Act of Sederunt (Debt Arrangement and Attachment (Scotland) Act 2002) 2002

Contents

1Citation, commencement and interpretation#

(1)This Act of Sederunt–

(a)may be cited as the Act of Sederunt (Debt Arrangement and Attachment (Scotland) Act 2002) 2002;

(b)shall come into force on 30th December 2002; and

(c)shall be inserted in the Books of Sederunt.

(2)In this Act of Sederunt, “the 2002 Act” means the Debt Arrangement and Attachment (Scotland) Act 2002.

2Rules for Applications in the Sheriff Court under the 2002 Act#

Schedule 1 to this Act of Sederunt provides rules for applications in the sheriff court under the 2002 Act.

3Summary warrants#

(1)Schedule 2 to this Act of Sederunt provides forms for summary warrants, and any reference in this article to a form means the form so specified in Schedule 2.

(2)A summary warrant for recovery of any sum shall be in form A or B, as the case may be.

4Minor and consequential amendments#

Schedule 3 to this Act of Sederunt (which contains minor amendments and amendments consequential upon the provisions of the 2002 Act) shall have effect.

5Revocation and savings#

The Acts of Sederunt mentioned in column (1) of Schedule 4 to this Act of Sederunt are revoked to the extent specified in column (3) of that Schedule except–

(a)in relation to a debt in respect of which a warrant sale has been completed before the date on which section 58 of the 2002 Act comes into force (“the commencement date”);

(b)in relation to a debt in respect of which a poinding was executed before the commencement date if–

(i)the poinding was executed at a place other than a dwellinghouse; and

(ii)a warrant sale is completed in respect of the poinding on or before 31st March 2003; or

(c)in relation to an application for sequestration for rent on which warrant was granted on or before the commencement date.

Schedule 1 · Rules for applications in the sheriff court under the debt arrangement and attachment (scotland) act 2002

Chapter 1 · General

(1)

(1)These Rules may be cited as the Rules for Applications in the Sheriff Court under the Debt Arrangement and Attachment (Scotland) Act 2002.

(2)In these Rules–• “the 2002 Act” means the Debt Arrangement and Attachment (Scotland) Act 2002;• “authorised lay representative” means a person to whom section 32(1) of the Solicitors (Scotland) Act 1980 (offence for unqualified persons to prepare certain documents) does not apply by virtue of section 32(2)(a) of that Act;• “decree” and “document of debt” have the meanings given to them in section 10(5) of the 2002 Act; and• “exceptional attachment order” has the meaning given to it by section 47(1) of the 2002 Act;

(3)Any reference in these Rules–

(a)to a section is to be construed as the section bearing that number in the 2002 Act;

(b)to a specified paragraph is to be construed as a reference to the paragraph so numbered or lettered in the provision in which that reference occurs; or

(c)to a numbered form means the form so numbered in Appendix 1 to these Rules, or a form of substantially the same effect with such variation as circumstances may require.

(4)The glossary in Appendix 2 to these Rules is a guide to the meaning of certain legal expressions, but is not to be taken as giving those expressions any meaning that they do not have in law generally.

(2)

(1)The sheriff may relieve any party from the consequences of any failure to comply with the provisions of these Rules which is shown to be due to mistake, oversight or other excusable cause, on such conditions as the sheriff thinks fit.

(2)Where the sheriff so relieves a party the sheriff may make such order as the sheriff thinks fit to enable the application to proceed as if the failure to comply had not taken place.

(3)

(1)A party to any proceedings before the sheriff under Parts 2 and 3 of the 2002 Act may be represented by an advocate, a solicitor or, subject to paragraph (3), an authorised lay representative.

(2)An authorised lay representative may in representing a party do everything for the preparation and conduct of any proceedings as may be done by that party.

(3)If the sheriff finds that an authorised lay representative is–

(a)not a suitable representative; or

(b)not duly authorised to represent a party,

that person shall cease to represent the party.

(4)

(1)Any hearing before the sheriff in an application under the 2002 Act shall be conducted as informally as the sheriff considers the circumstances permit.

(2)The procedure to be adopted at a hearing shall be such as the sheriff considers–

(a)to be fair;

(b)best suited to the clarification and determination of the issues; and

(c)gives each party sufficient opportunity to put across the party’s position.

(5)

(1)A warrant for intimation referred to in these Rules shall be in form 1.

(2)The sheriff may order intimation to such persons other than those to whom intimation is required under these Rules as the sheriff considers appropriate.

(3)Intimation shall be made by sheriff clerk or by officer of court.

(4)The sheriff clerk or officer of court on making intimation shall complete a certificate of intimation in form 2.

(6)

(1)Any document referred to in these Rules which requires to be–

(a)lodged with the sheriff clerk;

(b)intimated to a party; or

(c)sent by the sheriff clerk,

may be in electronic or documentary form, and if in electronic form may be lodged, intimated or sent by e-mail or similar means.

(2)Paragraph (1), so far as it permits any document to be in electronic form, or if in electronic form to be lodged, intimated or sent by e-mail or similar means, does not apply to–

(a)a certificate of intimation of service;

(b)a citation;

(c)a decree or extract decree of the court;

(d)a report of an attachment;

(e)a report of an auction; or

(f)an attachment schedule.

(3)Where any document is lodged by e-mail or similar means the sheriff may require any principal document to be lodged.

(4)The time of lodgement, intimation or sending shall be the time when the document was sent or transmitted.

Chapter 2 · Attachment: general provisions

(7)

(1)An application by an officer of court under section 12(2) to extend the hours of attachment shall be made by minute, which may be endorsed on the decree or document of debt (or extract decree or document of debt) upon which the attachment has proceeded.

(2)The minute shall specify–

(a)the extension sought; and

(b)the reason for the extension.

(3)The minute does not need to be intimated to any party and the sheriff may grant or refuse it without a hearing.

(4)The terms of the sheriff’s decision shall be endorsed on the decree or document of debt (or extract decree or document of debt), and may be authenticated by the sheriff clerk.

(8)

(1)When executing an attachment the officer of court shall be accompanied by another person who shall witness the whole proceedings.

(2)Before attaching any article the officer of court shall–

(a)show to every person present–

(i)the decree or document of debt (or an extract of the decree or document) authorising the attachment; and

(ii)where the decree or document of debt is not a summary warrant, the certificate of execution of the charge to which that decree or document of debt relates;

(b)demand payment of the sum recoverable from the debtor (or if the debtor is not present, any other person who appears to the officer to be authorised to act for the debtor); and

(c)make enquiries as to the ownership in common of that article (and in particular ownership in common of that article by the debtor and any other person).

(3)The officer of court shall prepare a schedule (the “attachment schedule”) in form 3.

(4)The officer of court and the witness shall sign the attachment schedule.

(5)The officer of court shall–

(a)deliver a copy of the signed attachment schedule to any person then in possession of the articles or leave it at the premises occupied by that person;

(b)if the person then in possession of the articles is not the debtor and it is reasonably practicable to do so, serve a copy of the signed attachment schedule by post on the debtor;

(c)inform the debtor (if present) of the debtor’s right to redeem attached articles under sections 18(1) or 56(1);

(d)inform any person present who claims to own any attached article in common with the debtor of the right to–

(i)make a claim for the purposes of section 35(2)(a);

(ii)apply for an order under section 35(2)(b); and

(iii)pay the value of the debtor’s interest in the attached article in terms of section 35(2)(c); and

(e)where, after making enquiries of any person present, it appears that the article attached is a mobile home which is the only or principal residence of a person other than the debtor, inform the debtor and that person, by leaving in the mobile home a copy of the attachment schedule, of their right to apply for release of the mobile home from attachment under section 16(1).

(9)

(1)An application by the debtor under section 23(2) for an order that the attachment cease to have effect because the value fixed is too low shall be in form 4.

(2)On the lodging of such an application the sheriff clerk shall–

(a)fix a date for a hearing;

(b)grant a warrant for intimation;

(c)intimate the application and warrant to the applicant, the creditor and the officer of court who executed the attachment; and

(d)complete a certificate of intimation.

(3)The officer of court who executed the attachment shall lodge with the sheriff clerk a copy of the attachment schedule before the date fixed for the hearing.

(10)

(1)A notice by the debtor under section 21(7) that an attached article has been stolen shall be in form 5.

(2)Any notice shall be sent by the debtor to the sheriff clerk, the creditor, and the officer of court.

(11)

(1)The following applications shall be made in form 6:–

(a)an application under section 21(2)(b) for authority to attach other articles where an article has been moved;

(b)an application under section 21(10)(a) for authority to attach other articles where an article has been damaged, destroyed or stolen; and

(c)an application under section 21(10)(b) for the revaluation of any damaged article.

(2)On the lodging of an application under paragraph (1) the sheriff clerk shall–

(a)fix a date for a hearing;

(b)grant a warrant for intimation;

(c)intimate the application and warrant to the applicant, the debtor and (as appropriate) the creditor or the officer of court who executed the attachment; and

(d)complete a certificate of intimation.

(3)The officer of court who executed the attachment shall lodge with the sheriff clerk a copy of the attachment schedule before the date fixed for the hearing.

(12)

(1)An application under section 21(11) for an order against a debtor or third party to consign a sum of money in relation to an article which has been damaged, destroyed, lost, stolen or disposed of for value shall be in form 7.

(2)On the lodging of such an application the sheriff clerk shall–

(a)fix a date for a hearing;

(b)grant a warrant for intimation;

(c)intimate the application and warrant to the applicant, the officer of court who executed the attachment, the person in respect of whom an order for consignation is sought and (as appropriate) the debtor; and

(d)complete a certificate of intimation.

(3)The officer of court who executed the attachment shall lodge with the sheriff clerk a copy of the attachment schedule before the date fixed for the hearing.

(13)

(1)A report under section 17(1) by an officer of court of the execution of a attachment shall be in form 8.

(2)The sheriff clerk shall retain the report of attachment.

(3)An application by an officer of court under section 17(1) to extend the time for lodging the report shall be made by minute stating the reasons for seeking the extension, which may be endorsed on the decree or document of debt (or extract decree or document of debt) upon which the attachment has proceeded.

(4)The terms of the sheriff’s decision on any application shall be endorsed on the decree or document of debt (or extract decree or document of debt), and may be authenticated by the sheriff clerk.

(14)A receipt granted by an officer of court for payment for an attached article redeemed under section 18(1) shall be in form 9.

(15)

(1)An application for an order under section 20(1) for the security of an attached article, or for the sale of an article which is perishable or likely to deteriorate substantially and rapidly in condition or value, shall be in form 10.

(2)The sheriff shall on the lodging of such an application decide what further procedure is appropriate and may dispose of it without intimation to any party or without a hearing.

(3)Where the sheriff considers it appropriate, a date for a hearing shall be fixed.

(4)Where a hearing is fixed the sheriff clerk shall–

(a)intimate the application and warrant for intimation to the applicant and (as appropriate) to the debtor, the creditor and the officer of court who executed the attachment; and

(b)complete a certificate of intimation.

(5)The officer of court who executed the attachment shall lodge with the sheriff clerk a copy of the attachment schedule before the date of the hearing.

(16)

(1)The following applications shall be in form 11:–

(a)an application by the debtor or a third party under section 16(1) for the attachment of a mobile home to cease to have effect;

(b)an application by the debtor under section 22(1) for the attachment of a vehicle to cease to have effect because the auction of the vehicle would be unduly harsh; or

(c)an application by the debtor under section 22(3) for the immediate sale of a vehicle because the auction of the vehicle would be unduly harsh.

(2)On the lodging of an application under paragraph (1) the sheriff clerk shall–

(a)fix a date for a hearing;

(b)grant a warrant for intimation;

(c)intimate the application and the warrant to the creditor, the officer of court who executed the order, the debtor and (where appropriate) the third party; and

(d)complete a certificate of intimation.

(3)The officer of court who executed the attachment shall lodge with the sheriff clerk a copy of the attachment schedule before the date fixed for the hearing.

(17)

(1)An application by a creditor or an officer of court under section 24(2) for an extension of the duration of an attachment shall be in form 12.

(2)On the lodging of such an application the sheriff clerk shall–

(a)fix a date for a hearing;

(b)grant a warrant for intimation;

(c)intimate the application and warrant to the applicant, the debtor, and (as appropriate) the creditor or the officer of court who executed the attachment; and

(d)complete a certificate of intimation.

(3)The officer of court who executed the attachment shall lodge with the sheriff clerk a copy of the attachment schedule before the date fixed for the hearing.

(4)The sheriff clerk shall intimate the sheriff’s decision on such an application to the debtor.

(18)

(1)An application by a debtor for an order under section 26(1)(a) or (b) declaring the attachment to be invalid or to have ceased to have effect shall be in form 13.

(2)On the lodging of such an application the sheriff clerk shall–

(a)fix a date for a hearing;

(b)grant a warrant for intimation;

(c)intimate the application and warrant to the applicant, the creditor, the officer of court who executed the attachment, and any other person having an interest; and

(d)complete a certificate of intimation.

(3)The officer of court who executed the attachment shall lodge with the sheriff clerk a copy of the attachment schedule before the date fixed for the hearing.

(4)The sheriff may declare an attachment to be invalid or to have ceased to have effect without an application having been made under paragraph (1).

(5)The sheriff clerk shall intimate any declaration under paragraph (4) to the debtor.

(19)

(1)An officer of court shall make the following notices in form 14:–

(a)a notice under section 27(4) of the date and location of an auction, and the date of removal of an attached article from the place at which it is kept; and

(b)a notice under section 53(2) of the date of removal of an attached article from the dwellinghouse at which it is kept.

(2)A notice under paragraph (1) shall be given to the debtor, and to any other person in possession of an article which is the subject of that notice, no later than 7 days before the proposed date of removal.

(20)

(1)A report by an officer of court to the sheriff under section 29(3)(a) of any agreement on payment between the creditor and the debtor that results in the cancellation of the arrangements for an auction of attached articles shall be in form 15.

(2)An application by a creditor for an order under section 29(4) that a debtor is in breach of any agreement on payment with the creditor shall be in form 16.

(3)On the lodging of an application under paragraphs (1) or (2) the sheriff clerk shall–

(a)fix a date for a hearing;

(b)grant a warrant for intimation;

(c)intimate the application and warrant to the applicant, the debtor, the officer of court, and any other person having an interest; and

(d)complete a certificate of intimation.

(21)

(1)A report of auction under section 32(1) shall be in form 17.

(2)There shall be lodged with the report of auction–

(a)the decree or document of debt upon which diligence proceeded (or an extract of the decree or document);

(b)any executions or certificates of intimation and service;

(c)copies of notices required by the 2002 Act; and

(d)vouchers for relevant outlays.

(3)The sheriff clerk shall retain the report of auction.

(22)

(1)Where, after the receipt of the auditor of court’s report made under section 33(1)(c), the sheriff considers–

(a)that a balance due by or to the debtor should be modified; or

(b)that the auction may be void,

the sheriff shall before making an order under section 33(4)(b) or (c) fix a date for a hearing.

(2)The sheriff clerk shall intimate such a hearing to the creditor, the officer of court who prepared the report of auction, the debtor, and any such person having or having had an interest in or possession of the attached article as the sheriff may specify.

(3)Where the sheriff has made an order modifying a sale balance or declaring an auction to be void, the sheriff clerk shall intimate that order to those persons to whom intimation was made under paragraph (2).

(23)

(1)An application by a third party–

(a)under section 34(1)(b)(ii) for an order that the sheriff is satisfied that the third party owns an attached article shall be in form 18;

(b)under section 35(2)(b)(ii) for an order that the sheriff is satisfied that the third party owns an attached article in common with the debtor shall be in form 19; or

(c)under section 35(3) for the attachment of an article owned in common to cease to have effect because the sale of the article would be unduly harsh shall be in form 20.

(2)On the lodging of an application under paragraph (1) the sheriff clerk shall–

(a)fix a date for a hearing;

(b)grant a warrant for intimation;

(c)intimate the application and warrant to the applicant, the creditor, the debtor, the officer of court who executed the attachment, and any person having possession of the article; and

(d)complete a certificate of intimation.

(3)The officer of court who executed the attachment shall lodge with the sheriff clerk a copy of the attachment schedule before the date fixed for the hearing.

(24)

(1)An application by a third party under section 36(1)(e)(ii) for a finding after auction that a claim to an attached article is valid shall be in form 21.

(2)On the lodging of such an application the sheriff clerk shall–

(a)fix a date for a hearing;

(b)grant a warrant for intimation;

(c)intimate the application and warrant to the applicant, the debtor, the creditor and (where appropriate) the officer of court who executed the attachment; and

(d)complete a certificate of intimation.

Chapter 3 · Attachment: articles kept within dwellinghouses

(25)

(1)An application by a creditor under section 47(1) for an exceptional attachment order shall be in form 22.

(2)On such an application being lodged the sheriff clerk shall–

(a)fix a date for a hearing;

(b)grant a warrant for intimation;

(c)intimate the application and warrant to the debtor, together with–

(i)a form of service in form 23; and

(ii)a copy of form 24 (declaration of financial circumstances); and

(d)complete a certificate of intimation.

(3)The date fixed for the hearing of the application shall be no earlier than a date that is 21 days after the date when the hearing was fixed.

(26)

(1)A debtor who wishes to make a declaration of financial circumstances for the purpose of section 47(4)(g) shall complete form 24 and lodge it with the sheriff clerk no later than ten days before the date on which the hearing is to take place.

(2)The sheriff clerk shall send a copy of any declaration to the creditor.

(27)

(1)A creditor who applies for an exceptional attachment order shall appear or be represented at the hearing of the application.

(2)Where the creditor does not appear and is not represented at the hearing, the sheriff may dismiss the application.

(28)The sheriff clerk on the making of an exceptional attachment order shall–

(a)intimate the order to the debtor by notice in form 25;

(b)attach a copy of the order to the notice; and

(c)complete a certificate of intimation.

(29)

(1)A report of a visit to give money advice under section 47(5) shall be in form 26.

(2)Any report shall be lodged with the sheriff clerk by the money adviser no later than 3 days before the date fixed for the hearing of the application to which the report relates.

(3)The sheriff clerk shall send a copy of the report to the debtor and the creditor before the date fixed for the hearing of the application to which the report relates.

(30)

(1)An application by an officer of the court under section 49(3) to dispense with service of a notice of entry shall be made by motion in the process of the application for the exceptional attachment order.

(2)The motion shall specify the reason why notice might prejudice the execution of the attachment.

(3)The motion does not need to be intimated to any party and the sheriff may grant or refuse it without a hearing.

(31)

(1)The following applications shall be in form 27:–

(a)an application by a debtor or a third party under section 50(1)(a) for consent to move any article which forms part of the assets to which an exceptional attachment order relates from the dwellinghouse in which it is kept; or

(b)an application by the debtor under section 50(1)(b) for consent to sell, make a gift of, or otherwise relinquish ownership of any such article.

(2)On the lodging of an application under paragraph (1) the sheriff clerk shall–

(a)fix a date for a hearing;

(b)grant a warrant for intimation;

(c)intimate the application and the warrant to the applicant, the creditor and (as appropriate) the debtor; and

(d)complete a certificate of intimation.

(32)

(1)A notice by the debtor under section 50(3) that an attached article has been stolen shall be in form 5.

(2)Any notice shall be sent by the debtor to the sheriff who granted the exceptional attachment order, the creditor, and (if appropriate) the officer of court.

(33)

(1)An application under section 50(5) for an order against a debtor or third party to consign a sum of money in relation to an article which has been damaged, destroyed, lost, stolen or disposed of for value shall be in form 7.

(2)On the lodging of such an application the sheriff clerk shall–

(a)fix a date for a hearing;

(b)grant a warrant for intimation;

(d)complete a certificate of intimation.

(3)The officer of court who executed the attachment shall lodge with the sheriff clerk a copy of the attachment schedule before the date fixed for the hearing.

(34)

(1)An application by a debtor under section 55(2) for an order that an attachment shall cease to have effect, and to require the officer of court to return an article to the dwellinghouse from which it was removed, shall be in form 28.

(2)On the lodging of such an application the sheriff clerk shall–

(a)fix a date for a hearing;

(b)grant a warrant for intimation;

(c)intimate the application and the warrant to the applicant, the creditor, and the officer of court who executed the order; and

(d)complete a certificate of intimation.

(3)The officer of court who executed the order shall lodge with the sheriff clerk a copy of the attachment schedule before the date fixed for the hearing.

(35)A receipt granted by an officer of court for payment for an attached article redeemed under section 56(1) shall be in form 9.

(36)

(1)An application for leave to appeal against a decision of the sheriff under section 57 of the 2002 Act shall–

(a)be made in writing to the sheriff clerk within 14 days of the making of the decision; and

(b)specify the question of law upon which the appeal is to proceed.

(2)The sheriff may consider such an application without hearing parties unless it appears to him to be necessary to hold a hearing, and if so the sheriff clerk shall intimate the date, place and time of the hearing to the parties.

Schedule 2 · Forms of summary warrant

Schedule 3 · Minor and consequential amendments

(1)

(1)In rule 6 (applications for variation or recall of time to pay orders, poindings or advertisements)–

(a)in the heading for “poindings” substitute “attachments”; and

(b)in paragraph (1) for “a poinding” substitute “an attachment”.

(2)In the Schedule (Forms)–

(a)in form 2 (application for a time to pay order), in Part C–

(i)for “poinding” substitute “attachment”;

(ii)in crave 2, for “poinding” substitute “attachment”;

(iii)for crave 4, substitute–“4 To order that no further steps shall be taken by the creditor or the sheriff officer in the diligence concerned, other than in the case of an attachment making a report of the attachment under section 17 of the Debt Arrangement and Attachment (Scotland) Act 2002, or applying for an order under sections 17(1), 20(1), and 21(10) of that Act.”

(iv)in the extract from section 5(4) and (5) of the Debtors (Scotland) Act–

(aa)in subsection (4) for paragraphs (e) and (ee) substitute–“e in relation to a debt including any sum due to–i a rating authority for payment of rates;ii a regional or islands council for the payment of any community charge, community water charge, council tax, or council water charge;iii a collecting authority (within the meaning of section 79 of the Local Government etc. (Scotland) Act 1994) in respect of any charges payable to them by virtue of that section; oriv a regional or islands council for payment of any amount payable as a civil penalty within the meaning of subsection (9) below.”

(bb)in subsection (5), omit paragraph (a);

(b)in form 3 (application for variation or recall of a time to pay order, arrestment and poinding)–

(i)in the heading, for “POINDING” substitute “ATTACHMENT”;

(ii)in section 3, in paragraph (c) for “poinding” or “poinding” in each case where either occurs substitute “attachment” or “attachment” as appropriate; and

(iii)in section 4, in paragraph 3 for “poinding” substitute “attachment”;

(c)in form 43 (application for a conjoined arrestment order), in section 5 for “poinding” substitute “attachment”; and

(d)in form 64 (warrant for intimation), in section 3, for “poinding” substitute “attachment”.

(2)In the Schedule (form of charge for payment of money), for “poinding and sale” substitute “attachment and auction”.

(3)In rule 30 (dealings in goods poinded or sold by virtue of diligence)–

(a)in the heading, for “poinded” substitute “attached”; and

(b)in paragraph (a), for “poinded” substitute “attached”.

(4)In rule 33.67 (form of applications), in paragraph (2) for “poinding” substitute “attachment”.

(5)In rule 16.15 (forms for diligence), in section (1) for paragraph (j) substitute–“j in the case of an attachment, a schedule in form 3, and a report of attachment in form 8, in Appendix 1 of Schedule 1 to the Act of Sederunt (Debt Arrangement and Attachment (Scotland) Act 2002) 2002.”

(6)In the Schedule (Sheriff Court Bankruptcy Rules) in Appendix 1 (forms), in form 2 (form of debtor’s petition (without concurrence of qualified creditor(s) under the Bankruptcy (Scotland) Act 1985) for “poinding” substitute “attachment (or any attempt to attach)”.

(7)In rule 5.43 (enforcement of registered order)–

(a)for “poind” substitute “attach”; and

(b)for “sale in respect of a poinding” substitute “auction in respect of an attachment”.

Schedule 4 · Revocations

Contains public sector information licensed under the Open Government Licence v3.0.