Often, clients contact us about debts due to them, with the expectation that a lengthy and expensive court action will have to take place before they have a chance of recovering those funds. However, in the right circumstances, there may be another option available.

Summary diligence is a peculiarity of the Scottish legal system. The term "summary diligence" is used to refer to enforcement of certain legal rights based on a document (for example, a lease) rather than a court decree. It can be a useful tool for creditors to avoid the courtroom.

Authority to rely on the document is acquired by way of the document's registration in the Books of Council & Session. If your document is not registered in the Books of Council & Session, all is not necessarily lost. You should check the document to see whether it contains a clause which allows the document to be registered "for preservation and execution". If it does, the document can be registered and relied upon. If it does not, you will most likely need to take advice on legal proceedings.

Provided that the document is registered, and that an extract of it can be obtained, it should be possible to undertake some form of summary diligence. There are several forms that summary diligence can take. Some common examples are:-

1. Charge for Payment

This involves instructing Sheriff Officers to serve a written demand for payment on the debtor. Under the Charge for Payment, the debtor will have a period of 14 days in which to make payment. If payment is not made within that period, the expired Charge can be relied upon to constitute the debtor's "apparent insolvency" in raising sequestration or liquidation proceedings.

2. Statutory Demand

This is another form of written demand, which allows the debtor a period of 21 days in which to make payment. If payment is not made within that period, the expired Charge can be relied upon to constitute the debtor's "apparent insolvency" in raising sequestration or liquidation proceedings.

3. Bank Arrestment

If you know where the debtor has bank accounts, Sheriff Officers can serve an arrestment on those banks. If the debtor has accounts with that bank, and the money in those accounts is above the protected statutory minimum balance, the bank is required to arrest the sums up to the value of the debt. If you do not know where the debtor banks, Sheriff Officers can serve speculative arrestments on the "big four" banks. In either scenario, you will be advised whether the arrestment has been successful and, if applicable, the amount captured by the arrestment.

It is worth noting that, if the debtor does not have the funds to pay their debts, you might have difficulties with enforcement. If you require advice regarding outstanding debts, we would be happy to advise you on your options, whether those be in the form of court proceedings or summary diligence.