Generally, all straightforward debt actions will be taken in the sheriff court of the debtor’s residence or the court where the debtor trades.
1. Summary cause actions
A court action can be commenced by you (the claimant) by preparing a summons on a pre-printed form. The supporting invoices or a statement of account should be produced to the court along with the summons. A copy of the summons must be served (issued) on the debtor (the defender). This is done by the claimant’s lawyer – usually by recorded delivery post – and thereafter by the sheriff officer if the postal service is unsuccessful.
With any summons, there will be two critical dates – the return date and the calling date. Generally, the return date is the day when the defender must return any document to the court, whilst the calling date (always seven days after the return date) is the date the case will call in court for a hearing.
If in response to the summons the defender does nothing, the claimant can ask for a judgment (known as minuting for a decree) by completing a pre-printed form. The judgment will be granted at the calling date. The court takes about three weeks to send the judgment to the claimant’s lawyer. However, when appropriate (in cases where the defender is an individual or a small trader), the defender may admit liability and offer to make payment of the debt by instalments or by a deferred lump sum – known as a time to pay direction or time to pay order.
1.1. Ordinary actions
Unlike the summary cause actions, there are no preprinted forms for ordinary actions. A writ will be drafted and forwarded to the court. The defender has 21 days after the service of the writ to decide which action to take.
1.2. Defender's responses
There are various ways the defender can respond to the served writ. The defender can do nothing, meaning that the claimant can, on the expiry of 21 days, minute for a decree. If the defender admits the claim and makes a payment offer, the claimant completes the appropriate form and sends it to the court. If the offer is unacceptable, the case will call in court, and the court will decide if the application should be granted. The court takes about three weeks to send the judgment to the claimant’s lawyer.
2. Enforcement of decrees
The responsibility for enforcing sheriff court decrees falls on the sheriff officers. The generic term for Scottish enforcement is known as diligence.
Different measures are employed depending on the defender’s movable property being situated either out or within a dwelling house. The effectiveness of diligence can be described best as a filtering process, with the slow payers settling earlier on in the enforcement regime.
Judgment enforcement in Scotland was radically reformed by the Debt Arrangement and Attachment (Scotland) Act 2002 and has been enhanced following the implementation of the Bankruptcy and Diligence (Scotland) Act 2007. The legislation deals more sympathetically with individual consumer debtors, but commercial debtors have less protection.
3. Debt arrangement scheme
A central feature of the 2002 Act is the debt arrangement scheme (DAS), available to individuals and sole traders, allowing them an opportunity to pay their debts in a managed way over a given period of time without threats of enforcement. Such individuals should have surplus income to pay their debts by instalments. During the existence of a DAS judgment, enforcement and applications for the debtor’s bankruptcy will be prohibited. It will also be considered incompetent to carry out judgment enforcement whilst an application is being considered.
4. Charge for payment
Before commencing judgment enforcement, the sheriff officer serves a charge, which is a formal written request, on the defender. It requests payment of the principal debt, interest and charges, and requires that it be paid within 14 days.
5. Attachment orders
Attachment orders will most often be used for business-tobusiness debts and the objective is to enforce against the assets and property of the debtor. The process is similar to that in England and Wales, though the terms used are different.
(End of B - Scotland)