articles a copy of the application.
The sheriff shall not— without first giving the parties an opportunity to be heard.
refuse to grant a variation under subsection (1) above on his own initiative; or
dispose of an application under that subsection where the debtor has objected thereto in accordance with subsection (5) above,
On granting a variation under subsection (1) above, the sheriff may make such consequential orders as he thinks fit including, where appropriate—
an order requiring service on the debtor, and on any other person in possession of the poinded articles, of the warrant of sale as varied;
the retaking of any steps in the diligence which have already been taken.
Where the sheriff refuses to grant a variation under subsection (1) above, the sheriff clerk shall intimate that refusal to the debtor and to any other person in possession of the poinded articles.
Subject to subsection (10) below and without prejudice to section 36(3) of this Act, after intimation has been given under section 34 of this Act to the debtor of the date arranged for the warrant sale or for the removal for sale of the poinded articles from the premises where they are situated, the creditor or officer of court shall not be entitled to arrange a new date for the sale or for such removal.
Where, for any reason for which neither the creditor nor the officer of court is responsible, it is not possible for the warrant sale or, as the case may be, the removal for sale of the poinded articles from the premises where they are situated, to take place on the date arranged for it, the creditor may instruct the officer of court to arrange a new date in accordance with subsection (11) below, and the officer of court shall intimate the new date to the debtor and to any other person in possession of the poinded articles.
The new date arranged under subsection (10) above—
shall not in any case be less than 7 days after the date of intimation under that subsection; and
in the case of a new date arranged for a warrant sale, shall be a date within the period specified in the warrant of sale as the period within which the sale is required to be held.
Without prejudice to section 35(1) and (10) of this Act, in order to enable the sum recoverable to be paid by instalments or otherwise in accordance with an agreement between the creditor and the debtor, the creditor may, after the granting of a warrant of sale, cancel the arrangements for the warrant sale on not more than 2 occasions.
The creditor or the officer of court on his behalf shall as soon as is reasonably practicable after any agreement of the kind referred to in subsection (1) above has been entered into make a report of the agreement to the sheriff.
Where, following cancellation of the warrant sale in pursuance of subsection (1) above, the debtor is in breach of the agreement—
if the provisions of the original warrant of sale still allow, the creditor may instruct the officer of court to make arrangements for the warrant sale in accordance with those provisions;
if, for any reason for which neither the creditor nor the officer of court is responsible, arrangements for the warrant sale cannot be implemented in accordance with the provisions of the original warrant of sale, the sheriff may, on an application by the creditor or by the officer of court on his behalf made within 6 months after the date when the report was made under subsection (2) above, grant a variation of the warrant of sale under section 35(1) of this Act.
For the purposes of subsection (3) above, the original warrant of sale shall be deemed to have specified that the sale is required to be held within the period of 6 months after the date when the latest report was made under subsection (2) above.
Where the warrant of sale does not appoint as auctioneer the officer of court appointed under section 31(2)(a) of this Act to conduct the warrant sale, that officer—
shall attend the sale and keep a record of any articles which are sold and the amount for which they are sold and of any articles whose ownership passes to the creditor under subsection (6) below; and
if the sale is to be held in premises other than an auction room, shall supervise the sale.
Where the officer of court appointed under section 31(2)(a) of this Act is appointed as auctioneer to conduct the sale, he shall be attended at the sale by one witness.
In the warrant sale there shall be no reserve price unless the creditor chooses to have one and, if he does so choose, it shall not exceed the value of the article fixed under section 20(4) of this Act.
The value of a poinded article fixed under section 20(4) of this Act and the reserve price, if any, fixed by the creditor under subsection (3) above need not be disclosed to any person bidding for the article.
In the warrant sale any poinded article exposed for sale may be purchased by—
any creditor, including the creditor on whose behalf the poinding was executed; or
a person who owns the article in common with the debtor.
Subject to subsection (7) below and without prejudice to the rights of any third party, where the sum recoverable has not been realised by the warrant sale, ownership of a poinded article which remains unsold after being exposed for sale shall pass to the creditor.
Without prejudice to the rights of any third party, where the warrant sale is held in premises belonging to the debtor, the ownership of a poinded article which has passed to the creditor under subsection (6) above shall revert to the debtor unless the creditor uplifts the article by 8 p.m. (or such other time as may be prescribed by Act of Sederunt)— and the officer of court may remain on or re-enter any premises (whether open, shut or lockfast) for the purpose of enabling the creditor to uplift any such article.
if the premises are a dwellinghouse in which the debtor is residing, on the day when the sale is completed;
in any other case, on the third working day following that day,
For the purposes of subsection (7) above “working day” means a day which is not— Saturday; Sunday; 1st or 2nd January; Good Friday; Easter Monday; 25th or 26th December; a public holiday in the area in which the premises are situated.
Subject to subsection (10) below, where at the warrant sale any article is unsold or is sold at a price below the value fixed under section 20(4) of this Act, the debtor shall be credited with an amount equal to that valuation.
Where— the amount credited to the debtor under subsection (9) above shall be an amount equal to the original valuation and not the revaluation referred to in paragraph (a) above.
any damaged article has been revalued under section 20(4) of this Act on the authority of the sheriff given under section 29(2) of this Act;
the damage was not caused by the fault of the debtor; and
no order has been made under section 29(3) of this Act requiring a third party to consign a sum in respect of the article, or such an order has been made but has not been complied with,
The officer of court appointed under section 31(2)(a) of this Act shall dispose of the proceeds of the warrant sale—
by paying to the creditor the proceeds so far as necessary to meet the sum recoverable (subject to any agreement between the officer of court and the creditor relating to the fees or outlays of the officer of court) or, if the sheriff so directs, by consigning such proceeds in court; and
by paying to the debtor any surplus remaining after the sum recoverable has been paid or, if the debtor cannot be found, by consigning such surplus in court.
The officer of court appointed under section 31(2)(a) of this Act shall within a period of 14 days after the date of completion of the warrant sale make to the sheriff a report in the form prescribed by Act of Sederunt (referred to in this Part of this Act as “the report of sale”) setting out—
any articles which have been sold and the amount for which they have been sold;
any articles which remain unsold;
the expenses chargeable against the debtor under Schedule 1 to this Act;
any surplus paid to the debtor; and
any balance due by or to the debtor.
The report of sale shall be signed by the officer of court and, if a witness was required to attend at the sale under section 37(2) of this Act, by that witness.
If an officer of court— the sheriff may, without prejudice to his right to report the matter to the Court of Session or the sheriff principal under section 79(1)(b) of this Act, make an order that the officer of court shall be liable for the expenses chargeable against the debtor under Schedule 1 to this Act, either in whole or in part.
without reasonable excuse makes a report of sale after the expiry of the period mentioned in subsection (1) above; or
wilfully refuses or delays to make a report of sale after the expiry of that period,
The report of sale shall be remitted by the sheriff to the auditor of court who shall— but shall not alter the amount of the expenses or of the balance referred to in paragraph (b) above without first giving all interested persons an opportunity to make representations.
tax the expenses chargeable against the debtor under Schedule 1 to this Act;
certify the balance due by or to the debtor following the poinding and sale; and
make a report to the sheriff,
On receipt of the auditor’s report, the sheriff may make an order— and the sheriff clerk shall intimate the sheriff’s order under this subsection to the debtor.
declaring the balance due by or to the debtor, as certified by the auditor;
declaring such a balance after making modifications to the balance as so certified; or
if he is satisfied that there has been a substantial irregularity in the poinding and sale (other than the making of the report of sale after the expiry of the period mentioned in subsection (1) above), declaring the poinding and sale to be void, in which case (subject to subsection (9) below) he may make such consequential order as appears to him to be necessary in the circumstances,
The sheriff shall not make an order under subsection (5)(b) or (c) above without first giving all interested persons an opportunity to be heard.
The auditor of court shall not be entitled to charge a fee in respect of his report.
The report of sale and the auditor’s report shall be retained by the sheriff clerk for the period prescribed by Act of Sederunt and during that period they shall be open for inspection in the sheriff clerk’s office by any interested person on payment of such fee as may be prescribed in an order made under section 2 of the Courts of Law Fees (Scotland) Act 1895.
An order under subsection (5)(c) above shall not affect the title of a person to any article acquired by him at the warrant sale, or subsequently, in good faith and for value.
Any rule of law whereby the sheriff may refuse to receive the report of sale shall cease to have effect.
An officer of court may, at any time after the execution of a poinding and before the warrant sale, release an article from the poinding if—
he is satisfied that the article belongs to a third party; and
the debtor or other person in possession of the article does not deny that it belongs to the third party.
Where, on an application made to him by a third party, at any time after the execution of a poinding and before the warrant sale, the sheriff is satisfied that a poinded article belongs to that third party, he shall make an order releasing it from the poinding.
The making of an application under subsection (2) above shall not prejudice the taking of any other proceedings by the third party for the recovery of a poinded article belonging to him, and an order of the sheriff under that subsection shall not be binding in any other proceedings.
The release of a poinded article under subsection (1) above—
shall be mentioned in the next subsequent application (if any) which is made for warrant of sale or for variation of warrant of sale; or
if it takes place after an application for warrant of sale (or variation thereof) has been made and before it has been disposed of, shall be reported as soon as is reasonably practicable by the officer of court to the sheriff; or
in any other case, shall be mentioned in any report of sale.
Where an article has been released from a poinding under this section, an officer of court may, notwithstanding section 25 of this Act, poind other articles belonging to the debtor in the same premises.
Articles which are owned in common by a debtor and a third party may be poinded and disposed of in accordance with this Part of this Act in satisfaction of the debts of that debtor.
Where, at any time after the execution of a poinding and before the warrant sale, a third party— the officer of court may, unless the debtor (or the person in possession of the article, if not the debtor) denies the claim, release the article from the poinding.
claims that a poinded article is owned in common by the debtor and himself; and
pays to the officer of court a sum equal to the value of the debtor’s interest in the article,
If, on an application made by a third party, at any time after the execution of a poinding and before the warrant sale, the sheriff is satisfied that a poinded article is owned in common by the debtor and that third party and either— he shall make an order releasing the article from the poinding.
the third party undertakes to pay to the officer of court a sum equal to the value of the debtor’s interest in the article; or
the sheriff is satisfied that the continued poinding of that article or its sale under warrant of sale would be unduly harsh to the third party in the circumstances,
A release under subsection (2) above or where subsection (3)(a) above applies shall not become effective until the granting by the officer of court of a receipt for payment in accordance therewith, when the debtor’s interest in the released article shall be transferred to the third party.
A release of a poinded article under subsection (2) above—
shall be mentioned in the next subsequent application (if any) which is made for warrant of sale or for variation of warrant of sale; or
if it takes place after an application for warrant of sale (or variation thereof) has been made and before it has been disposed of, shall be reported as soon as is reasonably practicable by the officer of court to the sheriff; or
in any other case, shall be mentioned in any report of sale.
Where an article is released in pursuance of subsection (3)(b) above from a poinding, an officer of court may, notwithstanding section 25 of this Act, poind other articles belonging to the debtor in the same premises.
This subsection applies where, at any time after the execution of a poinding, a third party claims that any of the poinded articles is owned in common by the debtor and himself but does not seek release of the article from the poinding, and either—
the claim is admitted by the creditor and the debtor; or
the claim is not admitted by both the creditor and the debtor, but the sheriff, on an application made to him, is satisfied that the claim is valid.
Where subsection (7) above applies, the creditor shall pay to the third party—
if the article is sold, the fraction of the proceeds of sale (or of the value of that article fixed under section 20(4) of this Act, whichever is the greater) which corresponds to the third party’s interest in the article;
if ownership of the article passes to the creditor in default of sale, the fraction of the value of the article fixed under section 20(4) of this Act which corresponds to the third party’s interest in the article.
Where an application under any of the provisions of this Act listed in subsection (3) below has been made, it shall be not be competent during a relevant period to grant a warrant of sale in respect of the poinded articles, to remove them for sale or to hold a warrant sale.
Where subsection (1) above applies, a relevant period shall be disregarded in calculating—
the period within which a warrant sale is required to be held under section 31(2)(b) of this Act; or
the period on the expiry of which the poinding ceases to have effect under section 27 of this Act.
The provisions referred to in subsection (1) above are—
section 16(4), 23(1), 40(2) or 41(3) (release of poinded articles);
section 24(1) or (3) (invalidity, cessation or recall of poinding);
section 26(1) (sist of proceedings in poinding of mobile homes);
section 28(4) (restoration of articles removed without consent or authority);
section 28(5) (recall of order under section 28(4)).
In subsections (1) and (2) above “a relevant period” means—
the period while the application is pending;
where the application has been disposed of by the sheriff—
the period during which an application for leave to appeal may be made;
where an application for leave to appeal is made, the period until leave has been refused or the application has been abandoned;
where leave to appeal has been granted, the period during which an appeal may be made; or
where an appeal against the decision is made, the period until the matter has been finally determined or the appeal has been abandoned.
Subject to subsection (2) below, where a report of a further poinding by the same creditor to enforce the same debt executed in pursuance of section 9(12), 23(2), 28(2) or (6), 29(2), 40(5) or 41(6) of this Act has been received under section 22 of this Act, the sheriff shall, on an application made to him by the creditor or by an officer of court on his behalf, make an order conjoining the further poinding with the original poinding.
It shall not be competent for the sheriff to make an order under subsection (1) above—
where a warrant of sale has been granted in respect of the original poinding or the further poinding;
until 14 days after the date of execution of the further poinding; or
while an application under this Part of this Act in relation to the further poinding is pending or, where such an application has been disposed of by the sheriff—
until the period for leave to appeal has expired without an application for leave having been made;
where an application for leave to appeal is made, until leave has been refused or the application has been abandoned;
where leave to appeal has been granted, until the period for an appeal has expired without an appeal being made; or
where an appeal against the decision is made, until the matter has been finally determined or the appeal has been abandoned.
Where the sheriff makes an order under subsection (1) above, it shall not thereafter be competent for him to grant any application for warrant of sale relating to the original poinding which is pending when the order is made.
The effect of an order under subsection (1) above shall be that thereafter the further poinding shall be treated for all purposes as if it were part of the original poinding, except that the references to a poinding being invalid or having ceased to have effect in sections 24(1), 30(2)(a)(i) and 35(2)(a) of this Act shall be construed as references to either poinding being invalid or having ceased to have effect.
The decision of the sheriff under subsection (1) above shall not be subject to appeal.
Schedule 1 to this Act shall have effect for the purposes of determining the liability, as between the creditor and the debtor, for expenses incurred in serving a charge and in the process of poinding and warrant sale.
In this Part of this Act—
a civil judgment granted outside Scotland by a court, tribunal or arbiter which by virtue of any enactment or rule of law is enforceable in Scotland; and
an order under section 43 or 44 of the National Assistance Act 1948, section 23 or 24 of the Ministry of Social Security Act 1966, section 80 or 81 of the Social Work (Scotland) Act 1968, section 11(3) of the Guardianship Act 1973, section 18 or 19 of the Supplementary Benefits Act 1976, section 50 or 51 of the Child Care Act 1980 or section 24 or 25 of the Social Security Act 1986;
an order or determination which by virtue of any enactment is enforceable as if it were an extract registered decree arbitral bearing a warrant for execution issued by the sheriff;
the amount outstanding of the sum due by the debtor under the decree or other document on which the diligence proceeds (including any interest thereon and any expenses decerned for);
any sum due under section 93(5) of this Act; and
any expenses which have been incurred in serving a charge and in the process of poinding and sale which are chargeable against the debtor under Schedule 1 to this Act.
Subject to subsection (2) below and to sections 15C to 15F of this Act, the Court of Session or the sheriff may grant warrant for diligence by— on the dependence of an action.
arrestment; or
inhibition,
Warrant for—
arrestment on the dependence of an action is competent only where the action contains a conclusion for payment of a sum other than by way of expenses; and
inhibition on the dependence is competent only where the action contains—
such a conclusion; or
a conclusion for specific implement of an obligation to convey heritable property to the creditor or to grant in the creditor's favour a real right in security, or some other right, over such property.
In this Part of this Act, “action” includes, in the sheriff court— and references to “summons”, “conclusion” and to cognate expressions shall be construed accordingly.
a summary cause;
a simple procedure case (within the meaning of section 72(9) of the Courts Reform (Scotland) Act 2014); and
a summary application,
Subject to subsection (2) below and to sections 15C to 15F of this Act, the Court of Session may grant warrant for diligence by— on the dependence of a petition.
arrestment; or
inhibition,
Warrant for—
arrestment on the dependence of a petition is competent only where the petition contains a prayer for payment of a sum other than by way of expenses; and
inhibition on the dependence is competent only where the petition contains—
such a prayer; or
a prayer for specific implement of an obligation to convey heritable property to the creditor or to grant in the creditor's favour a real right in security, or some other right, over such property.
The provisions of this Act (other than section 15A), of any other enactment and of any rule of law relating to diligence on the dependence of actions shall, in so far as is practicable and unless the contrary intention appears, apply to petitions in relation to which it is competent to grant warrant for such diligence and to the parties to them as they apply to actions and to parties to them.
It shall be competent for the court to grant warrant for diligence on the dependence where the sum concluded for is a future or contingent debt.
In this section and in sections 15D to 15M of this Act, the “court” means the court before which the action is depending.
A creditor may, at any time during which an action is in dependence, apply to the court for warrant for diligence by— on the dependence of the action.
arrestment; or
inhibition,
An application under subsection (1) above shall—
be in (or as nearly as may be in) the form prescribed by Act of Sederunt;
subject to subsection (3) below, be intimated to and provide details of—
the debtor; and
any other person having an interest;
state whether the creditor is seeking the grant, under section 15E(1) of this Act, of warrant for diligence on the dependence in advance of a hearing on the application under section 15F of this Act; and
contain such other information as the Scottish Ministers may by regulations prescribe.
An application under subsection (1) above need not be intimated where the creditor is seeking the grant, under section 15E(1) of this Act, of warrant in advance of a hearing on the application under section 15F of this Act.
The court, on receiving an application under subsection (1) above, shall—
subject to section 15E of this Act, fix a date for a hearing on the application under section 15F of this Act; and
order the creditor to intimate that date to—
the debtor; and
any other person appearing to the court to have an interest.
The court may, if satisfied as to the matters mentioned in subsection (2) below, make an order granting warrant for diligence on the dependence without a hearing on the application under section 15F of this Act.
The matters referred to in subsection (1) above are—
that the creditor has a prima facie case on the merits of the action;
that there is a real and substantial risk enforcement of any decree in the action in favour of the creditor would be defeated or prejudiced by reason of— were warrant for diligence on the dependence not granted in advance of such a hearing; and
the debtor being insolvent or verging on insolvency; or
the likelihood of the debtor removing, disposing of, burdening, concealing or otherwise dealing with all or some of the debtor's assets,
that it is reasonable in all the circumstances, including the effect granting warrant may have on any person having an interest, to do so.
The onus shall be on the creditor to satisfy the court that the order granting warrant should be made.
Where the court makes an order granting warrant for diligence on the dependence without a hearing on the application under section 15F of this Act, the court shall—
fix a date for a hearing under section 15K of this Act; and
order the creditor to intimate that date to—
the debtor; and
any other person appearing to the court to have an interest.
Where a hearing is fixed under subsection (4)(a) above, section 15K of this Act shall apply as if an application had been made to the court for an order under that section.
Where the court refuses to make an order granting a warrant without a hearing under section 15F of this Act and the creditor insists in the application, the court shall—
fix a date for such a hearing on the application; and
order the creditor to intimate that date to—
the debtor; and
any other person appearing to the court to have an interest.
At the hearing on an application for warrant for diligence on the dependence, the court shall not make any order without first giving— an opportunity to be heard.
any person to whom intimation of the date of the hearing was made; and
any other person the court is satisfied has an interest,
The court may, if satisfied as to the matters mentioned in subsection (3) below, make an order granting warrant for diligence on the dependence.
The matters referred to in subsection (2) above are—
that the creditor has a prima facie case on the merits of the action;
that there is a real and substantial risk enforcement of any decree in the action in favour of the creditor would be defeated or prejudiced by reason of— were warrant for diligence on the dependence not granted; ...
the debtor being insolvent or verging on insolvency; or
the likelihood of the debtor removing, disposing of, burdening, concealing or otherwise dealing with all or some of the debtor's assets,
that it is reasonable in all the circumstances, including the effect granting warrant may have on any person having an interest, to do so ; and
where the debtor is an individual, that the creditor has provided the debtor with a debt advice and information package.
The onus shall be on the creditor to satisfy the court that the order granting warrant should be made.
Where the court makes an order granting or, as the case may be, refusing warrant for diligence on the dependence, the court shall order the creditor to intimate that order to—
the debtor; and
any other person appearing to the court to have an interest.
Where the court makes an order refusing warrant for diligence on the dependence, the court may impose such conditions (if any) as it thinks fit.
Without prejudice to the generality of subsection (6) above, those conditions may require the debtor— as the court thinks fit.
to consign into court such sum; or
to find caution or to give such other security,
In this section and in section 15K, “debt advice and information package” means the debt advice and information package referred to in section 10(5) of the Debt Arrangement and Attachment (Scotland) Act 2002.
This section applies where diligence by— on the dependence of an action is executed before service of the summons on the debtor.
arrestment; or
inhibition,
Subject to subsection (3) below, if the summons is not served on the debtor before the end of the period of 21 days beginning with the day on which the diligence is executed, the diligence shall cease to have effect.
The court may, on the application of the creditor, make an order extending the period referred to in subsection (2) above.
In determining whether to make such an order the court shall have regard to—
the efforts of the creditor to serve the summons within the period of 21 days; and
any special circumstances preventing or obstructing service within that period.
The court may, subject to subsection (2) below, when granting warrant for arrestment on the dependence, limit the sum which may be attached to funds not exceeding such amount as the court may specify.
The maximum amount which the court may specify under subsection (1) above shall be the aggregate of—
the principal sum concluded for;
a sum equal to 20 per cent of that sum or such other percentage as the Scottish Ministers may, by regulations, prescribe;
a sum equal to 1 year's interest on the principal sum at the judicial rate; and
any sum prescribed under subsection (3) below.
The Scottish Ministers may, by regulations, prescribe a sum which appears to them to be reasonable having regard to the expenses likely to be— in executing an arrestment on the dependence.
incurred by a creditor; and
chargeable against a debtor,
For the avoidance of doubt, section 73F of this Act applies to any sum attached under this section.
Where the court grants warrant for diligence by inhibition on the dependence—
in a case where the action is brought for specific implement of an obligation— the court shall limit the property inhibited to that particular property; and
to convey heritable property to the creditor;
to grant in the creditor's favour a real right in security over such property; or
to grant some other right over such property,
in any other case, the court may limit the property inhibited to such property as the court may specify.
This section applies where warrant is granted for diligence on the dependence.
The debtor and any person having an interest may apply to the court for an order—
recalling the warrant;
restricting the warrant;
if an arrestment or inhibition has been executed in pursuance of the warrant— that arrestment or inhibition;
recalling; or
restricting,
determining any question relating to the validity, effect or operation of the warrant; or
ancillary to any order mentioned in paragraphs (a) to (d) above.
An application under subsection (2) above shall—
be in (or as nearly as may be in) the form prescribed by Act of Sederunt; and
be intimated to—
the creditor; and
any other person having an interest.
At the hearing on the application under subsection (2) above, the court shall not make any order without first giving— an opportunity to be heard.
any person to whom intimation of the application was made; and
any other person the court is satisfied has an interest,
Where the court is satisfied that the warrant is invalid it—
shall make an order—
recalling the warrant; and
if an arrestment or inhibition has been executed in pursuance of the warrant, recalling that arrestment or inhibition; and
may make an order ancillary to any order mentioned in paragraph (a) above.
Where subsection (5B) applies and the court is satisfied that the creditor has not provided the debtor with a debt advice and information package it—
must make an order—
recalling the warrant, and
if an arrestment or inhibition has been executed in pursuance of the warrant, recalling that arrestment or inhibition, and
may make an order ancillary to any order mentioned in paragraph (a).
This subsection applies where—
the debtor is an individual, and
the hearing is a hearing fixed under section 15E(4)(a).
Where the court is satisfied that an arrestment or inhibition executed in pursuance of the warrant is incompetent, it—
shall make an order recalling that arrestment or inhibition; and
may make an order ancillary to any such order.
Subject to subsection (8) below, where the court is satisfied that the warrant is valid but that— the court may make any order such as is mentioned in subsection (2) above.
an arrestment or inhibition executed in pursuance of it is irregular or ineffective; or
it is reasonable in all the circumstances, including the effect granting warrant may have had on any person having an interest, to do so,
If no longer satisfied as to the matters mentioned in subsection (9) below, the court—
shall make an order such as is mentioned in subsection (5)(a) above; and
may make an order such as is mentioned in subsection (5)(b) above.
The matters referred to in subsection (8) above are—
that the creditor has a prima facie case on the merits of the action;
that there is a real and substantial risk enforcement of any decree in the action in favour of the creditor would be defeated or prejudiced by reason of—
the debtor being insolvent or verging on insolvency; or
the likelihood of the debtor removing, disposing of, burdening, concealing or otherwise dealing with all or some of the debtor's assets; and
that it is reasonable in all the circumstances, including the effect granting warrant may have had on any person having an interest, for the warrant or, as the case may be, any arrestment or inhibition executed in pursuance of it to continue to have effect.
The onus shall be on the creditor to satisfy the court that no order under subsection (5), (5A), (6), (7) or (8) above should be made.
In granting an application under subsection (2) above, the court may impose such conditions (if any) as it thinks fit.
Without prejudice to the generality of subsection (11) above, the court may impose conditions which require the debtor— as the court thinks fit.
to consign into court such sum; or
to find such caution or to give such other security,
Where the court makes an order under this section, the court shall order the debtor to intimate that order to—
the creditor; and
any other person appearing to the court to have an interest.
This section applies irrespective of whether warrant for diligence on the dependence is obtained, or executed, before this section comes into force.
Where—
an order restricting warrant for diligence on the dependence is made under section 15K(7); or
a condition is imposed by virtue of— of this Act, the debtor may apply to the court for variation of the order or, as the case may be, variation or removal of the condition.
section 15F(6); or
section 15K(11),
An application under subsection (1) above shall—
be in (or as nearly as may be in) the form prescribed by Act of Sederunt; and
be intimated to—
the creditor; and
any other person having an interest.
At the hearing on the application under subsection (1) above, the court shall not make any order without first giving— an opportunity to be heard.
any person to whom intimation of the application was made; and
any other person the court is satisfied has an interest,
On an application under subsection (1) above, the court may if it thinks fit—
vary the order; or
vary or remove the condition.
Where the court makes an order varying the order or, as the case may be, varying or removing the condition, the court shall order the debtor to intimate that order to—
the creditor; and
any other person appearing to the court to have an interest.
Subject to subsection (3)(a) below, a creditor shall be entitled to such expenses as the creditor incurs—
in obtaining warrant for diligence on the dependence; and
where an arrestment or inhibition is executed in pursuance of the warrant, in so executing the arrestment or inhibition.
Subject to subsection (3)(b) below, a debtor shall be entitled, where— to the expenses incurred in opposing that warrant.
warrant for diligence on the dependence is granted; and
the court is satisfied that the creditor was acting unreasonably in applying for it,
The court may modify or refuse—
such expenses as are mentioned in subsection (1) above if it is satisfied that—
the creditor was acting unreasonably in applying for the warrant; or
such modification or refusal is reasonable in all the circumstances and having regard to the outcome of the action; and
such expenses as are mentioned in subsection (2) above if it is satisfied as to the matter mentioned in paragraph (a)(ii) above.
Subject to subsections (1) to (3) above, the court may make such finding as it thinks fit in relation to such expenses as are mentioned in subsections (1) and (2) above.
Expenses incurred as mentioned in subsection (1) and (2) above in obtaining or, as the case may be, opposing an application for warrant shall be expenses of process.
Subsections (1) to (5) above are without prejudice to any enactment or rule of law as to the recovery of expenses chargeable against a debtor as are incurred in executing an arrestment or inhibition on the dependence of an action.
This Part of this Act (other than sections 15H, 15J and 15M) shall apply, in so far as not inconsistent with the provisions of Part V of the Administration of Justice Act 1956 (c. 46) (admiralty jurisdiction and arrestment of ships), to an arrestment on the dependence of an admiralty action as it applies to any other arrestment on the dependence.
The following diligences against earnings of a debtor in the hands of his employer shall replace the diligence of arrestment and action of furthcoming against such earnings—
a diligence, to be known as an “earnings arrestment”, to enforce the payment of any ordinary debt which is due as at the date of execution of the diligence;
a diligence, to be known as a “current maintenance arrestment”, to enforce the payment of current maintenance;
an order, to be known as a “conjoined arrestment order”, to enforce the payment of two or more debts owed to different creditors against the same earnings.
Any rule of law whereby there is exempted from arrestment of earnings of a debtor in the hands of his employer a reasonable amount for the subsistence of the debtor and his dependants shall cease to have effect.
Subject to section 69 of this Act, an earnings arrestment shall have the effect of requiring the employer of a debtor, while the arrestment is in effect, to deduct a sum calculated in accordance with section 49 or 49A of this Act from the debtor’s net earnings on every pay-day and, as soon as is reasonably practicable, to pay any sum so deducted to the creditor.
Subject to sections 59 (priority among arrestments), 62 (relationship of conjoined arrestment order with certain other arrestments) and 90 (provisions relating to charges for payment) of this Act, an earnings arrestment—
shall, subject to subsection (3) below, come into effect on the date of its execution, being the date on which a schedule in the form prescribed by Act of Sederunt (to be known as an “earnings arrestment schedule”) is served on the employer; and
shall remain in effect until the debt recoverable has been paid or otherwise extinguished, the debtor has ceased to be employed by the employer, or the arrestment has been recalled or abandoned by the creditor or has for any other reason ceased to have effect.
An earnings arrestment shall not come into effect unless, no earlier than 12 weeks before the date on which the earnings arrestment schedule is served, the creditor has provided the debtor with a debt advice and information package.
In this section and in sections 51(2A) and 60(3A) of this Act, “debt advice and information package” means the debt advice and information package referred to in section 10(5) of the Debt Arrangement and Attachment (Scotland) Act 2002 (asp 17).
Subject to subsections (2) and (3) below, the debt recoverable by an earnings arrestment shall consist of the following sums, in so far as outstanding—
any ordinary debt and any expenses due under the decree or other document on which the earnings arrestment proceeds;
any interest on those sums which has accrued at the date of execution of the earnings arrestment; and
the expenses incurred in executing the earnings arrestment and the charge which preceded it.
In relation to arrears of maintenance, the ordinary debt referred to in subsection (1)(a) above shall be the amount of those arrears less any sum which the debtor is entitled to deduct from that amount under any enactment in respect of income tax.
Any sum mentioned in subsection (1) above shall be included in the debt recoverable only if, and to the extent that, it is specified in the earnings arrestment schedule.
It shall be competent for a creditor to enforce payment of more than one debt payable to him by the same debtor by means of a single earnings arrestment, whether the arrestment is executed in pursuance of the same warrant or of 2 or more different warrants authorising diligence.
Subject to section 49A of this Act, the sum to be deducted under section 47 of this Act on any pay-day shall be—
where the debtor’s earnings are payable weekly, the sum specified in column 2 of Table A in Schedule 2 to this Act opposite the band in column 1 of that Table within which his net earnings payable on that pay-day fall;
where his earnings are payable monthly, the sum specified in column 2 of Table B in that Schedule opposite the band in column 1 of that Table within which his net earnings payable on that pay-day fall;
where his earnings are payable at regular intervals of a whole number of weeks or months, the sum arrived at by—
calculating what would be his weekly or monthly net earnings by dividing the net earnings payable to him on the pay-day by that whole number (of weeks or months, as the case may be);
ascertaining the sum specified in column 2 of Table A (if the whole number is of weeks) or of Table B (if the whole number is of months) in Schedule 2 to this Act opposite the band in column 1 of that Table within which the notional net earnings calculated under sub-paragraph (i) above fall; and
multiplying that sum by the whole number (of weeks or months, as the case may be).
Where the debtor’s earnings are payable at regular intervals other than at intervals to which subsection (1) above applies, the sum to be deducted on any pay-day under section 47 of this Act shall be arrived at by—
calculating what would be his daily net earnings by dividing the net earnings payable to him on the pay-day by the number of days in the interval;
ascertaining the sum specified in column 2 of Table C in Schedule 2 to this Act opposite the band in column 1 of that Table within which the notional net earnings calculated under paragraph (a) above fall; and
multiplying that sum by the number of days in the interval.
Where the debtor’s earnings are payable at irregular intervals, the sum to be deducted on any pay-day under section 47 of this Act shall be arrived at by—
calculating what would be his daily net earnings by dividing the net earnings payable to him on the pay-day—
by the number of days since earnings were last paid to him; or
if the earnings are the first earnings to be paid to him by the employer, by the number of days since he commenced his employment with the employer;
taking the sum specified in column 2 of Table C in Schedule 2 to this Act opposite the band in column 1 of that Table within which the notional net earnings calculated under paragraph (a) above fall; and
multiplying that sum by the number of days mentioned in paragraph (a) above.
Where on the same pay-day there are paid to the debtor both earnings payable at regular intervals and earnings which are not payable at regular intervals, for the purpose of arriving at the sum to be deducted on that pay-day under section 47 of this Act, all those earnings shall be aggregated and treated as earnings payable at the regular interval.
Where earnings payable to a debtor at regular intervals are paid to him on one pay-day and earnings which are not payable at regular intervals are paid to him on a different pay-day, the sum to be deducted on each of those pay-days under section 47 of this Act in respect of those earnings which are not paid at regular intervals shall be 20 per cent. of the net earnings paid to him on that pay-day.
Where earnings are paid to a debtor by 2 or more series of payments at regular intervals—
if the intervals are of different lengths—
for the purpose of arriving at the sum to be deducted under section 47 of this Act, whichever of subsections (1) and (2) above is appropriate shall apply to the series with the shortest interval; and
in relation to the earnings paid in any other series, the said sum shall be 20 per cent. of the net earnings;
if the intervals are of the same length and payments in more than one series are payable on the same day—
the payments in those series shall be aggregated and whichever of subsections (1) and (2) above is appropriate shall apply to the aggregate; and
paragraph (a)(ii) above shall apply to every other series;
if the intervals are of the same length and no 2 payments are payable on the same day paragraph (a)(i) above shall apply to such series as the employer may choose, and paragraph (a)(ii) above shall apply to every other series.
The Lord Advocate may, by regulations, vary— and such regulations may make different provision for different cases.
Tables A, B and C of Schedule 2 to this Act;
the percentage specified in subsections (5) and (6)(a)(ii) above,
Subject to section 69(1) and (2) of this Act, regulations under subsection (7) above shall not apply in relation to an existing earnings arrestment unless and until the creditor or the debtor intimates the making of the regulations to the employer in the form prescribed by Act of Sederunt.
If the sheriff is satisfied that an earnings arrestment is invalid or has ceased to have effect he shall, on an application by the debtor or the person on whom the earnings arrestment schedule was served, make an order declaring that to be the case, and may make such consequential order as appears to him to be necessary in the circumstances; and the sheriff clerk shall intimate any order under this subsection to the debtor, the creditor and the person on whom the earnings arrestment schedule was served.
An order under subsection (1) above declaring that an arrestment is invalid or has ceased to have effect shall not be subject to appeal.
The sheriff, on an application by the debtor, the creditor or the employer, may make an order determining any dispute as to the operation of an earnings arrestment.
Without prejudice to section 57(5) of this Act, the sheriff, when making an order under subsection (3) above, may order—
the reimbursement of any payment made in the operation of the arrestment which ought not to have been made; or
the payment of any sum which ought to have been paid in the operation of the arrestment but which has not been paid.
An order under subsection (4) above shall require the person against whom it is made to pay interest on the sum to be paid by him under the order at the specified rate from such date as the sheriff shall specify in the order.
This section applies where—
the debtor's earnings are paid at regular intervals; and
on one pay-day (in this section, the “normal pay-day”) there are paid to the debtor both—
earnings normally payable on that pay-day (in this section, “normal earnings”); and
earnings such as are mentioned in subsection (2) below (in this section, “holiday pay”).
Holiday pay is earnings which—
are paid in respect of a period of annual leave or public holiday; and
would, were they not paid in respect of such leave or holiday, have been paid on a pay-day other than the normal pay-day.
In arriving at the sum to be deducted under section 47 of this Act on the normal pay-day, subsections (4) to (8) below shall apply.
Calculate in accordance with section 49 of this Act the sum, if any, which would be deducted from the normal earnings if the holiday pay had not been paid on the normal pay-day.
Where— the sum, if any, to be deducted from the holiday pay shall be the sum arrived at by applying sub-paragraphs (i) to (iii) of section 49(1)(c) of this Act to the holiday pay as if it were the net earnings mentioned in that sub-paragraph (i).
the debtor's normal earnings are payable weekly, monthly or at regular intervals of a whole number of weeks or months; and
all of the holiday pay relates to a whole number of weeks or months,
Where the debtor's normal earnings are payable weekly, monthly or at regular intervals of a whole number of weeks or months but part of the holiday pay relates to a whole number of weeks or months and part does not, the sum, if any, to be deducted from the holiday pay shall be the sum arrived at by—
in relation to the part of the holiday pay which relates to a whole number of weeks or months, applying subsection (5) above to that part;
in relation to the part of the holiday pay which does not relate to a whole number of weeks or months, applying paragraphs (a) to (c) of section 49(2) of this Act to that part of the holiday pay as if it were the net earnings mentioned in that paragraph (a); and
aggregating the sums arrived at as mentioned in paragraphs (a) and (b) above.
Where— the sum, if any, to be deducted from the holiday pay shall be arrived at by applying paragraph (b) of subsection (6) above to the holiday pay.
the debtor's normal earnings are payable weekly, monthly or at regular intervals of a whole number of weeks or months but none of the holiday relates to such a whole number of weeks or months; or
the debtor's normal earnings are payable at regular intervals other than at intervals to which paragraph (a) above applies,
Aggregate—
the deduction, if any, calculated under subsection (4) above; and
the deduction, if any, calculated under subsection (5), (6) or, as the case may be, (7) above.
Subject to sections 58(2) and 69 of this Act, a current maintenance arrestment shall have the effect of requiring the employer of the debtor while the arrestment is in effect to deduct a sum calculated in accordance with section 53 of this Act from the debtor’s net earnings on every pay-day and as soon as is reasonably practicable to pay any sum so deducted to the creditor.
Subject to sections 59 and 62 of this Act, a current maintenance arrestment—
shall, subject to subsection (2A) below, come into effect on the date of its execution, being the date on which a schedule in the form prescribed by Act of Sederunt (to be known as a “current maintenance arrestment schedule”) is served on the employer of the debtor; and
shall remain in effect until the debtor has ceased to be employed by the employer concerned, or the arrestment has been recalled or abandoned by the creditor or has ceased to have effect under section 55(8) of this Act or for any other reason.
The expenses incurred in executing a current maintenance arrestment shall be recoverable from the debtor as an ordinary debt.
A current maintenance arrestment shall not come into effect unless, no earlier than 12 weeks before the date on which the current maintenance arrestment schedule is served, the creditor has provided the debtor with a debt advice and information package.
Subject to section 52(2)(b) of this Act, a current maintenance arrestment schedule shall specify the maintenance payable by the debtor expressed as a daily rate.
For the purposes of subsection (4) above the daily rate shall be arrived at—
where the maintenance is paid monthly, by multiplying the monthly rate by 12 and dividing it by 365;
where it is paid quarterly, by multiplying the quarterly rate by 4 and dividing it by 365.
No interest shall accrue on any arrears of the maintenance which arise while a current maintenance arrestment is in effect.
This section applies where one or more maintenance orders are in effect which provide for the payment by the same debtor to the same person (whether for his own benefit or for another person’s) of maintenance in respect of more than one individual.
Where this section applies—
all or any of the obligations to pay maintenance may be enforced by a single current maintenance arrestment against the same earnings; and
in that case, the current maintenance arrestment schedule shall specify one daily rate of maintenance, being the aggregate of the daily rates calculated in accordance with section 51(5) of this Act.
The sum to be deducted from a debtor’s net earnings on a pay-day under section 51 of this Act shall be whichever is the lesser of the amounts mentioned in paragraphs (a) and (b) of subsection (2) below, less any sum which the debtor is entitled to deduct under any enactment in respect of income tax.
The amounts referred to in subsection (1) above are—
subject to subsections (3) and (5) below, a sum arrived at by multiplying the daily rate of maintenance (as specified in the current maintenance arrestment schedule) by the number of days—
since the last pay-day when a deduction was made in respect of the arrestment; or
if there was no such pay-day, since the date of execution of the arrestment; or
any net earnings in so far as they exceed the sum of £24.66 per day for the number of days mentioned in paragraph (a) above.
The sum specified in subsection (2)(b) above may be varied by regulations made by the Lord Advocate and such regulations may make different provision for different cases.
Subject to section 69(1) and (2) of this Act, regulations under subsection (3) above shall not apply to an existing current maintenance arrestment unless and until the creditor or the debtor intimates the making of the regulations to the employer in the form prescribed by Act of Sederunt.
An employer operating a current maintenance arrestment shall be entitled, but shall not be required, to apply a change in the small maintenance payments limits before the creditor or the debtor intimates the change to the employer in the form prescribed by Act of Sederunt.
For the purposes of subsection (5) above, the small maintenance payment limits are the rates mentioned in section 351(2) of the Income and Corporation Taxes Act 1988.
Subject to subsections (2) and (3) below, a current maintenance arrestment schedule may be served in pursuance of a maintenance order which is subsisting at the date of such service only if—
the creditor has intimated to the debtor in the manner prescribed by Act of Sederunt—
in the case of an order mentioned in paragraph (a) ... or (b) of the definition of “maintenance order” in section 106 of this Act, the making of the order;
in the case of an order mentioned in paragraph (c), (e), (f), (g) ... , (h) or (k) thereof, the registration mentioned in the paragraph concerned;
in the case of an order mentioned in paragraph (d) thereof, the confirmation of the order mentioned in that paragraph;
at least 4 weeks have elapsed since the date of intimation under paragraph (a) above; and
except where section 56 of this Act applies, at the time when it is proposed to serve the schedule, a sum not less than one instalment of maintenance remains unpaid.
Subsection (1) above shall not apply where—
the maintenance order is one that has been registered in Scotland as mentioned in paragraph (c), (e), (f) , (g)... or (k) of the said definition; and
a certificate of arrears (within the meaning of section 21 of the Maintenance Orders (Reciprocal Enforcement) Act 1972) was produced to the court in Scotland which registered the order to the effect that at the time at which the certificate was issued the debtor was in arrears in his payment of instalments under the order.
Where a current maintenance arrestment which was validly executed has ceased to have effect otherwise than by virtue of its recall under section 55(2) of this Act, the creditor may within 3 months after the date when the arrestment ceased to have effect execute another current maintenance arrestment without complying with subsection (1) above.
In subsections (1) and (2), “order” includes decision, settlement and instrument.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
If the sheriff is satisfied, on an application by the debtor or the person on whom the current maintenance arrestment schedule was served, that a current maintenance arrestment is invalid or has ceased to have effect, he shall make an order declaring that to be the case, and may make such consequential order as appears to him to be necessary in the circumstances.
If the sheriff is satisfied, on an application by the debtor, that the debtor is unlikely to default again in paying maintenance, he may make an order recalling a current maintenance arrestment.
The sheriff clerk shall intimate any order made under subsection (1) or (2) above to the debtor, the creditor and the person on whom the current maintenance arrestment schedule was served.
An order under subsection (1) above declaring that an arrestment is invalid or has ceased to have effect or under subsection (2) above shall not be subject to appeal.
The sheriff, on an application by the debtor, the creditor or the employer, may make an order determining any dispute as to the operation of a current maintenance arrestment.
Without prejudice to section 57(5) of this Act, the sheriff, when making an order under subsection (5) above, may order—
the reimbursement of any payment made in the operation of the arrestment which ought not to have been made;
the payment of any sum which ought to have been paid in the operation of the arrestment but which has not been paid.
An order under subsection (6) above shall require the person against whom it is made to pay interest on the sum to be paid by him under the order at the specified rate, and such interest shall be payable as from such date as the sheriff shall specify in the order.
A current maintenance arrestment shall cease to have effect—
on the coming into effect of an order or decree which varies, supersedes or recalls a maintenance order which is being enforced by the arrestment;
on an obligation to pay maintenance under a maintenance order being so enforced ceasing or ceasing to be enforceable in Scotland.
In the case of an order mentioned in paragraph (c), (e), (f) , (g)... or (k) of the definition of “maintenance order” in section 106 of this Act, the reference in subsection (8)(a) above to the coming into effect of an order or decree shall be construed as a reference to the registration of the order in Scotland.
In subsections (8)(a) and (9), “order” includes decision, settlement and instrument.
Where a maintenance order (referred to in this section as “the earlier order”) which is being enforced by a current maintenance arrestment is varied or superseded by an order or decree granted by a court in Scotland (referred to in this section as “the later order”), the later order may include a condition that it shall not come into effect until the earlier of—
the expiry of such period specified in the later order as the court considers necessary to allow notice to be given to the employer that the earlier order has been varied or superseded; or
the service of a new current maintenance arrestment schedule in pursuance of the later order.
Subsection (1) above shall not apply where the earlier order includes an order for the payment of aliment for the benefit of a spouse and the later order includes an order for the payment of a periodical allowance on divorce or on the granting of a declarator of nullity of marriage for the benefit of that spouse.
Subject to section 69(4) of this Act, where an employer fails to comply with an earnings arrestment or a current maintenance arrestment—
he shall be liable to pay to the creditor any sum which he would have paid to him under section 47(1) or 51(1) of this Act if he had so complied; and
he shall not be entitled to recover any sum which he has paid to the debtor in contravention of the arrestment.
Subject to subsection (3) below, a creditor shall not be entitled to refuse to accept payment under section 47(1) or 51(1) of this Act which is tendered by cheque or by such other method as may be prescribed by Act of Sederunt.
If a cheque tendered in payment under section 47(1) or 51(1) of this Act is dishonoured or for any other reason the method of payment used by the employer is ineffectual, the creditor may insist that the payment concerned and any future payment under that provision shall be tendered in cash.
Where— the creditor shall, as soon as is reasonably practicable, intimate that fact to the employer.
the debt recoverable under an earnings arrestment is paid or otherwise extinguished;
a current maintenance arrestment ceases to have effect under section 55(8) above; or
the debt being enforced by an earnings arrestment ceases to be enforceable by diligence,
Where an event mentioned in subsection (4) above occurs, any sum paid by an employer— shall be recoverable by the debtor from the creditor with interest on that sum at the specified rate.
under an earnings arrestment, in excess of the debt recoverable; or
under a current maintenance arrestment, in excess of the sum to be deducted under section 51(1) of this Act,
Without prejudice to subsection (5) above, where a creditor has failed to comply with subsection (4) above the sheriff, on an application by the debtor, may make an order requiring the creditor to pay to the debtor an amount not exceeding twice the amount recoverable by the debtor under the said subsection (5).
Subject to subsection (2) below, one earnings arrestment and one current maintenance arrestment may be in effect simultaneously against earnings payable to the same debtor by the same employer.
If on any pay-day N is less than S, the employer shall operate both the earnings arrestment and the current maintenance arrestment in accordance with subsection (3) below.
first operate the earnings arrestment; and
secondly operate the current maintenance arrestment against the balance of the net earnings in accordance with section 53(1) of this Act.
The employer shall—
for the purposes of section 47(1) of this Act, deduct the sum equal to— ; and
for the purposes of section 51(1) of this Act, deduct the sum equal to— .
In subsections (2) and (3) above— N is the amount of any net earnings in so far as they exceed the sum mentioned in subsection (2)(b) of section 53 of this Act for the number of days mentioned in subsection (2)(a) of that section; E is the sum which the employer is required to deduct under section 47(1) of this Act; C is the sum which the employer is required to deduct under section 51(1) of this Act; and S is the total of E and C.
While an earnings arrestment is in effect, any other earnings arrestment against the earnings of the same debtor payable by the same employer shall not be competent.
While a current maintenance arrestment is in effect, any other current maintenance arrestment against the earnings of the same debtor payable by the same employer shall not be competent.
Where an employer receives on the same day 2 or more earnings arrestment schedules or 2 or more current maintenance arrestment schedules relating to earnings payable by him to the same debtor—
if the employer receives the schedules at different times and he is aware of the respective times of receipt, only the earnings arrestment or, as the case may be, the current maintenance arrestment to which the first schedule he received relates shall have effect;
in any other case, only such one of the earnings arrestments or, as the case may be, current maintenance arrestments as he shall choose shall have effect.
Where a creditor (referred to in this section as “the second creditor”) serves on an employer an earnings arrestment schedule or, as the case may be, a current maintenance arrestment schedule and, by virtue of this section, the arrestment to which that schedule relates does not come into effect, the employer shall as soon as is reasonably practicable give the following information to the second creditor regarding any other earnings arrestment or current maintenance arrestment in effect against the earnings of the same debtor payable by the same employer—
the name and address of the creditor;
the date and place of execution; and
the debt recoverable specified in the earnings arrestment schedule or, as the case may be, the daily rate of maintenance specified in the current maintenance arrestment schedule.
If the employer fails without reasonable excuse to give information to the second creditor under subsection (4) above, the sheriff, on an application by the second creditor, may order the employer to give the required information to the second creditor.
This section applies where at the date of an application under subsection (2) below—
there is in effect against the earnings of a debtor in the hands of a single employer an earnings arrestment or a current maintenance arrestment or (under section 58 of this Act) both; and
a creditor, who may be a creditor already enforcing a debt by an arrestment mentioned above, (referred to in this section as “a qualified creditor”) would be entitled, but for section 59(1) or (2) of this Act, to enforce his debt by executing an earnings arrestment or a current maintenance arrestment.
Subject to subsection (4) below, where this section applies the sheriff, on an application made by a qualified creditor, shall make a conjoined arrestment order.
A conjoined arrestment order shall—
recall any arrestment mentioned in subsection (1)(a) above so that it shall cease to have effect on the coming into effect of the order; and
require the employer concerned, while the order is in effect, to deduct a sum calculated in accordance with section 63 of this Act from the debtor’s net earnings on any pay-day and to pay it as soon as is reasonably practicable to the sheriff clerk.
It shall not be competent to make a conjoined arrestment order—
where all the debts concerned are maintenance payable by the same debtor to the same person (whether for his own benefit or for another person’s) so that, if the existing current maintenance arrestment were abandoned, they could all be enforced under section 52(2)(a) of this Act; or
where there are only 2 debts, one an ordinary debt and one maintenance, so that they could be enforced under section 58(1) of this Act (one earnings arrestment and one current maintenance arrestment); or
where the same person is the creditor or person to whom any maintenance is payable (as described in paragraph (a) above) in relation to all the debts sought to be enforced by the order.
It shall not be competent to make a conjoined arrestment order unless, no earlier than 12 weeks before the date of the application under subsection (2) above, the creditor has provided the debtor with a debt advice and information package.
A conjoined arrestment order—
shall come into effect 7 days after a copy of it has been served on the employer under subsection (7) below; and
shall remain in effect until a copy of an order recalling the conjoined arrestment order has been served on the employer under section 66(7) of this Act or the debtor ceases to be employed by him.
A conjoined arrestment order shall be in the form prescribed by Act of Sederunt, and—
where an ordinary debt is to be enforced, the order shall specify the amount recoverable in respect of the debt under the order; and
where current maintenance is to be enforced, the order shall specify the maintenance expressed as a daily rate or, as the case may be, as an aggregate of the daily rates; and subsection (5) of section 51 of this Act shall apply for the purposes of this paragraph as it applies for the purposes of subsection (4) of that section.
The sheriff clerk shall as soon as is reasonably practicable serve a copy of the conjoined arrestment order on the employer and the debtor, and on the creditor in every arrestment mentioned in subsection (1)(a) above.
A decision of the sheriff making a conjoined arrestment order shall not be subject to appeal.
Subject to section 69(4) of this Act, where an employer fails to comply with a conjoined arrestment order—
the employer shall be liable to pay to the sheriff clerk any sum which he would have paid if he had so complied;
the employer shall not be entitled to recover any sum which he has paid to the debtor in contravention of the order; and
the sheriff, on an application by the sheriff clerk, may grant warrant for diligence against the employer for recovery of the sums which appear to the sheriff to be due.
Subject to subsection (2) below, the amount recoverable under any conjoined arrestment order in respect of an ordinary debt shall consist of the following sums, in so far as outstanding—
any sum (including expenses) due under the decree or other document on which the creditor founds or, as the case may be, under section 51(3) of this Act;
any interest on that sum which had accrued at the date of execution of the arrestment or, where no arrestment was executed, at the date of the making of the conjoined arrestment order; and
where an earnings arrestment has been executed, the expenses of executing it and the charge which preceded it.
Any sum mentioned in subsection (1) above shall be recoverable only if and to the extent that—
it was specified in an earnings arrestment schedule in respect of an arrestment which is recalled under subsection (3)(a) of section 60 of this Act; or
it is specified in the application under subsection (2) of that section.
Where an obligation to pay maintenance is enforced by a conjoined arrestment order, no interest shall accrue on any arrears of maintenance which arise while the order is in effect.
Subject to subsection (5) below, a creditor who makes an application under section 60(2) of this Act shall be entitled to recover as an ordinary debt under any conjoined arrestment order which is made his expenses in connection with the application to the extent that they are specified in the application.
There shall not be recoverable under subsection (4) above any expenses incurred in serving an earnings arrestment schedule or a current maintenance arrestment schedule on the employer after the date of the application.
While a conjoined arrestment order is in effect, it shall not be competent to execute any earnings arrestment or current maintenance arrestment or for the sheriff to grant any other conjoined arrestment order against the earnings of the same debtor payable by the same employer.
If, while a conjoined arrestment order is in effect, a creditor whose debt is not being enforced by it serves an earnings arrestment schedule or a current maintenance arrestment schedule, against earnings payable to the debtor, on the employer, the employer shall as soon as is reasonably practicable inform that creditor which court made the order.
If, after an application is made under section 60(2) of this Act for a conjoined arrestment order and before any such order comes into effect, an earnings arrestment or a current maintenance arrestment against earnings payable by the employer to the debtor comes into effect under section 58(1) of this Act—
the arrestment shall cease to have effect when the conjoined arrestment order comes into effect; and
the employer shall, as soon as is reasonably practicable after the service of a copy of the conjoined arrestment order on him under section 60(7) of this Act, inform the creditor on whose behalf the arrestment was executed which court made the order.
If an employer fails without reasonable excuse to give information to a creditor under subsection (2) or (3) above, the sheriff, on an application by the creditor, may order the employer to give the required information to the creditor.
Where a conjoined arrestment order is in effect, the sheriff, on an application made by a creditor whose debt is not being enforced by the order and who, but for the order, would be entitled to enforce his debt by an earnings arrestment or a current maintenance arrestment, shall make an order varying the conjoined arrestment order so that the creditor’s debt is included among the debts enforced by the conjoined arrestment order; and section 61(1), (2), (4) and (5) of this Act shall apply in relation to an application under this subsection as it applies in relation to an application under section 60 of this Act.
The sheriff clerk shall as soon as is reasonably practicable serve a copy of an order under subsection (5) above on the debtor, the employer and the other creditors whose debts are being enforced by the conjoined arrestment order.
Subject to section 69(2) of this Act, an order under subsection (5) above shall come into effect 7 days after a copy of it has been served on the employer under subsection (6) above.
Section 60(6) of this Act shall apply to a conjoined arrestment order as varied under subsection (5) above as it applies to a conjoined arrestment order mentioned in that section.
A decision of the sheriff under subsection (5) above shall not be subject to appeal.
Subject to section 69(3) of this Act, this section shall have effect for the purpose of determining the sum to be deducted on a pay-day and paid to the sheriff clerk under a conjoined arrestment order.
Where all the debts are ordinary debts, the said sum shall be the sum which the employer would pay under section 47(1) of this Act if the debts were one debt being enforced on the pay-day by an earnings arrestment.
Where all the debts are current maintenance, the sum shall be whichever is the lesser of the amounts mentioned in paragraphs (a) and (b) of subsection (4) below, less any sum which the debtor is entitled to deduct under any enactment in respect of income tax.
The amounts referred to in subsection (3) above are—
the aggregate of the sums arrived at by multiplying each of the daily rates of maintenance (as specified in the conjoined arrestment order) by the number of days—
since the last pay-day when a deduction from earnings was made by the employer under section 51(1) or 60(3)(b) of this Act in respect of the maintenance obligation; or
if there was no such previous pay-day, since the date when the conjoined arrestment order or any order under section 62(5) of this Act varying it came into effect; or
any net earnings in so far as they exceed the sum of £21.56 per day for the number of days mentioned in paragraph (a) above.
Where one or more of the debts are ordinary debts, and one or more are current maintenance, the sum shall be the aggregate of the following—
the sum which the employer would pay under section 47(1) of this Act if the ordinary debt was being enforced on the pay-day by an earnings arrestment (where there is more than one ordinary debt, treating the aggregate amount of them as if it were one debt); and
in relation to the debts which are current maintenance, the sum which would be payable under subsection (3) above if the only debts were the current maintenance debts and so much of the debtor’s net earnings as are left after deduction of the sum provided for in paragraph (a) above were his whole net earnings.
The sum specified in subsection (4)(b) above may be varied by regulations made by the Lord Advocate and such regulations may make different provision for different cases.
The sheriff clerk shall intimate to the employer operating a conjoined arrestment order, in the form prescribed by Act of Sederunt, the making of regulations under section 49(7) of this Act or subsection (6) above; and, subject to section 69(1) and (2) of this Act, such regulations shall not apply to the conjoined arrestment order until such intimation.
An employer operating a conjoined arrestment order in relation to current maintenance shall be entitled, but shall not be required, to apply a change in the small maintenance payments limits before the sheriff clerk intimates the change to the employer in the form prescribed by Act of Sederunt.
For the purposes of subsection (8) above, the small maintenance payment limits are the rates mentioned in section 351(2) of the Income and Corporation Taxes Act 1988.
Subject to subsection (11) below, the sheriff clerk shall not be entitled to refuse to accept payment by the employer under section 60(3)(b) of this Act which is tendered by cheque or by such other method as may be prescribed by Act of Sederunt.
If a cheque tendered in payment under section 60(3)(b) of this Act is dishonoured or for any other reason the method of payment used is ineffectual, the sheriff clerk may insist that the payment for which the cheque was tendered and any future payment by the employer under the conjoined arrestment order shall be tendered in cash.
Sums paid to the sheriff clerk under section 60(3)(b) of this Act shall be disbursed by him to the creditors whose debts are being enforced by the conjoined arrestment order in accordance with Schedule 3 to this Act.
The sheriff may make an order determining any dispute as to the operation of a conjoined arrestment order, on an application by—
the debtor;
a creditor whose debt is being enforced by the order;
the employer; or
the sheriff clerk.
Without prejudice to subsection (6) below, the sheriff, when making an order under subsection (1) above, may order—
the reimbursement of any payment made in the operation of the conjoined arrestment order which ought not to have been made; or
the payment of any sum which ought to have been paid in the operation of the conjoined arrestment order but which has not been paid.
An order under subsection (2) above shall require the person against whom it is made to pay interest on the sum to be paid by him under the order at the specified rate from such date as the sheriff shall specify in the order.
Where an ordinary debt is being enforced by a conjoined arrestment order, the creditor shall, as soon as is reasonably practicable after the debt recoverable has been paid or otherwise extinguished, or the debt has ceased to be enforceable by diligence, intimate that fact to the sheriff clerk.
Where current maintenance is being enforced by a conjoined arrestment order, the creditor shall, as soon as is reasonably practicable after any obligation to pay such maintenance has ceased or has ceased to be enforceable by diligence, intimate that fact to the sheriff clerk.
Any sum received by a creditor under a conjoined arrestment order in respect of— shall be recoverable by the sheriff clerk from the creditor with interest on that sum at the specified rate.
an ordinary debt, after the debt has been paid or otherwise extinguished or has ceased to be enforceable by diligence; or
current maintenance after the obligation to pay such maintenance has ceased or has ceased to be enforceable by diligence;
Without prejudice to subsection (6) above, where the creditor has failed to comply with subsection (4) or (5) above the sheriff may, on an application by the debtor, make an order requiring the creditor to pay to the debtor an amount not exceeding twice the amount recoverable by the sheriff clerk under subsection (6) above.
Any amount recovered from a creditor by the sheriff clerk under subsection (6) above shall be disbursed by him to the creditors whose debts are being enforced by the conjoined arrestment order in accordance with Schedule 3 to this Act or, if there are no such creditors, shall be paid to the debtor.
The sheriff shall make an order recalling a conjoined arrestment order—
on an application by any of the persons mentioned in subsection (2) below, if he is satisfied—
that the conjoined arrestment order is invalid;
that all the ordinary debts being enforced by the order have been paid or otherwise extinguished or have ceased to be enforceable by diligence and that all the obligations to pay current maintenance being so enforced have ceased or have ceased to be enforceable by diligence; or
that the debtor’s estate has been sequestrated; or
on an application for recall of the order by all the creditors whose debts are being enforced by the order.
The persons referred to in subsection (1)(a) above are—
the debtor;
any creditor whose debt is being enforced by the order;
the person on whom a copy of the order or an order varying the order was served under section 60(7) or 62(6) of this Act;
the sheriff clerk;
if the debtor’s estate has been sequestrated, the interim trustee appointed under section 55 of the Bankruptcy (Scotland) Act 2016 or the trustee in the sequestration.
Where the sheriff recalls a conjoined arrestment order under subsection (1) above, he may make such consequential order as appears to him to be necessary in the circumstances.
Where—
any ordinary debt being enforced by a conjoined arrestment order is paid or otherwise extinguished or ceases to be enforceable by diligence; or
current maintenance is being so enforced and— the sheriff, on an application by the debtor, any creditor whose debt is being enforced by the conjoined arrestment order, the employer or the sheriff clerk, may make an order varying the conjoined arrestment order appropriately.
an order or decree comes into effect which varies, supersedes or recalls the maintenance order which is being enforced; or
the obligation to pay maintenance has ceased or has ceased to be enforceable in Scotland,
In the case of an order mentioned in paragraph (c), (e), (f) , (g)...) or (k) of the definition of “maintenance order” in section 106 of this Act, the reference in subsection (4)(b)(i) above to the coming into effect of an order shall be construed as a reference to the registration of the order in Scotland.
The sheriff may vary a conjoined arrestment order to give effect to a request by a creditor whose debt is being enforced by the order that it should cease to be so enforced.
The sheriff clerk shall as soon as is reasonably practicable serve a copy of any order under subsection (1), (3), (4) or (6) above on the debtor, the employer (or, where he is not the employer, the person mentioned in subsection (2)(c) above), any creditor whose debt is being enforced by the conjoined arrestment order and, if the conjoined arrestment order has been recalled on the ground of the sequestration of the debtor’s estate, the interim trustee or ... trustee in the sequestration, if known to the sheriff clerk.
Subject to section 103(6) of this Act, an order under subsection (3) above shall not come into effect until a copy of the order has been served on the employer under subsection (7) above.
An order under subsection (1) above shall not come into effect until a copy of the order has been served on the employer under subsection (7) above and shall not be subject to appeal.
An order under subsection (4) or (6) above shall come into effect 7 days after a copy of the order has been served on the employer under subsection (7) above.
In subsections (4)(b) and (5), “order” includes decision, settlement and instrument.
Paragraph 1 of schedule 7 of the Bankruptcy (Scotland) Act 2016 (equalisation of arrestments and poindings used within 60 days before, and 4 months after, apparent insolvency) shall not apply in relation to an earnings arrestment, a current maintenance arrestment or a conjoined arrestment order.
An employer operating an earnings arrestment or a current maintenance arrestment or a conjoined arrestment order shall be entitled to apply regulations made under section 49(7), 53(3) or 63(6) of this Act before receiving intimation under section 49(8), 53(4) or 63(7) of this Act of the making of the regulations.
Where a pay-day occurs within a period of 7 days after the date of— the employer shall be entitled, but shall not be required, on that day to operate the arrestment or order or, as the case may be, to give effect to the regulations.
service on the employer of an earnings arrestment schedule or a current maintenance arrestment schedule or a copy of a conjoined arrestment order or of a variation thereof; or
intimation under section 49(8), 53(4) or 63(7) of this Act to the employer of the making of regulations,
Where, in accordance with subsection (2) above, the employer on a pay-day (referred to below as “the previous pay-day”)— he shall not include in any sum deducted from the net earnings of the debtor on a subsequent pay-day under the arrestment or order any sum in respect of the debtor’s net earnings on the previous pay-day.
does not operate an earnings arrestment, current maintenance arrestment or conjoined arrestment order; or
does not give effect to regulations,
No claim may be made by— more than one year after the date when the deduction or payment has, or ought to have, been made.
the debtor or the creditor against the employer in respect of any deduction which has, or ought to have, been made by the employer from the debtor’s net earnings, or any payment which has been, or ought to have been, made by him, under an earnings arrestment or a current maintenance arrestment; or
the debtor, the sheriff clerk or any creditor against the employer in respect of any such deduction or payment which has been, or ought to have been, made under a conjoined arrestment order,
The employer shall not be liable to the debtor for any deduction made by him from the debtor’s net earnings—
under an earnings arrestment unless and until he receives intimation—
from the creditor under section 57(4) of this Act that the debt recoverable has been paid or otherwise extinguished or has ceased to be enforceable by diligence;
from the sheriff clerk under section 9(7)(b) or 50(1) of this Act that an order has been made recalling the arrestment or, as the case may be, declaring that it is invalid or has ceased to have effect;
that the debtor’s estate has been sequestrated; or
from the creditor that he has abandoned the arrestment;
under a current maintenance arrestment unless and until he receives intimation—
from the creditor under section 57(4) of this Act that the arrestment has ceased to have effect;
from the sheriff clerk under section 55(3) of this Act that an order has been made recalling the arrestment or declaring that the arrestment is invalid or has ceased to have effect;
that the debtor’s estate has been sequestrated; or
from the creditor that he has abandoned the arrestment.
When an officer of court serves an earnings arrestment schedule or a current maintenance arrestment schedule on the employer of the debtor he shall take all reasonably practicable steps to intimate a copy of the schedule to the debtor.
Failure to intimate a copy of the schedule to the debtor shall not by itself render the arrestment invalid.
Service of any such schedule shall be by registered or recorded delivery letter or, if such a letter cannot be delivered, by any other competent mode of service.
The certificate of execution of an earnings arrestment or a current maintenance arrestment shall be signed by the officer of court who effected the service.
Section 17(1) of this Act shall apply to the service of an earnings arrestment schedule, a current maintenance arrestment schedule or a conjoined arrestment order as it applies to the execution of a poinding except where such service is by post.
An employer on whom an earnings arrestment schedule or a current maintenance arrestment schedule is served shall, as soon as is reasonably practicable—
intimate a copy of it to the debtor; and
notify the debtor of—
the date on which the first deduction is made; and
the sum so deducted.
An employer on whom a copy of a conjoined arrestment order is served shall, as soon as is reasonably practicable, notify the debtor of the matters mentioned in sub-paragraphs (i) and (ii) of subsection (4A)(b) above.
On any occasion on which an employer makes a payment to a creditor under an earnings arrestment or a current maintenance arrestment or to the sheriff clerk under a conjoined arrestment order, he may charge the debtor a fee of 50 pence or such other sum as may be prescribed in regulations made by the Lord Advocate which shall be deductible from the amount of the debtor’s net earnings after any deduction has been made from them under section 47, 51 or 60 of this Act.
Where an employer receives, in relation to a debtor— the employer shall, as soon as is reasonably practicable, send to the creditor or, in the case of a conjoined arrestment order, the sheriff clerk, the information mentioned in subsection (3) below.
an earnings arrestment schedule;
a current maintenance arrestment schedule; or
a copy of a conjoined arrestment order,
The employer shall, provided the debt has not been extinguished, send, on or as soon as is reasonably practicable after the dates mentioned in subsection (4) below, to the creditor or, as the case may be, the sheriff clerk the information mentioned in subsection (3) below.
The information referred to in subsection (1) above is—
how the debtor is paid (whether weekly, monthly or otherwise);
the date of the debtor's pay-day next following—
where subsection (1) above applies, receipt of the schedule or order; or
where subsection (2) above applies, the date mentioned in subsection (4) below;
the sum deducted on that pay-day and the net earnings from which it is so deducted; and
any other information which the Scottish Ministers may, by regulations, prescribe.
The dates referred to in subsection (2) above are—
the later of—
6 April next following receipt of the schedule or order; or
the day falling 6 months after receiving the schedule or order; and
each 6 April thereafter.
Notwithstanding subsections (1) and (2) above, the employer shall, if the debtor ceases for whatever reason to be employed by the employer, give notice, as soon as is reasonably practicable, to the creditor or, as the case may be, the sheriff clerk—
of that fact; and
in so far as is known to the employer, the name and address of any new employer of the debtor.
Where an employer sends information under subsection (1) or (2) above or gives notice under subsection (5) above, the employer shall, as soon as is reasonably practicable, send a copy of that information or notice to the debtor.
This section shall have effect where a debtor’s estate is sequestrated.
Any existing earnings arrestment, current maintenance arrestment or, subject to subsection(3) below, conjoined arrestment order or deduction from earnings order under the Child Support Act 1991 shall cease to have effect on the date of sequestration.
Any sum paid by the employer to the sheriff clerk under a conjoined arrestment order on a pay-day occurring before the date of sequestration shall be disbursed by the sheriff clerk under section 64 of this Act notwithstanding that the date of disbursement is after the date of sequestration.
The execution of an earnings arrestment or the making of a conjoined arrestment order shall not be competent after the date of sequestration to enforce a debt in respect of which the creditor is entitled to make a claim in the sequestration.
Any sum deducted by the employer under such a deduction from earnings order made before the date of sequestration shall be paid to the Secretary of State, notwithstanding that the date of payment will be after the date of sequestration.
In this section “date of sequestration” has the same meaning as in section 22(7) of the Bankruptcy (Scotland) Act 2016.
A deduction from earnings order under the said Act shall not be competent after the date of sequestration to secure the payment of any amount due by the debtor under a maintenance assessment maintenance calculation within the meaning of that Act in respect of which a claim could be made in the sequestration.
Where an employer fails without reasonable excuse to give notice under section 70A(5) of this Act, the sheriff may, on the application of any creditor, make an order requiring the employer—
to provide such information as is known to the employer as to the debtor's employment after ceasing to be employed by that employer;
to pay to the creditor an amount not exceeding twice the sum which the employer would have been required to deduct on the debtor's next pay-day had the debtor still been employed by that employer.
Where a sum is paid by virtue of an order under subsection (1)(b) above—
the debt owed by the debtor to the creditor shall be reduced by that sum; and
the employer shall not be entitled to recover that sum from the debtor.
An employer aggrieved by an order under subsection (1) above may, before the expiry of the period of 14 days beginning with the day on which the order is made, appeal, on point of law only, to the sheriff principal, whose decision shall be final.
In this Part of this Act—
under section 60(9)(c), 62(5), 65 or 66 means the sheriff who made the conjoined arrestment order;
Section 44.
Subject to paragraphs 2, 3 and 5 to 7 below, there shall be chargeable against the debtor any expenses incurred— The Lord Advocate may by regulations add to, delete or vary any of the steps specified in sub-paragraph (1) above.
Where a warrant of sale is varied under section 35 of this Act, there shall be chargeable against the debtor the expenses incurred in the application for the variation and the execution of the warrant of sale as varied but, subject to paragraph 4 below, not in the application for, and the execution of, the original warrant of sale.
Where arrangements for a sale are cancelled under subsection (1) of section 36 of this Act, if new arrangements are made for the sale in the circumstances mentioned in subsection (3)(a) of that section, there shall be chargeable against the debtor the expenses incurred in the making of the new arrangements but not in the making of the arrangements which have been cancelled.
Where a warrant of sale is varied under section 35 of this Act and the sheriff has awarded an additional sum of expenses under paragraph 9 below in the application for the original warrant of sale, that sum shall be chargeable against the debtor.
Subject to paragraph 6 below, where any such further poinding as is mentioned in section 28(2) of this Act has been executed, there shall be chargeable against the debtor the expenses incurred in that poinding but not the expenses incurred in the original poinding.
Where any such further poinding as is mentioned in subsection (2) of section 28 of this Act has been executed and— there shall be chargeable against the debtor the expenses incurred in both poindings.
the creditor has, as a condition of his consenting to the removal of the poinded articles under subsection (1)(a) of that section, required the debtor to undertake liability for the expenses incurred in the original poinding; or
the sheriff has, when authorising the removal of the poinded articles under subsection (1)(b) of that section, directed that the debtor shall be liable for those expenses,
Where a new date is arranged under section 35(10) of this Act for the holding of a warrant sale or for the removal of poinded articles for sale, there shall be chargeable against the debtor the expenses incurred in connection with arranging the new date but not those incurred in connection with arranging the original date.
The liability for any expenses incurred by the creditor or the debtor—
in an application by the creditor or an officer of court to the sheriff under any provision of Part II of this Act, other than an application for a warrant of sale under section 30(1) of this Act or an application for variation of a warrant of sale under section 35(1) of this Act; or
in implementing an order under— shall be as determined by the sheriff.
section 21(1) of this Act (order for security or immediate disposal of poinded articles); or
section 28(4) to (6) or 29 of this Act (orders dealing with unauthorised removal, damage or destruction of poinded articles),
Expenses— shall be calculated, whether or not the application is opposed by the debtor, as if it were unopposed, except that, if the debtor opposes the application on grounds which appear to the sheriff to be frivolous, the sheriff may award an additional sum of expenses, not exceeding £25 or such amount as may be prescribed in regulations made by the Lord Advocate, against the debtor.
chargeable against the debtor by virtue of any of paragraphs 1 to 6 above in respect of an application under Part II of this Act; or
awarded by the sheriff against the debtor in favour of the creditor in a determination under paragraph 8 above in respect of an application other than an application under section 28(4) to (6) or 29 of this Act,
Subject to paragraph 11 below, the debtor shall not be liable to the creditor nor the creditor to the debtor for any expenses incurred by the other party in connection with—
an application by the debtor to the sheriff under any provision of Part II of this Act;
any objections to such an application;
a hearing held by virtue of section 24(5), 30(4), 35(6) or 39(6) of this Act.
If— the sheriff may award a sum of expenses, not exceeding £25 or such amount as may be prescribed in regulations made by the Lord Advocate, against the party acting frivolously in favour of the other party.
an application mentioned in paragraph 10(a) above is frivolous;
such an application is opposed on frivolous grounds; or
a party requires a hearing held by virtue of any of the provisions mentioned in paragraph 10(c) above to be held on frivolous grounds,
Any expenses chargeable against the debtor by virtue of any provision of this Schedule shall be recoverable out of the proceeds of sale.
Section 49. Net earnings When applying a percentage the calculation should be done to two decimal places of a penny and the result rounded to the nearest whole penny, with an exact half penny being rounded down. Not exceeding £172.61 Nil Exceeding £172.61 but not exceeding £345.22 £2.30 or 15% of earnings exceeding £172.61, whichever is the greater Exceeding £345.22 but not exceeding £575.37 £25.89 plus 20% of earnings exceeding £345.22 Exceeding £575.37 but not exceeding £863.06 £71.92 plus 25% of earnings exceeding £575.37 Exceeding £863.06 £143.84 plus 50% of earnings exceeding £863.06 Net earnings When applying a percentage the calculation should be done to two decimal places of a penny and the result rounded to the nearest whole penny, with an exact half penny being rounded down. Not exceeding £750.00 Nil Exceeding £750.00 but not exceeding £1,500.00 £10.00 or 15% of earnings exceeding £750.00, whichever is the greater Exceeding £1,500.00 but not exceeding £2,500.00 £112.50 plus 20% of earnings exceeding £1,500.00 Exceeding £2,500.00 but not exceeding £3,750.00 £312.50 plus 25% of earnings exceeding £2,500.00 Exceeding £3,750.00 £625.00 plus 50% of earnings exceeding £3,750.00 Net earnings When applying a percentage the calculation should be done to two decimal places of a penny and the result rounded to the nearest whole penny, with an exact half penny being rounded down. Not exceeding £24.66 Nil Exceeding £24.66 but not exceeding £49.32 £0.33 or 15% of earnings exceeding £24.66, whichever is the greater Exceeding £49.32 but not exceeding £82.19 £3.70 plus 20% of earnings exceeding £49.32 Exceeding £82.19 but not exceeding £123.29 £10.27 plus 25% of earnings exceeding £82.19 Exceeding £123.29 £20.55 plus 50% of earnings exceeding £123.29
Section 64.
Where all the debts are ordinary debts, in every disbursement by the sheriff clerk each creditor shall be paid the same proportion of the amount of his debt.
Where all the debts are current maintenance, then, in any such disbursement, if the sum available for disbursement is—
sufficient to satisfy every creditor in respect of the amount of maintenance to be deducted in respect of his debt on that pay-day, each creditor shall be paid that amount;
insufficient to satisfy every creditor in respect of the amount of maintenance specified in paragraph (a) above, each creditor shall be paid the same proportion of that amount.
Subject to paragraph 4 below, where the debts comprise both ordinary debts and current maintenance, then, in any such disbursement—
if only one of the debts is an ordinary debt, the creditor in that debt shall be paid the sum which would be payable to him if the debt were being enforced by an earnings arrestment;
if more than one of the debts is an ordinary debt, each of the creditors in those debts, out of the sum which would be payable to a creditor if the debt were a single debt being enforced by an earnings arrestment, shall be paid the same proportion of the amount of his debt;
if only one of the debts is current maintenance, the creditor in that debt shall be paid the sum which would be payable to him under section 51 of this Act if the debt were being enforced by a current maintenance arrestment;
if more than one of the debts is current maintenance, each of the creditors in those debts shall receive a payment in accordance with paragraph 2 of this Schedule.
If the sum available for any disbursement is insufficient to enable the provisions of paragraph 3 above to operate both in relation to the ordinary debts and the current maintenance, disbursement shall be in accordance with paragraph 4A below.
For the purposes of this Schedule, the amount of an ordinary debt—
of a creditor whose debt was being enforced by an earnings arrestment which was recalled under section 60(3) of this Act, shall be the amount specified in the earnings arrestment schedule;
of any other creditor, shall be the amount specified in the conjoined arrestment order or the order under section 62(5) of this Act.
Where—
only one of the debts is an ordinary debt, the creditor in that debt shall be paid the sum equal to— ;
more than one of the debts is an ordinary debt, each of the creditors in those debts, out of the sum mentioned in sub-paragraph (a) above, shall be paid the same proportion of the amount of that creditor's debt;
only one of the debts is current maintenance, the creditor in that debt shall be paid the sum equal to— ;
more than one of the debts is current maintenance, each of the creditors in those debts, out of the sum mentioned in sub-paragraph (c) above, shall be paid the same proportion of the amount of that creditor's debt, where— D is the sum deducted under subsection (5) of section 63 of this Act; E is the sum deducted under paragraph (a) of that subsection; C is the sum which would, if the only debts were the current maintenance debts, be deducted under subsection (3) of that section; and S is the total of E and C.
Section 74(1).
For section 247 there shall be substituted the following sections—. a summary warrant in a form prescribed by Act of Sederunt authorising the recovery by any of the diligences mentioned in section 247(3) of this Act of the amount remaining due and unpaid
For section 63 there shall be substituted the following sections—.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
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Section 74.
The following articles belonging to a debtor shall be exempt from poinding at the instance of a creditor in respect of a debt due to him by the debtor— The following articles belonging to a debtor shall be exempt from poinding if they are at the time of the poinding in a dwellinghouse and are reasonably required for the use in the dwellinghouse of the person residing there or a member of his household— The Lord Advocate may by regulations add to the list set out in sub-paragraph (2) above, or delete or vary any of the items contained in that list. If, on an application made within 14 days after the date of the execution of the poinding— the sheriff is satisfied that the article is exempt from poinding under this paragraph, he shall make an order releasing the article from the poinding.
No poinding shall be executed on Sunday, Christmas Day, New Year’s Day, Good Friday or such other day as may be prescribed by Act of Sederunt. The execution of a poinding shall not— unless the sheriff officer has obtained prior authority from the sheriff for such commencement or continuation; and any rule of law which prohibits poindings outwith the hours of daylight shall cease to have effect.
Subject to sub-paragraph (2) below, notwithstanding any warrant authorising him to open shut and lockfast places, a sheriff officer shall not enter a dwellinghouse to execute a poinding if, at the time of his intended entry, there appears to him to be nobody, or only children under the age of 16 years, present there unless, at least 4 days before the date of his intended entry, he has served notice on the debtor specifying that date. If it appears to the sheriff, on an application made to him by the sheriff officer (which shall not require to be intimated to the debtor), that the requirement of service under this paragraph would be likely to prejudice the execution of the poinding he may dispense with such service.
The sheriff officer shall be entitled to poind articles only to the extent necessary to ensure that the sum recoverable and the likely expenses chargeable against the debtor under paragraphs 25 to 34 below would be realised if they were sold at the value fixed under paragraph 5(4) below. In executing a poinding, a sheriff officer shall be entitled to proceed on the assumption that any article in the possession of the debtor is owned by him unless the sheriff officer knows or ought to know that the contrary is the case. The sheriff officer shall not be precluded from relying on the assumption mentioned in sub-paragraph (2) above by reason only of one or both of the following circumstances—
The procedure in a poinding shall be in accordance with this paragraph and paragraph 6 below. Before executing the poinding, the sheriff officer shall— The sheriff officer shall be accompanied at the poinding by one witness. The poinded articles shall be valued by the sheriff officer according to the price which they would be likely to fetch if sold on the open market unless he considers that the articles are such that a valuation by a professional valuer or other suitably skilled person is advisable, in which case he may arrange for such a valuation. The sheriff officer shall prepare a schedule (referred to in this Schedule as “the poinding schedule”), in the form prescribed by Act of Sederunt, which shall specify— On completion of the valuation the sheriff officer shall— The sheriff officer shall leave poinded articles at the place where they were poinded, except that where that place is not a dwellinghouse or other premises, if he considers it necessary for their security or the preservation of their value and there is insufficient time to obtain an order under paragraph 6(1)(a) below, he shall remove them at the creditor’s expense—
The sheriff, on an application by the creditor, the sheriff officer or the debtor intimated in accordance with sub-paragraph (2) below, may at any time after the execution of a poinding make an order— and a decision of the sheriff under paragraph (b) above for the immediate disposal of articles shall not be subject to appeal. An application for an order under sub-paragraph (1)(b) above— at the time when it is made. It shall not be competent for a sheriff officer in executing a poinding to examine a person on oath as to the ownership of any article. Subject to sub-paragraph (1)(b) above, the debtor shall be entitled, within 14 days after the date of execution of the poinding, to redeem any poinded article at the value fixed under paragraph 5(4) above. The sheriff officer shall, on receiving payment from the debtor for the redemption under sub-paragraph (4) above of a poinded article, grant a receipt in the form prescribed by Act of Sederunt to the debtor; and the receipt shall operate as a release of the article from the poinding. Subject to paragraph 13(2)(b) below, the revaluation in the same poinding of an article which has been valued under paragraph 5(4) above shall not be competent. A poinding shall be deemed to have been executed on the date when the poinding schedule has been delivered, or left on the premises, in pursuance of paragraph 5(6)(b) above. At any time before the execution of a poinding on behalf of a creditor, a sheriff officer shall, if requested to do so by any other creditor who has exhibited to him a summary warrant authorising the poinding of articles belonging to the debtor, conjoin that creditor in the poinding.
The sheriff may, on an application made within 14 days after the date of execution of a poinding by the debtor or any person in possession of a poinded article, make an order releasing an article from the poinding if it appears to the sheriff that its continued inclusion in the poinding or its sale under the summary warrant would be unduly harsh in the circumstances. Where the sheriff has made an order under subsection (1) above he may, notwithstanding paragraph 9 below, on an application by the creditor or by a sheriff officer on his behalf, authorise the poinding of other articles belonging to the debtor on the same premises.
If, at any time before the sale of the poinded articles, the sheriff is satisfied that the poinding is invalid or has ceased to have effect he shall, on his own initiative or on an application by the debtor, make an order declaring the poinding to be void, and may make such consequential order as appears to him to be necessary in the circumstances. Without prejudice to paragraph 1(4) above, it shall not be competent for the sheriff to make an order under sub-paragraph (1) above on the ground that any poinded article is exempt from poinding under that paragraph. At any time before intimation is given to the debtor under paragraph 16 below of the date arranged for the removal of the poinded articles for sale or, if the articles are to be sold in the premises where they are situated, the date arranged for the sale, the sheriff may, on an application by the debtor, recall a poinding on any of the following grounds— The sheriff shall not grant an application on the ground mentioned in sub-paragraph (3)(c) above if an order for further poinding of articles belonging to the debtor has been authorised under paragraph 7(2) above or paragraphs 12(6) or 13(2) below, or has become competent by reason of paragraph 12(2), 21(4) or 22(5) below. The sheriff shall not make an order under sub-paragraph (1) above, recall a poinding or refuse an application under this paragraph without first giving the debtor and the creditor— The sheriff clerk shall intimate to the debtor any order made under sub-paragraph (1) above by the sheriff on his own initiative.
Subject to paragraph 7(2) above and paragraphs 12(2) and (6), 13(2), 21(4) and 22(5) below, where articles are poinded in any premises (whether or not the poinding is valid), another poinding in those premises to enforce the same debt shall not be competent except in relation to articles which have been brought on to the premises since the execution of the first poinding.
Where a caravan, houseboat or other moveable structure which is the only or principal residence of the debtor or another person has been poinded the sheriff, on an application by the debtor or that other person made at any time after the execution of the poinding and before intimation is given to the debtor under paragraph 16 below of the date arranged for the removal of the poinded articles for sale or, if the articles are to be sold in the premises where they are situated, the date arranged for the sale, may order that for such period as he shall specify no further steps shall be taken in the poinding. In calculating under paragraph 11(1) or (2) below the period during which a poinding in respect of which an order has been made under sub-paragraph (1) above shall remain effective, there shall be disregarded the period specified in the order.
Subject to sub-paragraphs (2), (3) and (5) below, a poinding shall cease to have effect on the expiry of a period of one year after the date of execution of the poinding. The sheriff, on an application by the creditor or by a sheriff officer on his behalf made before the expiry of the period mentioned in sub-paragraph (1) above, may extend that period— for such further period as he considers reasonable in the circumstances. The sheriff may grant further extensions under sub-paragraph (2) above, on application being made to him before the expiry of the previously extended period. The decision of the sheriff under sub-paragraph (2) above shall not be subject to appeal, and shall be intimated to the debtor by the sheriff clerk. Where, within the period mentioned in sub-paragraph (1) above or within that period as extended under sub-paragraph (2) above, an application is made under sub-paragraph (2) above, the poinding shall continue to have effect until the disposal of the application.
The debtor or the person in possession of poinded articles may move them to another location if— Where poinded articles have been removed under sub-paragraph (1) above, a sheriff officer may, under the same warrant to poind, again poind any of the articles so removed and, notwithstanding paragraph 9 above, any articles which were not so removed, whether or not they were previously poinded; and, on the execution of any such further poinding, the original poinding shall be deemed to have been abandoned. The removal, except in accordance with this Schedule, from any premises of poinded articles by— shall be a breach of the poinding and may be dealt with as a contempt of court. Where articles have been removed from premises otherwise than in accordance with this Schedule, the sheriff, on an application by the creditor— Where it appears to the sheriff, on an application made to him by any person having an interest, that any article which has been removed from premises otherwise than in accordance with this Schedule has been acquired for value and without knowledge of the poinding, he shall— Where articles have been removed from premises otherwise than in accordance with this Schedule in circumstances in which the debtor is at fault the sheriff, on an application by the creditor or by a sheriff officer on his behalf, may, notwithstanding paragraph 9 above, authorise the poinding of other articles belonging to the debtor in the same premises. The removal of poinded articles to another location shall not have the effect of releasing the articles from the poinding.
The wilful damage or destruction of poinded articles by— shall be a breach of the poinding and may be dealt with as a contempt of court. Where poinded articles have been damaged or destroyed the sheriff, on an application by the creditor or by the sheriff officer on his behalf, may— Where a third party, knowing that an article has been poinded— The sum to be consigned in court under sub-paragraph (3) above shall be— Any sum consigned in court under sub-paragraph (3) above shall, on the completion of the sale or on the poinding otherwise ceasing to have effect, be paid to the creditor to the extent necessary to meet the sum recoverable, any surplus thereof being paid to the debtor.
A sale in pursuance of a summary warrant shall be by public auction. A sale in pursuance of a summary warrant shall not be held in a dwellinghouse except with the consent in writing, in a form to be prescribed by Act of Sederunt, of the occupier thereof and, if he is not the occupier, of the debtor. Subject to sub-paragraph (4) below, the sale shall not be held in premises (other than a dwellinghouse or an auction room) which are occupied by a person other than the debtor or the creditor except with the consent in writing, in a form to be prescribed by Act of Sederunt, of the occupier thereof. Where the occupier of premises (other than a dwellinghouse or an auction room) where poinded articles are situated does not give his consent under sub-paragraph (3) above to the holding of the sale in those premises, the sheriff may, if on an application by the creditor or the sheriff officer he considers that it would be unduly costly to require the removal of the poinded articles to other premises for sale, nevertheless order that the sale shall be held in the premises where they are situated. The decision of the sheriff under sub-paragraph (4) above shall not be subject to appeal. In this paragraph “occupier”, in relation to premises where there are 2 or more occupiers, means each of them.
Where a sale of poinded articles is to be held in premises other than where the poinded articles are situated, the sheriff officer may remove to those premises only such poinded articles as, if sold at their values fixed under paragraph 5(4) above, would realise in total the sum recoverable and the likely expenses chargeable against the debtor under paragraphs 25 to 34 below; and shall release the remaining poinded articles from the poinding. Subject to paragraph 6(1) above, the debtor may, within 7 days after the date when intimation is given to him under paragraph 16 below of the date arranged for the removal of the poinded articles for sale or, if the articles are to be sold in the premises where they are situated, the date arranged for the sale, redeem any poinded article by paying to the officer of court a sum equal to its value fixed under paragraph 5(4) above. The sheriff officer shall, on receiving payment from the debtor under sub-paragraph (2) above, grant a receipt in the form prescribed by Act of Sederunt to the debtor; and the receipt shall operate as a release of the article from the poinding. The creditor and the debtor may by agreement release articles from the poinding.
The sheriff officer who makes arrangements for the sale of the poinded articles shall— The sheriff officer shall, at the same time as he intimates the date arranged for the sale under sub-paragraph (1) above, send such particulars of the arrangements for the sale as are prescribed by Act of Sederunt to the sheriff clerk of the sheriff court within whose jurisdiction the articles were poinded; and the sheriff clerk shall arrange for those particulars to be displayed on the walls of court. The sale shall be advertised by public notice. Where the sale is to be held in premises not belonging to the debtor, the public notice under sub-paragraph (3) above shall not name him or disclose that the articles for sale are poinded articles. Where the sale is to be held in premises other than the debtor’s premises or an auction room, any public notice of the sale shall state that the articles to be sold do not belong to the occupier of the premises where the sale is to be held.
Subject to sub-paragraph (2) below and without prejudice to sub-paragraph (5) below, after intimation has been given under paragraph 16(1) above to the debtor of the date arranged for the sale or for the removal for sale of the poinded articles from the premises where they are situated, the creditor or sheriff officer shall not be entitled to arrange a new date for the sale or for such removal. Where, for any reason for which neither the creditor nor the sheriff officer is responsible, it is not possible for the sale or, as the case may be, the removal for sale of the poinded articles from the premises where they are situated, to take place on the date arranged for it, the creditor may instruct the sheriff officer to arrange a new date in accordance with sub-paragraph (3) below, and the sheriff officer shall intimate the new date to the debtor and to any other person in possession of the poinded articles. The new date arranged under sub-paragraph (2) above shall not be less than 7 days after the date of intimation under that sub-paragraph. Without prejudice to sub-paragraph (2) above, in order to enable the sum recoverable to be paid by instalments or otherwise in accordance with an agreement between the creditor and the debtor, the creditor may, after intimation has been given under paragraph 16 above of the date arranged for the sale, cancel the arrangements for the sale on not more than 2 occasions. Where, following cancellation of the sale in pursuance of sub-paragraph (4) above, the debtor is in breach of the agreement, the creditor may instruct the sheriff officer to make arrangements for the sale of the poinded articles at any time while they remain poinded.
In the sale there shall be no reserve price unless the creditor chooses to have one and, if he does so choose, it shall not exceed the value of the article fixed under paragraph 5(4) above. The value of a poinded article fixed under paragraph 5(4) above and the reserve price, if any, fixed by the creditor under sub-paragraph (1) above need not be disclosed to any person bidding for the article. In the sale any poinded article exposed for sale may be purchased by— Subject to sub-paragraph (5) below and without prejudice to the rights of any third party, where the sum recoverable has not been realised by the sale, ownership of a poinded article which remains unsold after being exposed for sale shall pass to the creditor. Without prejudice to the rights of any third party, where the sale is held in premises belonging to the debtor, the ownership of a poinded article which has passed to the creditor under sub-paragraph (4) above shall revert to the debtor unless the creditor uplifts the article by 8 p.m. (or such other time as may be prescribed by Act of Sederunt)— and the sheriff officer may remain on or re-enter any premises (whether open, shut or lockfast) for the purpose of enabling the creditor to uplift any such article. For the purposes of sub-paragraph (5) above “working day” means a day which is not— Saturday; Sunday; 1st or 2nd January; Good Friday; Easter Monday; 25th or 26th December; a public holiday in the area in which the premises are situated. Subject to sub-paragraph (8) below, where at the sale any article is unsold or is sold at a price below the value fixed under paragraph 5(4) above, the debtor shall be credited with an amount equal to that valuation. Where— the amount credited to the debtor under sub-paragraph (7) above shall be an amount equal to the original valuation and not the revaluation referred to in paragraph (a) above.
The sheriff officer who arranges the sale shall dispose of the proceeds of the sale—
by paying to the creditor the proceeds so far as necessary to meet the sum recoverable (subject to any agreement between the sheriff officer and the creditor relating to the fees or outlays of the officer of court); and
by paying to the debtor any surplus remaining after the sum recoverable has been paid or, if the debtor cannot be found, by consigning such surplus in court.
The sheriff officer who arranged the sale shall within a period of 14 days after the date of completion of the sale send to the creditor a report of the sale in the form prescribed by Act of Sederunt setting out— and the sheriff officer shall, within the same period, send a copy of the report to the debtor. The report of sale shall be signed by the sheriff officer. The creditor and the debtor may have the report of sale taxed by the auditor of court of the sheriff court within whose jurisdiction the articles were poinded.
A sheriff officer may, at any time after the execution of a poinding and before the sale of the poinded articles, release an article from the poinding if— Where, on an application made to him by a third party, at any time after the execution of a poinding and before the sale of the poinded articles, the sheriff is satisfied that a poinded article belongs to that third party, he shall make an order releasing it from the poinding. The making of an application under sub-paragraph (2) above shall not prejudice the taking of any other proceedings by the third party for the recovery of a poinded article belonging to him, and an order of the sheriff under that sub-paragraph shall not be binding in any other proceedings. Where an article has been released from a poinding under this paragraph, a sheriff officer may, notwithstanding paragraph 9 above, poind other articles belonging to the debtor in the same premises.
Articles which are owned in common by a debtor and a third party may be poinded and disposed of in accordance with this Schedule in satisfaction of the debts of that debtor. Where, at any time after the execution of a poinding and before the sale of the poinded articles, a third party— the sheriff officer may, unless the debtor (or the person in possession of the article, if not the debtor) denies the claim, release the article from the poinding. If, on an application made by a third party, at any time after the execution of a poinding and before the sale of the poinded articles, the sheriff is satisfied that a poinded article is owned in common by the debtor and that third party and either— he shall make an order releasing the article from the poinding. A release under sub-paragraph (2) above or where sub-paragraph (3)(a) above applies shall not become effective until the granting by the sheriff officer of a receipt for payment in accordance therewith, when the debtor’s interest in the released article shall be transferred to the third party. Where an article is released in pursuance of sub-paragraph (3)(b) above from a poinding, a sheriff officer may, notwithstanding paragraph 9 above, poind other articles belonging to the debtor in the same premises. This sub-paragraph applies where, at any time after the execution of a poinding, a third party claims that any of the poinded articles is owned in common by the debtor and himself but does not seek release of the article from the poinding, and either— Where sub-paragraph (6) above applies, the creditor shall pay to the third party—
Where an application under any of the provisions of this Schedule listed in sub-paragraph (2) below has been made— The provisions referred to in sub-paragraph (1) above are— In sub-paragraph (1) above “a relevant period” means—
A summary warrant shall contain a warrant authorising a sheriff officer to enter premises in the occupancy of the debtor in order to execute the poinding or the sale, or the removal and sale of the poinded articles and, for any of those purposes, to open shut and lockfast places.
Subject to paragraphs 26 to 29 below, there shall be chargeable against the debtor any expenses incurred— The Lord Advocate may by regulations add to, delete or vary any of the steps specified in sub-paragraph (1) above.
Where arrangements for a sale are cancelled under sub-paragraph (4) of paragraph 17 above, if new arrangements are made for the sale in the circumstances mentioned in sub-paragraph (5) thereof, there shall be chargeable against the debtor the expenses incurred in the making of the new arrangements but not in the making of the arrangements which have been cancelled.
Subject to paragraph 28 below, where any such further poinding as is mentioned in paragraph 12(2) above has been executed, there shall be chargeable against the debtor the expenses incurred in that poinding but not the expenses incurred in the original poinding.
Where any such further poinding as is mentioned in sub-paragraph (2) of paragraph 12 above has been executed and— there shall be chargeable against the debtor the expenses incurred in both poindings.
the creditor has, as a condition of his consenting to the removal of the poinded articles under sub-paragraph (1)(a) of that paragraph, required the debtor to undertake liability for the expenses incurred in the original poinding; or
the sheriff has, when authorising the removal of the poinded articles under sub-paragraph (1)(b) of that paragraph, directed that the debtor shall be liable for those expenses,
Where a new date is arranged under paragraph 17(2) above for the holding of a sale or for the removal of poinded articles for sale, there shall be chargeable against the debtor the expenses incurred in connection with arranging the new date but not those incurred in connection with arranging the original date.
The liability for any expenses incurred by the creditor or the debtor—
in an application by the creditor or a sheriff officer to the sheriff under any provision of this Schedule; or
in implementing an order under— shall be as determined by the sheriff.
paragraph 6(1) above (order for security or immediate disposal of poinded articles); or
paragraph 12(4) to (6) or 13 above (orders dealing with unauthorised removal, damage or destruction of poinded articles),
Expenses awarded by the sheriff against the debtor in favour of the creditor in a determination under paragraph 30 above in respect of an application other than an application under paragraph 12(4) to (6) or 13 above shall be calculated, whether or not the application is opposed by the debtor, as if it were unopposed, except that, if the debtor opposes the application on grounds which appear to the sheriff to be frivolous, the sheriff may award an additional sum of expenses, not exceeding £25 or such amount as may be prescribed in regulations made by the Lord Advocate, against the debtor.
Subject to paragraph 33 below, the debtor shall not be liable to the creditor nor the creditor to the debtor for any expenses incurred by the other party in connection with—
an application by the debtor to the sheriff under any provision of this Schedule;
any objections to such an application;
a hearing held by virtue of paragraph 8(5) above.
If— the sheriff may award a sum of expenses, not exceeding £25 or such amount as may be prescribed in regulations made by the Lord Advocate, against the party acting frivolously in favour of the other party.
an application mentioned in paragraph 32(a) above is frivolous;
such an application is opposed on frivolous grounds; or
a party requires a hearing mentioned in paragraph 32(c) above to be held on frivolous grounds,
Any expenses chargeable against the debtor by virtue of any provision of this Schedule shall be recoverable out of the proceeds of sale.
In this Schedule—
for the purposes of section 247 of the Local Government (Scotland) Act 1947, a rating authority;
for the purposes of section 63 of the Taxes Management Act 1970, any collector of taxes;
for the purposes of paragraph 3 of Schedule 1 to the Car Tax Act 1983 and paragraph 6 of Schedule 7 to the Value Added Tax Act 1983, the Commisioners of Customs and Excise;
for the purposes of—
paragraph 7 of Schedule 2 to the Abolition of Domestic Rates Etc. (Scotland) Act 1987, the levying authority;
that paragraph as read with section 17(10) or (11) of that Act, the regional or islands council.
for the purposes of section 121B of the Social Security Administration Act 1992, the Commissioners of Inland Revenue;
for the purposes of paragraph 2 of Schedule 8 to the Local Government Finance Act 1992, the levying authority.; and
for the purposes of paragraph 2 of Schedule 10 to the Local Government etc. (Scotland) Act 1994, the collecting authority (within the meaning of section 79 of that Act).
for the purposes of the said section 247, includes the surcharge recoverable thereunder but excludes interest;
for the purposes of the said section 63, includes interest.
Section 108(1).
Any reference in any enactment to an order being enforceable in like manner as a recorded decree arbitral shall be construed as a reference to such an order being enforceable in like manner as an extract registered decree arbitral bearing a warrant for execution issued by the sheriff court of any sheriffdom in Scotland.
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In section 57 (unserviceable vessels to be altogether removed from harbour), for the word “poinding” there shall be substituted the word “ arrestment ”.
In section 2 (admittance to office of messengers-at-arms), for the words “according to the present law and practice” there shall be substituted the words “ in accordance with Part V of the Debtors (Scotland) Act 1987 and any Act of Sederunt made thereunder ”.
At the end of section 14 (induciae of summonses and other writs passing the signet), there shall be added the following subsection—.
In section 138 (import of short clauses of consent to registration), for the words from “letters of horning” to the end there shall be substituted the words “ , upon the issue of an extract containing a warrant for execution, all lawful execution shall pass thereon ”.
In section 4 (abolition of imprisonment for debt, with certain exceptions), for paragraph 1 there shall be substituted the following paragraph—.
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In section 693 (sums ordered to be leviable by poinding and sale of ship), for the word “poinding” there shall be substituted the word “ arrestment ”.
In section 1 (sheriff officer to have the powers of a messenger-at-arms in certain places), for the word “county” in both places where it occurs there shall be substituted the words “ sheriff court district ”.
In section 2(1)(b) (execution of arrestment or charge by registered letter in certain cases), for the word “county” there shall be substituted the words “ sheriff court district ”.
In section 12(2)(a) (recovery of fines imposed on master, etc. or crew), for the word “poinding” there shall be substituted the word “ arrestment ”.
In section 20(1) (enforcement and application of fines), for the word “poinding” there shall be substituted the word “ arrestment ”.
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After section 93 there shall be inserted the following section—.
In section 129 (time orders)—
at the beginning of subsection (1) there shall be added the words “ Subject to subsection (3) below, ”;
at the end there shall be added the following subsection—.
In section 411 (recovery by civil diligence), in subsection (1) for the words from “the words” to “14 days” there shall be substituted the wordsa warrant for civil diligence in a form prescribed by Act of Adjournal which shall have the effect of authorising— .
In section 17(1) (extension of powers of Land Court), for the words from “as if” to “to be enforced” there shall be substituted the words “ in like manner as an extract registered decree arbitral bearing a warrant for execution issued by the sheriff court of any sheriffdom in Scotland ”.
In section 93(b) and 107(3) (orders for expenses), for the words “a recorded decree arbitral” there shall be substituted the words “ an extract registered decree arbitral bearing a warrant for execution issued by the sheriff court of any sheriffdom in Scotland. ”.
In section 117 (execution and diligence against revenue traders), for subsection (9) there shall be substituted the following subsections—.
In paragraph 8 of Schedule 1 (local inquiries), for the words “a recorded decree arbitral” there shall be substituted the words “ an extract registered decree arbitral bearing a warrant for execution issued by the sheriff court of any sheriffdom in Scotland. ”.
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for subsection (1) there shall be substituted the following subsection—;
in subsection (2) for the word "poinded" in both places where it occurs there shall be substituted the words "taken into possession";
in subsection (3)—
for the words "of the poinding and" there shall be substituted the words "incurred in taking into possession the corporeal moveables and their";
in paragraph (a) for the word "poinded" there shall be substituted the words "taken into possession";
in paragraph (b) for the word "poinded" there shall be substituted the words "when they were taken into possession by the sheriff officer";
in subsection (4) for the words "poinded" and "poinding" there shall be substituted respectively the words "taken into possession" and "taking into possession the corporeal moveables".
In section 5(2)(a) (recovery of fines), for the word “poinding” there shall be substituted the word “ arrestment ”.
In section 8(2)(a) (recovery of fines), for the word “poinding” there shall be substituted the word “ arrestment ”.
For section 110 (restriction on diligence), there shall be substituted the following section—.
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in sub-paragraph (3) after the words "a sale" there shall be inserted the words "or receives payment in respect of a poinded article upon its redemption";
Nothing in this paragraph shall apply to an earnings arrestment, a current maintenance arrestment or a conjoined arrestment order.
Section 108(2).
Notwithstanding the repeal by this Act of subsection (4) of section 36 of the Sheriff Courts (Scotland) Act 1971— as if this Act had not been passed.
any direction made under that subsection which is in force immediately before the commencement of that repeal shall continue in force; and
any summary cause action for payment which is pending immediately before such commencement shall proceed and be disposed of,
The sheriff may refuse to make a time to pay order if, on an objection being duly made in pursuance of section 6(6)(a) of this Act, he is satisfied that a direction has been made under section 36(4) of the said Act of 1971 whereby the debt concerned was payable by instalments, but the right to pay by instalments has ceased by reason of failure to pay an instalment.
Without prejudice to paragraphs 4 to 6 of this Schedule, a warrant issued before the commencement of Part VI of this Act, for the enforcement by diligence of an obligation to pay money, contained in an extract of a decree of the Court of Session or the sheriff court or of a document which has been registered in the Books of Council and Session or in sheriff court books shall be treated as if it were a warrant contained in such a decree granted after the commencement of that Part.
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Nothing in this Act shall affect an arrestment of earnings in the hands of an employer which has been executed before the commencement of Part III of this Act nor preclude the bringing of an action of furthcoming in pursuance of such an arrestment or the granting of a decree in any such action.
Where an arrestment of a debtor’s earnings in the hands of an employer which has been executed before the commencement of Part III of this Act has effect in relation to earnings payable on the first pay-day occurring after such commencement, the execution of an earnings arrestment or a current maintenance arrestment against earnings payable to the debtor by the employer shall not be competent until after that pay-day.
Subject to sub-paragraph (2) below, a summary warrant granted before the commencement of Schedules 4 and 5 to this Act under or by virtue of any of the enactments to which this paragraph applies shall be deemed to authorise only the following diligences— If at the commencement of those Schedules diligence executed in pursuance of a warrant referred to in sub-paragraph (1) above is in effect, that diligence shall proceed as if this Act had not been passed. This paragraph applies to the following enactments—
Where before the commencement of paragraphs 21 and 23 of Schedule 6 to this Act— the warrant shall cease to have effect. Where before the commencement of the said paragraphs 21 and 23— the diligence shall proceed as if this Act had not been passed. This paragraph applies to the following enactments—
The provisions of this Act relating to the liability for the expenses of a diligence shall not apply in relation to a diligence to which this paragraph applies. Section 93(1) or (2) of this Act shall not prevent a creditor taking proceedings in court to recover any expenses of a diligence to which this paragraph applies which are chargeable against the debtor. Notwithstanding section 95 of this Act, a diligence to which this paragraph applies shall cease to have effect on payment or tender of the sum due under the decree or other document. This paragraph applies to the following diligences— in effect at the commencement of sections 93 and 95 of this Act.
Until the commencement of the repeal of the Supplementary Benefits Act 1976 by Schedule 11 to the Social Security Act 1986 the said Act of 1976 shall have effect as if there were inserted after section 18 of that Act the new section set out in section 68 of this Act with the following modifications—
for “25A” there shall be substituted “18A”; and
for references to income support there shall be substituted references to supplementary benefit.
Section 108. 1503 c. 45. The Diligence Act 1503. The whole Act. 1579 c. 13. The Registration Act 1579. The whole Act. 1579 c. 45. The Hornings Act 1579. The whole Act. 1581 c. 26. The Convention of Burghs Act 1581. The whole Act. 1584 c. 15. The Execution of Decrees Act 1584. The whole Act. 1587 c. 30. The Officers of Arms Act 1587. The whole Act. 1592 c. 29. The Lyon King of Arms Act 1592. In section (3) the words “messingeris and”, the words “and messingeris” and the words from “With power” to the end. In section (5) the words “and incarceratioun” and the words from “under the pane” to the end. 1593 c. 34. The Hornings Act 1593. The whole Act. 1600 c. 22. The Hornings Act 1600. The whole Act. 1607 c. 13. The Convention of Burghs Act 1607. The whole Act. 1621 c. 20. The Hornings Act 1621. The whole Act. 1661 c. 218. The Poinding Act 1661. The whole Act. 1669 c. 5. The Poinding Act 1669. The whole Act. 1669 c. 95. The Lyon King of Arms Act 1669. The words from “the fourtie sext” to “Together also with”. 1672 c. 47. The Lyon King of Arms Act 1672. The words from “are judges” to “office and”. 1681 c. 5. The Subscription of Deeds Act 1681. The word “hornings”. 1681 c. 86. The Bills of Exchange Act 1681. The words from “Letters of horning” to “and other”. 20 Geo. 2 c. 43. The Heritable Jurisdictions (Scotland) Act 1746. Section 28. 20 Geo. 2 c. 50. The Tenures Abolition Act 1746. Sections 12 and 13. 5 Geo. 3 c. 49. The Bank Notes (Scotland) Act 1765. In section 6 the words from “issuing” to “all other”. 12 Geo. 3 c. 72. The Bills of Exchange (Scotland) Act 1772. In section 42 the words “by horning or other diligence”. In section 43 the words “by horning or other diligence”. 1 & 2 Vict. c. 114. The Debtors (Scotland) Act 1838. Sections 2 to 15. Sections 23 to 31. In section 32 the words “excepting in the case of poindings”. Section 35. All the Schedules. 9 & 10 Vict. c. 67. The Citations (Scotland) Act 1846. In section 1 the words “excepting only in cases of poinding as aforesaid”. 19 & 20 Vict. c. 56. The Exchequer Court (Scotland) Act 1856. In section 28 the words from “except that” to the end. Sections 29 to 34. Section 36. Section 42. Schedules G to K. 19 & 20 Vict. c. 91. The Debts Securities (Scotland) Act 1856. In section 6 the words “of hornings”. 33 & 34 Vict. c. 63. The Wages Arrestment Limitation (Scotland) Act 1870. The whole Act. 43 & 44 Vict. c. 34. The Debtors (Scotland) Act 1880. In section 4, the proviso, the words from “a warrant” to “or under” and the words “or obligation”. 45 & 46 Vict. c. 42. The Civil Imprisonment (Scotland) Act 1882. Section 5. 55 & 56 Vict. c. 17. The Sheriff Courts (Scotland) Extracts Act 1892. Section 7(6). 10 & 11 Geo. 6 c. 43. The Local Government (Scotland) Act 1947. Sections 248 and 249. In section 250, the words from “together with” to “goods and effects” where second occurring. Sections 251 and 252. 10 & 11 Geo. 6 c. 44. The Crown Proceedings Act 1947. In section 46, proviso (a). 8 & 9 Eliz. 2 c. 21. The Wages Arrestment Limitation Amendment (Scotland) Act 1960. The whole Act. 1966 c. 19. The Law Reform (Miscellaneous Provisions) (Scotland) Act 1966. Sections 2 and 3. 1968 c. 49. The Social Work (Scotland) Act 1968. In section 80, subsections (2) and (3). 1970 c. 36. The Merchant Shipping Act 1970. In section 11(1)(a), the words “or arrestment”. 1971 c. 58. The Sheriff Courts (Scotland) Act 1971. Section 36(4). 1973 c. 22. The Law Reform (Diligence) (Scotland) Act 1973. The whole Act. 1979 c. 39. The Merchant Shipping Act 1979. In section 39, subsection (2) and in subsection (3) the words “or arrestment” and the words from “and, as” to the end. 1979 c. 54. The Sale of Goods Act 1979. Section 40. 1984 c. 43. The Finance Act 1984. Section 16.
...
a summary warrant;
income tax;
for the purposes of the said section 63, includes interest.
Subject to subsection (3) below, in this Part of this Act “earnings” means any sums payable to the debtor—
as wages or salary;
as fees, bonuses, commission or other emoluments payable under a contract of service or apprenticeship;
as a pension, including a pension declared to be alimentary, an annuity in respect of past services, (whether or not the services were rendered to the person paying the annuity), and any periodical payments of compensation for the loss, abolition, relinquishment, or diminution in earnings of any office or employment; or
as statutory sick pay.
The following shall not be treated as earnings—
a pension or allowance payable in respect of disablement or disability;
any sum the assignation of which is precluded by section 356 of the Armed Forces Act 2006 unless it is a sum consisting of pay or allowance payable by his employer to him as a special member of a reserve force (within the meaning of the Reserve Forces Act 1996);
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
any occupational pension payable under any enactment which precludes the assignation of the pension or exempts it from diligence;
a pension, allowance or benefit payable under any enactment relating to social security;
a tax credit (within the meaning of the Tax Credits Act 2002);
a guaranteed minimum pension within the meaning of the Social Security Pensions Act 1975;
a redundancy payment within the meaning of the Employment Rights Act 1996.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
"seaman" has the same meaning as in section 742 of the Merchant Shipping Act 1894;
"fishing boat" has the meaning given to it in section 370 of that Act as modified by section 744 thereof.
Any question arising as to who is the chief officer in Scotland of a department or body referred to in paragraph (b) of the definition of “employer” in subsection (1) above shall be referred to and determined by the Minister for the Civil Service, and a document purporting to set out a determination of the Minister and signed by an official of the Minister shall be sufficient evidence of that determination.
A creditor who is receiving payment from a debtor by virtue of— shall, provided the debt has not been extinguished, send, on or as soon as is reasonably practicable after the dates mentioned in subsection (2) below, to the employer or, in the case of a conjoined arrestment order, the sheriff clerk the information mentioned in subsection (3) below.
an earnings arrestment;
a current maintenance arrestment; or
a conjoined arrestment order,
The dates referred to in subsection (1) above are—
the later of—
6 April next following service of the schedule of arrestment or, as the case may be, order; or
the day falling 6 months after the service of the schedule or order; and
each 6 April thereafter.
The information referred to in subsection (1) above is—
the sum owed by the debtor to the creditor;
the amounts received by the creditor by virtue of the arrestment or order; and
the dates of payment of those amounts.
Where a debtor ceases to be employed by an employer who is deducting sums under this Part of this Act, the debtor shall give notice to the creditor or, where those sums are being deducted by virtue of a conjoined arrestment order, the sheriff clerk—
of that fact; and
of the name and address of any new employer.
The enactments mentioned in Schedule 4 to this Act shall have effect subject to the amendments specified therein.
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No person shall be imprisoned for failure to pay rates or any tax.
Section 248 of the Local Government (Scotland) Act 1947 (priority of claims for rates over other claims) is hereby repealed.
The following provisions of the Exchequer Court (Scotland) Act 1856 are hereby repealed—
in section 28 (extracts of exchequer decrees), the words from “except that” to the end;
sections 29 to 34 (special modes of diligence for the enforcement of Crown debts);
section 36 (effects of deceased Crown debtor may be attached by arrestment or poinding);
section 42 (preference of Crown over other creditors).
The Court of Session may, by Act of Sederunt, in respect of officers of court—
regulate their organisation;
regulate their training and the qualifications required to obtain a commission as messenger-at-arms or sheriff officer;
regulate their conduct in exercising their official functions;
regulate the scope of their official functions;
make provision prohibiting the undertaking by them of activities other than their official functions (referred to in this Part of this Act as “extra-official activities”) which appear to the Court to be incompatible with their official functions;
make provision permitting the undertaking by them for remuneration of other extra-official activities, not appearing to the Court to be incompatible as aforesaid, and the Act of Sederunt may attach conditions to any such permission;
prescribe the procedure in respect of applications for a commission as messenger-at-arms under section 77 of this Act or as sheriff officer;
regulate their conduct in exercising their extra-official functions;
prescribe the procedure in disciplinary proceedings against them under section 79 of this Act, and provide for the remit of any such proceedings from the Court of Session to a sheriff principal, from one sheriff principal to another sheriff principal and from a sheriff principal to the Court of Session;
make provision about their accounts and finances including the keeping and auditing of those accounts;
make provision for the keeping of records by them and the inspection of those records;
prescribe the procedure in relation to an appeal under section 82 of this Act;
make provision in respect of the finding of caution by them;
make such other provision as may appear to the Court to be appropriate.
No extra-official activity (not being an activity prohibited or regulated by an Act of Sederunt made under subsection (1)(e) or (f) above) may be undertaken by an officer of court for remuneration unless the officer of court obtains the permission of the sheriff principal from whom he holds a commission to his undertaking the activity, but the sheriff principal shall not withhold such permission unless it appears to him that the undertaking by the officer of court of the activity would be incompatible with the officer of court’s official functions.
The sheriff principal may attach conditions to , or revoke, any permission granted by him under subsection (2) above.
There shall be a body, (to be known as “the Advisory Council on Messengers-at-Arms and Sheriff Officers” and in this section referred to as “the Advisory Council”) whose duties shall be to advise the Court of Session on the making of Acts of Sederunt under section 75 of this Act and generally to keep under review all matters relating to officers of court.
The Advisory Council shall consist of—
the following persons appointed by the Lord President of the Court of Session—
a judge of the Court of Session who shall act as chairman;
2 sheriffs principal;
2 officers of court; ...
2 solicitors; and
such other persons (not falling within sub-paragraphs (i) to (iv) above) as the Lord President considers appropriate.
one person appointed by the Lord Advocate; and
the Lord Lyon King of Arms.
The secretary of the Advisory Council shall be appointed by the Secretary of State.
Subject to subsections (5) and (6) below, the members of the Advisory Council appointed under paragraphs (a) and (b) of subsection (2) above shall hold office for 3 years and be eligible for reappointment.
Subsection (4) above applies to members of the Advisory Council appointed under sub-paragraphs (i) to (iv) of paragraph (a) of subsection (2) above only so long as they respectively retain the offices or, as the case may be, qualification specified in those sub-paragraphs.
If the Lord President or, as the case may be, the Lord Advocate is satisfied that a person appointed by him under subsection (2) above has ceased to be a fit and proper person to hold the appointment, he may terminate that person’s appointment.
Where a member of the Advisory Council appointed under subsection (2)(a)(i) to (iv) or (b) above ceases to be a member (whether by resignation or otherwise) prior to the expiry of 3 years after the date of his appointment or reappointment, the vacancy shall be filled by appointment of another person holding the same office or, as the case may be, possessing the same qualification.
Subject to subsection (6) above, any person appointed in pursuance of subsection (7) above to fill a vacancy shall remain a member of the Advisory Council only until the expiry of 3 years after the date of the appointment or reappointment of the member whom he succeeded, but shall be eligible for reappointment.
The Advisory Council shall have power to regulate the summoning of its meetings and the procedure at such meetings; and at any such meetings 3 members shall be a quorum.
The Court of Session, on an application made under this section by a sheriff officer, may find the applicant suitable to be appointed as a messenger-at-arms and recommend such appointment to the Lord Lyon King of Arms; and, on receipt of such a recommendation, the Lord Lyon King of Arms may grant the applicant a commission as a messenger-at-arms.
A messenger-at-arms shall not be authorised by his commission as messenger-at-arms to execute a warrant granted by a sheriff or sheriff clerk.
A messenger-at-arms shall cease to be entitled to hold a commission as messenger-at-arms if he no longer holds a commission as a sheriff officer.
Any rule of law and any other enactment regulating the appointment of messengers-at-arms shall cease to have effect.
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The sheriff principal— appoint such a person as he thinks fit to inspect the work or particular aspects of the work of that officer.
may from time to time in relation to any sheriff officer who holds a commission from him, and
shall, if directed to do so by the Court of Session in relation to any sheriff officer who is a messenger-at-arms,
A person appointed under subsection (1) above may, and if the Court of Session directs the sheriff principal so to require shall, be required by the sheriff principal to make enquiry as to extra-official activities undertaken for remuneration by the officer of court concerned.
A person appointed under subsection (1) above shall make a report of his inspection and of any enquiry under subsection (2) above to the sheriff principal and, if the report is concerned with the work or extra-official activities of any messenger-at-arms, shall send a copy thereof to the Court of Session.
A person appointed under subsection (1) above shall be entitled— in connection with an inspection, enquiry and report under this section.
to a fee, unless he is employed full-time in the civil service of the Crown; and
to payment of his outlays incurred,
This section applies where—
a report under section 66(3) of the Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3) (in this Part “the 2007 Act”) discloses that any officer of court may have been guilty of misconduct;
a report by a sheriff or a complaint by any other person is made—
to the Court of Session alleging misconduct by a messenger-at-arms;
to the sheriff principal from whom a sheriff officer holds a commission alleging misconduct by the officer;...
any judge of the Court of Session, or a sheriff principal, has reason to believe that an officer of court may have been guilty of misconduct; or
details of a complaint about an officer of court are sent to the Lord President of the Court of Session or a sheriff principal under section 64 of the 2007 Act;
any judge of the Court of Session, or a sheriff principal—
becomes aware (whether by notification under subsection (1) of section 62 of the 2007 Act or otherwise) that an event mentioned in subsection (2) of that section has occurred in respect of an officer of court; and
considers that the occurrence of that event or the circumstances surrounding it, although falling short of misconduct and not involving the commission of an offence, gives rise to concerns about the officer, the officer's exercise of official functions or the officer's undertaking of extra-official activities.
Where this section applies, a judge nominated by the Lord President of the Court of Session, or the sheriff principal, after giving the officer of court an opportunity to admit or deny the misconduct or to give an explanation of the matter, may appoint a solicitor to investigate the matter unless the officer of court—
admits the misconduct in writing, or
gives a satisfactory explanation of the matter.
Where the solicitor after carrying out an investigation in pursuance of subsection (2) above is of the opinion—
that there is a probable case of misconduct and that there is evidence sufficient to justify proceedings, disciplinary proceedings shall be brought at his instance against the officer of court before the relevant court;
that there is not a probable case of misconduct or that there is insufficient evidence to justify proceedings, he shall report that fact to the relevant court.
The solicitor shall be entitled to a fee, and to payment of his outlays incurred, in connection with an investigation, and any disciplinary proceedings brought by him, under this section.
The relevant court may award expenses in any disciplinary proceedings brought under this section in favour of or against either party to the proceedings; and for the purposes of this subsection and section 45 of the Crown Proceedings Act 1947 the party bringing the proceedings shall be deemed to be the Lord Advocate.
Where expenses are awarded under subsection (5) above in favour of—
the officer of court, the expenses shall be recoverable by him from the Lord Advocate;
the Lord Advocate, the expenses shall be recoverable from the officer of court by the Lord Advocate.
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In this section “the relevant court” means whichever of the Court of Session or the sheriff principal made the appointment under subsection (2) above.
In this section and section 80 of this Act “misconduct” includes
conduct tending to bring the office of messenger-at-arms or sheriff officer into disrepute;
failure to notify the Lord President of the Court of Session or the sheriff principal under subsection (1) of section 62 of the 2007 Act of the occurrence of an event mentioned in subsection (2) of that section;
failure to provide information mentioned in subsection (1A) of section 63 of that Act required by virtue of regulations made under subsection (1) of that section;
failure to comply with any code of practice or revised code of practice published under section 63A of that Act; and
where a fee is due by virtue of rules made under subsection (1) of section 65A of that Act and a date as mentioned in subsection (2)(a) of that section has been specified by the rules, failure to pay the fee within 3 months of that date.
Where the Court of Session becomes aware that a messenger-at-arms has been convicted by a court of any offence, it may make
an order finding that the messenger-at-arms should be suspended from practice for such period as may be specified in the order, or deprived of office;
an order mentioned in paragraph (aa) or (c) of subsection (5) below.
Where the sheriff principal from whom a sheriff officer holds a commission becomes aware that the sheriff officer has been convicted by a court of any offence, the sheriff principal may make
an order suspending the sheriff officer from practice for such period as may be specified in the order, or depriving him of office, in that sheriffdom;
an order in relation to the sheriff officer of a kind mentioned in paragraph (aa) or (c) of subsection (5) below.
Subsections (1) and (2) above are without prejudice to section 4(3)(b) of the Rehabilitation of Offenders Act 1974; and in those subsections “offence” means any offence of which the officer of court has been convicted before or after he was granted a commission as an officer of court, other than any offence disclosed in his application for such a commission.
Where— the Court of Session may make one or more of the orders specified in subsection (5) below.
a messenger-at-arms admits in writing that he is guilty of misconduct; or
the Court of Session at the end of disciplinary proceedings under section 79(3)(a) of this Act is satisfied that a messenger-at-arms is guilty of misconduct,
Where— the Court of Session may make an order finding that the messenger-at-arms should be suspended from practice for such period as may be specified in the order or in an order extending such period.
a solicitor is appointed to investigate a matter in respect of a messenger-at-arms under section 79(2) of this Act; or
the Court of Session becomes aware that a messenger-at-arms has been charged with an offence,
The orders referred to in subsection (4) above are—
an order finding that the messenger-at-arms should be suspended from practice for such period as may be specified in the order, or deprived of office;
an order imposing a fine on the messenger-at-arms not exceeding £2,500 or such sum as may be prescribed in regulations made by the Lord Advocate;
an order restricting— for such period as may be specified in the order;
the functions which the messenger-at-arms may exercise; or
the activities which the messenger-at-arms may undertake,
an order censuring the messenger-at-arms;
if the misconduct consists of, or includes, the charging of excessive fees or outlays, an order decerning for repayment by the messenger-at-arms of the fees or outlays, to the extent that they were excessive, to the person who paid them.
Where— the sheriff principal may make an order suspending the officer from practice for such period as may be specified in the order or in an order extending such period in that sheriffdom.
a solicitor is appointed to investigate a matter in respect of a sheriff officer under section 79(2) of this Act; or
the sheriff principal from whom a sheriff officer holds a commission becomes aware that the sheriff officer has been charged with an offence,
Where— the sheriff principal may make one or more of the orders specified in subsection (7) below.
a sheriff officer admits in writing that he is guilty of misconduct; or
the sheriff principal at the end of disciplinary proceedings under section 79(3)(a) of this Act is satisfied that a sheriff officer is guilty of misconduct,
The orders referred to in subsection (6) above are—
an order suspending the sheriff officer from practice for such period as may be specified in the order, or depriving him of office, in that sheriffdom;
an order in relation to the sheriff officer of a kind mentioned in subsection (5)(aa), (b), (c) or (d) above.
Where the Court of Session at the end of disciplinary proceedings brought under subsection (3) of section 79 of this Act is satisfied that a concern mentioned in subsection (1)(d)(ii) of that section in relation to a messenger-at-arms is founded, the Court of Session may make an order under paragraph (a) or (aa) of subsection (5) below.
Where an officer of court fails to comply with an order under this section imposing a fine on him, the Court of Session or, as the case may be, the sheriff principal may make an order—
decerning for payment of the fine, and an extract of any such order shall contain a warrant in the form prescribed by Act of Sederunt which shall have the same effect as an extract of a decree for payment of money pronounced by the Court of Session; or
of the kind specified in subsection (5)(a) or, as the case may be, (7)(a) above.
Any fine imposed under this section shall be recoverable by the Lord Advocate.
Where the sheriff principal at the end of disciplinary proceedings brought under subsection (3) of section 79 of this Act is satisfied that a concern mentioned in subsection (1)(d)(ii) of that section in relation to a sheriff officer is founded, the sheriff principal may make, in relation to the sheriff officer, an order—
of a kind mentioned in paragraph (aa) of subsection (5) above; or
under paragraph (a) of subsection (7) below.
The Court of Session shall cause intimation to be made of any order of the Court of Session under section 80(1)(a), (3A), (4), (4A) or (8)(b) of this Act to—
every sheriff principal from whom the messenger-at-arms holds a commission as a sheriff officer;
the Lord Lyon King of Arms;
the professional association designated under section 63(1) of the 2007 Act.
The sheriff principal shall cause intimation to be made of any order made by him under section 80(2)(a), (3B), (6), (6A) or (8)(b) of this Act—
to every other sheriff principal from whom the sheriff officer holds a commission as a sheriff officer; ...
if the sheriff officer is a messenger-at-arms, to the Court of Session and the Lord Lyon King of Arms, and
the professional association designated under section 63(1) of the 2007 Act.
On intimation under this section of an order under section 80(1)(a), (2)(a), (3A), (3B) or (8)(b) of this Act or of an order under subsection (4) or (6) of that section specified respectively in subsection (5)(a) or (7)(a) thereof or of an order under subsection (4A) or (6A) of that section specified respectively in subsection (5)(a) or (7)(a) thereof—
to a sheriff principal, he shall make an order suspending the sheriff officer concerned from practice until the expiry of the period for which he has been suspended by the order so intimated, or (as the case may be) depriving him of office, in the sheriffdom;
to the Lord Lyon King of Arms, he shall—
in the case of an order intimated under subsection (1) above, suspend the messenger-at-arms concerned from practice for the period specified in the order or (as the case may be) deprive him of office; or
in the case of an order intimated under subsection (2) above, suspend the messenger-at-arms from practice until the expiry of the period for which he has been suspended by the order so intimated or (as the case may be) deprive him of office.
It shall not be competent for the Lord Lyon King of Arms to discipline a messenger-at-arms or suspend him from practice or deprive him of office except in accordance with subsection (3)(b) above.
...
An appeal to the Inner House of the Court of Session may be made against any decision of a Lord Ordinary or a sheriff principal undersection 77(1), section 79(5) or section 80(1), (2), (3A), (3B), (4), (4A), (6), (6A) or (8)(b) of this Act
The decision of the Inner House on an appeal under subsection (1) shall be final.
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The service of a charge for payment or the execution of diligence, or of a warrant in any proceedings, by an officer of court shall be void if the subject matter of the charge, diligence or proceedings—
is one in which the officer of court has an interest as an individual; or
consists of or includes a debt in respect of which any of the circumstances mentioned in subsection (2) below apply.
The circumstances referred to in subsection (1)(b) above are where the debt is due to—
a company or firm, and the officer of court—
is a director or partner of that company or firm or holds by himself, or along with a business associate or with a member of his family, a controlling interest therein; or
has a pecuniary interest in that company or firm and the principal business of the company or firm is the purchase of debts for enforcement;
a business associate of the officer of court, or to a member of the officer of court's family;
a company or firm, and a business associate of the officer of court or a member of the officer of court's family—
is a director or partner of that company or firm or holds a controlling interest therein; or
has a pecuniary interest in that company or firm and the principal business of the company or firm is the purchase of debts for enforcement.
Any reference in subsection (2) above to—
a business associate of an officer of court shall be construed as a reference to a co-director, partner, employer, employee, agent or principal of the officer of court;
a member of an officer of court's family shall be construed as a reference to the wife or husband, a parent or child, a grandparent or grandchild, or a brother or sister of the officer of court (whether of the full blood or the half-blood or by affinity);
a controlling interest in a company shall be construed in accordance with paragraph 13(7) of Schedule 4 to the Finance Act 1975.
In subsection (3)(a) above "principal" does not include a principal in a contract for the service of a charge or the execution of diligence or of a warrant in relation to the debt concerned.
The Lord Advocate may require any officer of court to provide information, in such form and at such times as he may specify, regarding the officer of court’s official functions.
Subject to subsection (3) below, the Lord Advocate may publish, in such form as he thinks fit, information provided under subsection (1) above.
Information published under subsection (2) above shall not be in a form which identifies or enables the identification of officers of court or persons against whom diligence has been executed.
There shall cease to have effect any rule of law whereby, if an officer of court has been found liable to a creditor for negligent delay or failure to execute diligence, or for other fault in the execution of diligence, the damages payable by the officer of court are determined solely by reference to the amount of the debt.
An official identity card shall be issued to every officer of court by or on behalf of the person from whom he holds his commission.
When carrying out his official functions an officer of court shall exhibit his identity card on being requested to do so.
In this Part, any reference to an admission in writing includes a reference to that admission being an electronic communication (within the meaning given by section 15(1) of the Electronic Communications Act 2000 (c. 7)).
Arrestment and action of furthcoming or sale shall be competent only in execution of—
subject to subsection (2) below, a decree; or
a document of debt.
Arrestment and action of furthcoming or sale in execution of a summary warrant shall be competent only if—
the debtor has been charged to pay the debt due by virtue of the summary warrant; and
the period for payment specified in the charge has expired without payment being made.
Any rule of law, having effect immediately before the coming into force of this section, as to the decrees or documents on which arrestment and action of furthcoming or sale can proceed shall, in so far as inconsistent with this section, cease to have effect.
In this Part of this Act—
The Scottish Ministers may, by order, modify the definitions of “decree” and “document of debt” in subsection (4) above so as to—
add or remove types of decree or document to or, as the case may be, from those referred to in that provision; or
vary any of the descriptions of the types of decree or document there referred to.
This section applies where a creditor arrests in execution of —
a decree and the creditor has not executed an arrestment on the dependence of the action; or
a document of debt.
The schedule of arrestment used in executing the arrestment shall be in (or as nearly as may be in) the form prescribed by the Scottish Ministers by regulations.
This section applies where a creditor obtains a decree (in this Part of this Act referred to as a “final decree”) in an action on the dependence of which the creditor has executed an arrestment.
The creditor shall, as soon as reasonably practicable, serve a copy of that final decree, in (or as nearly as may be in) the form prescribed by Act of Sederunt, on the arrestee.
This section applies where—
a creditor—
obtains a final decree in an action on the dependence of which the creditor has executed an arrestment; or
arrests in execution of a decree or document of debt; and
the debtor is an individual.
The creditor shall, during the period of 48 hours beginning with the time at which the copy of the final decree is served under section 73C(2) of this Act or, as the case may be, the time at which the schedule of arrestment is served, provide the debtor with a debt advice and information package.
Where the creditor fails to comply with subsection (2) above, the arrestment shall cease to have effect or, as the case may be, shall be incompetent.
In this section, “debt advice and information package” has the meaning given by section 47(4) of this Act.
Subsections (2) to (5) below apply—
where a creditor arrests in execution of —
a decree and the creditor has not executed an arrestment on the dependence of the action; or
a document of debt; and
only to the extent that the arrestee holds funds due to the debtor the value of which, at the time the arrestment is executed, is or can be ascertained (whether or not that arrestee also holds other moveable property of the debtor).
Subject to subsection (4) below and to section 73F of this Act, the funds mentioned in subsection (1)(b) above attached by the arrestment shall be the lesser of—
the sum due by the arrestee to the debtor; or
the aggregate of—
the principal sum, in relation to which the decree or document is executed, owed by the debtor to the creditor;
any judicial expenses chargeable against the debtor by virtue of the decree;
the expenses of executing the arrestment;
interest on the principal sum up to and including the date of service of the schedule of arrestment;
the interest on the principal sum which would be accrued in the period of 1 year beginning with the day after the date mentioned in sub-paragraph (iv) above;
any interest on the expenses of executing the arrestment which is chargeable against the debtor; and
any sum prescribed under subsection (3) below.
The Scottish Ministers may, by regulations, prescribe a sum which appears to them to be reasonable having regard to the average expenses likely to be incurred and chargeable against a debtor in a typical action of furthcoming.
Where— the arrestment shall, in addition to the funds equal to the sum mentioned in that paragraph (a), attach the whole moveable property so held.
the arrestee holds both funds due to and other moveable property of the debtor; and
the sum mentioned in paragraph (b) of subsection (2) above exceeds the sum mentioned in paragraph (a) of that subsection,
Except as provided for in subsection (4) above, an arrestment to which this section applies shall not attach any moveable property of the debtor other than the sum attached under subsection (2) above.
Where, in a case to which subsections (2) to (5) above apply— the arrestment shall not attach any of the funds mentioned in paragraph (a) above.
in addition to the funds mentioned in subsection (1)(b) above, the arrestee holds funds due to the debtor the value of which is not or cannot be ascertained; and
the sum mentioned in paragraph (a) of subsection (2) above exceeds the sum mentioned in paragraph (b) of that subsection,
Subject to subsection (2) below, this section applies where—
a creditor arrests—
in pursuance of a warrant granted for diligence on the dependence of an action; or
in execution of a decree or document of debt;
the arrestment attaches funds standing to the credit of a debtor in an account held by a bank or other financial institution; and
the debtor is an individual.
This section does not apply where the account is—
held in the name of a company, a limited liability partnership, a partnership or an unincorporated association; or
operated by the debtor as a trading account.
The arrestment shall—
in a case where the sum standing to the credit of the debtor exceeds the sum of £1,000, attach only the balance above that sum; and
in any other case, attach no funds.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
In subsection (1) above, “bank or other financial institution” means— and the expressions in this definition shall be read with section 22 of that Act, any relevant order made under that section and Schedule 2 to that Act.
the Bank of England;
a person who has permission under Part 4A of the Financial Services and Markets Act 2000 (c. 8) to accept deposits;
an EEA firm of the kind mentioned in paragraph 5(b) of Schedule 3 to that Act which has permission under paragraph 15 of that schedule (as a result of qualifying for authorisation under paragraph 12 of that schedule) to accept deposits; or
a person who is exempt from the general prohibition in respect of accepting deposits as a result of an exemption order made under section 38(1) of that Act,
The Scottish Ministers may, by regulations—
modify subsection (2) above so as to—
add or remove types of account to or, as the case may be, from those referred to in that paragraph; or
vary any of the descriptions of the types of account there referred to; ...
vary the protected minimum sum mentioned in subsection (3)(a), and
modify the definition of “bank or other financial institution” in subsection (5) above so as to—
add or remove types of financial institution to or, as the case may be, from those referred to in that provision; or
vary any of the descriptions of the types of institution there referred to.
This section applies where a creditor arrests—
in pursuance of a warrant granted for diligence on the dependence of an action; or
in execution of a decree or document of debt.
The arrestee shall, before the expiry of the period mentioned in subsection (3) below, send to the creditor in (or as nearly as may be in) the form prescribed by the Scottish Ministers by regulations, the information mentioned in subsection (4) below.
The period referred to in subsection (2) above is the period of 3 weeks beginning with the day on which the arrestment is executed.
The information referred to in subsection (2) above is—
where any property, other than funds due to the debtor, is attached—
the nature of that property; and
the value of it in so far as known to the arrestee; and
where any such funds are attached, the nature and value of those funds.
The arrestee shall, at the same time as sending, under subsection (2) above, the information to the creditor, send a copy of it to—
the debtor; and
in so far as known to the arrestee, any person— solely or in common with the debtor.
who owns or claims to own attached property; or
to whom attached funds are or are claimed to be due,
Where an arrestee fails without reasonable excuse to send the prescribed form under section 73G(2) of this Act, the sheriff may, on the application of the creditor, make an order requiring the arrestee to pay to the creditor— whichever is the lesser.
the sum due to the creditor by the debtor; or
the sum mentioned in section 73F(4) of this Act,
Where the arrestee fails to send the prescribed form in relation to an arrestment on the dependence of an action, the sheriff—
may not make an order under subsection (1) above until the creditor has served a copy of the final decree under section 73C(2) above; and
may deal with the failure as a contempt of court.
Where a sum is paid by virtue of an order under subsection (1) above—
the debt owed by the debtor to the creditor shall be reduced by that sum; and
the arrestee shall not be entitled to recover that sum from the debtor.
An arrestee aggrieved by an order under subsection (1) above may, before the expiry of the period of 2 weeks beginning with the day on which the order is made, appeal, on point of law only, to the sheriff principal, whose decision shall be final.
This section applies where—
a creditor—
obtains a final decree in an action on the dependence of which the creditor has executed an arrestment; or
arrests in execution of a decree or document of debt; and
the arrestment attaches funds which are due to the debtor (whether or not it also attaches other moveable property of the debtor).
Subject to section 73L of this Act, the arrestee—
shall, on the expiry of the period mentioned in subsection (3) below, release to the creditor, from the attached funds, a sum calculated in accordance with section 73K of this Act; and
may, where a mandate authorises the arrestee to do so, release that sum before the expiry of that period.
The period referred to in subsection (2) above is the period of 14 weeks beginning with the date of service of a copy of the final decree under section 73C(2) of this Act or, as the case may be, the date of service of the schedule of arrestment.
In this section and in sections 73K to 73P of this Act, references to funds or sums due to or by any person do not include references to funds or sums due in respect of future or contingent debts.
The sum released under section 73J(2) of this Act is the lowest of—
the sum attached by the arrestment;
the sum due by the arrestee to the debtor; or
the aggregate of—
the principal sum, in relation to which the decree or document is executed or, as the case may be, which is decerned for in the final decree, owed by the debtor to the creditor;
any judicial expenses chargeable against the debtor by virtue of the decree or final decree;
the expenses of executing the arrestment;
interest on the principal sum up to and including the date of service of the schedule of arrestment or, as the case may be, the date of the final decree;
the interest on the principal sum which would be accrued in the period beginning with the day after the date mentioned in sub-paragraph (iv) above and ending on the day on which the funds are released under section 73J(2) of this Act; and
any interest on the expenses of executing the arrestment which is chargeable against the debtor.
No funds may be released under section 73J(2) of this Act where—
a person mentioned in subsection (2) below applies, by notice of objection, to the sheriff under section 73M(1) of this Act;
the debtor applies to the sheriff under section 73Q(2) of this Act;
an action of multiplepoinding is raised in relation to the funds attached by the arrestment; or
the arrestment is—
recalled;
restricted; or
otherwise ceases to have effect.
The persons referred to in subsection (1)(a) above are—
the debtor;
the arrestee; and
any other person to whom the funds are due solely or in common with the debtor (in this section and in sections 73M and 73N of this Act, the “third party”).
Where section 73J of this Act applies— may, by notice of objection, apply to the sheriff for an order recalling or restricting the arrestment.
the debtor;
the arrestee; or
a third party,
The notice of objection referred to in subsection (1) above shall—
be in (or as nearly as may be in) the form prescribed by Act of Sederunt;
be given to the persons mentioned in subsection (3) below before the expiry of the period of 4 weeks beginning with the date of service of a copy of the final decree under section 73C(2) of this Act or, as the case may be, the date of service of the schedule of arrestment; and
specify one or more of the grounds of objection mentioned in subsection (4) below.
The persons referred to in subsection (2)(b) above are—
the creditor;
the sheriff clerk;
the debtor or, as the case may be, the arrestee; and
in so far as known to the person objecting, any third party.
The grounds of objection referred to in subsection (2)(c) above are—
the warrant in execution of which the arrestment was executed is invalid;
the arrestment has been executed incompetently or irregularly;
the funds attached are due to the third party solely or in common with the debtor.
Where a person applies by notice of objection under subsection (1) above, that person may not, subject to subsection (6) below, raise— in relation to the funds attached.
an action of multiplepoinding; or
subject to subsection (7) below, any other proceedings,
Subsection (5) above is without prejudice to the right of the person—
to enter any such action or proceedings raised by any other person; and
to raise such an action or proceedings where the sheriff makes, under section 73N(5) of this Act, an order sisting the proceedings on the objection.
A debtor who applies by notice of objection under subsection (1) above may apply to the sheriff under section 73Q(2) of this Act and, in such a case, the sheriff may deal with both applications at one hearing.
Subject to subsection (5) below, before the expiry of the period of 8 weeks beginning with the day on which an application by notice of objection is made under section 73M(1) of this Act, the sheriff shall hold a hearing to determine the objection.
At the hearing under subsection (1) above, the sheriff shall not make any order without first giving— an opportunity to be heard.
the creditor;
the arrestee;
the debtor; and
any third party,
Where the sheriff upholds the objection, the sheriff may make an order recalling or restricting the arrestment.
Where the sheriff rejects the objection, the sheriff may make an order requiring a sum determined in the order to be released to the creditor—
in a case where the period mentioned in section 73J(3) of this Act has not expired, on the expiry of that period; or
in any other case, as soon as reasonably practicable after the date on which the order is made.
Where— the sheriff shall make an order sisting the proceedings on the objection.
the sheriff is satisfied that it is more appropriate for the matters raised at the hearing to be dealt with by— raised in relation to the funds attached; or
an action of multiplepoinding; or
other proceedings,
at any time before a decision is made under subsections (3) or (4) above, such an action is or other proceedings are raised,
The sheriff may make such other order as the sheriff thinks fit.
Where the sheriff makes an order under this section, the sheriff shall order the person who objected to intimate that order to such of the persons mentioned in subsection (2) above as the sheriff thinks fit.
A person aggrieved by a decision of the sheriff under this section may, before the expiry of the period of 14 days beginning with the day on which the decision is made, appeal, on point of law only, to the sheriff principal, whose decision shall be final.
Where an arrestee releases funds under section 73J(2) of this Act in good faith but— the arrestee is not liable to the debtor or to any other person having an interest in the funds for damages for patrimonial loss caused by the release of funds.
the warrant in execution of which the arrestment was executed is invalid; or
the arrestment was incompetently or irregularly executed,
This section applies where—
a creditor—
obtains final decree in an action on the dependence of which the creditor executed an arrestment; or
arrests in execution of a decree or document of debt; and
the arrestment attaches funds due to or other moveable property of the debtor.
The debtor may apply to the sheriff for an order—
providing that the arrestment ceases to have effect in relation to—
the funds or other property attached; or
so much of those funds or that property as the sheriff specifies; and
requiring the arrestee to release the funds or property to the debtor.
An application under subsection (2) above shall be—
in (or as nearly as may be in) the form prescribed by Act of Sederunt;
made at any time during which the arrestment has effect; and
intimated to—
the creditor;
the arrestee; and
any other person appearing to have an interest.
At the hearing on an application under section 73Q(2) of this Act, the sheriff shall not make any order without first giving— an opportunity to be heard.
the creditor;
the arrestee; and
any other person appearing to the court to have an interest,
Subject to subsection (3) below, if the sheriff is satisfied that the arrestment is unduly harsh— the sheriff shall make an order such as is mentioned in section 73Q(2) of this Act.
to the debtor; or
where the debtor is an individual, to any person such as is mentioned in subsection (4) below,
Before making an order under subsection (2) above the sheriff shall have regard to all the circumstances including, in a case where the debtor is an individual and funds are attached—
the source of those funds; and
where the source of those funds is or includes earnings, whether an earnings arrestment, current maintenance arrestment or conjoined arrestment order is in effect in relation to those earnings.
The persons referred to in subsection (2)(b) above are—
a spouse of the debtor;
a person living together with the debtor as husband and wife;
a civil partner of the debtor;
a person living with the debtor in a relationship which has the characteristics of the relationship between a husband and wife except that the person and the debtor are of the same sex;
a child of the debtor under the age of 16 years, including—
a stepchild; and
any child brought up or treated by the debtor or any person mentioned in paragraph (b), (c) or (d) above as a child of the debtor or, as the case may be, that person.
Where the sheriff refuses to make an order under subsection (2) above, the sheriff may, in a case where funds are attached, make an order requiring a sum determined in the order to be released to the creditor—
in a case where the period mentioned in section 73J(3) of this Act has not expired, on the expiry of that period; or
in any other case, as soon as reasonably practicable after the date on which the order is made.
Where the sheriff makes an order under this section, the sheriff shall order the debtor to intimate that order to the persons mentioned in subsection (1) above.
A person aggrieved by a decision of the sheriff under this section may, before the expiry of the period of 14 days beginning with the day on which the decision is made, appeal, on point of law only, to the sheriff principal, whose decision shall be final.
A mandate authorising an arrestee to pay over any funds or hand over other property attached by an arrestment shall be in (or as nearly as may be in) the form prescribed by the Scottish Ministers by regulations.
A mandate which is not in (or as nearly as may be in) the prescribed form is invalid.
Where— the arrestee is not liable to the debtor or to any other person having an interest in the funds or property for damages for patrimonial loss caused by paying over the funds or handing over the property provided the arrestee acted in good faith.
a mandate is invalid by virtue of subsection (2) above; but
the arrestee pays over funds or hands over other property in accordance with that mandate,
For the avoidance of doubt, this Part of this Act does not apply to the arrestment of a ship, cargo or other maritime property.
Every extract of a decree for the payment of money, or among other things for the payment of money, which is pronounced by— shall contain a warrant in the form prescribed by Act of Sederunt or, as the case may be, by Act of Adjournal.
the Court of Session;
the High Court of Justiciary; or
the Court of Teinds,
The warrant referred to in subsection (1) above shall have the effect of authorising—
in relation to an ordinary debt, the charging of the debtor to pay to the creditor within the period specified in the charge the sum specified in the extract and any interest accrued on the sum and, in the event of failure to make such payment within that period, the execution of an earnings arrestment , a land attachment, a residual attachment, a money attachment and the attachment of articles belonging to the debtor and, if necessary for the purpose of executing the land attachment, residual attachment, money attachment or attachment, the opening of shut and lockfast places;
in relation to an ordinary debt, an arrestment other than an arrestment of the debtor’s earnings in the hands of his employer; and
if the decree consists of or includes a maintenance order, a current maintenance arrestment in accordance with Part III of this Act.
in relation to an ordinary debt, inhibition against the debtor;
the said warrant shall have the effect of authorising—
For section 3 of the Writs Execution (Scotland) Act 1877 there shall be substituted the following section—.
An extract of a decree in an action of poinding of the ground shall contain a warrant in the form prescribed by Act of Sederunt which shall have the effect of authorising a poinding of the ground.
This section applies where a creditor has acquired by assignation intimated to the debtor, confirmation as executor, or otherwise a right to— either directly or through a third party from a person in whose favour the decree, order or determination was granted or who was the creditor in the obligation contained in the document.
a decree;
an obligation contained in a document an extract of which, after the document has been registered in the Books of Council and Session or in sheriff court books, may be obtained containing warrant for execution;
an order or determination which by virtue of any enactment is enforceable as if it were an extract registered decree arbitral bearing a warrant for execution issued by a sheriff,
Where this section applies, the creditor who has acquired a right as mentioned in subsection (1) above may apply to the appropriate clerk for a warrant having the effect of authorising the execution at the instance of that creditor of any diligence authorised by an extract of the decree or document or by the order or determination, as the case may be.
The applicant under subsection (2) above shall submit to the appropriate clerk—
an extract of the decree or of the document registered as mentioned in subsection (1)(b) above or a certified copy of the order or determination; and
the assignation (along with evidence of its intimation to the debtor), confirmation as executor or other document establishing the applicant’s right.
The appropriate clerk shall grant the warrant applied for under subsection (2) above if he is satisfied that the applicant’s right is established.
Where— a warrant granted under subsection (4) above shall authorise the execution at the instance of the applicant of diligence in pursuance of that charge.
a charge has already been served in pursuance of the decree, order, determination or registered document; and
the applicant under subsection (2) above submits with his application the certificate of execution of the charge in addition to the documents mentioned in subsection (3) above,
For the purposes of this section, “the appropriate clerk” shall be—
in the case of a decree granted by the Court of Session or a document registered (whether before or after such acquisition) in the Books of Council and Session, a clerk of court of the Court of Session;
in the case of a decree granted by the High Court of Justiciary, a clerk of Justiciary;
in the case of a decree granted by a sheriff or a document registered (whether before or after such acquisition) in the books of a sheriff court, the sheriff clerk of that sheriff court;
in the case of such an order or determination as is mentioned in subsection (1)(c) above, any sheriff clerk.
The granting of letters of horning, letters of horning and poinding, letters of poinding and letters of caption shall cease to be competent.
... The execution of ... an earnings arrestment shall not be competent unless a charge for payment has been served on the debtor and the period for payment specified in the charge has expired without payment being made.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
The following subsections of this section apply to any case where it is competent to execute diligence only if a charge for payment has been served on the debtor.
The period for payment specified in any charge for payment served in pursuance of a warrant for execution shall be 14 days if the person on whom it is served is within the United Kingdom and 28 days if he is outside the United Kingdom or his whereabouts are unknown.
Any such charge shall be in the form prescribed by Act of Sederunt or Act of Adjournal.
Subject to subsection (6) below, where any such charge has been served, it shall not be competent to execute diligence by virtue of that charge more than 2 years after the date of such service.
A creditor may reconstitute his right to execute diligence by the service of a further charge for payment.
No expenses incurred in the service of a further charge for payment within the period of 2 years after service of the first charge shall be chargeable against the debtor.
Registration of certificates of execution of charges for payment in a register of hornings shall cease to be competent.
The following may be executed anywhere in Scotland—
a warrant for execution contained in an extract of a decree granted by a sheriff;
a warrant for execution inserted in an extract of a document registered in sheriff court books;
a summary warrant;
a warrant of a sheriff for arrestment on the dependence of an action or in security;
a precept (issued by a sheriff clerk) of arrestment in security of a liquid debt the term of payment of which has not arrived.
A warrant or precept mentioned in subsection (1) above may be executed by a sheriff officer of—
the court which granted it; or
the sheriff court district in which it is to be executed.
Subject to subsection (2) below, a debtor shall not be liable to a creditor, nor a creditor to a debtor, for any expenses incurred by the other party in connection with an application, any objections to an application, or a hearing, under any provision of this Act.
If— the sheriff may award a sum of expenses, not exceeding £25 or such amount as may be prescribed in regulations made by the Lord Advocate, against the party acting frivolously in favour of the other party.
an application under any provision of this Act is frivolous;
such an application is opposed on frivolous grounds; or
a party requires a hearing under any provision of this Act to be held on frivolous grounds,
Subsections (1) and (2) above do not apply to—
expenses of poinding and sale for which provision is made in Schedule 1 to this Act or paragraphs 25 to 34 of Schedule 5 to this Act; or
expenses incurred—
under section 1 of this Act;
in connection with an appeal under any provision of this Act; or
by or against a person other than the debtor or a creditor in connection with an application under any provision of this Act.
Subject to subsections (3) and (5) below, any expenses chargeable against the debtor which are incurred in— shall be recoverable from the debtor by the diligence concerned but not by any other legal process, and any such expenses which have not been recovered by the time the diligence is completed or otherwise ceases to have effect shall cease to be chargeable against the debtor.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
the service of an earnings arrestment schedule (including the service of the charge preceding it);
an application for, or for inclusion in, a conjoined arrestment order under section 60(2) or 62(5) of this Act,
Subject to subsection (5) below, any expenses chargeable against the debtor which are incurred in the service of a schedule of arrestment and in an action of furthcoming or sale shall be recoverable from the debtor out of the arrested property; and the court shall grant a decree in the action of furthcoming for payment of the balance of any expenses not so recovered.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
any expenses awarded by him against the debtor in favour of the creditor under paragraph 8 or 11 of Schedule 1 or paragraph 30 or 33 of Schedule 5 to this Act; or
any additional sum of expenses awarded by him against the debtor in favour of the creditor under paragraph 9 of Schedule 1 or paragraph 31 of Schedule 5 to this Act.
Subsection (5) below applies where any diligence mentioned in subsection (1) or (2) above is—
recalled under section 9(2)(a), (d) or (e) of this Act in relation to a time to pay order;
in effect immediately before the date of sequestration (within the meaning of the Bankruptcy (Scotland) Act 2016) of the debtor’s estate;
in effect immediately before the presentation of a petition for an administration order under Part II of, or the appointment of an administrator under paragraph 14 or 22 of Schedule B1 to, the Insolvency Act 1986;
in effect against property of the debtor immediately before a floating charge attaches to all or part of that property under section 53(7) or 54(6) of that Act;
in effect immediately before the commencement of the winding up, under Part IV or V of that Act, of the debtor;
rendered unenforceable by virtue of the creditor entering into a composition contract or acceding to a trust deed for creditors or by virtue of the subsistence of a protected trust deed within the meaning of schedule 4 of the Bankruptcy (Scotland) Act 2016; or
recalled by a conjoined arrestment order.
Where this subsection applies—
the expenses of the diligence which were chargeable against the debtor shall remain so chargeable; and
if the debtor’s obligation to pay the expenses is not discharged under or by virtue of the time to pay order, sequestration, administration, receivership, winding up, composition contract, trust deed for creditors or conjoined arrestment order, those expenses shall be recoverable by further diligence in pursuance of the warrant which authorised the original diligence.
The expenses incurred in the execution of a current maintenance arrestment shall be recoverable by any diligence other than a current maintenance arrestment, and shall be so recoverable in pursuance of the warrant which authorised the current maintenance arrestment.
This section applies to any sums recovered by any of the following diligences— or paid to account of the sums recoverable by the diligence while the diligence is in effect.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
an earnings arrestment;
an arrestment and action of furthcoming or sale; or
a conjoined arrestment order in so far as it enforces an ordinary debt,
A sum to which this section applies shall be ascribed to the following in the order in which they are mentioned—
the expenses already incurred in respect of—
the diligence;
any previous diligence the expenses of which are chargeable against and recoverable from the debtor under section 93(5) of this Act;
the execution of a current maintenance arrestment;
any interest, due under the decree or other document on which the diligence proceeds, which has accrued at the date of execution of the . . . earnings arrestment or arrestment, or in the case of an ordinary debt included in a conjoined arrestment order which has accrued at the date of application under section 60(2) or 62(5) of this Act;
any sum (including any expenses) due under the decree or other document, other than any expenses or interest mentioned in paragraphs (a) and (b) above.
Any of the following diligences— shall cease to have effect if the full amount recoverable thereby is paid to the creditor, an officer of court, or any other person who has authority to receive payment on behalf of the creditor, or is tendered to any of those persons and the tender is not accepted within a reasonable time.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
an earnings arrestment;
an arrestment and action of furthcoming or sale,
Any rule of law whereby any diligence mentioned in subsection (1) above ceases to have effect on payment or tender of the sum due under the decree or other document is hereby abolished.
No fees shall be payable by a debtor in connection with— under any provision of this Act, to any officer of any office or department connected with the Court of Session or the sheriff court the expenses of which are paid wholly or partly out of the Consolidated Fund or out of money provided by Parliament.
any application by him;
objections by him to an application by any other person; or
a hearing held,
The sheriff clerk or a member of administration staff of the First-tier Tribunal for Scotland (in relation to time to pay directions made by it) shall, if requested by the debtor— but the sheriff clerk or a member of administration staff of the First-tier Tribunal for Scotland (in relation to time to pay directions made by it) shall not be liable for any error or omission when performing the duties imposed by this subsection or that subsection.
provide him with information as to the procedures available to him under this Act; and
without prejudice to subsection (2) of section 6 of this Act, assist him in the completion of any form required in connection with any proceedings under this Act,
Subject to subsection (2) below, an arrestment which is not insisted in prescribes—
where it is on the dependence of an action, at the end of the period of 3 years beginning with the day on which a final interlocutor is obtained by the creditor for payment of all or part of a principal sum concluded for; or
where it is in execution of an extract decree or other extract registered document relating to a due debt, at the end of the period of 3 years beginning with the day on which the arrestment is executed.
Where the arrestment secures or enforces a future or contingent debt due to the creditor, it prescribes, if not insisted in, at the end of the period of 3 years beginning on the day on which the debt becomes due.
In a case where— has been made, there shall be disregarded, in computing the period at the end of which the arrestment prescribes, the period during which the time to pay direction, interim order or time to pay order is in effect.
a time to pay direction;
an interim order under section 6(3) of this Act; or
a time to pay order,
Nothing in this section shall apply to an earnings arrestment, a current maintenance arrestment or a conjoined arrestment order.
Subsections (1) to (3) above apply irrespective of whether the arrestment is executed, or warrant for it obtained, before this section comes into force.
For the purposes of subsection (1)(a) above, a final interlocutor is obtained when an interlocutor cannot be recalled or altered and is not subject to review.
In relation to any proceedings before the sheriff under any provision of this Act, the power conferred on the Court of Session by section 32 of the Sheriff Courts (Scotland) Act 1971 (power of Court of Session to regulate civil procedure in sheriff court) shall extend to the making of rules permitting a party to such proceedings, in such circumstances as may be specified in the rules, to be represented by a person who is neither an advocate nor a solicitor.
At the end of Part II of Schedule 2 to the Legal Aid (Scotland) Act 1986 (proceedings for which civil legal aid shall not be available) there shall be added the following paragraphs—.
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Sections 16 to 18, 23 and 26 of this Act shall apply to a landlord's or superior's right of hypothec and its enforcement by a sequestration for rent or feuduty as they apply to a poinding.
Section 16 of this Act shall apply to an arrestment other than an arrestment of a debtor's earnings in the hands of his employer as it applies to a poinding.
An obligation ad factum praestandum which is contained in a document registered in the Books of Council and Session or in sheriff court books shall not by virtue of that registration be enforceable by imprisonment.
A charge for the purpose of enforcing an obligation ad factum praestandum which is contained in an extract of a decree or of a document registered as aforesaid shall not be competent.
It shall not be competent for a creditor to bring an action of adjudication for debt ... to enforce a debt payable under a liquid document of debt unless—
the debt has been constituted by decree; or
the debt is a debitum fundi; or
the document of debt or, if the document is a bill of exchange or a promissory note, a protest of the bill or note, has been registered for execution in the Books of Council and Session or in sheriff court books.
The Court of Session may by Act of Sederunt— diligence of a kind specified in subsection (2) below.
regulate and prescribe the procedure and practice in; and
prescribe the form of any document to be used in, or for the purposes of,
The diligences referred to in subsection (1) above are diligences proceeding—
on an extract of a document which has been registered for execution in the Books of Council and Session or in sheriff court books; or
on an order or a determination which by virtue of any enactment is to be treated as if it were so registered.
Subject to subsection (9) below and sections . . . , 50(2), 55(4), 60(8), 62(9) and 66(9) of this Act . . . , an appeal may be made against any decision of the sheriff under this Act but only on a question of law and with the leave of the sheriff; and section 38 of the Sheriff Courts (Scotland) Act 1971 (appeal in summary causes) and section 82 of the Courts Reform (Scotland) Act 2014 (appeals from simple procedure cases) shall not apply to any appeal or any further appeal taken under this Act.
Any appeal against a decision of the sheriff under subsection (1) above must be made within a period of 14 days from the date when leave to appeal against the decision was granted.
An appeal may be made against any decision of the Lord Ordinary on an application under section 1(1) or 3(1) of this Act but only on a question of law and with the leave of the Lord Ordinary.
Subject to subsections (6) and (7) below, any decision of the sheriff or of the Lord Ordinary under this Act shall take effect as soon as it is made and shall remain in effect unless and until it is reversed on appeal and either—
the period allowed for further appeal has expired without an appeal being made; or
if such a further appeal has been made, the matter has been finally determined in favour of the reversal of the sheriff’s or Lord Ordinary’s decision.
No decision reversing a decision of the sheriff or Lord Ordinary under this Act shall have retrospective effect.
A decision or order of the sheriff under any provision of this Act mentioned in subsection (7) below shall not take effect—
until the period for leave to appeal specified in rules of court has expired without an application for leave having been made;
where an application for leave to appeal is made, until leave has been refused or the application has been abandoned;
where leave to appeal has been granted, until the period for an appeal has expired without an appeal being made; or
where an appeal against the decision is made, until the matter has been finally determined or the appeal has been abandoned.
The provisions of this Act referred to in subsection (6) above are—
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section 50(1) except in so far as it relates to orders declaring that an arrestment is invalid or has ceased to have effect;
section 50(4);
section 55(1) except in so far as it relates to orders declaring that an arrestment is invalid or has ceased to have effect;
section 55(6);
section 65(2);
section 66(3);
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A court to which an appeal under this Act or a further appeal is made may— as it thinks necessary or reasonable in the circumstances.
before it disposes of the appeal, make such interim order; and
on determining the appeal, make such supplementary order,
This section does not apply to any decision of a court under Part V of this Act.
Regulations and orders under this Act shall be made by statutory instrument and shall, . . . , be subject to annulment in pursuance of a resolution of either House of Parliament.
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Without prejudice to the Crown Proceedings Act 1947 and subject to subsection (2) below, this Act shall bind the Crown acting in its capacity as a creditor or employer.
Section 70B of this Act does not affect Her Majesty in Her private capacity as an employer.
In this Act—
paragraph 2 of Schedule 8 to the Local Government Finance Act 1992;
the enactments (other than the Taxes Management Act 1970) mentioned in Schedule 4 to this Act;
Any sums recovered by the Lord Advocate under section 79(6)(b) or 80(9) of this Act shall be paid by him into the Consolidated Fund.
There shall be paid out of money provided by Parliament—
any fees or outlays payable under section 78(4) or 79(4) of this Act;
any expenses payable by the Lord Advocate under section 79(6)(a) of this Act; and
any increase attributable to this Act in the sums payable out of money so provided under any other Act.
The amendments specified in Schedule 6 to this Act, being minor amendments or amendments consequential on the provisions of this Act, shall have effect.
The transitional provisions contained in Schedule 7 to this Act shall have effect.
The enactments mentioned in columns 1 and 2 of Schedule 8 to this Act are repealed to the extent specified in column 3 thereof.
This Act may be cited as the Debtors (Scotland) Act 1987.
This Act (except this section) shall come into force on such day as the Lord Advocate may by order made by statutory instrument appoint, and different days may be so appointed for different purposes and for different provisions.
This Act extends to Scotland only.