Debtors (Scotland) Act 1987

PART VIIS MISCELLANEOUS AND GENERAL

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

(1)Subject to subsection (2) below, a debtor shall not be liable to a creditor, nor a creditor to a debtor, for any expenses incurred by the other party in connection with an application, any objections to an application, or a hearing, under any provision of this Act.

(2)If—

(a)an application under any provision of this Act is frivolous;

(b)such an application is opposed on frivolous grounds; or

(c)a party requires a hearing under any provision of this Act to be held on frivolous grounds,

the sheriff may award a sum of expenses, not exceeding £25 or such amount as may be prescribed in regulations made by the Lord Advocate, against the party acting frivolously in favour of the other party.

(3)Subsections (1) and (2) above do not apply to—

(a)expenses of poinding and sale for which provision is made in Schedule 1 to this Act or paragraphs 25 to 34 of Schedule 5 to this Act; or

(b)expenses incurred—

(i)under section 1 of this Act;

(ii)in connection with an appeal under any provision of this Act; or

(iii)by or against a person other than the debtor or a creditor in connection with an application under any provision of this Act.

93 Recovery from debtor of expenses of certain diligences.S

(1)Subject to subsections (3) and (5) below, any expenses chargeable against the debtor which are incurred in—

(a)F1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b)the service of an earnings arrestment schedule (including the service of the charge preceding it);

(c)an application for, or for inclusion in, a conjoined arrestment order under section 60(2) or 62(5) of this Act,

shall be recoverable from the debtor by the diligence concerned but not by any other legal process, and any such expenses which have not been recovered by the time the diligence is completed or otherwise ceases to have effect shall cease to be chargeable against the debtor.

(2)Subject to subsection (5) below, any expenses chargeable against the debtor which are incurred in the service of a schedule of arrestment and in an action of furthcoming or sale shall be recoverable from the debtor out of the arrested property; and the court shall grant a decree in the action of furthcoming for payment of the balance of any expenses not so recovered.

(3)F2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4)Subsection (5) below applies where any diligence mentioned in subsection (1) or (2) above is—

(a)recalled under section 9(2)(a), (d) or (e) of this Act in relation to a time to pay order;

(b)in effect immediately before the date of sequestration (within the meaning of the Bankruptcy (Scotland) Act [F32016]) of the debtor’s estate;

(c)in effect immediately before the presentation of a petition for an administration order under Part II of[F4, or the appointment of an administrator under paragraph 14 or 22 of Schedule B1 to,] the M1Insolvency Act 1986;

(d)in effect against property of the debtor immediately before a floating charge attaches to all or part of that property under section 53(7) or 54(6) of that Act;

(e)in effect immediately before the commencement of the winding up, under Part IV or V of that Act, of the debtor;

(f)rendered unenforceable by virtue of the creditor entering into a composition contract or acceding to a trust deed for creditors or by virtue of the subsistence of a protected trust deed within the meaning of [F5schedule 4 of the Bankruptcy (Scotland) Act 2016]; or

(g)recalled by a conjoined arrestment order.

(5)Where this subsection applies—

(a)the expenses of the diligence which were chargeable against the debtor shall remain so chargeable; and

(b)if the debtor’s obligation to pay the expenses is not discharged under or by virtue of the time to pay order, sequestration, [F6administration], receivership, winding up, composition contract, trust deed for creditors or conjoined arrestment order, those expenses shall be recoverable by further diligence in pursuance of the warrant which authorised the original diligence.

(6)The expenses incurred in the execution of a current maintenance arrestment shall be recoverable by any diligence other than a current maintenance arrestment, and shall be so recoverable in pursuance of the warrant which authorised the current maintenance arrestment.

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

(1)This section applies to any sums recovered by any of the following diligences—

(a)F7. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b)an earnings arrestment;

(c)an arrestment and action of furthcoming or sale; or

(d)a conjoined arrestment order in so far as it enforces an ordinary debt,

or paid to account of the sums recoverable by the diligence while the diligence is in effect.

(2)A sum to which this section applies shall be ascribed to the following in the order in which they are mentioned—

(a)the expenses already incurred in respect of—

(i)the diligence;

(ii)any previous diligence the expenses of which are chargeable against and recoverable from the debtor under section 93(5) of this Act;

(iii)the execution of a current maintenance arrestment;

(b)any interest, due under the decree or other document on which the diligence proceeds, which has accrued at the date of execution of the F8. . . earnings arrestment or arrestment, or in the case of an ordinary debt included in a conjoined arrestment order which has accrued at the date of application under section 60(2) or 62(5) of this Act;

(c)any sum (including any expenses) due under the decree or other document, other than any expenses or interest mentioned in paragraphs (a) and (b) above.

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

(1)Any of the following diligences—

(a)F9. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b)an earnings arrestment;

(c)an arrestment and action of furthcoming or sale,

shall cease to have effect if the full amount recoverable thereby is paid to the creditor, an officer of court, or any other person who has authority to receive payment on behalf of the creditor, or is tendered to any of those persons and the tender is not accepted within a reasonable time.

(2)Any rule of law whereby any diligence mentioned in subsection (1) above ceases to have effect on payment or tender of the sum due under the decree or other document is hereby abolished.

[F1095APrescription of arrestmentS

(1)Subject to subsection (2) below, an arrestment which is not insisted in prescribes—

(a)where it is on the dependence of an action, at the end of the period of 3 years beginning with the day on which a final interlocutor is obtained by the creditor for payment of all or part of a principal sum concluded for; or

(b)where it is in execution of an extract decree or other extract registered document relating to a due debt, at the end of the period of 3 years beginning with the day on which the arrestment is executed.

(2)Where the arrestment secures or enforces a future or contingent debt due to the creditor, it prescribes, if not insisted in, at the end of the period of 3 years beginning on the day on which the debt becomes due.

(3)In a case where—

(a)a time to pay direction;

(b)an interim order under section 6(3) of this Act; or

(c)a time to pay order,

has been made, there shall be disregarded, in computing the period at the end of which the arrestment prescribes, the period during which the time to pay direction, interim order or time to pay order is in effect.

(4)Nothing in this section shall apply to an earnings arrestment, a current maintenance arrestment or a conjoined arrestment order.

(5)Subsections (1) to (3) above apply irrespective of whether the arrestment is executed, or warrant for it obtained, before this section comes into force.

(6)For the purposes of subsection (1)(a) above, a final interlocutor is obtained when an interlocutor cannot be recalled or altered and is not subject to review.]

96 Provisions to assist debtor in proceedings under Act.S

(1)No fees shall be payable by a debtor in connection with—

(a)any application by him;

(b)objections by him to an application by any other person; or

(c)a hearing held,

under any provision of this Act, to any officer of any office or department connected with the Court of Session or the sheriff court the expenses of which are paid wholly or partly out of the Consolidated Fund or out of money provided by Parliament.

(2)The sheriff clerk [F11or a member of administration staff of the First-tier Tribunal for Scotland (in relation to time to pay directions made by it)] shall, if requested by the debtor—

(a)provide him with information as to the procedures available to him under this Act; and

(b)without prejudice to subsection (2) of section 6 of this Act, assist him in the completion of any form required in connection with any proceedings under this Act,

but the sheriff clerk [F11or a member of administration staff of the First-tier Tribunal for Scotland (in relation to time to pay directions made by it)] shall not be liable for any error or omission [F12when performing the duties imposed] by this subsection or that subsection.

97

In relation to any proceedings before the sheriff under any provision of this Act, the power conferred on the Court of Session by section 32 of the M2Sheriff Courts (Scotland) Act 1971 (power of Court of Session to regulate civil procedure in sheriff court) shall extend to the making of rules permitting a party to such proceedings, in such circumstances as may be specified in the rules, to be represented by a person who is neither an advocate nor a solicitor.

98

At the end of Part II of Schedule 2 to the M3Legal Aid (Scotland) Act 1986 (proceedings for which civil legal aid shall not be available) there shall be added the following paragraphs—

“4Subject to paragraph 5 below, civil legal aid shall not be available in relation to proceedings at first instance under the Debtors (Scotland) Act 1987, other than proceedings in connection with an application under section 1(1) or 3(1) of that Act to a Lord Ordinary or to the sheriff in an ordinary cause.

5Nothing in paragraph 4 above shall preclude any third party to proceedings under the Debtors (Scotland) Act 1987 from obtaining legal aid in connection with those proceedings.”.

99. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S

F13. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

100

(1)An obligation ad factum praestandum which is contained in a document registered in the Books of Council and Session or in sheriff court books shall not by virtue of that registration be enforceable by imprisonment.

(2)A charge for the purpose of enforcing an obligation ad factum praestandum which is contained in an extract of a decree or of a document registered as aforesaid shall not be competent.

101

It shall not be competent for a creditor to bring an action of adjudication for debt F14... to enforce a debt payable under a liquid document of debt unless—

(a)the debt has been constituted by decree; or

(b)the debt is a debitum fundi; or

(c)the document of debt or, if the document is a bill of exchange or a promissory note, a protest of the bill or note, has been registered for execution in the Books of Council and Session or in sheriff court books.

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

(1)The Court of Session may by Act of Sederunt—

(a)regulate and prescribe the procedure and practice in; and

(b)prescribe the form of any document to be used in, or for the purposes of,

diligence of a kind specified in subsection (2) below.

(2)The diligences referred to in subsection (1) above are diligences proceeding—

(a)on an extract of a document which has been registered for execution in the Books of Council and Session or in sheriff court books; or

(b)on an order or a determination which by virtue of any enactment is to be treated as if it were so registered.

103 Appeals.S

(1)Subject to subsection (9) below and sections F15. . . , 50(2), 55(4), 60(8), 62(9) and 66(9) of this Act F15. . . , an appeal may be made against any decision of the sheriff under this Act but only on a question of law and with the leave of the sheriff; and section 38 of the M4Sheriff Courts (Scotland) Act 1971 (appeal in summary causes) [F16and section 82 of the Courts Reform (Scotland) Act 2014 (appeals from simple procedure cases)] shall not apply to any appeal or any further appeal taken under this Act.

(2)Any appeal against a decision of the sheriff under subsection (1) above must be made within a period of 14 days from the date when leave to appeal against the decision was granted.

(3)An appeal may be made against any decision of the Lord Ordinary on an application under section 1(1) or 3(1) of this Act but only on a question of law and with the leave of the Lord Ordinary.

(4)Subject to subsections (6) and (7) below, any decision of the sheriff or of the Lord Ordinary under this Act shall take effect as soon as it is made and shall remain in effect unless and until it is reversed on appeal and either—

(a)the period allowed for further appeal has expired without an appeal being made; or

(b)if such a further appeal has been made, the matter has been finally determined in favour of the reversal of the sheriff’s or Lord Ordinary’s decision.

(5)No decision reversing a decision of the sheriff or Lord Ordinary under this Act shall have retrospective effect.

(6)A decision or order of the sheriff under any provision of this Act mentioned in subsection (7) below shall not take effect—

(a)until the period for leave to appeal specified in rules of court has expired without an application for leave having been made;

(b)where an application for leave to appeal is made, until leave has been refused or the application has been abandoned;

(c)where leave to appeal has been granted, until the period for an appeal has expired without an appeal being made; or

(d)where an appeal against the decision is made, until the matter has been finally determined or the appeal has been abandoned.

(7)The provisions of this Act referred to in subsection (6) above are—

(a)F17. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b)F17. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(c)F17. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(d)F18. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(e)F18. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(f)F18. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(g)F19. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(h)F19. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(j)F19. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(k)section 50(1) except in so far as it relates to orders declaring that an arrestment is invalid or has ceased to have effect;

(l)section 50(4);

(m)section 55(1) except in so far as it relates to orders declaring that an arrestment is invalid or has ceased to have effect;

(n)section 55(6);

(o)section 65(2);

(p)section 66(3);

(q)F20. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(8)A court to which an appeal under this Act or a further appeal is made may—

(a)before it disposes of the appeal, make such interim order; and

(b)on determining the appeal, make such supplementary order,

as it thinks necessary or reasonable in the circumstances.

(9)This section does not apply to any decision of a court under Part V of this Act.

104 Regulations.S

(1)Regulations [F21and orders] under this Act shall be made by statutory instrument and shall, F22. . . , be subject to annulment in pursuance of a resolution of either House of Parliament.

(2)F23. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

105 Application to Crown.S

[F24(1)]Without prejudice to the M5Crown Proceedings Act 1947 [F25and subject to subsection (2) below], this Act shall bind the Crown acting in its capacity as a creditor or employer.

[F26(2)Section 70B of this Act does not affect Her Majesty in Her private capacity as an employer.]

106 Interpretation.S

In this Act—

• F27...

• “current maintenance” has the meaning given to it in section 73(1) of this Act;

• [F28“debt advice and information package” has the meaning given to it in section 47(4) of this Act;]

• “earnings” has the meaning given to it in section 73(2) of this Act;

• “employer” has the meaning given to it in section 73(1) of this Act;

• [F29“enactment” includes an Act of the Scottish Parliament and any enactment comprised in subordinate legislation under such an Act;]

• [F30“the Hague Convention” means the Convention on the International Recovery of Child Support and other forms of Family Maintenance done at The Hague on 23rd November 2007;]

• F31. . .

• “maintenance” means periodical sums payable under a maintenance order;

• “maintenance order” means—

  (a)

  an order granted by a court in Scotland for payment of a periodical allowance on divorce [F32or on dissolution of a civil partnership] or on the granting of a declarator of nullity of marriage [F33or of nullity of a civil partnership], or for aliment;

  (aa)

  F34...

  (b)

  an order under section 43 or 44 of the M6National Assistance Act 1948, section 23 or 24 of the M7Ministry of Social Security Act 1966, section 80 or 81 of the M8Social Work (Scotland) Act 1968, section 11(3) of the M9Guardianship Act 1973, section 18 or 19 of the M10Supplementary Benefits Act 1976, section 50 or 51 of the M11Child Care Act 1980 or section 24 or 25 of the M12Social Security Act 1986;

  (c)

  an order of a court in England and Wales or Northern Ireland registered in Scotland under Part II of the M13Maintenance Orders Act 1950;

  (d)

  a provisional order of a reciprocating country which is confirmed by a court in Scotland under Part I of the M14Maintenance Orders (Reciprocal Enforcement) Act 1972;

  (e)

  an order of a reciprocating country which is registered in Scotland under that Part of that Act;

  (f)

  an order registered in Scotland under Part II, or under an Order in Council made in pursuance of Part III, of that Act;

  (g)

  an order registered in Scotland under section 5 of the M15Civil Jurisdiction and Judgments Act 1982; F35. . .

  (ga)

  F36...

  (h)

  an alimentary bond or agreement (including a document providing for the maintenance of one party to a marriage by the other after the marriage has been dissolved or annulled)—

  (i)

  registered for execution in the Books of Council and Session or sheriff court books; or

  (ii)

  registered in Scotland under an Order in Council made under section 13 of the Civil Jurisdiction and Judgments Act 1982; F37[F38...

  (j)

  a [F39maintenance assessment] [F39maintenance calculation] within the meaning of the Child Support Act 1991] [F40; or

  (k)

  a maintenance decision (within the meaning of regulation 2 of the International Recovery of Maintenance (Hague Convention 2007) (Scotland) Regulations 2012 (S.S.I. 2012/301) or maintenance arrangement (within the meaning of Article 3(e) of the Hague Convention) which is registered in the sheriff court under the Hague Convention.]

• F41...

• “net earnings” has the meaning given to it in section 73(1) of this Act;

• “officer of court” means a messenger-at-arms or a sheriff officer;

• “ordinary debt” has the meaning given to it in section 73(1) of this Act;

• [F42“summary warrant” means a summary warrant granted under or, as the case may be, by virtue of—

  (a)

  paragraph 7 of Schedule 2 to the Abolition of Domestic Rates Etc. (Scotland) Act 1987;

  (b)

  paragraph 2 of Schedule 8 to the M16Local Government Finance Act 1992;

  (c)

  paragraph 2 of Schedule 10 to the Local Government etc. (Scotland) Act 1994; or

  (cc)

  F43...

  (cca)

  [F44paragraph 2 of schedule 4 to the Water Industry (Scotland) Act 2002 (asp 3);]

  (d)

  [F45the enactments (other than the Taxes Management Act 1970)] mentioned in Schedule 4 to this Act;

  (e)

  [F46section 128 of the Finance Act 2008.]]

  (f)

  [F47section 225 of the Revenue Scotland and Tax Powers Act 2014 (asp 16).]

• F48. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

107 Financial provisions.S

(1)Any sums recovered by the Lord Advocate under section 79(6)(b) or 80(9) of this Act shall be paid by him into the Consolidated Fund.

(2)There shall be paid out of money provided by Parliament—

(a)any fees or outlays payable under section 78(4) or 79(4) of this Act;

(b)any expenses payable by the Lord Advocate under section 79(6)(a) of this Act; and

(c)any increase attributable to this Act in the sums payable out of money so provided under any other Act.

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

(1)The amendments specified in Schedule 6 to this Act, being minor amendments or amendments consequential on the provisions of this Act, shall have effect.

(2)The transitional provisions contained in Schedule 7 to this Act shall have effect.

(3)The enactments mentioned in columns 1 and 2 of Schedule 8 to this Act are repealed to the extent specified in column 3 thereof.

109 Short title, commencement and extent.S

(1)This Act may be cited as the Debtors (Scotland) Act 1987.

(2)This Act (except this section) shall come into force on such day as the Lord Advocate may by order made by statutory instrument appoint, and different days may be so appointed for different purposes and for different provisions.

(3)This Act extends to Scotland only.