Applying to the sheriff for a summary warrant
We may apply to the sheriff for a summary warrant if:
- we have issued a demand for payment in relation to a sum of money that you owe us, including under a contract settlement (see RSTP5002) or a settlement agreement (see RSTP6013); and
- if, 14 days after the demand having been given, you have not paid the sum owed.
Our application to the sheriff must be accompanied by a certificate which is signed by us and states that:
- you (and any other specified persons) have not paid a specified sum of money owed to us;
- we have demanded payment from you (and any other specified persons) regarding the sum of money owed; and
- that 14 days have expired (beginning with the day on which our demand is made) without payment having been made.
A sheriff who receives an application from us which complies with the above criteria must grant a summary warrant in (or as nearly as may be in) the form prescribed by Act of Sederunt (an ordinance or legislative instrument regulating, in the case of a summary warrant, proceedings before the sheriff court).
Without prejudice to section 39(1) of the Debt Arrangement and Attachment (Scotland) Act 2002 (expenses of attachment), you and any other persons against whom the summary warrant was granted must pay the sheriff officer’s fees and any outlays or expenses the officer reasonably incurs.
A sheriff officer cannot however charge you a fee for either collecting a sum of money you pay to the officer or for accounting to us about that payment.
Effect of a summary warrant
A summary warrant can authorise the recovery of the sum payable by:
- attachment (including money attachment):
- attachment is a diligence (or security) over corporeal moveable property (owned by the debtor alone or in common) for recovery of money owed by the debtor. ‘Corporeal moveable property’ means property which can be seen and handled.
Attachment is carried out by a sheriff officer who values the articles being attached at the price they are likely to fetch on the open market. An attachment cannot be carried out on a Sunday, on a day that is a public holiday in the area in which the attachment is to be executed, or between 8pm and 8am, unless the court allows it.
A debtor has 14 days from the date of the execution of an attachment to redeem the attached article. If the debtor chooses to do so once payment of the redeemed article has been received from him or her, the attachment ceases to have effect.
If no redemption of the attached goods is requested then the sheriff officer (once the officer has sent the report of attachment to the sheriff) can make arrangements for the auction of the attached articles;
- money attachment – this is a special type of attachment introduced by Part 8 of the Bankruptcy and Diligence etc. (Scotland) Act 2007 and covers cash (sterling and other currencies), cheques, negotiable instruments, promissory notes and money orders which can all be uplifted and removed.
- arrestment (including earnings arrestment) and action of furthcoming or sale:
- ‘arrestment’ is the form of diligence (or security) whereby a creditor ensures that money and moveable effects of the debtor (for example an insurance policy) that are in the hands of a third party are not made over to the debtor until the debt is paid. The arresting creditor is known as ‘the arrestor’, the third party as ‘the arrestee’ and the debtor as ‘the common debtor’.
Arrestments laid on wages or salaries etc. due to the debtor by his or her employer are known as ‘earnings arrestments’;
- an ‘action of furthcoming’ is a final stage of diligence for certain items that are subject to arrestment being made over to the pursuer. For example, where goods have been arrested and attempts to obtain a mandate from the defender to release the goods have proved unsuccessful, this final stage of diligence allows the goods caught in the arrestment to be transferred to the pursuer.
If following a summary warrant:
- you continue to fail to pay us the sum of money you owe;
- that sum of money is more than £3,000 (including any fees or interest); and
- you are apparently insolvent,
then we may submit a petition for sequestration to the court.