Act of Sederunt (Debt Arrangement and Attachment (Scotland) Act 2002) 2002 No. 560

Citation and interpretation 1. —(1) These Rules may be cited as the Rules for Applications in the Sheriff Court under the Debt Arrangement and Attachment (Scotland) Act 2002( 12 ). (2) In these Rules– “the 2002 Act” means the Debt Arrangement and Attachment (Scotland) Act 2002; “authorised lay representative” means a person to whom section 32(1) of the Solicitors (Scotland) Act 1980( 13 ) (offence for unqualified persons to prepare certain documents) does not apply by virtue of section 32(2)(a) of that Act; “decree” and “document of debt” have the meanings given to them in section 10(5) of the 2002 Act; and “exceptional attachment order” has the meaning given to it by section 47(1) of the 2002 Act; (3) Any reference in these Rules– (a) to a section is to be construed as the section bearing that number in the 2002 Act; (b) to a specified paragraph is to be construed as a reference to the paragraph so numbered or lettered in the provision in which that reference occurs; or (c) to a numbered form means the form so numbered in Appendix 1 to these Rules, or a form of substantially the same effect with such variation as circumstances may require. (4) The glossary in Appendix 2 to these Rules is a guide to the meaning of certain legal expressions, but is not to be taken as giving those expressions any meaning that they do not have in law generally. Dispensing power of sheriff 2. —(1) The sheriff may relieve any party from the consequences of any failure to comply with the provisions of these Rules which is shown to be due to mistake, oversight or other excusable cause, on such conditions as the sheriff thinks fit. (2) Where the sheriff so relieves a party the sheriff may make such order as the sheriff thinks fit to enable the application to proceed as if the failure to comply had not taken place. Lay representation 3. —(1) A party to any proceedings before the sheriff under Parts 2 and 3 of the 2002 Act may be represented by an advocate, a solicitor or, subject to paragraph (3), an authorised lay representative. (2) An authorised lay representative may in representing a party do everything for the preparation and conduct of any proceedings as may be done by that party. (3) If the sheriff finds that an authorised lay representative is– (a) not a suitable representative; or (b) not duly authorised to represent a party, that person shall cease to represent the party. Conduct of hearings 4. —(1) Any hearing before the sheriff in an application under the 2002 Act shall be conducted as informally as the sheriff considers the circumstances permit. (2) The procedure to be adopted at a hearing shall be such as the sheriff considers– (a) to be fair; (b) best suited to the clarification and determination of the issues; and (c) gives each party sufficient opportunity to put across the party’s position. Intimation 5. —(1) A warrant for intimation referred to in these Rules shall be in form 1. (2) The sheriff may order intimation to such persons other than those to whom intimation is required under these Rules as the sheriff considers appropriate. (3) Intimation shall be made by sheriff clerk or by officer of court. (4) The sheriff clerk or officer of court on making intimation shall complete a certificate of intimation in form 2. Electronic transmission of documents 6. —(1) Any document referred to in these Rules which requires to be– (a) lodged with the sheriff clerk; (b) intimated to a party; or (c) sent by the sheriff clerk, may be in electronic or documentary form, and if in electronic form may be lodged, intimated or sent by e-mail or similar means. (2) Paragraph (1), so far as it permits any document to be in electronic form, or if in electronic form to be lodged, intimated or sent by e-mail or similar means, does not apply to– (a) a certificate of intimation of service; (b) a citation; (c) a decree or extract decree of the court; (d) a report of an attachment; (e) a report of an auction; or (f) an attachment schedule. (3) Where any document is lodged by e-mail or similar means the sheriff may require any principal document to be lodged. (4) The time of lodgement, intimation or sending shall be the time when the document was sent or transmitted. Applying for an extension of hours of attachment 7. —(1) An application by an officer of court under section 12(2) to extend the hours of attachment shall be made by minute, which may be endorsed on the decree or document of debt (or extract decree or document of debt) upon which the attachment has proceeded. (2) The minute shall specify– (a) the extension sought; and (b) the reason for the extension. (3) The minute does not need to be intimated to any party and the sheriff may grant or refuse it without a hearing. (4) The terms of the sheriff’s decision shall be endorsed on the decree or document of debt (or extract decree or document of debt), and may be authenticated by the sheriff clerk. Procedure for executing attachment 8. —(1) When executing an attachment the officer of court shall be accompanied by another person who shall witness the whole proceedings. (2) Before attaching any article the officer of court shall– (a) show to every person present– (i) the decree or document of debt (or an extract of the decree or document) authorising the attachment; and (ii) where the decree or document of debt is not a summary warrant, the certificate of execution of the charge to which that decree or document of debt relates; (b) demand payment of the sum recoverable from the debtor (or if the debtor is not present, any other person who appears to the officer to be authorised to act for the debtor); and (c) make enquiries as to the ownership in common of that article (and in particular ownership in common of that article by the debtor and any other person). (3) The officer of court shall prepare a schedule (the “attachment schedule”) in form 3. (4) The officer of court and the witness shall sign the attachment schedule. (5) The officer of court shall– (a) deliver a copy of the signed attachment schedule to any person then in possession of the articles or leave it at the premises occupied by that person; (b) if the person then in possession of the articles is not the debtor and it is reasonably practicable to do so, serve a copy of the signed attachment schedule by post on the debtor; (c) inform the debtor (if present) of the debtor’s right to redeem attached articles under sections 18(1) or 56(1); (d) inform any person present who claims to own any attached article in common with the debtor of the right to– (i) make a claim for the purposes of section 35(2)(a); (ii) apply for an order under section 35(2)(b); and (iii) pay the value of the debtor’s interest in the attached article in terms of section 35(2)(c); and (e) where, after making enquiries of any person present, it appears that the article attached is a mobile home which is the only or principal residence of a person other than the debtor, inform the debtor and that person, by leaving in the mobile home a copy of the attachment schedule, of their right to apply for release of the mobile home from attachment under section 16(1). Applying for the attachment to cease to have effect because value fixed is too low 9. —(1) An application by the debtor under section 23(2) for an order that the attachment cease to have effect because the value fixed is too low shall be in form 4. (2) On the lodging of such an application the sheriff clerk shall– (a) fix a date for a hearing; (b) grant a warrant for intimation; (c) intimate the application and warrant to the applicant, the creditor and the officer of court who executed the attachment; and (d) complete a certificate of intimation. (3) The officer of court who executed the attachment shall lodge with the sheriff clerk a copy of the attachment schedule before the date fixed for the hearing. Notice of theft after attachment 10. —(1) A notice by the debtor under section 21(7) that an attached article has been stolen shall be in form 5. (2) Any notice shall be sent by the debtor to the sheriff clerk, the creditor, and the officer of court. Applying for further attachment where articles removed, damaged, destroyed or stolen 11. —(1) The following applications shall be made in form 6:– (a) an application under section 21(2)(b) for authority to attach other articles where an article has been moved; (b) an application under section 21(10)(a) for authority to attach other articles where an article has been damaged, destroyed or stolen; and (c) an application under section 21(10)(b) for the revaluation of any damaged article. (2) On the lodging of an application under paragraph (1) the sheriff clerk shall– (a) fix a date for a hearing; (b) grant a warrant for intimation; (c) intimate the application and warrant to the applicant, the debtor and (as appropriate) the creditor or the officer of court who executed the attachment; and (d) complete a certificate of intimation. (3) The officer of court who executed the attachment shall lodge with the sheriff clerk a copy of the attachment schedule before the date fixed for the hearing. Applying for consignation where article damaged, destroyed, lost, stolen or disposed of 12. —(1) An application under section 21(11) for an order against a debtor or third party to consign a sum of money in relation to an article which has been damaged, destroyed, lost, stolen or disposed of for value shall be in form 7. (2) On the lodging of such an application the sheriff clerk shall– (a) fix a date for a hearing; (b) grant a warrant for intimation; (c) intimate the application and warrant to the applicant, the officer of court who executed the attachment, the person in respect of whom an order for consignation is sought and (as appropriate) the debtor; and (d) complete a certificate of intimation. (3) The officer of court who executed the attachment shall lodge with the sheriff clerk a copy of the attachment schedule before the date fixed for the hearing. Report of attachment 13. —(1) A report under section 17(1) by an officer of court of the execution of a attachment shall be in form 8. (2) The sheriff clerk shall retain the report of attachment. (3) An application by an officer of court under section 17(1) to extend the time for lodging the report shall be made by minute stating the reasons for seeking the extension, which may be endorsed on the decree or document of debt (or extract decree or document of debt) upon which the attachment has proceeded. (4) The terms of the sheriff’s decision on any application shall be endorsed on the decree or document of debt (or extract decree or document of debt), and may be authenticated by the sheriff clerk. Receipt for redemption of an attached article 14. A receipt granted by an officer of court for payment for an attached article redeemed under section 18(1) shall be in form 9. Applying for security of an attached article or sale of a perishable etc. article 15. —(1) An application for an order under section 20(1) for the security of an attached article, or for the sale of an article which is perishable or likely to deteriorate substantially and rapidly in condition or value, shall be in form 10. (2) The sheriff shall on the lodging of such an application decide what further procedure is appropriate and may dispose of it without intimation to any party or without a hearing. (3) Where the sheriff considers it appropriate, a date for a hearing shall be fixed. (4) Where a hearing is fixed the sheriff clerk shall– (a) intimate the application and warrant for intimation to the applicant and (as appropriate) to the debtor, the creditor and the officer of court who executed the attachment; and (b) complete a certificate of intimation. (5) The officer of court who executed the attachment shall lodge with the sheriff clerk a copy of the attachment schedule before the date of the hearing. Applying for release of vehicle or mobile home from attachment, or for sale of vehicle 16. —(1) The following applications shall be in form 11:– (a) an application by the debtor or a third party under section 16(1) for the attachment of a mobile home to cease to have effect; (b) an application by the debtor under section 22(1) for the attachment of a vehicle to cease to have effect because the auction of the vehicle would be unduly harsh; or (c) an application by the debtor under section 22(3) for the immediate sale of a vehicle because the auction of the vehicle would be unduly harsh. (2) On the lodging of an application under paragraph (1) the sheriff clerk shall– (a) fix a date for a hearing; (b) grant a warrant for intimation; (c) intimate the application and the warrant to the creditor, the officer of court who executed the order, the debtor and (where appropriate) the third party; and (d) complete a certificate of intimation. (3) The officer of court who executed the attachment shall lodge with the sheriff clerk a copy of the attachment schedule before the date fixed for the hearing. Applying for extension of duration of attachment 17. —(1) An application by a creditor or an officer of court under section 24(2) for an extension of the duration of an attachment shall be in form 12. (2) On the lodging of such an application the sheriff clerk shall– (a) fix a date for a hearing; (b) grant a warrant for intimation; (c) intimate the application and warrant to the applicant, the debtor, and (as appropriate) the creditor or the officer of court who executed the attachment; and (d) complete a certificate of intimation. (3) The officer of court who executed the attachment shall lodge with the sheriff clerk a copy of the attachment schedule before the date fixed for the hearing. (4) The sheriff clerk shall intimate the sheriff’s decision on such an application to the debtor. Invalidity and cessation of attachment 18. —(1) An application by a debtor for an order under section 26(1)(a) or (b) declaring the attachment to be invalid or to have ceased to have effect shall be in form 13. (2) On the lodging of such an application the sheriff clerk shall– (a) fix a date for a hearing; (b) grant a warrant for intimation; (c) intimate the application and warrant to the applicant, the creditor, the officer of court who executed the attachment, and any other person having an interest; and (d) complete a certificate of intimation. (3) The officer of court who executed the attachment shall lodge with the sheriff clerk a copy of the attachment schedule before the date fixed for the hearing. (4) The sheriff may declare an attachment to be invalid or to have ceased to have effect without an application having been made under paragraph (1). (5) The sheriff clerk shall intimate any declaration under paragraph (4) to the debtor. Notice of removal and auction of an attached article 19. —(1) An officer of court shall make the following notices in form 14:– (a) a notice under section 27(4) of the date and location of an auction, and the date of removal of an attached article from the place at which it is kept; and (b) a notice under section 53(2) of the date of removal of an attached article from the dwellinghouse at which it is kept. (2) A notice under paragraph (1) shall be given to the debtor, and to any other person in possession of an article which is the subject of that notice, no later than 7 days before the proposed date of removal. Agreement on payment, and cancellation or renewal of auction 20. —(1) A report by an officer of court to the sheriff under section 29(3)(a) of any agreement on payment between the creditor and the debtor that results in the cancellation of the arrangements for an auction of attached articles shall be in form 15. (2) An application by a creditor for an order under section 29(4) that a debtor is in breach of any agreement on payment with the creditor shall be in form 16. (3) On the lodging of an application under paragraphs (1) or (2) the sheriff clerk shall– (a) fix a date for a hearing; (b) grant a warrant for intimation; (c) intimate the application and warrant to the applicant, the debtor, the officer of court, and any other person having an interest; and (d) complete a certificate of intimation. Report of auction 21. —(1) A report of auction under section 32(1) shall be in form 17. (2) There shall be lodged with the report of auction– (a) the decree or document of debt upon which diligence proceeded (or an extract of the decree or document); (b) any executions or certificates of intimation and service; (c) copies of notices required by the 2002 Act; and (d) vouchers for relevant outlays. (3) The sheriff clerk shall retain the report of auction. Modification of sale balance or declaration that auction void 22. —(1) Where, after the receipt of the auditor of court’s report made under section 33(1)(c), the sheriff considers– (a) that a balance due by or to the debtor should be modified; or (b) that the auction may be void, the sheriff shall before making an order under section 33(4)(b) or (c) fix a date for a hearing. (2) The sheriff clerk shall intimate such a hearing to the creditor, the officer of court who prepared the report of auction, the debtor, and any such person having or having had an interest in or possession of the attached article as the sheriff may specify. (3) Where the sheriff has made an order modifying a sale balance or declaring an auction to be void, the sheriff clerk shall intimate that order to those persons to whom intimation was made under paragraph (2). Applications in relation to articles belonging to a third party or in common ownership 23. —(1) An application by a third party– (a) under section 34(1)(b)(ii) for an order that the sheriff is satisfied that the third party owns an attached article shall be in form 18; (b) under section 35(2)(b)(ii) for an order that the sheriff is satisfied that the third party owns an attached article in common with the debtor shall be in form 19; or (c) under section 35(3) for the attachment of an article owned in common to cease to have effect because the sale of the article would be unduly harsh shall be in form 20. (2) On the lodging of an application under paragraph (1) the sheriff clerk shall– (a) fix a date for a hearing; (b) grant a warrant for intimation; (c) intimate the application and warrant to the applicant, the creditor, the debtor, the officer of court who executed the attachment, and any person having possession of the article; and (d) complete a certificate of intimation. (3) The officer of court who executed the attachment shall lodge with the sheriff clerk a copy of the attachment schedule before the date fixed for the hearing. Third party claim after auction 24. —(1) An application by a third party under section 36(1)(e)(ii) for a finding after auction that a claim to an attached article is valid shall be in form 21. (2) On the lodging of such an application the sheriff clerk shall– (a) fix a date for a hearing; (b) grant a warrant for intimation; (c) intimate the application and warrant to the applicant, the debtor, the creditor and (where appropriate) the officer of court who executed the attachment; and (d) complete a certificate of intimation. Applying for attachment of articles kept within a dwellinghouse 25. —(1) An application by a creditor under section 47(1) for an exceptional attachment order shall be in form 22. (2) On such an application being lodged the sheriff clerk shall– (a) fix a date for a hearing; (b) grant a warrant for intimation; (c) intimate the application and warrant to the debtor, together with– (i) a form of service in form 23; and (ii) a copy of form 24 (declaration of financial circumstances); and (d) complete a certificate of intimation. (3) The date fixed for the hearing of the application shall be no earlier than a date that is 21 days after the date when the hearing was fixed. Making a declaration of financial circumstances 26. —(1) A debtor who wishes to make a declaration of financial circumstances for the purpose of section 47(4)(g) shall complete form 24 and lodge it with the sheriff clerk no later than ten days before the date on which the hearing is to take place. (2) The sheriff clerk shall send a copy of any declaration to the creditor. Appearance at the hearing by the creditor 27. —(1) A creditor who applies for an exceptional attachment order shall appear or be represented at the hearing of the application. (2) Where the creditor does not appear and is not represented at the hearing, the sheriff may dismiss the application. Notice of making of exceptional attachment order 28. The sheriff clerk on the making of an exceptional attachment order shall– (a) intimate the order to the debtor by notice in form 25; (b) attach a copy of the order to the notice; and (c) complete a certificate of intimation. Money advice 29 —(1) A report of a visit to give money advice under section 47(5) shall be in form 26. (2) Any report shall be lodged with the sheriff clerk by the money adviser no later than 3 days before the date fixed for the hearing of the application to which the report relates. (3) The sheriff clerk shall send a copy of the report to the debtor and the creditor before the date fixed for the hearing of the application to which the report relates. Access to premises 30. —(1) An application by an officer of the court under section 49(3) to dispense with service of a notice of entry shall be made by motion in the process of the application for the exceptional attachment order. (2) The motion shall specify the reason why notice might prejudice the execution of the attachment. (3) The motion does not need to be intimated to any party and the sheriff may grant or refuse it without a hearing. Unlawful acts before attachment 31. —(1) The following applications shall be in form 27:– (a) an application by a debtor or a third party under section 50(1)(a) for consent to move any article which forms part of the assets to which an exceptional attachment order relates from the dwellinghouse in which it is kept; or (b) an application by the debtor under section 50(1)(b) for consent to sell, make a gift of, or otherwise relinquish ownership of any such article. (2) On the lodging of an application under paragraph (1) the sheriff clerk shall– (a) fix a date for a hearing; (b) grant a warrant for intimation; (c) intimate the application and the warrant to the applicant, the creditor and (as appropriate) the debtor; and (d) complete a certificate of intimation. Notice of theft before attachment 32. —(1) A notice by the debtor under section 50(3) that an attached article has been stolen shall be in form 5. (2) Any notice shall be sent by the debtor to the sheriff who granted the exceptional attachment order, the creditor, and (if appropriate) the officer of court. Applying for consignation where article damaged, destroyed, lost, stolen or disposed of 33. —(1) An application under section 50(5) for an order against a debtor or third party to consign a sum of money in relation to an article which has been damaged, destroyed, lost, stolen or disposed of for value shall be in form 7. (2) On the lodging of such an application the sheriff clerk shall– (a) fix a date for a hearing; (b) grant a warrant for intimation; (c) intimate the application and warrant to the applicant, the officer of court who executed the attachment, the person in respect of whom an order for consignation is sought and (as appropriate) the debtor or creditor; and (d) complete a certificate of intimation. (3) The officer of court who executed the attachment shall lodge with the sheriff clerk a copy of the attachment schedule before the date fixed for the hearing. Applying for return of article removed where attachment not competent, sale unduly harsh, or article of sentimental value 34. —(1) An application by a debtor under section 55(2) for an order that an attachment shall cease to have effect, and to require the officer of court to return an article to the dwellinghouse from which it was removed, shall be in form 28. (2) On the lodging of such an application the sheriff clerk shall– (a) fix a date for a hearing; (b) grant a warrant for intimation; (c) intimate the application and the warrant to the applicant, the creditor, and the officer of court who executed the order; and (d) complete a certificate of intimation. (3) The officer of court who executed the order shall lodge with the sheriff clerk a copy of the attachment schedule before the date fixed for the hearing. Receipt for redemption of an attached article 35. A receipt granted by an officer of court for payment for an attached article redeemed under section 56(1) shall be in form 9. Applying for leave to appeal 36. —(1) An application for leave to appeal against a decision of the sheriff under section 57 of the 2002 Act shall– (a) be made in writing to the sheriff clerk within 14 days of the making of the decision; and (b) specify the question of law upon which the appeal is to proceed. (2) The sheriff may consider such an application without hearing parties unless it appears to him to be necessary to hold a hearing, and if so the sheriff clerk shall intimate the date, place and time of the hearing to the parties. APPENDIX 1 FORMS List of Forms Form No Description Rule No 1 Warrant for intimation 5(1) 2 Certificate of intimation 5(4) 3 Attachment schedule 8(3) 4 Application for attachment to cease to have effect because the value fixed is too low 9(1) 5 Notice of theft of attached articles 10(1) & 32(1) 6 Application for further attachment in same place and/or revaluation when articles moved, stolen, damaged or destroyed 11(1) 7 Application for consignation where articles have been damaged, destroyed, lost, stolen or disposed of 12(1) & 33(1) 8 Report of attachment 13(1) 9 Receipt for redemption of attached articles 14 & 35 10 Application for security of attached articles or sale of articles that are perishable or likely to deteriorate 15(1) 11 Application for (1) release of vehicle or mobile home from attachment (2) immediate sale of a vehicle 16(1) 12 Application for extension of duration of an attachment 17(1) 13 Application for an order declaring the attachment invalid or has ceased to have effect 18(1) 14 Notice of removal of attached articles and public auction 19(1) 15 Report of agreement resulting in cancellation of auction 20(1) 16 Application for an order for a new auction 20(2) 17 Report of auction 21(1) 18 Application in relation to articles belonging to a third party 23(1)(a) 19 Application in relation to articles belonging to a third party in common with the debtor 23(1)(b) 20 Application for attachment to cease as sale would be unduly harsh 23(1)(c) 21 Application in relation to articles belonging to a third party in common with the debtor that have been sold at auction 24(1) 22 Application for exceptional attachment order 25(1) 23 Form of service 25(2)(c)(i) 24 Declaration by debtor of financial circumstances 25(2)(c)(ii) & 26(1) 25 Notice of exceptional attachment order 28 26 Report of visit to give money advice 29(1) 27 Application for consent to move any article, to sell, make a gift or otherwise relinquish ownership 31(1) 28 Application for return of articles (1)removed where attachment not competent (2) where auction unduly harsh or (3) of sentimental value 34(1) Rule 5(1) Form 1 Debt of Arrangement and Attachment (Scotland) Act 2002 Rule 5(4) Form 2 Debt Arrangement and Attachment (Scotland) Act 2002 Rule 8(3) Form 3 Debt Arrangement and Attachment (Scotland) Act 2002 Rule 9(1) Form 4 Debt Arrangement and Attachment (Scotland) Act 2002, section 23(2) Rules 10(1) and 32(1) Form 5 Debt Arrangement and Attachment (Scotland) Act 2002, sections 21(7) and 50(3) Rule 11(1) Form 6 Debt Arrangement and Attachment (Scotland) Act 2002, sections 21(2)(b), 10(a), and 10(b) Rule 12(1) and 33(1) Form 7 Debt Arrangement and Attachment (Scotland) Act 2002, sections 21(11) and 50(5) Rule 13(1) Form 8 Debt Arrangement and Attachment (Scotland) Act 2002, section 17(1) Rules 14 and 35 Form 9 Debt Arrangement and Attachment (Scotland) Act 2002, sections 18(1) and 56(1) Rule 15(1) Form 10 Debt Arrangement and Attachment (Scotland) Act 2002, section 20(1) Rule 16(1) Form 11 Debt Arrangement and Attachment (Scotland) Act 2002, sections 16(1) and 22(1) and (3) Rule 17(1) Form 12 Debt Arrangement and Attachment (Scotland) Act 2002, section 24(2) Rule 18(1) Form 13 Debt Arrangement and Attachment (Scotland) Act 2002, section 26(1)(a) and (b) Rule 19(1) Form 14 Debt Arrangement and Attachment (Scotland) Act 2002, sections 27(4) and 53(2) Rule 20(1) Form 15 Debt Arrangement and Attachment (Scotland) Act 2002, section 29(3)(a) Rule 20(2) Form 16 Debt Arrangement and Attachment (Scotland) Act 2002, section 29(4) Rule 21(1) Form 17 Debt Arrangement and Attachment (Scotland) Act 2002, section 32(1) Rule 23(1)(a) Form 18 Debt Arrangement and Attachment (Scotland) Act 2002, section 34(1)|(b)(ii) Rule 23(1)(b) Form 19 Debt Arrangement and Attachment (Scotland) Act 2002, section 35(2)(b)(ii) Rule 23(1)(c) Form 20 Debt Arrangement and Attachment (Scotland) Act 2002, section 35(3) Rule 24(1) Form 21 Debt Arrangement and Attachment (Scotland) Act 2002, section 36(1)(e)(ii) Rule 25(1) Form 22 Debt Arrangement and Attachment (Scotland) Act 2002, section 47(1) Rule 25(2)(c)(i) Form 23 Debt Arrangement and Attachment (Scotland) Act 2002, section 47 Rule 25(2)(c)(ii) Form 24 Debt Arrangement and Attachment (Scotland) Act 2002, section 47(4)(g) Rule 28 Form 25 Debt Arrangement and Attachment (Scotland) Act 2002, section 47 Rule 29 Form 26 Debt Arrangement and Attachment (Scotland) Act 2002, section 47(5) Rule 31(1) Form 27 Debt Arrangement and Attachment (Scotland) Act 2002, section 50(1) Rule 34(1) Form 28 Debt Arrangement and Attachment (Scotland) Act 2002, section 55(2) APPENDIX 2 GLOSSARY Absolve To find in favour of and exonerate the defender. Absolvitor An order of the court granted in favour of and exonerating the defender which means that the pursuer is not allowed to bring the same matter to court again. See also dismissal below. Action of count, reckoning and payment A legal procedure for requiring someone to account for their dealings with assets under their stewardship. For example, a trustee might be subject to such an action. Action of furthcoming A final stage of diligence or enforcement. It results in whatever has been subject to arrestment being made over to the person who is suing. For example, where a bank account has been arrested this results in the appropriate amount being transferred to the pursuer. Appellant A person making an appeal against the sheriff’s decision. This might be the pursuer or the defender. Arrestee A person with whom an arrestment is lodged, and therefore subject to the arrestment. Arrestment on the dependence A court order granting until a final court decision a temporary security over goods, or funds in a bank account, held on behalf of the defender by someone else (for example, a bank). Arrestment to found jurisdiction An order to give the court jurisdiction to hear a case against a person who has goods or other assets in Scotland. This is achieved by arresting the goods or assets on the dependence of the action. Lay representative A person other than a solicitor or advocate who represents a party to a cause or application. In particular, in these Rules such a person unless employed as a lay representative must receive no fee, gain or reward (directly or indirectly) for their actions. Calling date The date on which a summary cause action will first be held in court. Cause Another word for case or claim. Caution (pronounced kay-shun) A security given to ensure that some obligation will be carried out. This will be either a sum of money, or a guarantee of payment by someone other than the parties to a case (for example, an insurance company). Certificate of execution of service The document recording that an application to, or order or decree of, the court for service of documents has been effectively served. Charge A notice to obey a decree of a court. A common type is one served on the defender by a sheriff officer on behalf of the pursuer who has won a case demanding payment of a sum of money. Claim The part of the writ or summons which sets out the legal remedy which the pursuer is seeking. Commission and diligence An order appointing a solicitor or advocate (the Commissioner) to supervise on behalf of the court the disclosure of documents relating to a case. It is combined with a diligence authorising the Commissioner to require attendance as a witness of the person alleged to be holding any particular document (the haver ). Consign, or consignation The deposit in court, or with a third party, of money or an article in dispute. Continuation An order made by the sheriff postponing the completion of a hearing until a later date or dates. Contribution, Right of The right of one person who is legally liable to pay money to someone to claim a proportionate share from others who are also liable. Counterclaim A claim made by a defender in response to the pursuer’s case and which is not necessarily a defence to that case. It is a separate but related case against the pursuer, which is dealt with at the same time as the pursuer’s case. Damages Money compensation payable for a breach of contract or some other legal duty. Declarator of irritancy of a lease A decision of a court finding that a tenant has failed to observe a term of a lease, and that the landlord is therefore entitled to insist that the tenant shall leave the property. Decree An order of the court containing the decision of the case in favour of one of the parties and granting the remedy sought or disposing of the case. Decree of ejection A decree ordering someone to leave land or property which they are occupying. For example, it is used to remove tenants in arrears with their rent. Decree of removing A court order entitling someone to recover possession of heritable property and ordering a person to leave land which he is occupying. For example, it is used to remove tenants in arrears with their rent. Defender Person against whom a court action is started. Deliverance A decision or order of a court. Diet Date for a court hearing. Diligence The collective term for the procedures used to enforce a decree of a court. These include attachment of moveable items and arrestment of wages. Dismissal An order bringing to an end the proceedings in an action. Unlike an order for absolvitor (see above), it is usually possible for a new action to be brought. Domicile The place where a person is normally resident or where, in the case of a company, it has its place of business or registered office. Execution of service See Certificate of execution of service Execution of a charge The service by sheriff officers of a formal notice requiring that a decree or order of a court be obeyed. See also Charge . Execution of an arrestment The carrying out of an order of arrestment. Expenses The costs of a court case. Ex proprio motu A decision or order of the court on the sheriff’s own initiative, and not requested by a party to a claim or application Extract decree The actual decree (or interlocutor ) is recorded in the court registers. The extract is the official document, which is proof of any order of the court, although usually it is used as proof of the final decision in the action. It is used, for example, to enforce payment of a sum awarded. Fund in medio See Multiplepoinding. Haver A person who holds documents which are required as evidence in a case (see Commission and Diligence above). Hearing date The date on which a small claim action will first be held in court. Heritable property Land and buildings. Incidental application An application that can be made during the course of a small claim or summary cause for certain orders. Examples are applications for the recovery of documents or to amend the statement of claim. Interlocutor The official record of the order or judgement of a court. Interrogatories Written questions put to someone in the course of a court case, and answered on oath. Intimation Giving notice to another party of some step in a cause. Jurisdiction The authority of a court to hear particular cases. Ish The date on which a lease terminates. Letter of request A document issued by the sheriff court requesting a foreign court to take evidence from a specified person within its jurisdiction or to serve Scottish Court documents on that person. Messenger at arms Officers of court who serve documents issued by the Court of Session. Minute A document produced in the course of a case in which a party makes an application or sets out his position on some matters. Minute for recall A form lodged with the court by one party asking the court to recall a decree. Motion An application that can be made during the course of an action for certain orders. This type of application is called an incidental application in small claim or summary cause actions (see above). Multiplepoinding (pronounced “ multiple pinding ” ) A special type of action in which the holder of property, etc. (referred to as the fund in medio ) requires claimants upon it to appear and settle claims in court. For example, where the police come into possession of a stolen car of which two or more people claim to be owner this procedure could be used. Officer of court A sheriff officer, messenger at arms, advocate, solicitor or sheriff clerk. Options Hearing A preliminary stage in an ordinary cause action. Ordinary cause Another legal procedure for higher value cases available in the sheriff court. Party litigant A person who conducts his own case. Process The court file containing the collection of documents relating to a case. Productions Documents or articles which are used in evidence. Pursuer The person who starts a claim or cause. Recall of an arrestment A court order withdrawing an arrestment. Restriction of an arrestment An order releasing part of the money or property arrested. Recall of a decree An order cancelling a decree which has been granted. Recovery of documents The process of obtaining documentary evidence which is not in the possession of the person seeking it (eg hospital records necessary to establish the extent of injuries received in a road accident). See also Commission and Diligence above. Remit between procedures A decision of the sheriff to transfer an action to another court procedure eg a summary cause to either the small claim or ordinary cause procedure. Respondent When a decision of the sheriff is appealed against, the person making the appeal is called the appellant. The other side in the appeal is called the respondent. Return day The date by which the defender must send a written reply to the court in a small claim or summary cause and, where appropriate, the date by which the pursuer must return the summons to court. Schedule of arrestment A list of items which has been arrested. Serve/service Sending a copy of the summons or other court document to the defender or another party. Sheriff clerk The court official responsible for the administration of the sheriff court. Sheriff officer The officer of court who serve sheriff court documents and enforces sheriff court orders. Sist of action The temporary suspension of a court case by court order. Sist as a party To add another person as a litigant in a case. Small claim Another legal procedure in the sheriff court for claims having a lower value than summary cause. Specification of documents A list lodged in court of documents for the recovery of which a party seeks a court order (see Commission and Diligence ). Stated case An appeal procedure where the sheriff sets out his findings and the reasons for his decision and states the issues on which the decision of the sheriff principal is requested. Statement of claim The part of the summons in which pursuers set out details of their cases against defenders. Summary cause Another legal procedure available in the sheriff court. It is used for certain types of claim usually having a higher value than a small claim, and a lesser value than those dealt with as ordinary actions. Summons The form which must be filled in to begin a small claim or summary cause. Time to pay direction A court order for which a defender who is an individual may apply permitting a sum owed to be paid by instalments, or by a single payment at a later date. Time order A court order that assists debtors who have defaulted on an agreement regulated by the Consumer Credit Act 1974 (c. 39) , and which may be applied for during a court action. Warrant for diligence Authority to carry out one of the diligence procedures. Writ A legally significant writing. An example is an Initial Writ, which is used to begin an ordinary action in the same way that a summons is used to begin a small claim or a summary cause action. Article 3 SCHEDULE 2 FORMS OF SUMMARY WARRANT Form No. Description Article No. A Warrant for recovery of rates etc. 3(2) B Warrant for recovery of VAT etc. 3(2) Article 3(2) Form A Article 3(2) Form B Article 4 SCHEDULE 3 MINOR AND CONSEQUENTIAL AMENDMENTS Act of Sederunt (Proceedings in the Sheriff Court under the Debtors (Scotland) Act 1987) 1988( 14 ) (S.I. 1988/2013 ) 1. —(1) In rule 6 (applications for variation or recall of time to pay orders, poindings or advertisements)– (a) in the heading for “poindings” substitute “attachments”; and (b) in paragraph (1) for “a poinding” substitute “an attachment”. (2) In the Schedule (Forms)– (a) in form 2 (application for a time to pay order), in Part C– (i) for “ poinding ” substitute “ attachment ”; (ii) in crave 2, for “poinding” substitute “attachment”; (iii) for crave 4, substitute– “ *4. To order that no further steps shall be taken by the creditor or the sheriff officer in the diligence concerned, other than in the case of an attachment making a report of the attachment under section 17 of the Debt Arrangement and Attachment (Scotland) Act 2002, or applying for an order under sections 17(1), 20(1), and 21(10) of that Act. ” ; and (iv) in the extract from section 5(4) and (5) of the Debtors (Scotland) Act– (aa) in subsection (4) for paragraphs (e) and (ee) substitute– “ (e) in relation to a debt including any sum due to– (i) a rating authority for payment of rates; (ii) a regional or islands council for the payment of any community charge, community water charge, council tax, or council water charge; (iii) a collecting authority (within the meaning of section 79 of the Local Government etc. (Scotland) Act 1994) in respect of any charges payable to them by virtue of that section; or (iv) a regional or islands council for payment of any amount payable as a civil penalty within the meaning of subsection (9) below. ” ; and (bb) in subsection (5), omit paragraph (a); (b) in form 3 (application for variation or recall of a time to pay order, arrestment and poinding)– (i) in the heading, for “POINDING” substitute “ATTACHMENT”; (ii) in section 3, in paragraph (c) for “poinding” or “ poinding ” in each case where either occurs substitute “attachment” or “ attachment ” as appropriate; and (iii) in section 4, in paragraph 3 for “poinding” substitute “attachment”; (c) in form 43 (application for a conjoined arrestment order), in section 5 for “poinding” substitute “attachment”; and (d) in form 64 (warrant for intimation), in section 3, for “poinding” substitute “attachment”. Act of Sederunt (Form of Charge for Payment) 1988( 15 ) (S.I. 1988/2059 ) 2. In the Schedule (form of charge for payment of money), for “poinding and sale” substitute “attachment and auction”. Act of Sederunt (Messengers-at-Arms and Sheriff Officers Rules) 1991( 16 ) (S.I. 1991/1397 ) 3. In rule 30 (dealings in goods poinded or sold by virtue of diligence)– (a) in the heading, for “poinded” substitute “attached”; and (b) in paragraph (a), for “poinded” substitute “attached”. Act of Sederunt (Sheriff Court Ordinary Cause Rules) 1993( 17 ) (S.I. 1993/1956 ) 4. In rule 33.67 (form of applications), in paragraph (2) for “poinding” substitute “attachment”. Act of Sederunt (Rules of the Court of Session 1994) 1994( 18 ) (S.I. 1994/1443 ) 5. In rule 16.15 (forms for diligence), in section (1) for paragraph (j) substitute– “ (j) in the case of an attachment, a schedule in form 3, and a report of attachment in form 8, in Appendix 1 of Schedule 1 to the Act of Sederunt (Debt Arrangement and Attachment (Scotland) Act 2002) 2002. ” . Act of Sederunt (Sheriff Court Bankruptcy Rules 1996)( 19 ) (S.I. 1996/2507 ) 6. In the Schedule (Sheriff Court Bankruptcy Rules) in Appendix 1 (forms), in form 2 (form of debtor’s petition (without concurrence of qualified creditor(s) under the Bankruptcy (Scotland) Act 1985) for “poinding” substitute “attachment (or any attempt to attach)”. Act of Sederunt (Child Care and Maintenance Rules) 1997( 20 ) (S.I. 1997/291 ) 7. In rule 5.43 (enforcement of registered order)– (a) for “poind” substitute “attach”; and (b) for “sale in respect of a poinding” substitute “auction in respect of an attachment”. Article 5 SCHEDULE 4 REVOCATIONS (1) (2) (3) Act of Sederunt Reference Extent of revocation Act of Sederunt (Proceedings in the Sheriff Court under the Debtors (Scotland) Act 1987) 1988 S.I. 1988/2013 The whole of Part III and in the Schedule, Forms 4 to 29 Act of Sederent (Proceedings in the Sheriff Court under the Debtors (Scotland) Act 1987) (Amendment) 1996( 21 ) S.I. 1996/2709 The whole instrument Explanatory Note (This note is not part of the Act of Sederunt) This Act of Sederunt makes rules of procedure in the sheriff court for applications relating to attachments and auctions. The form of diligence over corporeal moveable property known as attachment was created by Parts 2 and 3 of the Debt Arrangement and Attachment (Scotland) Act 2002. That Act of the Scottish Parliament also abolished the form of diligence over corporeal moveable property known as poinding, and any consequent warrant sale. This Act therefore revokes the rules of procedure for applications relating to poindings and warrant sales, made under the Debtors (Scotland) Act 1987. It makes the savings provision necessary as a result of that revocation. This Act makes minor and consequential amendments to other rules of procedure in the sheriff courts and Court of Session. This Act provides for new forms of summary warrant, which may be granted by the sheriff for recovery of certain kinds of taxes and charges. ( 1 ) 1947 c. 43 ; section 247 was substituted by the Debtors (Scotland) Act 1987 (c. 18) (“the 1987 Act”), section 74(1) and Schedule 4, paragraph 1 and relevantly amended by the Abolition of Poindings and Warrant Sales Act 2001 (asp 1) , (“the 2001 Act”) section 3 and the schedule, part 2, and by the Debt Arrangement and Attachment (Scotland) Act 2002 (asp 17) , (“the 2002 Act”), section 61 and schedule 3, Part 1, paragraph. 22. See section 379 for the definition of “prescribed”. ( 2 ) 1970 c. 9 ; section 63(1) was applied with modifications to employer’s liability for Schedule E income tax by S.I. 1973/334 , to sub contractor deductions in the construction industry by S.I. 1975/1960 , to windfall tax by the Finance (No. 2) Act 1997 (c. 58) , section 53 and Schedule 2, paragraph 15, and to stamp duty penalties by S.I. 1999/2537 ; amended by the Finance Act 1989 (c. 26) , section 154, by the 2001 Act, section 3 and the schedule, Part 2, and by the 2002 Act, section 61 and schedule 3, Part 1, paragraph 11. ( 3 ) 1971 c. 58 ; section 32 was relevantly amended by the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 (c. 73) , Schedule 2, paragraph 12, the Civil Evidence (Scotland) Act 1988 (c. 32) , section 2(4), the Children (Scotland) Act 1995 (c. 36) , Schedule 4, paragraph 18(2), the Adults with Incapacity (Scotland) Act 2000 (asp 4) , schedule 5, paragraph 13 and the 2002 Act, section 43, and was extended by sections 39(2) and 49 of the Child Support Act 1991 (c. 48) . ( 4 ) 1983 c. 53 ; paragraph 3(3) was substituted by the 1987 Act, section 74(1) and Schedule 4, paragraph 3 and amended by the 2001 Act, section 3 and the schedule, Part 2, and the 2002 Act, section 61 and schedule 3, Part 1, paragraph 14. ( 5 ) 1987 c. 47 ; paragraph 7 was repealed in part by the Local Government Finance Act 1992 (c. 14) , section 149 and Schedule 13, Part IV, and relevantly amended by the Local Government Finance Act 1992 (c. 14) , section 137 and Schedule 12, paragraph 36, and by the 2002 Act, section 61 and schedule 3, Part 1, paragraph 18. See section 29 for the definition of “prescribed”. ( 6 ) 1988 c. 36 ; section 5 was relevantly amended by section 2(3) of the Civil Evidence Act 1988 (c. 32) and paragraph 45 of Schedule 4 to the Children (Scotland) Act 1995 (c. 36) . See section 51 for the definition of “prescribed”. ( 7 ) 1992 c. 14 ; paragraph 2(2) of Schedule 8 was relevantly amended by Local Government etc. (Scotland) Act 1994 (c. 39) , section 180(1) and Schedule 13, paragraph 176(18), and the 2002 Act, section 61 and schedule 3, Part 1, paragraph 22. ( 8 ) 1994 c. 39 ; Schedule 10 confers power to make orders for recovery of diligence by virtue of that Schedule, which power is exercised in S.I. 1996/325 ; paragraph 2 of Schedule 10 was amended by the 2001 Act, section 3 and the schedule, Part 2, and by the 2002 Act, section 61 and Schedule 3, Part 1, paragraph 23. ( 9 ) 1996 c. 8 ; paragraph 13 was prospectively repealed by the Finance Act 1997 (c. 16) , section 113 and Schedule 18, Part V(2). ( 10 ) 1997 c. 16 ; section 52 was relevantly amended by the 2001 Act, section 3 and the schedule, Part 2, and by the 2002 Act, section 61 and schedule 3, Part 1, paragraph 26. ( 11 ) 2002 asp 17 . ( 12 ) 2002 asp 17 . ( 13 ) 1980 c. 46 ; section 32(1) was relevantly amended by the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 (c. 73) , section 56 and Schedule 1, Part I, paragraph 9, the Solicitors (Scotland) Act 1988 (c. 42) , section 6 and Schedule 1, paragraph 7, the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 (c. 40) , section 74 and Schedule 8, Part II, paragraph 29, and S.S.I. 2000/121 . ( 14 ) S.I. 1988/2013 ; amended by S.I. 1996/2709 and 1999/1820 . ( 15 ) S.I. 1988/2059 ; revoked so far as it applied to the Court of Session by S.I. 1994/1443 . ( 16 ) S.I. 1991/1397 ; amended by S.I. 1998/2636 and 1999/678 , and by S.S.I. 2000/20 . ( 17 ) S.I. 1993/1956 ; amended by S.I. 1996/2167 , rule 6 substituted by S.S.I. 2000/239 , and repealed in part by S.S.I. 2002/132 and 133 . ( 18 ) S.I. 1994/1443 ; relevant amending instrument is S.I. 1998/2637 . ( 19 ) S.I. 1996/2507 . ( 20 ) S.I. 1997/291 ; amended by S.I. 1998/1993 and 2130 , and by S.S.I. 2000/388 . ( 21 ) S.I. 1996/2709 .