Summary Warrant: Explanation of the more common terms used
The following details some of the more frequently used terms you will encounter in your dealings with the court when taking summary warrant action.
Action of furthcoming – a final stage of diligence for whatever has been subject to arrestment being made over to the pursuer. For example, when a bank account has been arrested and attempts to obtain a mandate from the defender to release the arrested funds have proved unsuccessful, this final stage of the diligence allows for the appropriate amount of funds caught in the arrestment being transferred to the pursuer.
Apparent insolvency – a legal term that means a debtor is unable to pay their debts and that at least one of their creditors has taken legal action against them.
Arrestment – is the form of diligence whereby a creditor ensures that money and moveable effects of the debtor (e.g. an insurance policy) that are in the hands of a third party are not made over to the debtor until the debt is paid. The arresting creditor is known as “the arrestor”, the third party as “the arrestee” and the debtor as “the common debtor”. Arrestments laid on wages or salaries etc due to the debtor by his employer are known as earnings arrestments.
Attachment and auction sale – attachment is a diligence over corporeal moveable property (owned by the debtor alone or in common) for recovery of money owed by the debtor. Attachment is carried out by a sheriff officer who values the articles being attached at the price they are likely to fetch on the open market. An attachment cannot be carried out on a Sunday or on a day that is a public holiday in the area in which the attachment is to be executed or any other day as may be prescribed by Act of Sederunt. Also it should not be commenced before 8am or continued after 8pm. The sheriff officer must, within 14 days of the execution of the attachment, make a report of the attachment to the sheriff.
The debtor has 14 days from the date of the execution of the attachment to redeem the attached article. If he chooses to do so once payment of the redeemed article has been received from him, the attachment ceases to have effect.
If no redemption of the attached goods is requested then the sheriff officer (once he has sent the report of attachment to the sheriff) can make arrangements for the auction of the attached articles.
Certificate/Warrant of Intimation – a notice given to all interested parties of a step taken or to be taken in the action.
Charge to pay – a formal demand for payment following a decree or summary warrant. A Sheriff Officer serves the charge on the debtor. The debtor then has to pay the debt within 14 days.
Debt Advice and Information pack (DAIP) – this is a leaflet that the creditor must by law provide to the debtor if they are taking steps to recover the money owed to them through a court or legal process or if they intend to petition for bankruptcy.
Defender – this is the person against whom the pursuer raises the action in court.
Diligence – this is the term used to describe the form of legal procedure which enables the creditor (pursuer) to recover payment from the debtor (defender).
Pursuer – this is the person raising the action in the court.
Redemption – this is the means by which the debtor redeems the attached article – He has 14 days from the date of the execution of the attachment in which to do this.
Summary warrant – a legal document signed by a sheriff allowing recovery of unpaid taxes etc by attachment and sale, arrestment or arrestment of earnings. An officer of HM Revenue and Customs must apply to the court for such authority, certifying that previous demand for payment has been made and that the amount due remains unpaid at the date of their application. If satisfied that the petition for warrant is in order the sheriff will sign it granting his authority to recover the debt by the following methods
- attachment and sale of assets
- 3rd party arrestment
- earnings arrestment.