This series looks at the enforcement options available to creditors to recover sums due by a debtor in Scotland. In previous editions we looked at the remedies of Inhibition and Earnings Arrestment. In this edition we look at how Attachment operates in Scotland.
Attachment in Scotland is a form of diligence (enforcement) which can be used by a creditor against a debtor's moveable property kept out with a dwelling house. The closest equivalent in England and Wales is a Warrant of Execution/Writ of Control. Following a formal Charge for Payment being served on the debtor by sheriff officers and 14 days having expired thereafter without payment being made, the creditor can instruct sheriff officers to carry out an attachment of the debtor's moveable property located out with the debtor's dwelling house. The sheriff officer will arrange to value the items to be attached and make a report of the attachment to the sheriff. Attachment prevents a debtor from moving attached items from the place at which they were attached. The property attached can thereafter be sold to recover payment of sums due to the creditor.
Where the items a creditor seeks to attach are within a debtor's dwelling house it is possible to seek an Exceptional Attachment Order. This authorises the attachment, removal and auction of non-essential articles belonging to the debtor which are in the debtor's dwelling house when the attachment is carried out. An Exceptional Attachment Order will only be granted in limited circumstances after a specific application has been made by the creditor to the sheriff.
It is also possible to seek an Interim Attachment Order on the dependence (prior to judgment) of a court action. Property which can be subject to Interim Attachment must be located out with a dwelling house and the onus is on the creditor to satisfy the court the remedy is necessary. It should be noted that there are also certain items which are specifically exempt from Interim Attachment. If granted the interim remedy protects the interests of creditors whilst a court action progresses by effectively restricting the debtor's ability to deal with attached moveable assets pending the outcome of the action. It does not however allow the creditor to remove or sell the attached items. That aspect cannot progress until a decree/judgment is granted.
Attachment can be a useful and effective debt recovery tool when used in appropriate circumstances. Understanding its legal effect and limitations is therefore critical in enabling a creditor to use it effectively as part of its debt recovery strategy.