Diversity and Inclusion - best laid plans
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Out-Law Guide | 12 Jun 2014 | 5:00 pm | 6 min. read
This guide was last updated in April 2017
Raising an Ordinary Court Action for Debts in Excess of £5,000
A writ, which is a document providing details of the claim, is sent to the Sheriff Court for registering and authorisation to serve on the debtor. This is known as a warrant and normally takes about five to seven days but can be quicker if action is required urgently.
On receipt of the warrant a copy of the writ is served on the debtor, who has 21 days to decide whether or not to defend or pay. If the defender is an individual they also have an opportunity to apply for "time to pay". To do so they must complete a Form 03 and send it to the Court. The pursuer then decides whether or not to accept the defender's offer of repayment. If they do an Instalment Decree, or judgement, is granted. If they reject the offer a hearing is fixed by the Court and ultimately the Sheriff will decide if the offer made by the defender is fair and reasonable.
If the action is not defended and no time to pay application is made you can minute for decree, or ask for Judgement, and order an extract, or copy, after the 21 day notice period has expired. The decree is issued formally after a period of 14 days. In terms of the rules it cannot be available any earlier. You will receive the extract decree from Court. Currently extract decrees are taking between three to six weeks to be received.
If the action is defended the Court will issue a timetable of the next steps, including a date for defences to be lodged, the date by which any changes can be made to the written case and the first procedural hearing, known as the Options Hearing. Thereafter a proof may be fixed. This is a hearing at which evidence is led. A defended action can take nine months to a year to resolve.
On receiving an extract decree, you may serve a charge for payment, which is a formal written demand for payment.
Raising an action for debts less than £5,000 using the simple procedure
The creditor completes a claim form providing full details of the parties, including their addresses, the factual background to the claim, why it should succeed, any steps taken to recover the debt, any witnesses and copies of the outstanding invoices or other supporting materials. These documents are then sent to the appropriate Sheriff Court. Once the claim form has been checked and registered by the sheriff clerk, a timetable will be issued. This must include two dates; the last date for service and the last date for response, usually at least three weeks apart. The claim form is served on the respondent by the sheriff clerk, a solicitor or sheriff officers no later than the last date for service.
The respondent must send a completed response form to the Court and the creditor by the last date for a response. The respondent has three options: to admit the claim and pay it; to admit the claim and ask for time to pay or to dispute the claim or part of it. As in an ordinary action the claimant can object to an application for time to pay. The procedure which follows is very similar.
If no response form is sent to the Court by the last date for a response, the claimant has two weeks to send an application for a decision to the Court. The sheriff has power to make a decision awarding all or part of the claim to the claimant or he can order the claimant to come to Court to discuss the decision or dismiss the claim.
Where there is a dispute, the sheriff must consider the case in private and send written orders to the parties indicating future procedure. The sheriff has a range of options which include a referral to alternative dispute resolution, arranging a case management discussion or a hearing.
The sheriff's decision must be set out in a decision form. The options for enforcement are similar to ordinary actions. However, the claimant must wait four weeks after the decision form is sent before taking enforcement action.
Service of a charge
This is often the first step of enforcement after receiving your extract decree. It is a necessary preliminary to an attachment or bankruptcy proceedings or an earnings arrestment. Sheriff officers deliver a written demand for payment to the debtor. The debtor then has a period of 14 days in which to pay. If he fails to do so, you may take further steps. In some cases, the arrival of sheriff officers at the door in itself is sufficient to encourage co-operation. Normally, the sheriff officers' report can provide information about the debtor and the prospects of recovery.
Attachment and auction
These procedures are normally used for relatively small debts of up to a few thousand pounds although, occasionally, they may be appropriate for larger debts. You are entitled to "attach" moveable property belonging to the debtor in the debtor's possession. A sheriff officer will call at the premises of the debtor to value and "tag" items to be sold. An auction is then arranged and the debtor's moveable property is sold at public auction. This is often more effective as a threat than in practice, as the procedure is cumbersome and expensive. Furthermore, a debtor's moveable property is generally of little value. However, the process will often put considerable pressure on the debtor, especially as the auction is advertised in the local newspaper. We would not normally recommend this procedure to clients where the debtor is an individual as there are very few items within an individual's residence that a sheriff officer can attach and an exceptional attachment order requires to be sought from the Court prior to sheriff officers attending.
You are entitled to "attach" money or moveables belonging to the debtor in the possession of third parties, such as proceeds of an insurance policy or shares. Arrestment is effective only in respect of money or moveable items in the hands of third parties at the moment the arrestment is served. You must judge the best moment to arrest or, in some circumstances, arrest in the hands of the same third party on several occasions. An arrestment can be placed at short notice by a sheriff officer. Sometimes the debtor will sign a mandate, or formal authorisation, to allow release of the arrested funds.
If he fails to do so an action of furthcoming can be raised seeking an order of the Court to release them.
This procedure is possible only where the debtor is an individual and his employers are known. An earnings arrestment may be lodged only after decree has been obtained and a charge has been served and payment has not been received within the 14 day notice period. Deductions are made from the debtor's salary each week or month and paid to the creditor. The earnings arrestment will stay in force until the debt has been paid.
Summary diligence is the legal term for enforcement procedures based on a document of debt rather than a court decree. It can be a "fast track" procedure for the recovery of the debt which may be advantageous to creditors. Instead of a court decree, authority to proceed is acquired by registering the document of debt in the Books of Council & Session and obtaining an extract of it with a warrant, or authorisation, to execute all competent diligence. Parties must have agreed within the body of the document of debt that it can be used in this way, normally using the words the parties "consent to registration for execution" or "consent to registration for summary diligence", failing which a Court action will be required. The deed containing the warrant is used in the same way as a court decree and sheriff officers can be instructed immediately to serve a charge for payment on the debtors for all outstanding sums. An example of a document which might be suitable for summary diligence is a lease.
Statutory demands for payment
Under the Bankruptcy (Scotland) Act of 1985 (as amended) a statutory demand or payment of debt may be made on an individual or partnership. The person or partnership must make payment; find security for the debt, or intimate, by recorded delivery, their reasons for disputing the debt, within 21 days of service. A statutory demand can only be served on an individual where the debt is £3,000 or more.
Under the Insolvency Act of 1986 a statutory demand for payment of debt may be made on a company. It must make payment or find security for the debt within 21 days of service. The level of debt in this case must be £750 or more.
In both cases failure to pay will enable the creditor to start bankruptcy or winding-up proceedings. Other creditors may emerge and if payment is not made by the debtor, and a liquidator is appointed, you may have to meet his fees if insufficient assets are found. Unfortunately, if the debtor disputes the debt, the proceedings will be suspended whilst the creditor raises an ordinary court action to prove the debt.
Diversity and Inclusion - best laid plans
Fintech meet up