Debtors (Scotland) Act 1987

5 Time to pay orders. S

(1) Subject to section 14 of this Act, this section applies to a debtdue under a decree or other document in respect of which —

(a) a charge for payment has been served on the debtor;

(b) an arrestment has been executed; or

(c) an action of adjudication for debt has been commenced.

(2) Subject to subsections (4) and (5) below, the sheriff may, on an application by the debtor, make an order that a debt to which this section applies (including any interest claimed in pursuance of subsections (6) and (7) below) so far as outstanding, shall be paid—

(a) by such instalments, commencing at such time after the date of intimation in accordance with section 7(4) of this Act by the sheriff clerk to the debtor of the order under this subsection, payable at such intervals; or

(b) as a lump sum at the end of such period following intimation as mentioned in paragraph (a) above,

as the sheriff may specify in the order.

(3) An order under subsection (2) above shall be known as a “time to pay order”.

(4) It shall not be competent for the sheriff to make a time to pay order—

(a) where the amount of the debt outstanding at the date of the making of the application under subsection (2) above (exclusive of any interest) exceeds £10,000 or such amount as may be prescribed in regulations made by the Lord Advocate;

(b) where, in relation to the debt, a time to pay direction or a time to pay order has previously been made (whether such direction or order is in effect or not);

(c) where, in relation to the debt, a summary warrant has been granted;

(d) in relation to a debt including any sum recoverable by or on behalf of the Inland Revenue in respect of tax or as if it were tax;

[F1 (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;

[F2 (iia) 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;]] or

(iii) a regional or islands council for payment of any amount payable as a civil penalty within the meaning of subsection (9) below.

(f) in relation to a debt including—

(i) any duty due under the M1 Betting and Gaming Duties Act 1981;

(ii) car tax due under the M2 Car Tax Act 1983; or

(iii) value added tax due under the M3 Value Added Tax Act 1983 or any sum recoverable as if it were value added tax.

(5) Where in respect of a debt to which this section applies—

(a) there has been a poinding of articles belonging to the debtor and a warrant of sale has been granted in respect of them but has not been executed;

(b) moveable property of the debtor has been arrested and in respect of the arrested property—

(i) a decree in an action of furthcoming has been granted but has not been enforced; or

(ii) a warrant of sale has been granted but the warrant has not been executed; or

(c) a decree in an action of adjudication for debt has been granted and the creditor has, with the debtor’s consent or acquiescence, entered into possession of any property adjudged by the decree or has obtained a decree of maills and duties, or a decree of removing or ejection, in relation to any such property,

it shall not be competent for the sheriff to make a time to pay order in respect of that debt until the diligence has been completed or has otherwise ceased to have effect.

(6) Without prejudice to section 9(12) of this Act, interest payable under a decree for payment of a debt in respect of which a time to pay order has been made (other than interest awarded as a specific sum in the decree) shall not be recoverable by the creditor except in accordance with subsection (7) below.

(7) A creditor who wishes to recover interest to which subsection (6) above applies shall serve a notice on the debtor not later than the date prescribed by Act of Sederunt occurring—

(a) in the case of an order under subsection (2)(a) above, before the date when the last instalment of the debt (other than such interest) is payable under the order;

(b) in the case of an order under subsection (2)(b) above, before the end of the period specified in the order,

stating that he is claiming such interest and specifying the amount of the interest claimed.

(8) Any sum paid by a debtor under a time to pay order shall not be ascribed to interest claimed in pursuance of subsections (6) and (7) above until the debt concerned (other than such interest) has been discharged.

[F3 (9) In paragraph (e) of subsection (4) above—

• “community charge” and “community water charge” have the meanings assigned to them in section 26 of the M4 Abolition of Domestic Rates Etc. (Scotland) Act 1987 and the reference in that paragraph to payments of these charges includes reference to any amount payable under section 18(3) of that Act (payment of charges in respect of backdated period);

• “council tax” and “council water charge” have the meanings assigned to them by section 99(1) of the Local Government Finance Act 1992; and

• “civil penalty” means a penalty under section 17(10) or (11) of that Act of 1987 or under paragraph 2 of Schedule 3 to that Act of 1992.]

Textual Amendments

F1 S. 5(4)(e) substituted (1.4.1993) for s. 5(4)(e)(ee) by Local Government Act 1992 (c. 14), s. 117(1), Sch. 13 para. 54(1); S.I. 1993/575, art. 2(c).

F2 S. 5(4)(e)(iia) inserted (1.4.1996) by 1994 c. 39, s. 180(1), Sch. 13 para. 151(2); S.I. 1996/323, art. 4(1)(c)

F3 S. 5(9) inserted (1.4.1993) by Local Government Act 1992 (c. 14), s. 117(1), Sch. 13 para. 54(2m); S.I. 1993/575, art. 2(c).

Marginal Citations

M1 1981 c. 63.

M2 1983 c. 53.

M3 1983 c. 55.

M4 1987 c. 47.