Business Credit Management UK

Layman's Guide to Scottish Litigation Procedures and Enforcement.


The following pages have been produced with the kind permission of PricewaterhouseCoopers Credit Management Services formerly MG Collection (Scotland) Ltd. The company commenced trading in 1988 and provides Commercial Debt Collection throughout the United Kingdom. For further details go to providers and then debt collection agencies.

Introduction

The following guide should help give an appreciation of the Scottish legal process for the recovery of debts through the Sheriff Court. It is based on undefended actions where you proceed to take Decree (Judgment) and the type of enforcement available pre and post Decree.

The guide does not cover Statutory Demands or Insolvency actions (liquidation and bankruptcy) although these are available to you under the Scottish legal process.

Types of Action

There are three types of action in Scotland and these are divided into categories depending on the value of the debt you are trying to recover.

Type of Action Amount sued for
Small Claim £0 - £750
Summary Cause £750 - £1500
Ordinary Action £1500 and over

Procedures

The procedure for Small Claims and Summary Cause are extremely similar and the Sheriff Court set the Return Day and Calling Day. In the case of Ordinary Actions, the defender has 21 days after the service of the Writ to answer.

Commencement

A Summons is issued and served by recorded delivery post, if unsuccessful then Sheriff Officers are instructed to serve personally. The procedure is similar for the service of a Writ in Ordinary Actions.

Instalments

A debtor may offer instalments by returning a prescribed form to court. You do not have to accept, however, a Sheriff may take the view that the offer is reasonable.

Time To Pay Direction

In cases against individuals, but not companies, the court is able to make both a Time To Pay Direction or an Order to Pay by deferred lump sum. If the defendant does not pay by the time ordered by the court then the Decree becomes open and is enforceable.

Instalment Decree

The Decree is intimated by recorded delivery post and if the defendant defaults in 2 payments and the third payment is outstanding then the Decree becomes open and is enforceable.

Open Decree

When you are awarded open Decree it is enforceable immediately.

Pre Decree Enforcement

There are two methods used here, Arrestment and Inhibition.

An Arrestment is a process whereby a creditor ensures that money or moveable effects belonging to the debtor, which are in the hands of a third party, are not passed to the debtor. An example would be a sub-contractor who is about to be paid for work from a main-contractor, you would place an arrestment in the main-contractor's hands stopping the payment being made to the debtor. This does not force the third party to hand over the funds to the creditor. To have the funds paid to the creditor from the third party you need to have Decree against the debtor and then proceed with an action of Furthcoming.

You may proceed to inhibit a debtor from granting security or selling his heritable (fixed) property by making an application to the Court of Session (High Court) and the Inhibition is effective when it is registered at the Register of Inhibitions. The Inhibition is served on the debtor by Sheriff Officers and is effective for 5 years. It does not force the debtor to sell heritable property.

Post Decree Enforcement

The enforcement procedure, post Decree is as follows.

A Charge is served on the debtor by Sheriff Officers. They leave a formal demand for payment which identifies the principal sum due, together with judicial expenses and accrued interest. The debtor has 14 days to make payment.

If payment is not received after expiry of the Charge then a Poinding is carried out by Sheriff Officers. They visit the premises and list and value assets to the value of the debt outstanding. Once this is completed the debtor cannot dispose of the poinded effects and must retain them on the premises.

If no payment is received then finally Sheriff Officers will proceed with a Warrant Sale. The poinded goods are sold but if there are no buyers they become the property of the creditor.


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