The aim of a payment action is to recover monies due. Obtaining a positive judgment from the court is just the first step in that process. The party with the benefit of the judgment still needs to enforce the order if payment is not made. This guide describes what enforcement means in practice and the approach to enforcement in Scotland.
To enforce a court decree in Scotland, creditors need to do the following:
- For judgments issued by Scottish courts, serve a Charge for Payment on the debtor. This is a formal demand for payment served by a sheriff officer (a Scottish bailiff). It is a pre-requisite of most enforcement methods and provides the debtor with 14 days to pay the debt. If payment is not made within the 14 day period then the creditor can enforce the decree using one of the methods below.
- For judgments issued outside Scotland, register the judgment in Scotland before serving the Charge:
- For judgments issued elsewhere in the UK the creditor must obtain a certificate of money provisions from the court issuing the judgment and register it in the Books of Council and Session in Edinburgh. This takes 2 or 3 weeks.
- For EU judgments and judgments of countries with whom the UK has a treaty arrangement the creditor must “petition” the Court of Session for registration of the judgment. This procedure usually takes 6 to 10 weeks, although an accelerated procedure is available for uncontested EU judgments. Although the result of the UK’s EU Referendum has no immediate effect on these procedures, the process applicable to EU judgments after the UK exits the EU is currently uncertain.
- For judgments issued in countries with whom the UK has no reciprocal arrangement, a fresh court action must be commenced in Scotland seeking payment based on the foreign judgment. This procedure usually takes an additional 8 to 12 weeks but can take much longer where the action is challenged by the debtor.
- Find out about the debtor’s assets. Enforcement costs money and this will be wasted if the debtor has no assets to pay. Information about the debtor’s assets also helps determine the best enforcement method to use. Usually sheriff officers will report on the assets owned by the debtor at the address where the Charge for Payment is served. Information can also be obtained in other ways, such as by a search at the Registers of Scotland to establish the ownership of any property at any known address of the debtor or by instructing an enquiry agent to make enquiries.
There are a number of enforcement methods in Scotland.
- Attachment: This procedure enables a creditor to inventorise and subsequently seize and sell items of property owned by and in the possession of the debtor. It cannot be used against some items such as vehicles (valued at £3,000 or less) or items held within a debtor’s home unless a further court order is obtained. Successful enforcement by this method can be quick (within approximately 4 – 6 weeks) provided the debtor has goods of sufficient value. It is most useful where the debtor runs a well-stocked business.
- Money Attachment: This method allows a creditor to seize cash, postal orders and cheques held within a debtor’s business premises and cash them in, in settlement of the judgment. From seizure to payment the process takes about 4 to 6 weeks. It is a particularly useful method of enforcement where the debtor operates a cash business such as a pub, shop or entertainment venue, though often the sums obtained are low.
- Arrestment: This method enables a creditor to freeze monies in a debtor’s bank account or which are due to a debtor and held by third parties. Monies “caught” by an arrestment are released to the creditor after 14 weeks if the court judgment isn’t satisfied. Arrestments are often speculative and the outcome isn’t known in advance. However it is a cheap method of enforcement and can be useful where the debtor’s bank details are known or where the creditor knows that the debtor is due to receive a payment from a third party. A Charge for Payment is not required before serving an arrestment.
- Inhibition: An inhibition is a court order which prevents a debtor from disposing of land or business premises they own without agreeing to pay off the debt from the sale proceeds. The order lasts for five years but can be renewed. This method does not immediately realise funds, but can be a useful where the debtor owns property and a land transaction is pending. The debtor would then have to settle the judgment from equity in the property to enable the transaction to proceed. No Charge for Payment is required prior to an inhibition.
- Earnings Arrestment: This process enables a creditor to instruct a debtor’s employer to make deductions from the debtor’s earnings and remit them to the creditor until the judgment is paid off. The level of deduction is fixed by the Debtors (Scotland) Act 1987. The procedure is inexpensive and simple but is only available against employed individuals. It can also take a long time to recover a large sum using this method.
- Insolvency: Creditors can also apply to wind up a debtor company (if the debt is more than £750) or sequestrate an individual debtor (if the debt is more than £3,000). If a winding-up or sequestration order is obtained, the debtor’s assets will be gathered in and distributed by a liquidator or trustee in accordance with insolvency law. This is a costly and lengthy process and recovery is not guaranteed, but the threat of insolvency can sometimes lead to payment being made.
Tips on enforcement
- Find out whether the debtor has funds or assets to satisfy the court decree before taking enforcement action.
- Move quickly to avoid assets being dissipated, although remember most enforcement methods require a Charge for Payment to be served first. Where the judgment has been issued by a court outside Scotland allow extra time for the registration process.
- Choose the enforcement method with care. The most appropriate method will depend on the assets which are available to meet the judgment.
- If the debtor has various assets consider using a combination of methods to enforce the judgment.
- Remember the threat of insolvency can be successful if other enforcement methods have failed.
- Taking enforcement action doesn’t always guarantee recovery. Weigh up the costs of enforcement (such as solicitors fees, sheriff officer’s fees, court fees etc.) and the risk that these costs may not be recovered before taking action.