Summary warrant: Action required before pursuing an action of furthcoming
Before you can proceed with an action of furthcoming you must firstly check
- the validity of the warrant and the arrestment schedule
- that the correct name and address is shown on all documents. (In a partnership case care should be taken to ensure that all the partners’ names and addresses are detailed as appropriate)
- the amount shown on the document is correct at the date of the document. You must also have checked with the arrestee to ascertain as to whether any sums have been caught and if possible the amount caught. Whilst the actual amount caught may not be revealed an indication may be given as to whether or not it would be worthwhile for you to proceed with an action of furthcoming.
Lastly you must check
- all records to see if there is any indication as to whether the arrestee or debtor (defender) is likely to be sequestrated in the near future
- whether the defender has gone unknown. (If the answer to this is “yes” then it will be necessary for you to cite the defender by placing an advert in the local newspaper. Because this will incur further substantial costs you should bear this in mind when determining whether it will be cost effective or not to proceed with such an action.)
- if small regular amounts can be arrested. (If they can then it will be more cost effective to lodge a series of arrestments before proceeding with one action of furthcoming).
Selecting the type of actionOnce all the above checks have been completed and you have decided that an action of furthcoming would be worthwhile you will need to determine whether you will be pursuing the action as a summary cause or as an ordinary cause. This depends on the amount of the “arrested sum” and whether it is £5000 or less or more than £5000
The term “arrested sum” however can have two meanings. These are
- the amount which you are seeking to arrest or
- the actual sum caught (that is, the amount that the arrestment has attached).
Arrested sum knownWhere the sum caught by the arrestment is known and this “caught amount” is less than £5000 you should take summary cause (SP) action. Similarly where the sum caught by the arrestment is known and this “caught amount” is more than £5000 you should take ordinary cause (OC) action.
Generally the sum caught will be the same as or less than the sum asked for but occasionally it will be greater when the arrestee has included a sum for expenses.
Arrested sum not knownWhere the sum caught by the arrestment is not known you should take
- summary cause (SP) action where the sum you are seeking to arrest is £5000 or less and
- ordinary cause action where the sum you are seeking to arrest is over £5000.