Scottish Diligence Statistics 2022-23

What is diligence?

Diligence is the term for various processes of debt enforcement in Scottish law.

A person or organisation (the creditor) can use diligence if someone who owes them money (the debtor) has failed to pay a sum due. The creditor must have a decree (court order) enforceable in Scotland or a document of debt such as a Summary Warrant before they can carry out diligence.

The court order gives the creditor authority to recover money due to them. They may use any method of legal debt enforcement they choose. In most cases, the creditor must also serve a Charge for Payment (a formal demand for payment) and issue a Debt Advice and Information Package (providing information for debtors to help them deal with their creditors) before using diligence.

Summary warrant procedure

Summary warrant is a procedure for central and local government to recover unpaid taxes, duties and other levies. It is used mostly by local authorities and HM Revenue and Customs (HMRC). The process involves an application to court. No hearing is held, but statutory notices are provided to the debtor before application.

For the summary warrant, the returns split into two categories:

• warrants raised for the pursuit of payment of council tax
• all other summary warrant debt.

Diligence processes served under summary warrant procedure include:

• attachment
• exceptional attachment
• money attachment
• earnings arrestment
• non-earnings arrestment

Non-summary warrant procedure

Non-summary warrant procedure includes diligences for all other types of debt. It includes consumer debt such as personal loans or credit card debt.

Diligence processes served under summary warrant procedure include:

• attachment
• exceptional attachment
• money attachment
• interim attachment
• earnings arrestment
• non-earnings arrestment
• current maintenance arrestments
• diligence on the dependence

Community charge

Since 1 February 2015, local authorities can no longer collect community charge debts. Diligences executed for these debts before this date are included under ‘summary warrant (council tax)’.

Attachment

Attachment allows a creditor to seize a debtor’s moveable property to recover money owed. Unlike arrestment, used against property held by a third party, attachment can be used to seize property owned by the debtor and in their possession. Attachment cannot be used to seize goods in the debtor’s dwelling house, unless an order for exceptional attachment has been granted by the Sheriff.

Diligence on the dependence

Diligence on the dependence is a provisional measure which can be used to secure funds, goods or property. This is to prevent the debtor from disposing of them whilst the action is ongoing. A creditor may apply to the court for authority to carry out arrestment or inhibition on the dependence of the action. This can happen at any time while a court action is ongoing. Diligence on the dependence is not available for Summary Warrant actions.

Earnings arrestment

Earnings arrestment allows a deduction from a debtor’s earnings for enforcement of a single debt. A creditor must be in possession of a decree (or relevant document of debt) and must have issued the debtor with a Charge for Payment. This Charge for Payment must have expired, before proceeding with diligence against earnings. But where the debt is being pursued by a Fines Enforcement Officer for an unpaid court fine, no Charge for Payment is necessary. Where the debtor is an individual, creditors, including Fines Enforcement Officers, must also have provided a Debt Advice and Information Package.

Non-earnings arrestment

Used on a debtor’s moveable assets which are in the hands of a third party. If the assets were in the debtor’s own hands the diligence of attachment would need to be used. Although it is not only used against money held in banks or building societies this is by far the main type of action for this type of arrestment. A creditor could arrest goods that were held in storage by a third party (e.g. furniture).

Exceptional attachment

There is a special procedure for the attachment of non-essential articles kept in a dwelling house. The procedure, known as exceptional attachment, can only be used in exceptional circumstances.

An exceptional attachment order authorises the attachment, removal and auction of non-essential assets belonging to the debtor and kept in a dwellinghouse. Before granting an order the sheriff will take some matters into consideration including:

• the nature of the debt
• whether the debtor resides in the dwellinghouse
• whether they have had money advice
• whether there is, or has been, any agreement between the debtor and creditor for the payment of the debt

Interim attachment

Interim attachment is a provisional diligence. It protects the interests of creditors during a court action. It restricts the debtor from dealing with attached moveable assets in their possession. It does not allow the creditor to remove or sell the attached items. Following interim attachment, the court may enable action to secure the attached articles.

Money attachment

Money attachment allows a creditor to attach money held on a debtor’s premises. This includes cash including foreign currency, postal orders and banking instruments. It does not apply to money in a dwelling house.

Sheriffdom

There are 39 Sheriff Courts in Scotland which cover a particular Sheriff Court district. These districts are separated into six Sheriffdoms each comprising the various courts in its area.

The 6 Sheriffdoms in Scotland are:

• Glasgow and Strathkelvin
• Grampian, Highlands and Islands
• Lothian and Borders
• North Strathclyde
• South Strathclyde, Dumfries and Galloway
• Tayside, Central and Fife

The information provided by the officers of court allows the information to be reported on by Sheriffdom based on where the warrant was granted. Further information on Sheriffdoms is available from the Scottish Courts and Tribunals Service.

Charge for Payment

For most diligences, the creditor must serve the debtor with a Charge for Payment before a debt can be recovered. It is a formal demand for payment of the amount owed to the creditor including any interest and associated costs. Generally, it gives the debtor 14 days to make payment. If the debtor does not pay the debt within the period specified, the creditor may then use diligence to recover what is owed.

It is necessary to serve a Charge for Payment in most cases before diligence is carried out under any warrant procedure. However, it is possible that multiple years of debts owed (for example, council tax arrears) may be included within one Charge for Payment.

Several different diligences can then be pursued afterwards. Therefore, one Charge for Payment may lead to at least one diligence process being executed afterwards.

Inhibition

Inhibition is a personal diligence against the defender. This prevents the defender from selling, transferring or otherwise disposing of their property. It also prohibits the defender from securing any new loans against the property.

Inhibition can be used when an action for the payment of debt is under consideration by the court but a decree is not yet granted. This action secures the debtor’s property pending the outcome of the court action. It is a form of diligence on the dependence.

A creditor must have a decree (or relevant document of debt) before proceeding with inhibition. A Schedule of Inhibition must be served on the debtor. Where the debtor is an individual and the action is in respect of debt, the creditor must also provide a Debt Advice and Information Package.