Would creditors be liable for all sheriff's fees incurred in Scotland, or is there a set fee as in England/Wales?
Yes, the creditor will be liable for all the Sheriff’s Officers fees. The Sheriffs Court fees are listed here.
As you do not have something akin to a Controlled Goods Agreement in Scotland, what is the consequence for the debtor should they remove or sell goods that would be listed for auction?
The removal, sale, gifting or other disposal of attached articles, as well as their willful destruction or damage, will be a breach of the attachment and may be dealt with as a contempt of court. In the event of the articles being damaged, destroyed or stolen the sheriff may order that other goods are attached.
In the event of an attached article being stolen the debtor is required to give notice to the creditor and officer as well as any insurance claim which they intend to make.
If an article is made unavailable by the debtor or by a third party who knows of the attachment, provision is made for money to be consigned in court. The amount consigned will equal the difference between the value of the article when attached and the value of the damaged article. In circumstances where the attachment of a damaged article ceases to have effect before its auction, any sum consigned in court will be paid to the creditor towards the debt with any balance being paid to the debtor.
What would happen (if anything) if a debtor was robbed and the goods listed for seizure were in fact stolen? Applicable to cases in both Scotland & England/Wales?
From a legal point of view, if the goods are genuinely stolen in either jurisdiction, it’s not the debtor’s fault. Unfortunately, the creditor would in effect be left without a remedy, if this was the case.
If the debtor is in Scotland, but their assets are in England, what process should be followed?
For assets, you must use the law of where the property is situated so, if the debtor’s assets are in England then judgment would need to be transferred to England for enforcement.
There could also be ramifications if the goods were in a third-party’s premises, for instance, antiques or works of art in a gallery in England. The HCEO would have to go back to court to seek permission from a Master to be able to attend the third-party premises in England or Wales.
Could the cross-border agreement survive Scottish independence?
The legislation Civil Jurisdiction and Judgments Act reflect the Brussels regulation which deals with recognition and enforcement of judgment throughout the European economic area.
If Scotland were to become independent it is most likely that the Civil Jurisdictions and Judgment Act would remain in place.
In your opinion, which is the most effective method of enforcement in Scotland?
If the decree is against an individual and in employment, it would be an earnings arrestment. If the debtor is a business and they are still trading, then I would recommend the insolvency process.
It really does depend on debtor’s circumstances. If the debtor simply doesn’t have the financial resources to pay the debt, then I don’t think enforcement is going to be successful.
Are Sheriff Officers effectively responsible for carrying out all enforcement in Scotland, as opposed to England where they largely only deal with writs of control?
Yes, Scotland doesn’t have certificated enforcement agents, county court bailiffs or high court enforcement officers. Scottish Sheriffs Officers are the sole Scottish equivalent.
Is an earnings arrestment available in England for Scottish debts?
In England and Wales, the claimant can apply to the court for an attachment of earnings order. However, once awarded, enforcement under a High Court writ is no longer permitted.
Does Scotland have equivalents of charging orders etc?
The closest that Scotland has to a charging order is called an inhibition. An inhibition does not attach to the debtor’s freehold property; it attaches to the individual unless you have a decree.
You can register the inhibition against the debtor. So, if a debtor who is inhibited tries to sell their freehold property the purchaser’s solicitor will always want to see a clear search and register. If there is not a clear search the purchaser’s solicitor will not settle the transaction until the inhibition is paid off.
Inhibitions are a slow burner; in any period of five years where the economy is doing relatively well, about 30-35% of people either sell their house or re-mortgage.
We can establish if the debtor owns their property by carrying out a Land Registry search. That will mean that we know an inhibition would be worthwhile. In most circumstances, we find inhibitions very effective and an inexpensive remedy. No application is required and all you must do is have the inhibition served on the debtor.
Inhibitions last for five years and can be renewed every five years up to 20 years.