Hearings for warrant to arrest no longer necessary?

01.01.06

Hearings for warrant to arrest no longer necessary?

The long-awaited Inner House decision in Advocate General for Scotland (for and on behalf of the Commissioners for Inland Revenue) v. Taylor has now been issued http://www.scotcourts.gov.uk/opinions/A1318.html

Summary

  1. Warrants to inhibit and/or arrest on the dependence of Court of Session actions will now only be granted after judicial consideration and not as of right. A hearing will not necessarily be required. An applicant for a warrant must establish:

    1. a prima facie case on the merits of the action; and

    2. that the diligence sought is proportionate to the claim.

  2. We expect that the Inner Houses guidance will also apply to applications for warrant to arrest on the dependence of Sheriff Court actions.

Explanation

  1. The case came before an extra division of the Inner House (comprising Lords MacLean Macfadyen and Menzies) for a ruling on the correctness of Lord Drummond Youngs decision in Karl Construction Ltd v Palisade Properties. The essential issue was whether the current availability of warrants to inhibit as of right in the Court of Session is in breach of the European Convention on Human Rights (Convention.) However the Inner House commented at the outset that it would be failing in its task if it did not also consider the general law of diligence including arrestment on the dependence.

  2. In Karl Construction Lord Drummond Young stated:

    inhibition on the dependence will not be automatically available even in cases where it seems possible to draw a clear inference of practical insolvency; the motion for inhibition would still have to go before a judge who would require to be satisfied that the pursuer had a prima facie case and that there was specific justification for inhibition on the dependence.

  3. At present in practice and pursuant to the Court of Session Rules no such judicial scrutiny is required for either inhibition or arrestment on the dependence. However sinceKarl Construction Sheriff Courts require a hearing before warrant to arrest is granted.

  4. The Inner House found that the current Scots law of diligence is not compatible with the Convention (in particular the right to peaceful enjoyment of possessions) and that change is required. In its opinion the essential mischief is that diligence is available as of right irrespective of whether the pursuers claim is well-founded in fact or in law and without any judicial assessment of the validity or the strength and weakness of that claim.

  5. The Inner House commented [paras 33-34]:

    It seems to us that what is required to cure the current mischief is that the grant of warrant should in essence be a judicial act. This in our opinion does not mean that there must be a hearing in court before a judge. It does however mean that an application is made to the court for a warrant and that such an application is judicially considered before it is granted. We envisage that the Clerk of Court will place the papers before the judge. Having considered the papers and in particular the grounds put forward in averment for the granting of warrant the judge may grant the application. If he is not satisfied with the application and the grounds for it he may refuse it at that point; or he may put it out for a hearing; or order intimation to other party or parties before convening a hearing in court. The important point is that it passes before the judge.

    We have in mind that the applicant need only establish a prima facie case on the merits of the action. The necessity for diligence need not be demonstrated although it may no doubt assist the grant if it is. But the applicant will have to demonstrate that the diligence sought is proportionate to the claim.

Comment

  1. The Inner House envisages changes to the Rules of Court and in the meantime advises that all applications should be placed before a Lord Ordinary. We expect the Sheriff Courts to follow suit which contrary to current practice will mean that a hearing will not be required in every case. However what will be required in each and every case are sufficient averments to justify the obtaining of a warrant to inhibit/arrest.

For further information please contact:

Robin Macpherson tel 0131 656 0131 or email: robin.macpherson@brodies.com