(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[F1, on an application by the debtor, shall, if satisfied that it is reasonable in all the circumstances to do so, and having regard in particular to the matters mentioned in subsection (2A) below,] 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.
[F2(2A)The matters referred to in subsection (2) above are—
(a)the nature of and reasons for the debt in relation to which the order is sought;
(b)any action taken by the creditor to assist the debtor in paying that debt;
(c)the debtor's financial position;
(d)the reasonableness of any proposal by the debtor to pay that debt; and
(e)the reasonableness of the objection by the creditor to the offer by the debtor to pay that debt.]
(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);
F3(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(d)in relation to a debt including any sum recoverable by or on behalf of [F4the Commissioners for Her Majesty’s Revenue and Customs] in respect of tax or as if it were tax;
F5(e). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(f)in relation to a debt including—
(i)any duty due under the M1Betting and Gaming Duties Act 1981;
(ii)car tax due under the M2Car Tax Act 1983; F6. . .
(iii)value added tax due under the M3Value Added Tax Act 1983 or any sum recoverable as if it were value added tax.[F7or
(iv)any amount by way of contributions, or by way of interest or penalty in respect of contributions, certified under section 118(1) of the M4Social Security Administration Act 1992 as liable to be paid to the [F8Commissioners of Inland Revenue]].
(5)Where in respect of a debt to which this section applies—
(a)[F9there 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;]
[F9articles belonging to the debtor have been attached and notice of an auction given under section 27(4) of the Debt Arrangement and Attachment (Scotland) Act 2002 (asp 17) but no auction has yet taken place;
(aa)money owned by the debtor has been attached and removed;]
(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.
F10(9). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Textual Amendments
F1Words in s. 5(2) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 210(3)(a), 227(3) (with s. 223); S.S.I. 2008/115, art. 3(1)(g) (with arts. 4-6, 10, 15) (as amended: (23.2.2009) by S.S.I. 2009/67, art. 7; (31.1.2011) by S.S.I. 2011/31, art. 5(a); and (4.10.2014) by S.S.I. 2014/173, arts. 1(2), 3)
F2S. 5(2A) inserted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 210(3)(b), 227(3) (with s. 223); S.S.I. 2008/115, art. 3(1)(g) (with arts. 4-6, 10, 15) (as amended: (23.2.2009) by S.S.I. 2009/67, art. 7; (31.1.2011) by S.S.I. 2011/31, art. 5(a); and (4.10.2014) by S.S.I. 2014/173, arts. 1(2), 3)
F3S. 5(4)(c) repealed (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 209(3)(a), 227(3) (with s. 223); S.S.I. 2008/115, art. 3(1)(g) (with arts. 4-6, 10, 15) (as amended: (23.2.2009) by S.S.I. 2009/67, art. 7; (31.1.2011) by S.S.I. 2011/31, art. 5(a); and (4.10.2014) by S.S.I. 2014/173, arts. 1(2), 3)
F4Words in s. 5(4)(d) substituted (18.4.2005) by Commissioners for Revenue and Customs Act 2005 (c. 11), s. 53(1), Sch. 4 para. 34; S.I. 2005/1126, art. 2(2)(h)
F5S. 5(4)(e) repealed (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 209(3)(a), 227(3) (with s. 223); S.S.I. 2008/115, art. 3(1)(g) (with arts. 4-6, 10, 15) (as amended: (23.2.2009) by S.S.I. 2009/67, art. 7; (31.1.2011) by S.S.I. 2011/31, art. 5(a); and (4.10.2014) by S.S.I. 2014/173, arts. 1(2), 3)
F6Word in s. 5(4)(f) ceased to have effect (6.4.1999) by virtue of 1998 c. 14, s. 86(1), Sch. 7 para. 12; S.I. 1999/526, art. 2(3)(4) and repealed (1.6.1999) by 1999 c. 14, s. 86(2), Sch. 8; 1999/1510, art. 2(f)(ii)
F7Word 'or' and s. 5(4)(f)(iv) inserted (6.4.1999) by 1998 c. 14, s. 86(1), Sch. 7 para. 12; S.I. 1999/526, art. 2(3)(4)
F8Words in s. 5(4)(f)(iv) substituted (6.4.1999) by 1999 c. 2, s. 26(1), Sch. 9 para. 1; S.I. 1999/526, art. 2(c), Sch. 3
F9S. 5(5)(a)(aa) substituted for s. 5(5)(a) (1.4.2008 for specified purposes, 23.11.2009 in so far as not already in force) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), s. 227(3), sch. 5 para. 16(4)(a) (with s. 223); S.S.I. 2008/115, art. 3(2)(3), sch. 1 (with arts. 4-6, 10, 15) (as amended: (23.2.2009) by S.S.I. 2009/67, art. 7; (31.1.2011) by S.S.I. 2011/31, art. 5(a); and (4.10.2014) by S.S.I. 2014/173, arts. 1(2), 3); S.S.I. 2009/369, art. 3(2)(3), sch. (with art. 4) (which transitional provisions in art. 4 are revoked (31.1.2011) by S.S.I. 2011/31, art. 5(c))
F10S. 5(9) repealed (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 209(3)(b), 227(3) (with s. 223); S.S.I. 2008/115, art. 3(1)(g) (with arts. 4-6, 10, 15) (as amended: (23.2.2009) by S.S.I. 2009/67, art. 7; (31.1.2011) by S.S.I. 2011/31, art. 5(a); and (4.10.2014) by S.S.I. 2014/173, arts. 1(2), 3)
Marginal Citations