User:Kentigern1136/sandbox

Diligence is a term in Scots Law for execution of a decree (ie: a court order). it has no single definition, but is commonly used to describe debt enforcement proceedings against a debtor by a creditor in Scottish courts. The law of diligence forms part of the law of actions in Scots private law. Accordingly, it is within the devolved competence of the Scottish Parliament.

Diligence is executed by Sheriff Court officers or Messengers-at-Arms of the Court of Session.

There are many forms of diligence, largely involving creditors and debtors. The newest form of diligence, land attachment, will be introduced into Scots law when Part 4 of the Bankruptcy and Diligence (Scotland) Act 2007 is brought into force.

Distinguishing Diligence
There are many forms of diligence, but it is common for them to be categorised as either 'seize' diligence or 'freeze' diligence due to the nature of the legal effect of each type of diligence.

Seize types of diligence allow a creditor to seize goods from a debtor. Freeze diligence allow a creditor to freeze a debtor's property from use or transfer until payment of the debt has been satisified.

Current Sources of Law
There are many statutes dealing with the law of diligence, these include:


 * Debtors (Scotland) Act 1987
 * Abolition of Poindings and Warrant Sales Act 2001
 * Debt Arrangement and Attachment (Scotland) Act 2002
 * Bankruptcy and Diligence (Scotland) Act 2007

For older forms of diligence, such as adjudication, common law rules continue to apply.

Debt Advice and Information Package (DAIPs)
A debtor who is a natural person is entitled to receive a Debt Advice and Information Package when diligence proceedings are raised against him. First introduced under the Debt Arrangement and Attachment (Scotland) Act 2002, this document sets out the debtor's legal rights and where professional support and guidance on debt issues is available. The current DAIP booklet can be viewed on the Accountant-in-Bankruptcy website. While each form of diligence has specific requirements for the services of a DAIP, they generally must be issued at least 12 weeks prior to the commencement of diligence.

Debt Arrangement Schemes (DAS)
A debtor can avoid diligence by entering into a debt arrangement scheme (DAS). This scheme allows a debtor to arrange repayment of debt under a statutory debt payment programme administered by the DAS Administrator, part of the Accountant-in-Bankruptcy. This is the only statutory debt repayment scheme available in the United Kingdom.

However, before a debtor can enter into a DAS, they must have obtained advice from a money adviser. The Scottish Financial Health Service provides such money advice, as well as other advisory and charitable organisations such as the Citizens Advice Bureau. When a debtor makes a DAS application, it must be accompanied by a declaration from a money adviser that advice has been provided.

A DAS usually must have the consent of the creditor in order to be approved. However where consent by the creditor is not given, the DAS Administrator must approve the application where the proposed programme is "fair and reasonable".

Where a DAS has been approved, the debtor is immune from the commencement of diligence proceedings. The DAS Administrator maintains a DAS Register, recording information relating to debt payment programmes, including the debtor's personal information.

Time to Pay Directions
Another protection available to debtors are Time to Pay Directions. Time to Pay Directions are available to debtors at the commencement of court proceedings, the award of a decree against them through to the service of a charge to pay (see below). They allow a debtor to ask the court for a period of time to repay the debt sued for by instalments or lump sum payments.

The court must take into account a number of factors, including the debtor's financial position, when making a time to pay direction.

Time to pay directions are not available for debts:


 * That exceed £10,000 or other amount prescribed by the Lord Advocate in secondary legislation.
 * relating to divorce proceedings.
 * connected to maintenance orders or liability orders, typically dealing with child maintenance.
 * Actions commenced by HMRC or Revenue Scotland.
 * relating to the payment of road tax.

Where a court makes the Time to Pay direction/order, the debtor is immune from the commencement of diligence against them.

Attachment
Attachment is a form of diligence that allows a creditor to seize and sell a debtor's corporeal moveable property (ie: property which can be physically moved such as cars/jewellery/clothes etc). Only corporeal moveable property which is owned by the debtor can be seized and removed. However, a sheriff court officer is entitled to proceed on the assumption that any property in possession of the debtor is also owned by them.

Attachment replaced the diligence of poinding, after a sustained political campaign led largely by Scottish Socialist Party leader Tommy Sheridan MSP.

Charge to Pay
Prior to the commencement of attachment proceedings, a charge to pay must be served on the debtor calling on them to make payment within a certain number of days. Upon expiry of this charge days without payment, the creditor can launch legal proceedings against the debtor.

Debt Advice and Information Package (DAIP)
A DAIP, discussed above, must be served on the debtor who is a natural person at least 12 weeks in advance of the execution of the attachment.

Valuation and Service of Schedule of Goods
Following service of the charge to pay and DAIP, the creditor can instruct Sheriff Officers to attend a debtor's premises. Thereafter, the Sheriff Officers will attend the debtor's premises in order to value property for sale. Sheriff Officers are allowed to enter shut and locked premises for the purposes of valuation. Property should be valued at the price it could vetch if sold on the open market.

Following valuation of the corporeal moveable property, the Sheriff Officers must immediately make a schedule identifying all corporeal moveable property owned by the debtor. This schedule must then be given to the debtor, or a copy left at the premises. All property listed in the schedule is known as the attached articles. Any person interfering with an attached article is liable to conviction for contempt of cour t and liable to the creditor for the value of the interfered attached article.

Thereafter, a report signed by the Sheriff Officer must be submitted to the Sheriff Court, including a copy of the Schedule of Goods, within 14 days of execution.

Exempt Articles
Certain property is exempt from being attached. This includes:


 * Any articles inside the debtor's dwellinghouse require a further exceptional attachment;
 * Any articles inside Mobile homes and the mobile home itself;
 * Any implements, tools of trade, books or other equipment reasonably required for the use of the debtor in the practice of the debtor’s profession, trade or business and not exceeding in aggregate total value £1,000;
 * Any vehicle, the use of which is so reasonably required by the debtor, not exceeding in value £1,000 or such amount as may be prescribed in regulations made by the Scottish Ministers;
 * Any tools or other equipment reasonably required for the purpose of keeping in good order and condition any garden or yard adjacent to, or associated with, a dwellinghouse in which the debtor resides;
 * Any money. Monies can be instead attached under money attachment.

Removal and Auction
Following submission of the valuation report to the Sheriff Court, the Sheriff Officer has six months in which to remove the attached articles from the debtor's premises and sell the attached articles at roup (Scots term for auction). Following the roup, the Sheriff Officer must submit another report to the Sheriff Court, ending the diligence process.

Arrestment
Arrestment is a form of diligence that applies to initially 'freeze' and subsequently 'seize' any incorporeal moveable or corporeal moveable property owned by the debtor but is in possession of a third party. Following arrestment of the property, including any incorporeal property such as a contractual right to payment, an action of furthcoming can be raised in Scottish courts compelling the third party to deliver the property, or make payment to the creditor in place of the debtor. The rules of the diligence of arrestment originate in Scots common law but are largely now found in the Debtors (Scotland) Act 1987.

Law Reform
The law relating to diligence has been subject of many reports by the Scottish Law Commission, including:


 * Scottish Law Commission, Report on Diligence and Debtor Protection, (Scot Law Com No 95), (1985).
 * Scottish Law Commission, Report on Statutory Fees For Arrestees, (Scot Law Com No 133), (1992).
 * Scottish Law Commission, Report on Diligence on the Dependence and Admiralty Arrestments, (Scot Law Com No 164), (1998).
 * Scottish Law Commission, Report on Poinding and Warrant Sales, (Scot Law Com No 177), (2000).
 * Scottish Law Commission, Report on Diligence, (Scot Law Com No 183), (2001).

These reports' recommendations have led to reform of the law of diligence. They are available to view for free online at the Scottish Law Commission website.