Diligence (Scots law)
Term in Scots Law From Wikipedia, the free encyclopedia
Term in Scots Law From Wikipedia, the free encyclopedia
Diligence is a term in Scots Law with no single definition, but is commonly used to describe debt collection and debt recovery proceedings against a debtor by a creditor in Scottish courts.[1] The law of diligence is part of the law of actions in Scots private law.[2] Accordingly, it is within the devolved competence of the Scottish Parliament.[3]
Diligence is usually executed by Sheriff Court officers, but may also be carried out by Messengers-at-arms.
There are many forms of diligence, largely involving creditors and debtors. The newest form of diligence, land attachment, will be introduced into Scots law when Part 4 of the Bankruptcy and Diligence (Scotland) Act 2007 is brought into force.[4]
Diligence has no single definition in Scots law,[5] but it is recognised that there were at least four broad forms of 'diligence' proceedings.[6] These include:
The history of diligence is obscure, with the first substantial historical research carried out in the 18th century.[7] Subsequent research was undertaken in the 19th century,[8] and in the 20th century.[9]
In modern usage, the term diligence relates mainly to enforcement of monetary obligations (ie: debts). There are many forms of debt related diligences, but it is common for them to be categorised as either 'seize' diligence or 'freeze' diligence due to the nature of the legal effect of each form of diligence.[5] Historically, it was required for the debtor to have Letters of Horning issued against them and their name placed in the Register of Hornings,[10] modern law has replaced this
Debt related diligences, as an enforcement of a monetary obligation owed by a debtor to a creditor, usually form part of the third stage of debt collection. This is often the type of diligence discussed when using the term diligence in Scotland. The three stages of debt recovery in Scotland are:[11]
Despite being the final stage in debt recovery proceedings, diligence is commonly used by creditors as a final means falling the exhaustion of obtaining payment of a debt in the first or second stages. Between 2018 and 2019, 272,692 actions of diligence were carried out in Scotland.[12] These statistics are collected by the Accountant-in-Bankruptcy, on behalf of the Lord Advocate, based on the statutory reporting obligation by Sheriff court officers and Messengers-at-Arms, the court officers of Scotland.[13]
There are many statutes dealing with the law of debt-related diligences, these include:
For older forms of diligence, such as adjudication, common law rules continue to apply.
A debtor who is a natural person is entitled to receive a Debt Advice and Information Package when diligence proceedings are raised against him.[14] First introduced under the Debt Arrangement and Attachment (Scotland) Act 2002, this document sets out the debtor's legal rights and where professional support and guidance on debt issues is available.[15] The current DAIP booklet can be viewed on the Accountant-in-Bankruptcy website.[16] While each form of diligence has specific requirements for the services of a DAIP, they generally must be issued at least 12 weeks prior to the commencement of diligence.[16]
A debtor can avoid diligence by entering into a debt arrangement scheme (DAS).[17] This scheme allows a debtor to arrange repayment of debt under a statutory debt payment programme administered by the DAS Administrator, part of the Accountant-in-Bankruptcy.[18] This is the only statutory debt repayment scheme available in the United Kingdom.[19]
However, before a debtor can enter into a DAS, they must have obtained advice from a money adviser.[20] The Scottish Financial Health Service Archived 22 June 2020 at the Wayback Machine provides such money advice, as well as other advisory and charitable organisations such as the Citizens Advice Bureau.[21] When a debtor makes a DAS application, it must be accompanied by a declaration from a money adviser that advice has been provided.[22]
A DAS usually must have the consent of the creditor in order to be approved.[23] However where consent by the creditor is not given, the DAS Administrator must approve the application where the proposed programme is "fair and reasonable".[24]
Where a DAS has been approved, the debtor is immune from the commencement of diligence proceedings.[25] The DAS Administrator maintains a DAS Register, recording information relating to debt payment programmes, including the debtor's personal information.[26]
Another protection available to debtors are Time to Pay Directions.[27] Time to Pay Directions are available to debtors at the commencement of court proceedings, the award of a decree against them through to the service of a charge to pay (see below).[27] They allow a debtor to ask the court for a period of time to repay the debt sued for by instalments or lump sum payments.[28]
The court must take into account a number of factors, including the debtor's financial position, when making a time to pay direction.[29]
Time to pay directions are not available for debts:[30]
Where a court makes the Time to Pay direction/order, the debtor is immune from the commencement of diligence against them.[31]
Attachment is a form of diligence that allows a creditor to seize and sell a debtor's corporeal moveable property (ie: property which can be physically moved such as cars/jewellery/clothes etc.). Only corporeal moveable property which is owned by the debtor can be seized and removed.[32] However, a sheriff court officer is entitled to proceed on the assumption that any property in possession of the debtor is also owned by them.[33]
Attachment replaced the diligence of poinding, after a sustained political campaign by Scottish Socialist Party leader Tommy Sheridan MSP.[34]
Prior to the commencement of attachment proceedings, a charge to pay must be served on the debtor calling on them to make payment within a certain number of days. Upon expiry of this charge days without payment, the creditor can launch legal proceedings against the debtor.[35]
A DAIP, discussed above, must be served on the debtor who is a natural person at least 12 weeks in advance of the execution of the attachment.[36]
Following service of the charge to pay and DAIP, the creditor can instruct Sheriff Officers to attend a debtor's premises.[37] Thereafter, the Sheriff Officers will attend the debtor's premises in order to value property for sale.[37] Sheriff Officers are allowed to enter shut and locked premises for the purposes of valuation.[38] Property should be valued at the price it could vetch if sold on the open market.[38]
Following valuation of the corporeal moveable property, the Sheriff Officers must immediately make a schedule identifying all corporeal moveable property owned by the debtor.[39] This schedule must then be given to the debtor, or a copy left at the premises.[40] All property listed in the schedule is known as the attached articles. Any person interfering with an attached article is liable to conviction for contempt of court and liable to the creditor for the value of the interfered attached article.[41]
Thereafter, a report signed by the Sheriff Officer must be submitted to the Sheriff Court, including a copy of the Schedule of Goods, within 14 days of execution.[42]
Attachment is not possible on certain days.[43] This includes:
Attachment can only be carried out between 8am to 8pm unless the Sheriff Court has specially authorised attachment outwith these times.[44]
Certain property is exempt from being attached. This includes:
Following submission of the valuation report to the Sheriff Court, the Sheriff Officer has six months in which to remove the attached articles from the debtor's premises and sell the attached articles at roup (Scots term for a public auction).[47] Following the roup, the Sheriff Officer must submit another report to the Sheriff Court, ending the diligence process.[41]
A special form of attachment exists in order to recover corporeal moveable property inside a debtor's home. This is known as exceptional attachment and can be legally executed following the creditor obtaining an exceptional attachment order from the debtor's local Sheriff Court.[48] The rules for exceptional attachment are found in Part 3 of the Debt Arrangement and Attachment (Scotland) Act 2002.
In order to obtain articles kept inside a debtor's home, the creditor must raise diligence proceedings in the Sheriff Court. Obtaining an exceptional attachment order allows the creditor to:[49]
However, in order to grant this order, the Sheriff must be satisfied that there are exceptional circumstances to merit the granting of the order.[50] MacNeil describes these exceptional circumstances in short as "essentially, there must be no other way for the creditor to recoup the debt".[51]
An exceptional attachment order only allows non-essential assets to be removed from the debtor's home. Schedule 2 of the Debt Arrangement and Attachment (Scotland) Act 2002 outlines what is classified as essential goods. Essential assets include the following property that is reasonably required:
Where the above items are reasonably required by the debtor, they are exempt for attachment, removal and auction by the creditor.
Similar to general attachment, exceptional attachment authorises a court officer to open shut and lockfast homes.[52] However, the officer must give at least 4 days notice of the intended time of entry to the home.[53] This notice period can be removed under authorisation of the Sheriff.[54] Importantly, a person must be present in the home at the time of the officer's entry who is over 16 years old and has legal capacity to understand the consequences of the attachment procedure.[55]
For monies, that is cash (coin and banknotes) and banking instruments (cheques, money orders, promissory notes and postal orders), seizure can occur through the diligence of money attachment.[56] The rules for money attachment are found in the Diligence and Bankruptcy (Scotland) Act 2007.
Money attachment can be raised where a debt has been recognised judicially by a court decree (order) or document and the debtor has been charged to pay.[57] Money attachment cannot take place in relation to monies kept within a debtor's home.[58]
Prior to the commencement of attachment proceedings, a charge to pay must be served on the debtor calling on them to make payment within a certain number of days. Upon expiry of this charge days without payment, the creditor can launch legal proceedings against the debtor.[35] However, the creditor must also wait 12 weeks after the service of a DAIP.
A DAIP, discussed above, must be served on a natural person debtor at least 12 weeks in advance of the execution of the money attachment.[36]
Following the making of a money attachment order by the relevant court, court officers can go to a debtor's premises (other than the debtor's home) to attach any monies kept there.[59] The officer is entitled to a presumption that the debtor owns any money found in the premises.[60] However, prior to seizing the monies, the officer must make enquiries as to the ownership of the monies sought.[61] The officer is not prevented from relying on the presumption by an assertion is made that the money is not owned by the debtor.[62]
The court officer must deposit any cash attached (ie: seized) in a bank account.[63] A court officer is entitled to not attach banking instruments other than cheques (ie: money orders, promissory notes and postal orders) unless expressly instructed by the creditor.[64]
Money attachment is not possible on certain days.[65] This includes:
Attachment can only be carried out between 8am to 8pm unless the Sheriff Court has specially authorised attachment outwith these times.[66]
Following the completion of the seizure of any monies, the court officer must immediately complete a document known as a schedule of money attachment.[67] This must be in a manner stipulated by an Act of Sederunt.[68] It must be signed by the court officer.[68] Following completion of the schedule, a copy must be given to the debtor or left at the debtor's premises.[69]
Within 14 days of the seizure of the monies, the court officer must send a Report of money attachment to the Sheriff Court.[70] This must be in a manner stipulated by an Act of Sederunt.[68] It must be signed by the court officer.[68] A copy must also be given to the debtor.[71] If the report is refused by the Sheriff, the money attachment ceases to have effect.[72]
Following the lodging of the Report by the court officer, a creditor can apply for a Payment Order allowing the creditor to have the attached monies paid to him.[73] A debtor is entitled to oppose the application and have his representations heard.[74] Without any opposition, and the Sheriff is satisfied there is no material irregularity in the above processes, and is also satisfied the monies are owned by the debtor; the Sheriff must approve the application.[75] Thereafter, the monies attached can be paid to the creditor.[76]
Arrestment is a form of diligence that applies to initially attach (ie: to 'freeze' property owned by the debtor) and subsequently 'seize' any incorporeal moveable or corporeal moveable property owned by the debtor but is in possession of a third party.[6] Accordingly, there are three parties in this diligence proceedings: the creditor (termed the arrester), the debtor (termed the common debtor) and the third party (termed the arrestee).[77]
Following attachment of the property, importantly including any incorporeal property such as a contractual right to payment, arrestment allows an action of furthcoming to be raised in Scottish courts compelling the third party to deliver the property, or make payment to the creditor in place of the debtor.[78] The rules of the diligence of arrestment originate in Scots common law but are largely now found in the Debtors (Scotland) Act 1987.
Arrestment is only permitted to be raised in execution of court decree or a document of debt.[79]
Decrees permitted include those from Courts of Scotland, as well as judgments of foreign courts that are enforceable in Scotland under Scots private international law.[80]
Documents of debt are typically legal documents such as contracts and deeds registered in the Books of Council and Session, allowing the arrester to avoid the second stage of debt recovery, the court stage (see above).[80]
Following the obtention of a court decree, the creditor can commence diligence provided that certain requirements are met to protect the debtor, see above. For arrestment, this is the service of a charge to pay on the debtor in advance of the commencement of legal proceedings. Upon expiry of this charge days without payment, the creditor can launch legal proceedings against the debtor.[81] Thereafter, the creditor can serve a formal document on the third party (the arrestee) known as a Schedule of Arrestment.[82] This document must be in a manner stipulated by the Scottish Ministers, currently found in Schedule 7 of the Diligence (Scotland) Regulations 2009.[83] After receipt of the Schedule of Arrestment, the third party (arrestee) has three weeks in which to complete and send to the creditor and debtor, and any other interested party, a formal document known as Form of Disclosure by Arrestee.[84] This document sets out what property the arrestee (third party) holds for the debtor and the value of such property. The Form of Disclosure by Arrestee must be in a manner stipulated by the Scottish Ministers, currently found in Schedule 8 of the Diligence (Scotland) Regulations 2009.[85]
Two classes of property in Scots law are capable of arrestment, namely corporeal moveable (ie: physical property that can be moved) and incorporeal moveable (ie: property with no physical presence).[86][87] In practice this means a broad range of property held by a third party can be arrested, such as:
Following arrestment of the corporeal moveable property, the creditor can raise an action of furthcoming to have the Sheriff Court authorise the sale of the property, with the proceeds paid to the creditor.[91]
Diligence against earnings allows a creditor to recover debt via the debtor's wages paid by an employer.[92] The rules for diligence against earnings are found in Part 3 of the Debtors (Scotland) Act 1987. The rules are similar to arrestment by service of a formal document on the debtor's employer. There are three forms of diligence against earnings, namely:[92]
The amount of instalments and proportion of a debtor's wages an employer (the arrestee) must pay to the creditor is determined in legislation.[93][90]
Prior to the commencement of arrestment proceedings, a charge to pay must be served on the debtor calling on them to make payment within a certain number of days. Upon expiry of this charge days without payment, the creditor can commence diligence against the debtor.[94] However, the creditor must also wait 12 weeks after the service of a DAIP.[95]
A DAIP, discussed above, must be served on a natural person debtor at least 12 weeks in advance of the execution of the earnings arrestment.[96]
Admiralty arrestment allows a creditor to arrest any ships owned by the debtor, including any cargo on board.[97] The ship and cargo will be prevented from leaving a Scottish port until payment of the debt is received by the creditor. The rules for this form of diligence are found in the Bankruptcy and Diligence (Scotland) Act 2007.[98]
Inhibition allows a creditor to inhibit, (ie: to 'freeze') any real rights a debtor holds in corporeal heritable property (land), such as a right of ownership. It is an old form of diligence with a substantial history in Scots law.[99] There are two forms of inhibition, namely:[100]
The rules for each form of inhibition are similar and regulated by Part 5 of the Bankruptcy and Diligence (Scotland) Act 2007.[101]
A creditor must serve on the debtor a schedule of inhibition (and a DAIP, see above, where the debtor is a natural person) through a court officer.[102] The court officer must then complete a certificate of service.[103] Both the certificate and schedule must then be registered in the Register of Inhibitions.[104] Alternatively, a notice of inhibition can first be registered in the Register of Inhibitions and the schedule of inhibition served on the debtor within 21 days.[105]
Inhibition prevents a debtor from creating or delivering a deed to a grantee in relation to the inhibited property.[106] A creditor in who an inhibition is in favour can seek reduction (ie: rescission) of a deed made in breach of the inhibition.[107] The inhibition will prescribe after 5 years.[108] However the right of the creditor to reduce a deed made in breach of an inhibition will prescribe after 20 years.[109]
Adjudication for debt, commonly termed adjudication, allows a creditor to obtain a security in a debtor's property, and a later power to sell the debtor's property.[110] It was first introduced into Scots law under the Adjudications Act 1672, replacing an older form of diligence known as apprising or comprising.[111]
Adjudication Process
Adjudication must be raised in the Court of Session, contrary to other forms of diligence which can be carried out after the initial court stage. If satisfied, the Outer House of the Court of Session will issue a decree for adjudication which, for adjudicated land, then must be registered in the Land Register. Upon registration in the Land Register, the creditor obtains a security in the property. The creditor can eject the debtor and let out the property for up to seven years.[112] If the property is residential property, with the debtor still living in it as their home, the creditor must also comply with the provisions of the Home Owner and Debtor Protection (Scotland) Act 2010.[113] The creditor cannot sell the property for a period of ten years. After the expiry of ten years, a creditor can raise an action of declarator of expiry of the legal in the Court of Session in order to obtain ownership of the property.[114] Upon sale of the property, the creditor will receive payment of the debt (offset against any rents paid by a tenant) in order to satisfy any remaining debt. The remaining proceeds of the sale will be paid to the debtor.
The Bankruptcy and Diligence (Scotland) Act 2007 provides for the abolition of adjudication for the debt and its replacement with a new form of diligence, land attachment.[115] For other classes of property, the new diligence to replace adjudication will be known as residual attachment.[116] This will also change the Registers of Inhibitions and Adjudications into the Register of Inhibitions alone.[117] However, the relevant provisions of the 2007 Act has yet to be brought into force and it remains to be seen whether they ever will be.[118] In 2016, the Accountant-in-Bankruptcy has indicated that it will commence work with stakeholders to investigate the possibility of bringing land attachment into force.[119]
Historically, it was possible to do diligence against a person (both natural and juristic), including civil imprisonment. This included issuance of a letter of horning and the recording of the letter in the Register of Hornings.[120] The debtor would be 'put to the horn', where a messenger-at-arms would read the letters of horning aloud, blow a horn three times and denounce the debtor as an outlaw.[121] Thereafter, the messenger-at-arms would affix the letters of horning to the market cross of the burgh in which the debtor resided.[121] Proof of execution and the letter of horning would require registration in the Register of Hornings in order to complete the process of declaring the debtor as an outlaw. Thereafter, the creditor could obtain letters of caption to authorise the imprisonment of the debtor.
The debtor could seek sanctuary by remaining within the confines of Holyrood Park, subject only to the jurisdiction of the Bailie of the Park, who could imprison the debtor in the Abbey Jail at Holyrood Abbey.[120] However, following the passage of the Debtors (Scotland) Act 1880, it is no longer possible to carry out imprison a person for debt.[122] Letters of horning themselves could no longer following the Debtors (Scotland) Act 1987.[123] However, the 1890 Act provided for civil imprisonment in the following circumstances:[124]
In the above circumstances, an individual can continue to be imprisoned in relation to an unpaid debt, provided the custodial sentence is less than 12 months.[124] Civil imprisonment for taxes, fines, rates has been abolished by the Debtors (Scotland) Act 1987.[125]
Adjudication in Security is a diligence which allows a creditor to seize property where there is a reasonable belief the debtor is on the verge of insolvency.[126] Once a decree for adjudication in security is issued, a similar process as adjudication for debt is followed (see above). Adjudication in Security is due to be abolished if section 127 of the Bankruptcy and Diligence (Scotland) Act 2007 is brought into force.
Another form of diligence, a creditor can seek confirmation from the court as an executor if the debtor dies, allowing the creditor to recover the debt from the debtor's estate.[127] It can only be raised where another individual has not been confirmed as executor by the court.[128]
This diligence was available to secured creditors where the secured heritable property (ie: land, including the building and structures upon it) have been leased. It allows the creditor to recover the debt by receiving the rent for the property directly. It was in effect abolished by the Conveyancing and Feudal Reform (Scotland) Act 1970.[129] It will be formally abolished if section 207 of the Bankruptcy and Diligence (Scotland) Act 2007 is brought into force.[130]
Poinding was a diligence that allowed a creditor to seize moveable property from a debtor. Its usage was recommended for abolishment by the Scottish Law Commission's Report on Poinding and Warrant Sales, (Scot Law Com No 177) (2000) and was formally abolished by the Abolition of Poindings and Warrant Sales Act 2001. Another type of diligence, real poinding, allowed a secured creditor to recover a debt by seizing goods held on the secured land by the 2001 Act.[131]
Sequestration for rent was a diligence that allowed a landlord creditor to recover unpaid rent arrears from a debtor by seizing property under the landlord's hypothec. It was abolished under the Bankruptcy and Diligence (Scotland) Act 2007.[132]
Diligence on the dependence allows a pursuer in an action to secure a defender's property, pending the outcome of the litigation. This is permitted for the following forms of diligence:
The law relating to diligence has been subject of many reports by the Scottish Law Commission, including:
These reports' recommendations have led to reform of the law of diligence. They are available to view for free online at the Scottish Law Commission website.[135]
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