Debtors (Scotland) Act 1987

1. Introductory Text

2. PART I EXTENSION OF TIME TO PAY DEBTS

   1. Time to pay directions on granting decree

      1. 1. Time to pay directions.

      2. 2. Effect of time to pay direction on diligence.

      3. 3. Variation and recall of time to pay direction and arrestment.

      4. 4. Lapse of time to pay direction.

   2. Time to pay orders following charge or diligence

      1. 5. Time to pay orders.

      2. 6. Application for time to pay order.

      3. 7. Disposal of application.

      4. 8. Effect of interim order on diligence.

      5. 9. Effect of time to pay order on diligence.

      6. 10. Variation and recall of time to pay order and arrestment.

      7. 11. Lapse of time to pay order.

   3. Miscellaneous

      1. 12. Sequestration and insolvency.

      2. 13. Saving of creditor’s rights and remedies.

      3. 14. Circumstances where direction or order not competent or no longer effective.

      4. 15. Interpretation of Part I.

3. Part 1A Diligence on the dependence

   1. Availability of diligence on the dependence

      1. 15A. Diligence on the dependence of action

      2. 15B. Diligence on the dependence of petition

      3. 15C. Diligence on the dependence to secure future or contingent debts

   2. Application for diligence on the dependence

      1. 15D. Application for diligence on the dependence

      2. 15E. Grant of warrant without a hearing

      3. 15F. Hearing on application

   3. Execution before service

      1. 15G. Execution of diligence before service of summons

   4. Restriction on property attached

      1. 15H. Sum attached by arrestment on dependence

      2. 15J. Property affected by inhibition on dependence

   5. Recall etc. of diligence on the dependence.

      1. 15K. Recall or restriction of diligence on dependence

      2. 15L. Variation of orders and variation or recall of conditions

   6. General and miscellaneous

      1. 15M. Expenses of diligence on the dependence

      2. 15N. Application of this Part to admiralty actions

4. PART II POINDINGS AND WARRANT SALES

   1. Poinding

      1. 16. Articles exempt from poinding.

      2. 17. Restrictions on times when poinding may be executed.

      3. 18. Power of entry for execution of poinding.

      4. 19. Value of articles which may be poinded and presumption as to ownership.

      5. 20. Poinding procedure.

      6. 21. Poinding procedure - further provisions.

      7. 22. Report of execution of poinding.

      8. 23. Release of poinded article on ground of undue harshness.

      9. 24. Invalidity, cessation and recall of poinding.

      10. 25. Second poinding in same premises.

      11. 26. Sist of proceedings in poinding of mobile homes.

      12. 27. Duration of poinding.

   2. Removal, damage or destruction of poinded articles

      1. 28. Removal of poinded articles.

      2. 29. Unlawful acts relating to poinded articles.

   3. Warrant sales

      1. 30. Application for warrant of sale.

      2. 31. Provisions of warrant of sale.

      3. 32. Location of sale.

      4. 33. Release or redemption of poinded articles after warrant.

      5. 34. Intimation and publication of sale.

      6. 35. Alteration of arrangements for sale.

      7. 36. Payment agreements after warrant of sale.

      8. 37. The warrant sale.

      9. 38. Disposal of proceeds of sale.

      10. 39. Report of warrant sale.

   4. Articles belonging to third parties or in common ownership

      1. 40. Release from poinding of articles belonging to third party.

      2. 41. Poinding and sale of articles in common ownership.

   5. Supplementary

      1. 42. Certain proceedings under Part II to postpone further steps in the diligence.

      2. 43. Conjoining of further poinding with original poinding.

      3. 44. Expenses of poinding and sale.

      4. 45. Interpretation of Part II.

5. PART III DILIGENCE AGAINST EARNINGS

   1. Introduction

      1. 46. New diligences against earnings.

   2. Earnings arrestments

      1. 47. General effect of earnings arrestment.

      2. 48. Debt recoverable by earnings arrestment.

      3. 49. Deductions from net earnings to be made by employer.

      4. 49A. Deductions where net earnings include holiday pay

      5. 50. Review of earnings arrestment.

   3. Current maintenance arrestments

      1. 51. General effect of current maintenance arrestment.

      2. 52. Enforcement of 2 or more obligations to pay maintenance.

      3. 53. Deductions from net earnings to be made by employer.

      4. 54. Current maintenance arrestment to be preceded by default.

      5. 55. Review and termination of current maintenance arrestment.

      6. 56. Effect of new maintenance order on current maintenance arrestment.

   4. General

      1. 57. Failure to comply with arrestment, manner of payment and creditor’s duty when arrestment ceases to have effect.

      2. 58. Simultaneous operation of earnings and current maintenance arrestment.

      3. 59. Priority among arrestments.

   5. Conjoined arrestment orders

      1. 60. Conjoined arrestment orders: general provision.

      2. 61. Amount recoverable under conjoined arrestment order.

      3. 62. Relationship of conjoined arrestment order with earnings and current maintenance arrestments.

      4. 63. Sum payable by employer under conjoined arrestment order.

      5. 64. Disbursement by sheriff clerk of sums received from employer.

      6. 65. Operation of conjoined arrestment order.

      7. 66. Recall and variation of conjoined arrestment order.

   6. Supplementary provisions

      1. 67. Equalisation of diligences not to apply.

      2. 68. Diversion of arrested earnings to Secretary of State.

      3. 69. Restriction on liability of employer in operating diligence against earnings.

      4. 70. Execution and intimation of copies.

      5. 70A. Employer's duty to provide information

      6. 70B. Failure to give notice under section 70A(5)

      7. 70C. Creditor's duty to provide information

      8. 70D. Debtor's duty to provide information

      9. 71. Employer’s fee for operating diligence against earnings.

      10. 72. Effect of sequestration on diligence against earnings.

      11. 73. Interpretation of Part III.

6. Part 3A Arrestment and action of furthcoming

   1. 73A. Arrestment and action of furthcoming to proceed only on decree or document of debt

   2. 73B. Schedule of arrestment to be in prescribed form

   3. 73C. Arrestment on the dependence followed by decree

   4. 73D. Debt advice and information

   5. 73E. Funds attached

   6. 73F. Protection of minimum balance in certain bank accounts

   7. 73G. Arrestee's duty of disclosure

   8. 73H. Failure to disclose information

   9. 73J. Automatic release of arrested funds

   10. 73K. Sum released under section 73J(2)

   11. 73L. Circumstances preventing automatic release

   12. 73M. Notice of objection

   13. 73N. Hearings following notice of objection

   14. 73P. Arrestee not liable for funds released in good faith

   15. 73Q. Application for release of property where arrestment unduly harsh

   16. 73R. Hearing on application under section 73Q for release of property

   17. 73S. Mandate to be in prescribed form

   18. 73T. Arrestment of ships etc.

7. PART IV RECOVERY OF RATES AND TAXES ETC.

   1. 74. Recovery of rates and taxes etc.

8. PART V MESSENGERS-AT-ARMS AND SHERIFF OFFICERS

   1. 75. Regulation of organisation, training, conduct and procedure.

   2. 76. Advisory Council.

   3. 77. Appointment of messenger-at-arms.

   4. .... Inspection of work.

   5. 79. Investigation of alleged misconduct.

   6. 80. Courts’ powers in relation to offences or misconduct.

   7. 81. Provisions supplementary to section 80.

   8. 82. Appeals from decisions under sections 77, 79 and 80.

   9. 83. Service of charge and execution of diligence or warrant void where officer of court has interest.

   10. 84. Collection of statistics from officers of court.

   11. 85. Measure of damages payable by officer of court for negligence or other fault.

   12. 86. Official identity card.

   13. 86A. Electronic communications

9. PART VI WARRANTS FOR DILIGENCE AND CHARGES FOR PAYMENT

   1. 87. Effect of warrants for diligence in extract decrees and other documents.

   2. 88. Warrants for diligence: special cases.

   3. 89. Abolition of letters of horning, horning and poinding, poinding, and caption.

   4. 90. Provisions relating to charges for payment.

   5. 91. Enforcement of certain warrants and precepts of sheriff anywhere in Scotland.

10. PART VII MISCELLANEOUS AND GENERAL

    1. 92. General provision relating to liability for expenses in court proceedings.

    2. 93. Recovery from debtor of expenses of certain diligences.

    3. 94. Ascription of sums recovered by diligence or while diligence is in effect.

    4. 95. Certain diligences terminated by payment or tender of full amount owing.

    5. 95A. Prescription of arrestment

    6. 96. Provisions to assist debtor in proceedings under Act.

    7. 97.

    8. 98.

    9. 99. (1) Sections 16 to 18, 23 and 26 of this...

    10. 100.

    11. 101.

    12. 102. Procedure in diligence proceeding on extract of registered document etc.

    13. 103. Appeals.

    14. 104. Regulations.

    15. 105. Application to Crown.

    16. 106. Interpretation.

    17. 107. Financial provisions.

    18. 108. Minor and consequential amendments, transitional provisions and repeals.

    19. 109. Short title, commencement and extent.

11. SCHEDULES

    1. SCHEDULE 1

       EXPENSES OF POINDING AND SALE

       1. Expenses chargeable against the debtor

          1. 1. (1) Subject to paragraphs 2, 3 and 5 to 7...

          2. 2. Where a warrant of sale is varied under section 35...

          3. 3. Where arrangements for a sale are cancelled under subsection (1)...

          4. 4. Where a warrant of sale is varied under section 35...

          5. 5. Subject to paragraph 6 below, where any such further poinding...

          6. 6. Where any such further poinding as is mentioned in subsection...

          7. 7. Where a new date is arranged under section 35(10) of...

       2. Circumstances where liability for expenses is at the discretion of the sheriff

          1. 8. The liability for any expenses incurred by the creditor or...

       3. Calculation of amount chargeable against debtor under the foregoing provisions

          1. 9. Expenses— (a) chargeable against the debtor by virtue of any...

       4. Circumstances where no expenses are due to or by either party

          1. 10. Subject to paragraph 11 below, the debtor shall not be...

          2. 11. If— (a) an application mentioned in paragraph 10(a) above is...

       5. Supplementary

          1. 12. Any expenses chargeable against the debtor by virtue of any...

    2. SCHEDULE 2

       ARRESTMENT

    3. SCHEDULE 3

       DISBURSEMENTS BY SHERIFF CLERKS UNDER CONJOINED ARRESTMENT ORDER

       1. 1. Where all the debts are ordinary debts, in every disbursement...

       2. 2. Where all the debts are current maintenance, then, in any...

       3. 3. Subject to paragraph 4 below, where the debts comprise both...

       4. 4. If the sum available for any disbursement is insufficient to...

       5. 4A. Where— (a) only one of the debts is an ordinary...

       6. 5. For the purposes of this Schedule, the amount of an...

    4. SCHEDULE 4

       RECOVERY OF RATES AND TAXES ETC.

       1. The Local Government (Scotland) Act 1947 (c. 43.)

          1. 1. (1) For section 247 there shall be substituted the following...

       2. The Taxes Management Act 1970 (c. 9.)

          1. 2. For section 63 there shall be substituted the following sections—...

       3. The Car Tax Act 1983 (c. 53.)

          1. 3. In paragraph 3(2) of Schedule 1 (recovery of car tax),...

       4. The Value Added Tax Act 1983 (c. 55.)

          1. 4. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

    5. SCHEDULE 5

       POINDINGS AND SALES IN PURSUANCE OF SUMMARY WARRANTS

       1. Articles exempt from poinding

          1. 1. (1) The following articles belonging to a debtor shall be...

       2. Restrictions on time when poinding may be executed

          1. 2. (1) No poinding shall be executed on Sunday, Christmas Day,...

       3. Power of entry for execution of poinding

          1. 3. (1) Subject to sub-paragraph (2) below, notwithstanding any warrant authorising...

       4. Value of articles which may be poinded and presumption as to ownership

          1. 4. (1) The sheriff officer shall be entitled to poind articles...

       5. Poinding procedure

          1. 5. (1) The procedure in a poinding shall be in accordance...

          2. 6. (1) The sheriff, on an application by the creditor, the...

       6. Release of poinded article on ground of undue harshness

          1. 7. (1) The sheriff may, on an application made within 14...

       7. Invalidity, cessation and recall of poinding

          1. 8. (1) If, at any time before the sale of the...

       8. Second poinding in same premises

          1. 9. Subject to paragraph 7(2) above and paragraphs 12(2) and (6),...

       9. Sist of proceedings in poinding of mobile homes

          1. 10. (1) Where a caravan, houseboat or other moveable structure which...

       10. Duration of poinding

           1. 11. (1) Subject to sub-paragraphs (2), (3) and (5) below, a...

       11. Removal, damage or destruction of poinded articles

           1. 12. (1) The debtor or the person in possession of poinded...

           2. 13. (1) The wilful damage or destruction of poinded articles by—...

       12. Arrangements for sale

           1. 14. (1) A sale in pursuance of a summary warrant shall...

       13. Release or redemption of poinded articles

           1. 15. (1) Where a sale of poinded articles is to be...

       14. Intimation and publication of sale

           1. 16. (1) The sheriff officer who makes arrangements for the sale...

       15. Alteration of arrangements for sale

           1. 17. (1) Subject to sub-paragraph (2) below and without prejudice to...

       16. The sale

           1. 18. (1) In the sale there shall be no reserve price...

       17. Disposal of proceeds of sale

           1. 19. The sheriff officer who arranges the sale shall dispose of...

       18. Report of sale

           1. 20. (1) The sheriff officer who arranged the sale shall within...

       19. Articles belonging to third parties or in common ownership

           1. 21. (1) A sheriff officer may, at any time after the...

           2. 22. (1) Articles which are owned in common by a debtor...

       20. Certain proceedings under this Schedule to postpone further steps in the diligence

           1. 23. (1) Where an application under any of the provisions of...

       21. Power to enter premises and open shut and lockfast places

           1. 24. A summary warrant shall contain a warrant authorising a sheriff...

       22. Expenses chargeable against the debtor

           1. 25. (1) Subject to paragraphs 26 to 29 below, there shall...

           2. 26. Where arrangements for a sale are cancelled under sub-paragraph (4)...

           3. 27. Subject to paragraph 28 below, where any such further poinding...

           4. 28. Where any such further poinding as is mentioned in sub-paragraph...

           5. 29. Where a new date is arranged under paragraph 17(2) above...

       23. Circumstances where liability for expenses is at the discretion of the sheriff

           1. 30. The liability for any expenses incurred by the creditor or...

       24. Calculation of amount chargeable against debtor under the foregoing provisions

           1. 31. Expenses awarded by the sheriff against the debtor in favour...

       25. Circumstances where no expenses are due to or by either party

           1. 32. Subject to paragraph 33 below, the debtor shall not be...

           2. 33. If— (a) an application mentioned in paragraph 32(a) above is...

       26. Supplementary

           1. 34. Any expenses chargeable against the debtor by virtue of any...

           2. 35. In this Schedule— “creditor” means— (a) for the purposes of...

    6. SCHEDULE 6

       MINOR AND CONSEQUENTIAL AMENDMENTS

       1. General amendment

          1. 1. Any reference in any enactment to an order being enforceable...

       2. Specific amendments

       3. The Bank Notes (Scotland) Act 1765 (c. 49.)

          1. 2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

       4. The Debtors (Scotland) Act 1838 (c. 114.)

          1. 3. At the end of section 22 (arrestment to prescribe in...

       5. The Harbours, Docks, and Piers Clauses Act 1847 (c. 27.)

          1. 4. In section 57 (unserviceable vessels to be altogether removed from...

       6. The Lyon King of Arms Act 1867 (c.17)

          1. 5. In section 2 (admittance to office of messengers-at-arms), for the...

       7. The Court of Session Act 1868 (c. 100)

          1. 6. At the end of section 14 (induciae of summonses and...

       8. The Titles to Land Consolidation (Scotland) Act 1868 (c. 101)

          1. 7. In section 138 (import of short clauses of consent to...

       9. The Debtors (Scotland) Act 1880 (c. 34)

          1. 8. In section 4 (abolition of imprisonment for debt, with certain...

       10. The Sea Fisheries Act 1883 (c. 22.)

           1. 9. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

       11. The Merchant Shipping Act 1894 (c. 60.)

           1. 10. In section 693 (sums ordered to be leviable by poinding...

       12. The Execution of Diligence (Scotland) Act 1926 (c. 16)

           1. 11. In section 1 (sheriff officer to have the powers of...

           2. 12. In section 2(1)(b) (execution of arrestment or charge by registered...

       13. The Sea Fisheries Act 1968 (c. 77.)

           1. 13. In section 12(2)(a) (recovery of fines imposed on master, etc....

       14. The Prevention of Oil Pollution Act 1971 (c. 60.)

           1. 14. In section 20(1) (enforcement and application of fines), for the...

       15. The Town and Country Planning (Scotland) Act 1972 (c. 52)

           1. 15. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

       16. The Consumer Credit Act 1974 (c. 69)

           1. 16. After section 93 there shall be inserted the following section—...

           2. 17. In section 129 (time orders)— (a) at the beginning of...

       17. The Criminal Procedure (Scotland) Act 1975 (c. 21)

           1. 18. In section 411 (recovery by civil diligence), in subsection (1)...

       18. The Crofting Reform (Scotland) Act 1976 (c. 21)

           1. 19. In section 17(1) (extension of powers of Land Court), for...

       19. The Patents Act 1977 (c. 37)

           1. 20. In section 93(b) and 107(3) (orders for expenses), for the...

       20. The Customs and Excise Management Act 1979 (c. 2)

           1. 21. In section 117 (execution and diligence against revenue traders), for...

       21. The Education (Scotland) Act 1980 (c. 44)

           1. 22. In paragraph 8 of Schedule 1 (local inquiries), for the...

       22. The Betting and Gaming Duties Act 1981 (c. 63)

           1. 23. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

       23. The British Fishing Boats Act 1983 (c. 8.)

           1. 24. In section 5(2)(a) (recovery of fines), for the word “poinding”...

       24. The Inshore Fishing (Scotland) Act 1984 (c. 26.)

           1. 25. In section 8(2)(a) (recovery of fines), for the word “poinding”...

       25. The Rent (Scotland) Act 1984 (c. 58.)

           1. 26. For section 110 (restriction on diligence), there shall be substituted...

       26. The Bankruptcy (Scotland) Act 1985 (c. 66)

           1. 27. In section 37 (effect of sequestration on diligence), after subsection...

           2. 28. In paragraph 24 of Schedule 7 (arrestments and poindings)—

    7. SCHEDULE 7

       TRANSITIONAL PROVISIONS

       1. 1. Notwithstanding the repeal by this Act of subsection (4) of...

       2. 2. The sheriff may refuse to make a time to pay...

       3. 3. Without prejudice to paragraphs 4 to 6 of this Schedule,...

       4. 4. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

       5. 5. Nothing in this Act shall affect an arrestment of earnings...

       6. 6. Where an arrestment of a debtor’s earnings in the hands...

       7. 7. (1) Subject to sub-paragraph (2) below, a summary warrant granted...

       8. 8. (1) Where before the commencement of paragraphs 21 and 23...

       9. 9. (1) The provisions of this Act relating to the liability...

       10. 10. Until the commencement of the repeal of the Supplementary Benefits...

    8. SCHEDULE 8

       REPEALS