Bankruptcy and Diligence etc. (Scotland) Act 2007

In section 44(3) of the Conveyancing (Scotland) Act 1924 (c. 27) (limitation of effect of certain entries in the Register of Inhibitions and Adjudications)—

• (a) in paragraph (a), the word “inhibitions,”, where it second occurs, is repealed; and

• (b) after that paragraph insert—

(aa) all inhibitions shall cease to have effect on the lapse of five years from the date on which they take effect.

Inhibition terminated by payment of full amount owing

157

• (1) This section applies where—

• (a) an inhibition executed to enforce payment of a debt has effect; and

• (b) a sum is paid, in respect of the debt constituted by the decree or document of debt authorising the inhibition, to the creditor, an officer of court or any other person who has authority to receive payment on behalf of the creditor.

• (2) Where the sum paid amounts to the sum of—

• (a) the debt (including any interest due under the decree or document of debt);

• (b) the expenses incurred by the creditor in executing an inhibition (referred to in this section and in sections 165 and 166 as the “inhibition expenses”); and

• (c) the expenses of discharging the inhibition,

the inhibition ceases to have effect.

• (3) Any rule of law to the effect that an inhibition ceases to have effect on payment or tender of the debt constituted by the decree or document of debt is abolished.

• (4) This section and sections 165 and 166 of this Act do not apply to an inhibition on the dependence of an action.

Inhibition terminated by compliance with obligation to perform

158

Where—

• (a) an inhibition executed to enforce an obligation to perform a particular act (other than payment) contained in a decree has effect; and

• (b) the debtor has complied with the decree,

the inhibition ceases to have effect.

Termination of inhibition when property acquired by third party

159

• (1) Notwithstanding section 160 of this Act, an inhibition ceases to have effect (and is treated as never having had effect) in relation to property if a person acquires the property (or a right in the property) in good faith and for adequate consideration.

• (2) For the purposes of subsection (1) above, a person acquires property (or a right in the property) when the deed conveying (or granting the right in) the property is delivered to the person.

• (3) An acquisition under subsection (1) above may be from the inhibited debtor or any other person who has acquired the property or right (regardless of whether that person acquired in good faith or for value).

• (4) For the purposes of subsection (1) above, a person is presumed to have acted in good faith if the person—

• (a) is unaware of the inhibition; and

• (b) has taken all reasonable steps to discover the existence of an inhibition affecting the property.

Breach

Breach of inhibition

160

An inhibited debtor breaches the inhibition when the debtor delivers a deed—

• (a) conveying; or

• (b) otherwise granting a right in,

property over which the inhibition has effect to a person other than the inhibiting creditor.

Prescription of right to reduce transactions in breach of inhibition

161

For the avoidance of doubt, section 8(1) of the Prescription and Limitation (Scotland) Act 1973 (c. 52) (extinction of certain rights relating to property by prescriptive period of 20 years) applies to the right of an inhibitor to have a deed granted in breach of an inhibition reduced.

Registration of notice of litigiosity and discharge of notice

162

After section 159 of the 1868 Act insert—

(159A) (1) This section applies where a pursuer raises an action of reduction of a conveyance or deed of or relating to lands granted in breach of an inhibition. (2) The pursuer shall, as soon as is reasonably practicable after the summons in the action is signeted— (a) register a notice of that signeted summons in accordance with section 159 of this Act; and (b) register in the Land Register of Scotland or, as the case may be, record in the Register of Sasines a copy of that notice. (3) Where a decree of reduction is not obtained in the action to which the notice relates, the pursuer shall, as soon as is reasonably practicable— (a) register in the Register of Inhibitions; and (b) register in the Land Register of Scotland or, as the case may be, record in the Register of Sasines, a discharge of that notice in (or as nearly as may be in) the form prescribed.

Reduction of lease granted in breach of inhibition

163

• (1) This section applies where an inhibited debtor grants a lease of property affected by the inhibition.

• (2) A lease which, on the date an action of reduction of the lease is raised, has an unexpired duration of not less than 5 years is reducible.

• (3) A lease which, on the date an action of reduction of the lease is raised, has an unexpired duration of less than 5 years may be reduced only if the Court of Session is satisfied that it would be fair and reasonable in all the circumstances to do so.

• (4) In calculating the unexpired duration of a lease for the purposes of subsections (2) and (3) above—

• (a) any provision in the lease (however expressed) enabling the lease to be terminated earlier than the date on which the lease would otherwise terminate must be disregarded; and

• (b) where the lease includes provision (however expressed) requiring the landlord to renew it, the duration of any such renewed lease must be added to the duration of the original lease.

General and miscellaneous

Power to prescribe forms in the 1868 Act

164

• (1) In section 159 of the 1868 Act (no litigiosity before date notice of summons is registered), for the words from “set” to “annexed” substitute “ be in (or as nearly as may be in) the form prescribed. ”.

• (2) After section 159A of that Act (which is inserted by section 162 of this Act) insert—

(159B) (1) In sections 155, 159 and 159A of this Act, “prescribed” means prescribed by the Scottish Ministers by regulations. (2) The power conferred on the Scottish Ministers to make regulations under subsection (1) above is exercisable by statutory instrument. (3) A statutory instrument containing regulations made under subsection (1) above is subject to annulment in pursuance of a resolution of the Scottish Parliament.

Expenses of inhibition

165

• (1) Subject to subsection (3) below, the inhibition expenses are chargeable against the debtor.

• (2) Inhibition expenses are recoverable from the debtor by land attachment or residual attachment executed for the purpose of enforcing payment of the debt to which the inhibition relates but not by any other legal process.

• (3) Where a creditor has executed an inhibition, the expenses of only one further inhibition in relation to the debt to which the first inhibition relates are chargeable against the debtor as inhibition expenses.

• (4) For the purposes of a sequestration or other process in which there is ranking, the inhibition expenses must be treated as part of the debt constituted by the decree or document of debt authorising the inhibition.

Ascription

166

• (1) This section applies where—

• (a) an inhibition has effect; and

• (b) any sums are paid to account of the sums recoverable from the debtor by virtue of the decree or document of debt authorising the inhibition.

• (2) Such sums must be ascribed to the following in the order in which they are mentioned—

• (a) the expenses which are chargeable against the debtor incurred in respect of any diligence (other than the inhibition) authorised by the decree or document of debt;

• (b) the inhibition expenses;

• (c) any interest which has accrued, at the date on which the inhibition takes effect, on the debt constituted by the decree or document of debt;

• (d) the debt constituted by the decree or document of debt together with such interest as has accrued after the date on which the inhibition takes effect.

Keeper's duty to enter inhibition on title sheet

167

In section 6 of the Land Registration (Scotland) Act 1979 (c. 33) (content of title sheet)—

• (a) in subsection (1)(c), at the beginning insert “ subject to subsection (1A) below, ”; and

• (b) after subsection (1) insert—

(1A) The Keeper shall enter an inhibition registered in the Register of Inhibitions in the title sheet only when completing registration of an interest in land where the interest has been transferred or created in breach of the inhibition.

Inhibition effective against judicial factor

168

• (1) Notwithstanding the appointment of a judicial factor on a debtor's estate, an inhibition has effect.

• (2) But subsection (1) above does not apply in a case where—

• (a) a judicial factor is appointed under section 11A of the Judicial Factors (Scotland) Act 1889 (c. 39) (application for judicial factor on deceased person's estate); and

• (b) the inhibition was effective against the debtor prior to the debtor's death.

Part 6 — Diligence on the dependence

Diligence on the dependence

169

After section 15 of the 1987 Act, insert—

(15A) (1) Subject to subsection (2) below and to sections 15C to 15F of this Act, the Court of Session or the sheriff may grant warrant for diligence by— (a) arrestment; or (b) inhibition, on the dependence of an action. (2) Warrant for— (a) arrestment on the dependence of an action is competent only where the action contains a conclusion for payment of a sum other than by way of expenses; and (b) inhibition on the dependence is competent only where the action contains— (i) such a conclusion; or (ii) a conclusion for specific implement of an obligation to convey heritable property to the creditor or to grant in the creditor's favour a real right in security, or some other right, over such property. (3) In this Part of this Act, “action” includes, in the sheriff court— (a) a summary cause; (b) a small claim; and (c) a summary application, and references to “summons”, “conclusion” and to cognate expressions shall be construed accordingly. (15B) (1) Subject to subsection (2) below and to sections 15C to 15F of this Act, the Court of Session may grant warrant for diligence by— (a) arrestment; or (b) inhibition, on the dependence of a petition. (2) Warrant for— (a) arrestment on the dependence of a petition is competent only where the petition contains a prayer for payment of a sum other than by way of expenses; and (b) inhibition on the dependence is competent only where the petition contains— (i) such a prayer; or (ii) a prayer for specific implement of an obligation to convey heritable property to the creditor or to grant in the creditor's favour a real right in security, or some other right, over such property. (3) The provisions of this Act (other than section 15A), of any other enactment and of any rule of law relating to diligence on the dependence of actions shall, in so far as is practicable and unless the contrary intention appears, apply to petitions in relation to which it is competent to grant warrant for such diligence and to the parties to them as they apply to actions and to parties to them. (15C) (1) It shall be competent for the court to grant warrant for diligence on the dependence where the sum concluded for is a future or contingent debt. (2) In this section and in sections 15D to 15M of this Act, the “court” means the court before which the action is depending. (15D) (1) A creditor may, at any time during which an action is in dependence, apply to the court for warrant for diligence by— (a) arrestment; or (b) inhibition, on the dependence of the action. (2) An application under subsection (1) above shall— (a) be in (or as nearly as may be in) the form prescribed by Act of Sederunt; (b) subject to subsection (3) below, be intimated to and provide details of— (i) the debtor; and (ii) any other person having an interest; (c) state whether the creditor is seeking the grant, under section 15E(1) of this Act, of warrant for diligence on the dependence in advance of a hearing on the application under section 15F of this Act; and (d) contain such other information as the Scottish Ministers may by regulations prescribe. (3) An application under subsection (1) above need not be intimated where the creditor is seeking the grant, under section 15E(1) of this Act, of warrant in advance of a hearing on the application under section 15F of this Act. (4) The court, on receiving an application under subsection (1) above, shall— (a) subject to section 15E of this Act, fix a date for a hearing on the application under section 15F of this Act; and (b) order the creditor to intimate that date to— (i) the debtor; and (ii) any other person appearing to the court to have an interest. (15E) (1) The court may, if satisfied as to the matters mentioned in subsection (2) below, make an order granting warrant for diligence on the dependence without a hearing on the application under section 15F of this Act. (2) The matters referred to in subsection (1) above are— (a) that the creditor has a prima facie case on the merits of the action; (b) that there is a real and substantial risk enforcement of any decree in the action in favour of the creditor would be defeated or prejudiced by reason of— (i) the debtor being insolvent or verging on insolvency; or (ii) the likelihood of the debtor removing, disposing of, burdening, concealing or otherwise dealing with all or some of the debtor's assets, were warrant for diligence on the dependence not granted in advance of such a hearing; and (c) that it is reasonable in all the circumstances, including the effect granting warrant may have on any person having an interest, to do so. (3) The onus shall be on the creditor to satisfy the court that the order granting warrant should be made. (4) Where the court makes an order granting warrant for diligence on the dependence without a hearing on the application under section 15F of this Act, the court shall— (a) fix a date for a hearing under section 15K of this Act; and (b) order the creditor to intimate that date to— (i) the debtor; and (ii) any other person appearing to the court to have an interest. (5) Where a hearing is fixed under subsection (4)(a) above, section 15K of this Act shall apply as if an application had been made to the court for an order under that section. (6) Where the court refuses to make an order granting a warrant without a hearing under section 15F of this Act and the creditor insists in the application, the court shall— (a) fix a date for such a hearing on the application; and (b) order the creditor to intimate that date to— (i) the debtor; and (ii) any other person appearing to the court to have an interest. (15F) (1) At the hearing on an application for warrant for diligence on the dependence, the court shall not make any order without first giving— (a) any person to whom intimation of the date of the hearing was made; and (b) any other person the court is satisfied has an interest, an opportunity to be heard. (2) The court may, if satisfied as to the matters mentioned in subsection (3) below, make an order granting warrant for diligence on the dependence. (3) The matters referred to in subsection (2) above are— (a) that the creditor has a prima facie case on the merits of the action; (b) that there is a real and substantial risk enforcement of any decree in the action in favour of the creditor would be defeated or prejudiced by reason of— (i) the debtor being insolvent or verging on insolvency; or (ii) the likelihood of the debtor removing, disposing of, burdening, concealing or otherwise dealing with all or some of the debtor's assets, were warrant for diligence on the dependence not granted; and (c) that it is reasonable in all the circumstances, including the effect granting warrant may have on any person having an interest, to do so. (4) The onus shall be on the creditor to satisfy the court that the order granting warrant should be made. (5) Where the court makes an order granting or, as the case may be, refusing warrant for diligence on the dependence, the court shall order the creditor to intimate that order to— (a) the debtor; and (b) any other person appearing to the court to have an interest. (6) Where the court makes an order refusing warrant for diligence on the dependence, the court may impose such conditions (if any) as it thinks fit. (7) Without prejudice to the generality of subsection (6) above, those conditions may require the debtor— (a) to consign into court such sum; or (b) to find caution or to give such other security, as the court thinks fit. (15G) (1) This section applies where diligence by— (a) arrestment; or (b) inhibition, on the dependence of an action is executed before service of the summons on the debtor. (2) Subject to subsection (3) below, if the summons is not served on the debtor before the end of the period of 21 days beginning with the day on which the diligence is executed, the diligence shall cease to have effect. (3) The court may, on the application of the creditor, make an order extending the period referred to in subsection (2) above. (4) In determining whether to make such an order the court shall have regard to— (a) the efforts of the creditor to serve the summons within the period of 21 days; and (b) any special circumstances preventing or obstructing service within that period. (15H) (1) The court may, subject to subsection (2) below, when granting warrant for arrestment on the dependence, limit the sum which may be attached to funds not exceeding such amount as the court may specify. (2) The maximum amount which the court may specify under subsection (1) above shall be the aggregate of— (a) the principal sum concluded for; (b) a sum equal to 20 per cent of that sum or such other percentage as the Scottish Ministers may, by regulations, prescribe; (c) a sum equal to 1 year's interest on the principal sum at the judicial rate; and (d) any sum prescribed under subsection (3) below. (3) The Scottish Ministers may, by regulations, prescribe a sum which appears to them to be reasonable having regard to the expenses likely to be— (a) incurred by a creditor; and (b) chargeable against a debtor, in executing an arrestment on the dependence. (4) For the avoidance of doubt, section 73F of this Act applies to any sum attached under this section. (15J) Where the court grants warrant for diligence by inhibition on the dependence— (a) in a case where the action is brought for specific implement of an obligation— (i) to convey heritable property to the creditor; (ii) to grant in the creditor's favour a real right in security over such property; or (iii) to grant some other right over such property, the court shall limit the property inhibited to that particular property; and (b) in any other case, the court may limit the property inhibited to such property as the court may specify. (15K) (1) This section applies where warrant is granted for diligence on the dependence. (2) The debtor and any person having an interest may apply to the court for an order— (a) recalling the warrant; (b) restricting the warrant; (c) if an arrestment or inhibition has been executed in pursuance of the warrant— (i) recalling; or (ii) restricting, that arrestment or inhibition; (d) determining any question relating to the validity, effect or operation of the warrant; or (e) ancillary to any order mentioned in paragraphs (a) to (d) above. (3) An application under subsection (2) above shall— (a) be in (or as nearly as may be in) the form prescribed by Act of Sederunt; and (b) be intimated to— (i) the creditor; and (ii) any other person having an interest. (4) At the hearing on the application under subsection (2) above, the court shall not make any order without first giving— (a) any person to whom intimation of the application was made; and (b) any other person the court is satisfied has an interest, an opportunity to be heard. (5) Where the court is satisfied that the warrant is invalid it— (a) shall make an order— (i) recalling the warrant; and (ii) if an arrestment or inhibition has been executed in pursuance of the warrant, recalling that arrestment or inhibition; and (b) may make an order ancillary to any order mentioned in paragraph (a) above. (6) Where the court is satisfied that an arrestment or inhibition executed in pursuance of the warrant is incompetent, it— (a) shall make an order recalling that arrestment or inhibition; and (b) may make an order ancillary to any such order. (7) Subject to subsection (8) below, where the court is satisfied that the warrant is valid but that— (a) an arrestment or inhibition executed in pursuance of it is irregular or ineffective; or (b) it is reasonable in all the circumstances, including the effect granting warrant may have had on any person having an interest, to do so, the court may make any order such as is mentioned in subsection (2) above. (8) If no longer satisfied as to the matters mentioned in subsection (9) below, the court— (a) shall make an order such as is mentioned in subsection (5)(a) above; and (b) may make an order such as is mentioned in subsection (5)(b) above. (9) The matters referred to in subsection (8) above are— (a) that the creditor has a prima facie case on the merits of the action; (b) that there is a real and substantial risk enforcement of any decree in the action in favour of the creditor would be defeated or prejudiced by reason of— (i) the debtor being insolvent or verging on insolvency; or (ii) the likelihood of the debtor removing, disposing of, burdening, concealing or otherwise dealing with all or some of the debtor's assets; and (c) that it is reasonable in all the circumstances, including the effect granting warrant may have had on any person having an interest, for the warrant or, as the case may be, any arrestment or inhibition executed in pursuance of it to continue to have effect. (10) The onus shall be on the creditor to satisfy the court that no order under subsection (5), (6), (7) or (8) above should be made. (11) In granting an application under subsection (2) above, the court may impose such conditions (if any) as it thinks fit. (12) Without prejudice to the generality of subsection (11) above, the court may impose conditions which require the debtor— (a) to consign into court such sum; or (b) to find such caution or to give such other security, as the court thinks fit. (13) Where the court makes an order under this section, the court shall order the debtor to intimate that order to— (a) the creditor; and (b) any other person appearing to the court to have an interest. (14) This section applies irrespective of whether warrant for diligence on the dependence is obtained, or executed, before this section comes into force. (15L) (1) Where— (a) an order restricting warrant for diligence on the dependence is made under section 15K(7); or (b) a condition is imposed by virtue of— (i) section 15F(6); or (ii) section 15K(11), of this Act, the debtor may apply to the court for variation of the order or, as the case may be, variation or removal of the condition. (2) An application under subsection (1) above shall— (a) be in (or as nearly as may be in) the form prescribed by Act of Sederunt; and (b) be intimated to— (i) the creditor; and (ii) any other person having an interest. (3) At the hearing on the application under subsection (1) above, the court shall not make any order without first giving— (a) any person to whom intimation of the application was made; and (b) any other person the court is satisfied has an interest, an opportunity to be heard. (4) On an application under subsection (1) above, the court may if it thinks fit— (a) vary the order; or (b) vary or remove the condition. (5) Where the court makes an order varying the order or, as the case may be, varying or removing the condition, the court shall order the debtor to intimate that order to— (a) the creditor; and (b) any other person appearing to the court to have an interest. (15M) (1) Subject to subsection (3)(a) below, a creditor shall be entitled to such expenses as the creditor incurs— (a) in obtaining warrant for diligence on the dependence; and (b) where an arrestment or inhibition is executed in pursuance of the warrant, in so executing the arrestment or inhibition. (2) Subject to subsection (3)(b) below, a debtor shall be entitled, where— (a) warrant for diligence on the dependence is granted; and (b) the court is satisfied that the creditor was acting unreasonably in applying for it, to the expenses incurred in opposing that warrant. (3) The court may modify or refuse— (a) such expenses as are mentioned in subsection (1) above if it is satisfied that— (i) the creditor was acting unreasonably in applying for the warrant; or (ii) such modification or refusal is reasonable in all the circumstances and having regard to the outcome of the action; and (b) such expenses as are mentioned in subsection (2) above if it is satisfied as to the matter mentioned in paragraph (a)(ii) above. (4) Subject to subsections (1) to (3) above, the court may make such finding as it thinks fit in relation to such expenses as are mentioned in subsections (1) and (2) above. (5) Expenses incurred as mentioned in subsection (1) and (2) above in obtaining or, as the case may be, opposing an application for warrant shall be expenses of process. (6) Subsections (1) to (5) above are without prejudice to any enactment or rule of law as to the recovery of expenses chargeable against a debtor as are incurred in executing an arrestment or inhibition on the dependence of an action. (15N) This Part of this Act (other than sections 15H, 15J and 15M) shall apply, in so far as not inconsistent with the provisions of Part V of the Administration of Justice Act 1956 (c. 46) (admiralty jurisdiction and arrestment of ships), to an arrestment on the dependence of an admiralty action as it applies to any other arrestment on the dependence.

Prescription of arrestment

170

After section 95 of the 1987 Act, insert—

(95A) (1) Subject to subsection (2) below, an arrestment which is not insisted in prescribes— (a) where it is on the dependence of an action, at the end of the period of 3 years beginning with the day on which a final interlocutor is obtained by the creditor for payment of all or part of a principal sum concluded for; or (b) where it is in execution of an extract decree or other extract registered document relating to a due debt, at the end of the period of 3 years beginning with the day on which the arrestment is executed. (2) Where the arrestment secures or enforces a future or contingent debt due to the creditor, it prescribes, if not insisted in, at the end of the period of 3 years beginning on the day on which the debt becomes due. (3) In a case where— (a) a time to pay direction; (b) an interim order under section 6(3) of this Act; or (c) a time to pay order, has been made, there shall be disregarded, in computing the period at the end of which the arrestment prescribes, the period during which the time to pay direction, interim order or time to pay order is in effect. (4) Nothing in this section shall apply to an earnings arrestment, a current maintenance arrestment or a conjoined arrestment order. (5) Subsections (1) to (3) above apply irrespective of whether the arrestment is executed, or warrant for it obtained, before this section comes into force. (6) For the purposes of subsection (1)(a) above, a final interlocutor is obtained when an interlocutor cannot be recalled or altered and is not subject to review.

Abolition of letters of loosing

171

• (1) Subject to subsection (2) below, it is no longer competent for any court to loose an arrestment.

• (2) Subsection (1) above does not affect—

• (a) any enactment or rule of law relating to the loosing of an arrestment of a ship or its cargo; or

• (b) the exercise of any other power of the court to recall or restrict an arrestment.

Abolition of adjudication in security

172

Any enactment or rule of law enabling adjudication in security to be used ceases to have effect.

Part 7 — Interim attachment

Interim attachment

173

After section 9 of the 2002 Act, insert—

(9A) (1) Subject to sections 9B to 9E below, the court may grant warrant for diligence by attachment of corporeal moveable property owned (whether alone or in common) by the debtor on the dependence of an action (such attachment is to be known as interim attachment). (2) Warrant for interim attachment is competent only where an action contains a conclusion for payment of a sum other than by way of expenses. (3) This Part of this Act shall apply to petitions in the Court of Session and to parties to them as it applies to actions and to parties to them. (4) In this Part of this Act— - “action” includes, in the sheriff court— 1. a summary cause; 2. a small claim; and 3. a summary application, - “court” means— 1. the court before which the action is in dependence; or 2. where, by virtue of section 9L(1)(a) below, the interim attachment has effect after the creditor obtains a final interlocutor for payment, the court which granted that interlocutor; - “creditor” means the party who concludes for payment and who seeks, obtains or executes warrant for interim attachment; - “debtor” means the party against whom the conclusion for payment is addressed; and expressions used in this Part of this Act have, unless the context otherwise requires, the same meanings as those expressions have in Part 2 of this Act. (9B) It is not competent to attach by interim attachment— (a) any article within a dwellinghouse; (b) any article which, by virtue of section 11 below, it is not competent to attach; (c) a mobile home which is the only or principal residence of a person other than the debtor; (d) any article of a perishable nature or which is likely to deteriorate substantially and rapidly in condition or value; or (e) where the debtor is engaged in trade, any article acquired by the debtor— (i) to be sold by the debtor (whether or not after adaptation); or (ii) as a material for a process of manufacturing for sale by the debtor, in the ordinary course of that trade. (9C) (1) A creditor may, at any time during which an action is in dependence, apply to the court for warrant for interim attachment. (2) An application under subsection (1) above shall— (a) be in (or as nearly as may be in) the form prescribed by Act of Sederunt; (b) subject to subsection (3) below, be intimated to and provide details of— (i) the debtor; and (ii) any other person having an interest; (c) state whether the creditor is seeking the grant, under section 9D(1) below, of warrant for interim attachment in advance of a hearing on the application under section 9E below; and (d) contain such other information as the Scottish Ministers may by regulations prescribe. (3) An application under subsection (1) above need not be intimated where the creditor is seeking the grant, under section 9D(1) below, of warrant in advance of a hearing on the application under section 9E below. (4) The court, on receiving an application under subsection (1) above, shall— (a) subject to section 9D below, fix a date for a hearing on the application under section 9E below; and (b) order the creditor to intimate that date to— (i) the debtor; and (ii) any other person appearing to the court to have an interest. (9D) (1) The court may, if satisfied as to the matters mentioned in subsection (2) below, make an order granting warrant for interim attachment without a hearing on the application under section 9E below. (2) The matters referred to in subsection (1) above are— (a) that the creditor has a prima facie case on the merits of the action; (b) that there is a real and substantial risk enforcement of any decree in the action in favour of the creditor would be defeated or prejudiced by reason of— (i) the debtor being insolvent or verging on insolvency; or (ii) the likelihood of the debtor removing, disposing of, burdening, concealing or otherwise dealing with all or some of the debtor's assets, were warrant for interim attachment not granted in advance of such a hearing; and (c) that it is reasonable in all the circumstances, including the effect granting warrant may have on any person having an interest, to do so. (3) The onus shall be on the creditor to satisfy the court that the order granting warrant should be made. (4) Where the court makes an order granting warrant for interim attachment without a hearing on the application under section 9E below, the court shall— (a) fix a date for a hearing under section 9M below; and (b) order the creditor to intimate that date to— (i) the debtor; and (ii) any other person appearing to the court to have an interest. (5) Where a hearing is fixed under subsection (4)(a) above, section 9M (except subsection (11)) below shall apply as if an application had been made to the court for an order under that section. (6) Where the court refuses to make an order granting warrant without a hearing under section 9E below and the creditor insists in the application, the court shall— (a) fix a date for such a hearing on the application; and (b) order the creditor to intimate that date to— (i) the debtor; and (ii) any other person appearing to the court to have an interest. (9E) (1) At the hearing on an application for warrant for interim attachment, the court shall not make any order without first giving— (a) any person to whom intimation of the date of the hearing was made; and (b) any other person appearing to the court to have an interest, an opportunity to be heard. (2) The court may, if satisfied as to the matters mentioned in subsection (3) below, make an order granting warrant for interim attachment. (3) The matters referred to in subsection (2) above are— (a) that the creditor has a prima facie case on the merits of the action; (b) that there is a real and substantial risk enforcement of any decree in the action in favour of the creditor would be defeated or prejudiced by reason of— (i) the debtor being insolvent or verging on insolvency; or (ii) the likelihood of the debtor removing, disposing of, burdening, concealing or otherwise dealing with all or some of the debtor's assets, were warrant for interim attachment not granted; and (c) that it is reasonable in all the circumstances, including the effect granting warrant may have on any person having an interest, to do so. (4) The onus shall be on the creditor to satisfy the court that the order granting warrant should be made. (5) Where the court makes an order granting or, as the case may be, refusing warrant for interim attachment, the court shall order the creditor to intimate that order to— (a) the debtor; and (b) any other person appearing to the court to have an interest. (6) Where the court makes an order refusing warrant for interim attachment, the court may impose such conditions (if any) as it thinks fit. (7) Without prejudice to the generality of subsection (6) above, those conditions may require the debtor— (a) to consign into court such sum; or (b) to find caution or to give such other security, as the court thinks fit. (9F) (1) Sections 12, 13, 15 and (subject to subsection (6) below) 17 below apply to execution of an interim attachment as they apply to execution of an attachment. (2) The officer shall, immediately after executing an interim attachment, complete a schedule such as is mentioned in subsection (3) below (in this Part of this Act, a “schedule of interim attachment”). (3) The schedule of interim attachment— (a) shall be— (i) in (or as nearly as may be in) the form prescribed by Act of Sederunt; and (ii) signed by the officer; and (b) shall specify— (i) the articles attached; and (ii) their value, so far as ascertainable. (4) The officer shall— (a) give a copy of the schedule of interim attachment to the debtor; or (b) where it is not practicable to do so— (i) give a copy of the schedule to a person present at the place where the interim attachment was executed; or (ii) where there is no such person, leave a copy of the schedule at that place. (5) References in this Part of this Act to the day on which an interim attachment is executed are references to the day on which the officer complies with subsection (4) above. (6) The application of section 17 below shall be subject to the following modifications— (a) subsections (3)(b) and (4) shall not apply; (b) in subsections (1), (5) and (6), the references to the sheriff shall be construed as references to the court; and (c) in subsection (6)(b), the reference to the sheriff clerk shall, in the case of an action in the Court of Session, be construed as a reference to the clerk of the court. (9G) (1) This section applies where an interim attachment is executed before the service of the summons on the debtor. (2) Subject to subsection (3) below, if the summons is not served on the debtor before the end of the period of 21 days beginning with the day on which the interim attachment is executed, the attachment shall cease to have effect. (3) The court may, on the application of the creditor, make an order extending the period referred to in subsection (2) above. (4) In determining whether to make such an order the court shall have regard to— (a) the efforts of the creditor to serve the summons within the period of 21 days; and (b) any special circumstances preventing or obstructing service within that period. (9H) (1) The court may, on an application, at any time after articles have been attached— (a) by the creditor; (b) the officer; or (c) the debtor, make an order for the security of any of the attached articles. (2) An application for an order under subsection (1) above shall— (a) be in (or as nearly as may be in) the form prescribed by Act of Sederunt; and (b) be intimated— (i) where it is made by the creditor or the officer, to the debtor; (ii) where it is made by the debtor, to the creditor and the officer. (3) At the hearing on the application under subsection (1) above, the court shall not make any order without first giving— (a) any person to whom intimation of the application was made; and (b) any other person the court is satisfied has an interest, an opportunity to be heard. (9J) Section 21 (except subsections (3) and (15)) below applies to an interim attachment as it applies to an attachment with the following modifications— (a) in subsections (10) and (11), the references to the sheriff shall be construed as references to the court; and (b) in subsection (12), the references to sections 51 and 54(1) below shall be of no effect. (9K) (1) Where— (a) a third party claims to own an article attached by interim attachment; and (b) the court, on the application of the third party, makes an order stating that it is satisfied that the claim is valid, the interim attachment of that article shall cease to have effect. (2) Where— (a) a third party claims to own an article attached by interim attachment in common with the debtor; (b) the court, on the application of the third party, makes an order stating that it is satisfied— (i) that the claim is valid; and (ii) that the continued attachment of the article would be unduly harsh to the third party, the interim attachment of that article shall cease to have effect. (3) Subsection (2) of section 34 below applies where a third party makes an application for the purposes of subsection (1)(b) above as it applies where a third party makes an application for the purposes of subsection (1)(b)(ii) of that section. (4) Where the attachment of an article ceases, by virtue of an order under subsection (1) or (2) above, to have effect, the officer may attach other articles which are owned by the debtor and kept at the place at which the original interim attachment was executed. (9L) (1) An interim attachment shall, unless recalled, have effect only until— (a) subject to subsections (2), (4) and (7) below, where— (i) the creditor obtains a final interlocutor for payment of all or part of a principal sum concluded for in the action on the dependence of which warrant for interim attachment was granted; (ii) the creditor obtains a final interlocutor in the creditor's favour in respect of another remedy concluded for in that action; or (iii) the final interlocutor is of absolvitor or dismissal and the court grants decree under and for the purposes of section 9Q(1)(b) below, the expiry of the period of 6 months after the action is disposed of; (b) where— (i) the final interlocutor is of absolvitor or dismissal; and (ii) no decree under and for the purposes of section 9Q(1)(b) below is granted, the granting of that interlocutor; or (c) the creditor consents, by virtue of subsection (3) below, to the interim attachment ceasing to have effect in relation to every article attached. (2) An interim attachment shall have effect in relation to a specific article only until the article is attached by the creditor in execution of any such final interlocutor or decree as is mentioned in subsection (1)(a) above. (3) The creditor may at any time consent in writing to the interim attachment ceasing to have effect in relation to a specific article attached; and the attachment shall cease to have effect when that consent is notified to the court. (4) The court may, on an application by the creditor, extend the period mentioned in subsection (1)(a) above but only if— (a) the application is made before the expiry of the period mentioned in that subsection; and (b) the court is satisfied that exceptional circumstances make it reasonable to grant the application. (5) An application under subsection (4) above shall— (a) be in (or as nearly as may be in) the form prescribed by Act of Sederunt; and (b) be intimated by the creditor to— (i) the debtor; and (ii) any other person having an interest. (6) The court shall order the creditor to intimate any decision under subsection (4) above disposing of the application under that subsection to— (a) the debtor; and (b) any other person appearing to the court to have an interest. (7) Where such an application is made but not disposed of before the date on which the interim attachment would, but for this subsection, cease to have effect, the interim attachment shall continue to have effect until the application is disposed of. (8) In calculating the period mentioned in subsection (1)(a) above, any period during which— (a) a time to pay direction under section 1(1) of the Debtors (Scotland) Act 1987 (c. 18); or (b) an order under— (i) section 6(3) of that Act (interim order sisting diligence); or (ii) section 9(4) of that Act (diligence sisted if not recalled on making of time to pay order), is in effect shall be disregarded. (9) For the purposes of subsection (1) above— (a) a final interlocutor is obtained when an interlocutor— (i) cannot be recalled or altered; and (ii) is not subject to review; and (b) an action is disposed of on the date on which the final interlocutor mentioned in paragraph (a) of that subsection is obtained unless, on a later date, the creditor obtains a final interlocutor for expenses in the action, in which case it is disposed of on that later date. (9M) (1) This section applies where warrant is granted for interim attachment. (2) The debtor and any person having an interest may apply to the court for an order— (a) recalling the warrant; (b) restricting the warrant; (c) if an interim attachment has been executed in pursuance of the warrant— (i) recalling; or (ii) restricting, that attachment; (d) determining any question relating to the validity, effect or operation of the warrant; or (e) ancillary to any order mentioned in paragraphs (a) to (d) above. (3) An application under subsection (2) above shall— (a) be in (or as nearly as may be in) the form prescribed by Act of Sederunt; and (b) be intimated to— (i) the creditor; and (ii) any other person having an interest. (4) At the hearing on the application under subsection (2) above, the court shall not make any order without first giving— (a) any person to whom intimation of the application was made; and (b) any other person the court is satisfied has an interest, an opportunity to be heard. (5) Where the court is satisfied that the warrant is invalid it— (a) shall make an order— (i) recalling the warrant; and (ii) if interim attachment has been executed in pursuance of the warrant, recalling that interim attachment; and (b) may make an order ancillary to any order mentioned in paragraph (a) above. (6) Where the court is satisfied that an interim attachment executed in pursuance of the warrant is incompetent, it— (a) shall make an order recalling the interim attachment; and (b) may make an order ancillary to any such order. (7) Subject to subsection (8) below, where the court is satisfied that the warrant is valid but that— (a) an interim attachment executed in pursuance of it is irregular or ineffective; or (b) it is reasonable in all the circumstances, including the effect granting warrant may have had on any person having an interest, to do so, the court may, subject to subsection (11) below, make any order such as is mentioned in subsection (2) above. (8) If no longer satisfied as to the matters mentioned in subsection (9) below, the court— (a) shall make an order such as is mentioned in subsection (5)(a) above; and (b) may make an order such as is mentioned in subsection (5)(b) above. (9) The matters referred to in subsection (8) above are— (a) that the creditor has a prima facie case on the merits of the action; (b) that there is a real and substantial risk enforcement of any decree in the action in favour of the creditor would be defeated or prejudiced by reason of— (i) the debtor being insolvent or verging on insolvency; or (ii) the likelihood of the debtor removing, disposing of, burdening, concealing or otherwise dealing with all or some of the debtor's assets; and (c) that it is reasonable in all the circumstances, including the effect granting warrant may have had on any person having an interest, for the warrant or, as the case may be, any interim attachment executed in pursuance of it to continue to have effect. (10) The onus shall be on the creditor to satisfy the court that no order under subsection (5), (6), (7) or (8) above should be made. (11) Where— (a) by virtue of section 9L(1)(a) above, the interim attachment continues to have effect after the creditor obtains a final interlocutor for payment; and (b) the period of six months mentioned in that paragraph has not expired, the court shall not make an order under subsection (7) above. (12) In granting an application under subsection (2) above, the court may impose such conditions (if any) as it thinks fit. (13) Without prejudice to the generality of subsection (12) above, those conditions may require the debtor— (a) to consign into court such sum; or (b) to find such caution or to give such other security, as the court thinks fit. (14) Where the court makes an order under this section, the court shall order the debtor to intimate that order to— (a) the creditor; and (b) any other person appearing to the court to have an interest. (9N) (1) Where— (a) an order restricting warrant for interim attachment is made under section 9M(7) above; or (b) a condition is imposed under— (i) section 9E(6) above; or (ii) section 9M(12) above, the debtor may apply to the court for variation of the order or, as the case may be, variation or removal of the condition. (2) An application under subsection (1) above shall— (a) be in (or as nearly as may be in) the form prescribed by Act of Sederunt; and (b) be intimated to— (i) the creditor; and (ii) any other person having an interest. (3) At the hearing on the application under subsection (1) above, the court shall not make any order without first giving— (a) any person to whom intimation of the application was made; and (b) any other person the court is satisfied has an interest, an opportunity to be heard. (4) On an application under subsection (1) above, the court may if it thinks fit— (a) vary the order; or (b) vary or remove the condition. (5) Where the court makes an order varying the order or, as the case may be, varying or removing the condition, the court shall order the debtor to intimate that order to— (a) the creditor; and (b) any other person appearing to the court to have an interest. (9P) (1) Subject to subsection (3)(a) below, a creditor shall be entitled to the expenses incurred— (a) in obtaining warrant for interim attachment; and (b) where an interim attachment is executed in pursuance of the warrant, in so executing that attachment. (2) Subject to subsection (3)(b) below, a debtor shall be entitled, where— (a) warrant for interim attachment is granted; and (b) the court is satisfied that the creditor was acting unreasonably in applying for it, to the expenses incurred in opposing that warrant. (3) The court may modify or refuse— (a) such expenses as are mentioned in subsection (1) above if it is satisfied that— (i) the creditor was acting unreasonably in applying for the warrant; or (ii) such modification or refusal is reasonable in all the circumstances and having regard to the outcome of the action; and (b) such expenses as are mentioned in subsection (2) above if it is satisfied as to the matter mentioned in paragraph (a)(ii) above. (4) Subject to subsections (1) to (3) above, the court may make such findings as it thinks fit in relation to such expenses as are mentioned in subsections (1) and (2) above. (5) Expenses incurred as mentioned in subsections (1) and (2) above in obtaining or, as the case may be, opposing an application for warrant shall be expenses of process. (9Q) (1) Subject to subsection (4) below, any expenses chargeable against the debtor which are incurred in executing an interim attachment shall be recoverable only by attachment— (a) in execution of a decree granted by virtue of— (i) the conclusion for payment in the action on the dependence of which the warrant for interim attachment was granted; or (ii) another conclusion in the creditor's favour in that action; or (b) where the final interlocutor in the action is of absolvitor or dismissal, in execution of a decree granted under and for the purposes of this subsection. (2) Where any such expenses cease to be recoverable in pursuance of subsection (1) above, they cease to be chargeable against the debtor. (3) Subsection (4) below applies where interim attachment is— (a) recalled under section 2(3), 3(1)(b), 9(2)(cb) or 10(1)(b) of the 1987 Act in relation to a time to pay direction or order; (b) in effect immediately before the date of sequestration (within the meaning of the Bankruptcy (Scotland) Act 1985 (c. 66)) of the debtor's estate; (c) in effect immediately before the appointment of an administrator under Part II of the Insolvency Act 1986 (c. 45); (d) in effect against property of the debtor immediately before a floating charge attaches all or part of that property under section 53(7) (attachment on appointment of receiver by holder of charge) or 54(6) (attachment on appointment of receiver by court) of the 1986 Act; (e) in effect immediately before the commencement of the winding up, under Part IV or V of the 1986 Act, of the debtor; or (f) rendered unenforceable by virtue of the creditor entering into a composition contract or acceding to a trust deed for creditors or by virtue of the subsistence of a protected trust deed within the meaning of Schedule 5 to the 1985 Act. (4) Where this subsection applies— (a) the expenses of the interim attachment which were chargeable against the debtor remain so chargeable; and (b) if the debtor's obligation to pay the expenses is not discharged under or by virtue of the time to pay direction or order, sequestration, appointment, receivership, winding up, composition contract or trust deed for creditors, those expenses are recoverable in pursuance of subsection (1) above. (9R) (1) This section applies where— (a) any amounts are— (i) secured by an interim attachment; and (ii) while the attachment is in effect, paid to account of the amounts recoverable from the debtor; and (b) that interim attachment ceases to have effect. (2) Such amounts shall be ascribed to the following in the order in which they are mentioned— (a) the expenses incurred in— (i) obtaining warrant for; and (ii) executing, the interim attachment; (b) any interest which has accrued, in relation to a sum due under a decree granted by virtue of the conclusion in relation to which warrant for interim attachment was granted, as at the date of execution; (c) any sum due under that decree together with such interest as has accrued after that date. (3) Where an interim attachment is followed by an attachment in execution of a decree granted by virtue of the conclusion in relation to which the warrant for the interim attachment was granted, section 41 below shall apply to amounts to which this section applies as it applies to amounts to which that section applies. (9S) For the purposes of any enactment or rule of law as to ranking or preference— (a) where— (i) an interim attachment has been executed; and (ii) the creditor has, without undue delay, obtained an interlocutor for payment of all or part of the sum concluded for, that interim attachment shall be treated as if it were an attachment by virtue of section 10 below of the property attached, executed when the interim attachment was executed; and (b) where an interim attachment has ceased to have effect in relation to any article by virtue of section 9L(2) above, the attachment of the article in question shall be taken to have been executed when the interim attachment was executed.

Part 8 — Attachment of money

Money attachment

Money attachment

174

• (1) There is to be a form of diligence over money owned by a debtor to be known as money attachment.

• (2) Money attachment is competent to enforce payment of a debt but only if—

• (a) the debt is constituted by a decree or document of debt;

• (b) the debtor has been charged to pay the debt;

• (c) the period for payment specified in the charge has expired without payment being made; and

• (d) where the debtor is an individual, the creditor has, no earlier than 12 weeks before executing the money attachment, provided the debtor with a debt advice and information package.

• (3) Money attachment is not competent in relation to money—

• (a) kept within a dwellinghouse; or

• (b) in relation to which arrestment is competent.

Meaning of “money” and related expressions

175

• (1) In this Part—

• “cash” means coins and banknotes in any currency;

• “banking instrument” means—cheques and other instruments to which section 4 of the Cheques Act 1957 (c. 36) applies;any document (other than one mentioned in section 4(2)(c) of that Act) issued by a public officer which is intended to enable a person to obtain payment from a government department of the sum mentioned in it;promissory notes (other than banknotes);other negotiable instruments; andmoney orders and postal orders; and

• “money” means cash and banking instruments but does not include any cash or instrument which has an intrinsic value greater than any value it may have as a medium of exchange; and any reference to the value of money is, unless the context otherwise requires, a reference to—the amount of cash;where that cash is in a currency other than sterling, the amount in sterling which that cash would realise on its conversion under section 177(3) of this Act;the amount in cash which would be obtained were the value of a banking instrument realised; andin the case where money comprises both cash and instruments, the aggregate of the amounts referred to in, as the case may be, paragraphs (a) to (c) above.

• (2) In the definition of “banking instrument” in subsection (1) above, “government department” includes—

• (a) any Minister of the Crown;

• (b) any part of the Scottish Administration;

• (c) the National Assembly for Wales;

• (d) the Northern Ireland Assembly, any Northern Ireland Minister or Northern Ireland junior Minister and any Northern Ireland department.

• (3) The Scottish Ministers may by order modify the definition of “banking instrument” in subsection (1) above so as to—

• (a) add or remove types of instrument to or, as the case may be, from those referred to in that definition; or

• (b) vary the descriptions of the types of instrument so referred to.

When money attachment not competent

176

• (1) It is not competent to execute a money attachment on—

• (a) a Sunday;

• (b) a day which is a public holiday in the area in which the attachment is to be executed; or

• (c) such other day as may be prescribed by Act of Sederunt.

• (2) The execution of a money attachment must not—

• (a) begin before 8 a.m. or after 8 p.m.; or

• (b) be continued after 8 p.m.,

unless the officer of court has obtained prior authority from the sheriff for such commencement or continuation.

• (2A) But—

• (a) despite subsection (1), it is competent to execute a money attachment in any premises in which a trade or business is carried on on any day the premises are open (whether to the public generally or not) for the purposes of the trade or business, and

• (b) despite subsection (2), the execution of a money attachment may be commenced or continued in such premises at any time the premises are open (whether to the public generally or not) for the purposes of the trade or business, without the officer of court obtaining prior authority of the sheriff.

• (3) Subject to section 183(12)(b), 186(3)(b) or 191(4) of this Act, where money is attached (or is purported to be attached) at any place, it is not competent to attach other money kept at that place to enforce the same debt unless that other money is brought to that place after execution of the first money attachment.

• (4) Money which has been attached by a money attachment may not, if that money attachment ceases to have effect in relation to that money, be attached again for the same debt.

Execution of money attachment

Removal of money attached

177

• (1) The officer of court must attach and remove, from the place in which it is found, such money, the value of which in the opinion of the officer does not exceed a sum equal to the sum mentioned in subsection (2) below (in this Part, the “sum recoverable by the money attachment”).

• (2) That sum is—

• (a) the sum for the payment of which the charge was served, together with any interest accruing after such service and before the money attachment ceases to have effect; and

• (b) all expenses which are chargeable against the debtor by virtue of the money attachment.

• (3) Where cash in a currency other than sterling is attached, the officer of court must, as soon as reasonably practicable after attaching it, convert that cash into sterling.

• (4) The officer of court must take all reasonable steps to obtain the highest amount for such cash as is practicable.

• (5) The officer of court must deposit any cash attached and any proceeds of converting cash in a currency other than sterling in a bank account.

• (6) The officer of court—

• (a) need not attach any banking instruments other than cheques unless instructed to do so by the creditor; and

• (b) is not liable to the creditor for any loss caused by the failure to attach any such instruments unless so instructed.

• (7) The officer of court must, subject to section 180(1) of this Act, value any instruments attached at the price which they are likely to fetch on the open market.

• (8) Where any instruments are attached, the officer of court must ensure that they are kept in a secure place.

• (9) In this Part, any reference to money being attached includes a reference to it being removed under subsection (1) above.

Presumption of ownership

178

• (1) An officer of court may, when executing a money attachment, assume that the debtor owns, solely or in common with a third party, any money found in the place where the attachment is executed.

• (2) The officer of court must, before attaching any money, make enquiries of any person present at the place in which it is found as to the ownership of it (and in particular must enquire as to whether there is any person who owns it in common with the debtor).

• (3) The officer of court may not make the assumption mentioned in subsection (1) above where the officer knows or ought to know that the contrary is the case.

• (4) The officer of court is not precluded from relying on that assumption by reason only that an assertion has been made that the money is not owned by the debtor.

Schedule of money attachment

179

• (1) The officer of court must, immediately after executing a money attachment, complete a schedule such as is mentioned in subsection (2) below (in this Part, the “schedule of money attachment”).

• (2) A schedule of money attachment—

• (a) must be—

• (i) in (or as nearly as may be in) the form prescribed by Act of Sederunt;

• (ii) signed by the officer of court; and

• (b) must specify—

• (i) the money attached; and

• (ii) the value of that money, so far as ascertainable.

• (3) The officer of court must—

• (a) give a copy of the schedule to the debtor; or

• (b) where it is not practicable to do so—

• (i) give a copy of the schedule to a person present at the place where the money attachment was executed; or

• (ii) where there is no such person, leave a copy of the schedule at that place.

• (4) In this Part, any reference to the day on which a money attachment is executed is a reference to the day on which the officer of court complies with subsection (3) above.

Valuation of banking instruments

180

• (1) Where the officer of court considers that a banking instrument attached in execution of a money attachment is such that it is appropriate for valuation of the price the instrument is likely to fetch on the open market to be carried out by a professional valuer or other suitably skilled person, the officer must arrange for such a valuation.

• (2) The creditor is liable for the valuer's reasonable remuneration and outlays incurred by virtue of subsection (1) above.

Order for realisation of money likely to deteriorate in value

181

• (1) The—

• (a) creditor;

• (b) officer of court; or

• (c) debtor,

may, at any time after money has been attached, apply to the sheriff for an order that the creditor or, as the case may be, the officer make arrangements for the immediate realisation of the value of that money (or any part of it).

• (2) A person applying under subsection (1) above must at the same time intimate the application to the persons mentioned in that subsection who would otherwise be entitled to apply.

• (3) The sheriff may, if satisfied that the money is likely to deteriorate substantially and rapidly in value, make an order such as is mentioned in subsection (1) above.

• (4) An order under subsection (3) above authorises the officer of court—

• (a) to act as the irrevocable agent of the debtor in relation to the money; and

• (b) to take any of the steps mentioned in section 184(3) of this Act.

• (5) Subsection (4) of section 184 of this Act applies to any steps taken by virtue of subsection (4) above.

• (6) Any sum realised by virtue of an order under subsection (3) above must be deposited in a bank account.

• (7) The sheriff's decision under subsection (3) above is final.

Report of money attachment

182

• (1) The officer of court must, before the expiry of the period of 14 days beginning with the day on which the money attachment is executed (or such longer period as the sheriff on cause shown may, on the application of the officer, allow), make a report to the sheriff.

• (2) A report under subsection (1) above must be—

• (a) in (or as nearly as may be in) the form prescribed by Act of Sederunt; and

• (b) signed by the officer of court.

• (3) The report must specify—

• (a) the money attached;

• (b) the value of that money;

• (c) whether any cash in a currency other than sterling was attached and, if so—

• (i) the exchange rate used; and

• (ii) any commission incurred,

in converting it into sterling;

• (d) whether any person has asserted that any money attached is not owned by the debtor (or is owned in common by the debtor and a third party);

• (e) whether the value of any money has been realised under section 181 of this Act; and

• (f) whether any money attached has been released by virtue of section 185(3), 186 or 188(1) of this Act.

• (4) On making the report, the officer of court must send a copy of it to—

• (a) the debtor;

• (b) the creditor; and

• (c) any person such as is mentioned in subsection (3)(d) above.

• (5) The sheriff may refuse to receive a report on the ground that it has not been made and signed in accordance with subsections (1) and (2) above.

• (6) If the sheriff so refuses—

• (a) the money attachment ceases to have effect;

• (b) the sheriff must require the officer of court to return the money attached or, where the value of any such money has been realised, a sum equivalent to that value, to the debtor; and

• (c) the sheriff clerk must intimate the refusal to—

• (i) the debtor;

• (ii) the officer;

• (iii) the creditor; and

• (iv) any person the sheriff thinks has an interest.

• (7) In this Part, any reference to the day on which the report of money attachment is made is a reference to the day on which the sheriff receives the report under subsection (1) above.

Release of money attached

Creditor's application for payment order

183

• (1) This section applies where—

• (a) money has been attached by an officer of court in execution of a money attachment; and

• (b) that money (or part of it) has not been released by virtue of section 182(6)(b), 185(3), 186 or 188(1) of this Act.

• (2) The creditor may apply to the sheriff for an order (in this Part, a “payment order”) authorising payment to the creditor out of the money attached of a sum not exceeding the sum recoverable by the money attachment.

• (3) An application under subsection (2) above must be—

• (a) in (or as nearly as may be in) the form prescribed by Act of Sederunt;

• (b) made before the expiry of the period of 14 days beginning with the day on which the report of money attachment is made.

• (4) On making the application, the creditor must send a copy of it to—

• (a) the debtor;

• (b) the officer of court; and

• (c) any person such as is mentioned in section 182(3)(d) of this Act.

• (5) Subject to subsections (10) and (12) below, where there is no opposition to the application, the sheriff must make a payment order.

• (6) The debtor or a third party who claims ownership (whether solely or in common with the debtor) of any of the money attached may oppose the application under subsection (2) above.

• (7) An opposition under subsection (6) above must be—

• (a) in (or as nearly as may be in) the form prescribed by Act of Sederunt; and

• (b) made before the expiry of the period of 14 days beginning with the day on which the application is made.

• (8) Where there is opposition, the sheriff may not make a payment order without first—

• (a) giving—

• (i) the creditor;

• (ii) the debtor; and