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THEMES
Legal order- Organisation of justice
- Legal professions
- Legal aid
- Jurisdiction of the courts
- Bringing a case to court
- Procedural time limits
- Applicable law
- Service of documents
- Taking of evidence and mode of proof
Interim and precautionary measures- Enforcement of judgements
- Simplified and accelerated procedures
- Divorce
- Parental responsibility
- Maintenance claims
- Bankruptcy
- Alternative dispute resolution
- Compensation to crime victims
- Automatic processing
Interim and precautionary measures - Scotland
Scotland
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1. What are the different types of measures?
Diligence on the dependence
Diligence on the dependence is a protective measure which is used while a court action is ongoing, or shortly before it commences. It allows a creditor to take steps to preserve the debtor’s property so that it will be available to satisfy any claim eventually upheld by the court.
There are two types of diligence on the dependence. The first, arrestment on the dependence, allows all money or moveable property owed to the debtor and held by a third party to be frozen. It is available to creditors in actions for payment of money.
The second, inhibition on the dependence, prevents the debtor from transferring or disposing of property before the debt owed to the creditor is settled. It is used in relation to land or buildings, rather than money or moveable property that is in the hands of the defender himself rather than owed to him by a third party.
Interim interdict
Interim interdict may be granted at any stage of an action, with the object of preserving the existing state of affairs. This is an order forbidding the debtor from doing certain things, such as parting with property.
Preservation of documents and other property
A court may make an order for the interim preservation of documents and other property (including land) which will enable a party to preserve real evidence or to procure evidence.
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2. What are the conditions under which such measures may be issued?
2.1. The procedure
Diligence on the dependence
Diligence on the dependence can only proceed on an order of a court. In the sheriff court, the creditor usually obtains a warrant for arrestment on the dependence by inserting an application for it in the initial writ. An initial writ embodies the creditor’s claim. Arrestment on the dependence can apply at any time up to the issue of the final decree in the creditor’s favour. However service of the arrestment is usually executed by sheriff officer (an officer of the court appointed to enforce orders).
Inhibition on the dependence of a sheriff court action has to be authorised by the Court of Session.
In the Court of Session warrants for diligence on the dependence are obtained by applying to the court. The Lord Ordinary (the judge of the Court of Session) may then grant an order for the diligence. The schedule of arrestment is usually executed by a messenger-at-arms (an officer of the Supreme Court appointed to enforce orders). A warrant for inhibition on the dependence must be served on the defender by a messenger-at-arms personally, at his home in Scotland or by advertisement if he is outside Scotland. The inhibition must then be registered in the Register of Adjudications and Inhibitions.
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Preservation of documents and other property
Before the court may grant an order where the proceedings to which the documents or property relate have not yet been commenced it is necessary for the applicant to show that civil proceedings are likely to be brought and that in such proceedings questions may arise about the relevant documents or other property. In an action which has been commenced the order will only be granted where the applicant shows that it is required in order to enable him to make specific that which is already averred (that is to prove what he has stated in his case). If the application is granted, the order will specify the manner in which compliance is required. Thereafter a certified copy of the order has to be served on the parties against whom it is made.
Costs of obtaining orders
The current fee for lodging an initial writ in the sheriff court is £50. The equivalent fee in the Court of Session is £106.
The creditor is liable to pay the fees of his or her solicitors although the defender may ultimately be ordered to pay these costs.2.2. The substantive conditions
Diligence on the dependence
Diligence on the dependence is discretionary and the courts will not grant it if they consider it disproportionate.
Interim interdict
The sheriff has to be satisfied about the urgency of the matter and the cogency of the case.
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Preservation of documents and other property
Before the court may grant the order, it is necessary for the applicant to show that civil proceedings are likely to be brought and that, in such proceedings, questions may relevantly arise as to the documents or other property. If civil proceedings have already been brought, the order will be granted only where the applicant shows that it is required (see 2.1 above).
3. Object and nature of such measures?
3.1. What types of assets can be subject to such measures?
Diligence on the dependence
An arrestment can freeze cash and moveable property owed to the defender in the hands of a third party. The property arrested, however, must not be held by the defender’s employee or any other person who cannot retain it without his consent.
An inhibition is used in relation to land or buildings. Inhibitions are used against heritable property in the ownership of the defender rather than property owed to him by a third party.
Interim interdict
The effect of an interim interdict is to prohibit with immediate effect the acts interdicted. It may prevent a party from taking steps in relation to any kind of asset.
Preservation of documents and other property
Wide powers are bestowed on the Court of Session and Sheriff court to order the preservation, custody and detention of documents and other property (including land) which appears to the court to be property as to which any question may relevantly arise in any existing proceedings or proceedings likely to be brought. The court can order the production and recovery of any such property, the taking of samples, and the carrying out of any experiment thereon.3.2. What are the effects of such measures?
Diligence on the dependence
If the third party disposes of the assets arrested, he is liable to the pursuer for their value. If the creditor wins his case, he has a preferable right over the property arrested. However, the asset seized can only be granted to the creditor after court proceedings (known as an action of furthcoming). A bank has no obligation to disclose the amount of money that has been attached until an action of furthcoming has taken place.
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Inhibition of itself gives the inhibitor no title to the property inhibited. Its effect is to preserve the property as part of the defender’s estate and therefore attachable by the creditor in the event of his succeeding in the action. Any voluntary legal act affecting the property after the effective date of the inhibition can be set aside by the creditor to the extent that his interests are prejudiced.
Interim interdict
Where a defender fails to comply with an interdict, the creditor may take proceedings against him for breach of interdict. On the charge being admitted or proved, the debtor may be sentenced to a fine or imprisonment.
Preservation of documents and other property
Failure to comply with the order could result in decree (or judgment) by default, in the main proceedings, being granted against a non-complying party or proceedings for contempt of court being taken against anyone holding a document or property specified.
3.3. What is the validity of such measures?
Diligence on the dependence
In the case of arrestment, if the defender wins the case, the arrestment falls when the final decree is issued. If the creditor wins the case, the arrestment is enforceable for up to three years from the date of decree.
An inhibition ceases to be enforceable three years after the date on which it has taken effect.
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Interim interdict
Unless restricted in time, an interim interdict continues until recalled or until the action is finally disposed of.
Preservation of documents and other property
The order falls on the final disposition of the action.4. Is there a possibility of appeal against such measures?
Diligence on the dependence
A defender may obtain interdict against the threatened use of arrestment on the dependence in two situations. One, where it can be instantly verified that the arrestment would be wrong, in the sense that it was executed without warrant, or irregularly or maliciously and without probable cause. The second situation is where the defender has lodged in court the principal sum sued for. Applications for interdict should be made to the Court of Session.
Where arrestment has been used, the defender can seek its recall or restriction. A recall removes the arrestment altogether. Arrestments will normally be recalled where the defender finds caution (security) that, on decree being pronounced against him, there will be made available to the creditor the arrested fund or its value or, more commonly, the whole debt sued for. An arrestment may be recalled or restricted where it is a superfluous precaution or oppressive, or has been effected by the fraud or wrong of the creditor.
An inhibition on the dependence can be recalled or restricted
in scope on cause shown by the defender while the proceedings are
still continuing.
Interim interdict
An order granting or refusing interim interdict made in the sheriff court may be appealed without leave to the sheriff principal (the senior sheriff in the local area) or with leave to the Court of Session.
An order granting or refusing interim interdict made in the Court of Session, may be appealed against, without leave, within 14 days of the order being granted.
Preservation of documents and other property
An order granting an application for preservation of documents or property made in the sheriff court may be appealed within 14 days of issuing of the order.
In the Court of Session, any person receiving the petition for preservation of the documents or property may appear and oppose the petition. On executing the order, the Commissioner appointed by the court to do so will inform the recipient of his right to seek legal advice. Where the purpose of seeking this advice is to help him decide whether to ask the court to vary the order, the Commissioner will not begin to search for, take possession of or preserve the listed items.
Further information
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Last update: 08-10-2004
