Creditors can find themselves in a situation where they know or strongly suspect that a party owes them money but cannot ascertain the amount they are entitled to payment of. This may be because the creditor's property or money is being controlled by the other party. The appropriate remedy is to raise an action of accounting (which was traditionally known as an action of count, reckoning and payment).
Which parties have a duty to account?
A duty to account arises where there is an agent/principal relationship between the parties. Examples include the relationship between: (i) business partners (ii) an executor or trustee and the beneficiaries of the estate or trust; and (iii) a client and a professional adviser who is acting in the capacity of an agent.
What remedies are available in an accounting action?
You can ask the court to order the agent to produce an account showing how they have dealt with the monies or property. If an account is produced, you can seek payment of the sum found due after review of the account. If the agent fails to defend the action or produce an account, you can seek payment of a specified sum. This is usually an estimate of the sum due to be paid by the agent to you.
Can I challenge an account?
You are entitled to challenge an account produced by an agent. This is an opportunity for you to demonstrate that the amount due to you ought to be greater than the sum shown in the account, for example, because the agent has taken credit for some amount to which he was not entitled. The Sheriff will consider any objections made by you to an account and will determine what (if anything) is due to be paid to you.
If you are successful in an accounting action you may achieve much needed clarity in relation to how your property and/or money has been dealt with together with payment rightfully due to you.