Debtors (Scotland) Act 1987

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)a poinding and sale (including the service of the charge preceding it);

(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)The sheriff shall grant decree for payment of—

(a)any expenses awarded by him against the debtor in favour of the creditor under paragraph 8 or 11 of Schedule 1 or paragraph 30 or 33 of Schedule 5 to this Act; or

(b)any additional sum of expenses awarded by him against the debtor in favour of the creditor under paragraph 9 of Schedule 1 or paragraph 31 of Schedule 5 to this Act.

(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 M1Bankruptcy (Scotland) Act 1985) of the debtor’s estate;

(c)in effect immediately before the presentation of a petition for an administration order under Part II of the M2Insolvency 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 Schedule 5 to the M3Bankruptcy (Scotland) Act 1985; 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, administration order, 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.