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ENFORCEMENT OF CIVIL OBLIGATIONS IN SCOTLAND: ANALYSIS OF CONSULTATION RESPONSES
PART 7 MISCELLANEOUS ENFORCEMENT AND OTHER PROCEDURAL ISSUES
A WARRANT, INTIMATION AND CHARGE
Q.7A.1(a) Should there be a unified approach to the authority conferred by a warrant for enforcement?
(b) if so, should the form of the warrant be prescribed by rules of court subject to amendment or prescription in regulations made by the Scottish Ministers?
7.1 There was consensus that there should be a unified approach for the sake of consistency but respondents were split between prescription by rules of court and regulation by Scottish Ministers.
Q7A.2(a) Should there be standard arrangements for intimation of a decree or equivalent?
(b) if so, should the onus be placed upon the successful party to do so upon his receipt of the extract or certified copy?
7.2 There is overall support for standard arrangements for intimation of a decree or equivalent, and overall support for the view that the onus be placed upon the successful party to do so. A number of respondents wished to have clarification or guidance as to how this might be done, and what might be the sanctions against the successful party if they fail to fulfil this duty. Some respondents suggested that an officer of the court should be involved in the delivery of the intimation.
7.3 Respondents not in favour indicated that service of a charge fulfilled this function.
Q7A.3 In the event that a general rule for intimation of a decree or equivalent was introduced, for which methods of enforcement should additional personal service of a charge remain necessary?
7.4 The majority of respondents commented that personal service of a charge should remain necessary in respect of eviction cases. Also Enforcement Agencies suggest that it should also remain in cases of sequestration, or any further diligence such as earnings arrestment and attachment of moveable property.
Q7A.4 In cases other than those where personal service would be appropriate, what methods of intimation would be appropriate (for example is existing methods of service of judicial documents or some other standard)?
7.5 The majority of respondents commented that the existing method of service of judicial documents is sufficient and should continue and that no change is required.
B INFORMATION AND ADVICE
Q7B.1 For provision of information and advice about the enforcement system
(a) where are the greatest areas of need? (b) what types of information and advice about the enforcement system should be made available? (c) by what means should they be delivered?
7.6 Areas of greatest need are considered to be the lack of knowledge amongst the general public, and particularly those most vulnerable to having enforcement of decree against them, of rights and procedures in relation to all enforcement processes, and in particular, time to pay procedures, debt arrangement schemes and the procedures leading up to possible court action.
7.7 Individual citizens need to know what forms of diligence can be taken against them, what the impact of each diligence is in the short and long term and what their rights are and how to put them into effect.
7.8 These information needs can be met through using a range of media, through face to face support, and plain English publications. Access to high quality money advice from expert advisers is regarded as essential.
C FORMS AND FEES
Q.7C.1 Consultees are invited to comment on the proposal to further develop modern, easily understood and user-friendly forms.
7.9 This proposal is warmly welcomed by all respondents, as is the consultative approach being proposed.
Q7C.2 In particular, consultees are invited to identify any forms where it is considered that improvements could be made and indicate the nature of any difficulties experienced or improvements proposed.
7.10 Many respondents believe that all forms in use, particularly those used by sheriff officers, with the exception of those that have recently been revised, ie small claim and summary cause forms, could be streamlined and improved. TTPO and TTPD forms are regarded as particularly problematic for debtors, as is the form of schedule of arrestment.
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