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ENFORCEMENT OF CIVIL OBLIGATIONS IN SCOTLAND

Contents

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FOREWORD BY THE DEPUTY FIRST MINISTER AND MINISTER FOR JUSTICE

CONSULTATION ARRANGEMENTS

TABLE OF ABBREVIATIONS

SUMMARY

PART 1 : INTRODUCTION

Origins and Scope of the Review
Acknowledgements

PART 2 : ENFORCEMENT AND POLICY PRINCIPLES

Definition of Diligence
Policy Considerations Guiding Reform

PART 3 : STRUCTURE AND ORGANISATION OF THE ENFORCEMENT SYSTEM

General Operation and Functions

Structure of the Enforcement Officer Profession

Award of commission
Training and qualifications
Professionalism
Regulation and control

Formal Enforcement and Informal Debt Collection

Distinction between pre-decree collection and post decree enforcement
Devolved and reserved competence

Concerns About the Current Enforcement System

Concerns Raised within the Formal Complaints Procedures

Statutory judicial complaints procedure
SMASO complaints procedure
Complaints made directly to local authorities
Complaints about debt collectors

Concerns Raised Informally

Parliament & public debate, SLC, working groups, advice sector, research

Some Underlying Problems

Lack of knowledge
Accountability
Creditors’ instruction of enforcement
Enforcement officers’ behaviour
Informal debt collection

Policy Issues and Proposals for Reform

Structure of the enforcement system
Access to information
Organisation of the enforcement system
Extra official activities and debt collection
Awareness about the enforcement system

Summary of Proposals for Organisational Restructure and Related Reform

PART 4 : DEBTOR PROTECTIONS

General Purpose

The Debtors (Scotland) Act 1987

(A) TIME TO PAY ARRANGEMENTS

Summary of Current Law

Time to pay directions
Time to pay orders

Principal Research Findings

Research results on TTPDs
Research results on TTPOs
Time orders under the Consumer Credit Act 1974

Policy Issues and Proposals for Reform

The TTPD application process
Grant of TTPDs not linked to decree
Guidance about factors for granting TTPDs and TTPOs
TTPO information and application forms
TTPO available after TTPD
Information and publicity
Education strategy
TOs under the 1974 Act

(B) MEASURES TO ASSIST UNREPRESENTED PARTIES

Summary of Current Law

Financial arrangements
Representation and assistance

Principal Research Findings

Financial arrangements
Representation and assistance

Policy Issues and Proposals for Reform

Financial arrangements
Information and education strategy
Representation and assistance

(C) WRONGFUL DILIGENCE

Summary of Current Law

Diligence used without proper authority
Diligence irregularly executed
Exercising the remedy
Liability for wrongful diligence

Policy Issues and Consideration of Reform

(D) DEBT ARRANGEMENT SCHEME

Nature and Purpose

Support for National Statutory Provision for Debt Arrangement

Voluntary Repayment Programmes

Policy Issues

Proposals for a National Statutory Debt Arrangement Scheme

Scope and principal features
Main functions
Relationship with conjoined arrestment orders
Alternative models
Conditions, restrictions and other legal effects
Issues still under consideration
Costs and benefits

PART 5 : TYPES OF ENFORCEMENT

(A) DILIGENCE ON THE DEPENDENCE

Nature and Purpose of Diligence on the Dependence

Types of Diligence on the Dependence

Arrestment on the dependence
Inhibition on the dependence

Scottish Law Commission Recommendations

Availability in the Court of Session
Availability in the Sheriff Court
Use of diligence on the dependence
Procedure prior to commencement of the principal action
Automatic grant of warrant for diligence on the dependence
The amount secured by diligence on the dependence
Grounds for recall or restriction
Liability of the pursuer
Diligence on the dependence of corporeal moveables

Cross-border Arrestments on the Dependence (and in Execution)

Forms

Miscellaneous

(B) ADMIRALTY ARRESTMENT

Nature and Purpose of Admiralty Arrestment

Background and Current Law

Scottish Law Commission Recommendations

Automatic grant of warrant for diligence on the dependence
Subsequent arrestments
Liability of the pursuer
Service of the summons
Arrest of sister ship
Judicial sale of demise chartered ships
Care of ship under arrest and her crew
Arrestment on the dependence of demise chartered ships
Demise chartered ships

(C) DILIGENCE AGAINST EARNINGS

Summary of Current Law

Earnings arrestment
Current maintenance arrestment
Priority between earnings arrestment and current maintenance arrestment
Conjoined arrestment order
Child support and student loan deductions from earnings orders
Use of earnings arrestments

Principal Research Findings

Debtors' experiences
Creditors' experiences
Employers' experiences

Policy Issues and Proposals for Reform

Priority between types of earnings arrestment
Relationship with deductions from earnings orders
Miscellaneous reforms
Awareness and exchange of information
Relationship of arrestment against earnings with ordinary arrestment

Reserved Matters

Cross-border situations
Exemptions from arrestment against earnings
Recovery of excessive pensions contributions
Direct deductions from Social Security Benefits

(D) ARRESTMENT AND ACTION OF FURTHCOMING

Nature, Purpose and Effect

Amount of Property Attached by Arrestment

Summary of current law
Policy issues and Scottish Law Commission consideration
Proposals for reform

Protection of Subsistence Level from Arrestment

Background and current law
The Bank Arrestment (Scotland) Bill
Policy issues
Options for reform
Consideration of reform

Fees for Arrestees

Impact of arrestment on third party arrestees
Background to SLC report and subsequent developments
Policy issues and proposals for reform

Duties of Disclosure

Disclosure by the arrestee
Disclosure by the Debtor
Policy issues and proposals for reform

Actions of Furthcoming

Current practice
Policy issue and proposal for reform

Schedule of Arrestment

Current styles of arrestment schedule
Policy issue and proposal for reform

(E) DILIGENCE CONCERNING HERITABLE PROPERTY

Scottish Law Commission Consideration

Inhibition in execution
Adjudication for debt
Land attachment
Attachment order
Implementation of the Commission's recommendations

Sequestration for Rent

Nature and purpose
Action of sequestration for rent
Effect on third parties
Use of sequestration for rent
Policy issues and proposal for reform

Maills and Duties

Nature and effect
Action of maills and duties
Use of maills and duties
Policy issue and proposal for reform

Ejection

Nature and purpose
Actions of removing
Action of ejection
Enforcement by ejection
Use of ejection
Policy issues and proposals for reform

(F) ATTACHMENT OF MONEY

Current Law

Scottish Law Commission Consideration

Proposal For Reform

(G) CIVIL IMPRISONMENT

Summary of Current Law

Authority of the Civil Courts and Performance Obligations

Enforcement of Payment Obligations

Failure to pay child support
Failure to pay aliment
Breach of a sequestration for rent order

Policy Issues

Proposals for Reform

(H) DELIVERY

(I) HIERARCHY OF ENFORCEMENT

PART 6 : ENFORCEMENT AUTHORISED BY A SUMMARY WARRANT

Summary Warrant Procedure Not Considered

Summary Warrant Authority

Summary Warrant Diligence

Diligence competent on the authority of a summary warrant
Additional diligence on the authority of a summary warrant
Time to pay arrangements
Service of a charge for payment prior to summary warrant diligence
Proposals for reform
Local authority surcharge

PART 7 : MISCELLANEOUS ENFORCEMENT AND OTHER PROCEDURAL ISSUES

(A) WARRANT, INTIMATION AND CHARGE

Warrant to Enforce
Intimation of Orders, Decrees and Enforceable Documents
Service of Charge for Payment or Other Action

(B) INFORMATION AND ADVICE

(C) FORMS/FEES

(D) INFORMATION GATHERING AND MONITORING

PART 8 : SUMMARY OF CONSULTATION QUESTIONS

ANNEX A : STATEMENTS AND QUOTES

Referred to in Part 3, Structure and Organisation of the Enforcement System

Debates on the Abolition of Poindings and Warrant Sales Bill
Scottish Law Commission
Consultation on the independent Working Group’s recommendations
Advice sector
Research
Historical context
Debt collection
Access to information

Referred to in Part 4, Debtor Protections

Debt arrangement scheme - SLC
Debt arrangement scheme – support and concerns

Referred to in Part 5C, Diligence against Earnings

Use of earnings arrestments

Referred to in Part 6, Enforcement Authorised by a Summary Warrant

Summary warrant diligence

ANNEX B : LIST OF CONSULTEES

DOWNLOAD THE CONSULTATION QUESTIONNAIRE

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