Office of Public Sector Information
(1) There shall be a form of diligence over corporeal moveable property for recovery of money owed; it is to be known as attachment.
(2) Attachment is exigible only in execution of a decree or document of debt and only upon property owned (whether alone or in common) by the debtor.
(3) Attachment is competent only where—
(a) subject to subsection (4) below, the debtor has been charged to pay, within such period as is specified in the charge, the sum specified in the decree or document of debt, together with any interest accrued on the sum; and
(b) the creditor has, before taking any steps to execute an attachment, provided the debtor with a debt advice and information package.
(4) An attachment in pursuance of a summary warrant may be proceeded with in the absence of a charge to pay.
(5) In this section—
“debt advice and information package” means a document or bundle of documents containing such information (including information regarding the availability of money advice within the debtor’s locality), and in such form, as the Scottish Ministers may determine;
“decree” means—
a decree of the Court of Session, of the High Court of Justiciary or of the sheriff;
a decree of the Court of Teinds;
a summary warrant;
a civil judgment granted outside Scotland by a court, tribunal or arbiter which by virtue of any enactment or rule of law is enforceable in Scotland;
an order or determination which by virtue of any enactment is enforceable as if it were an extract registered decree arbitral bearing a warrant for execution issued by the sheriff;
a warrant granted, in criminal proceedings, for enforcement by civil diligence;
an order under section 114 of the Companies Clauses Consolidation (Scotland) Act 1845 (c. 17);
a determination under section 46 of the Harbours, Docks and Piers Clauses Act 1847 (c. 27); or
a liability order within the meaning of section 33(2) of the Child Support Act 1991 (c. 48),
being a decree, warrant, judgment, order or determination which, or an extract of which, authorises attachment; and
“document of debt” means—
a document registered for execution in the Books of Council and Session or the sheriff court books; or
a document or settlement which by virtue of an Order in Council made under section 13 of the Civil Jurisdiction and Judgments Act 1982 (c. 27) is enforceable in Scotland,
being a document, bill or settlement which, or an extract of which, authorises attachment.
(6) The Scottish Ministers may by order modify the definitions of “decree” and “document of debt” in subsection (5) above so as to—
(a) add or remove types of decree or document to or, as the case may be, from those referred to in that provision; or
(b) vary any of the descriptions of the types of decree or document there referred to.
(7) In this Act, references to attaching are references to the execution of attachment.
(1) It is not competent to attach—
(a) 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 value £1,000 or such amount as may be prescribed in regulations made by the Scottish Ministers;
(b) 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;
(c) a mobile home which is the debtor’s only or principal residence;
(d) 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.
(2) The Scottish Ministers may by regulations modify subsection (1) above so as to—
(a) add or remove types of articles to or, as the case may be, from those referred to in that provision; or
(b) vary any of the descriptions of the types of articles there referred to.
(1) It is not competent to execute an 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 an attachment shall not—
(a) begin before 8 a.m. or after 8 p.m.; or
(b) be continued after 8 p.m.,
unless the officer has obtained prior authority from the sheriff for such commencement or continuation.
(1) An officer may, when executing an attachment, proceed on the assumption that the debtor owns, solely or in common with a third party, any article which is in the possession of the debtor.
(2) The officer shall, before attaching any article, make enquiries of any person who is present at the place at which the article is situated as to the ownership of the article (and in particular shall enquire as to whether there is any person who owns the article in common with the debtor).
(3) The officer may not proceed on the assumption mentioned in subsection (1) above where the officer knows or ought to know that the contrary is the case.
(4) The officer is not precluded from relying on that assumption by reason only of one or both of the following circumstances—
(a) that the article belongs to a class which is commonly held under a hire, hire-purchase or conditional sale agreement or on some other limited title of possession;
(b) that an assertion has been made that the article is not owned by the debtor.
Sections 15 to 19 below apply only in relation to the attachment of articles which are—
(a) kept outwith a dwellinghouse; or
(b) mobile homes which are not the only or principal residence of the debtor.
(1) An officer may open shut and lockfast places for the purposes of executing an attachment.
(2) When executing an attachment the officer shall, subject to subsection (3) below, value the articles being attached at the price which they are likely to fetch if sold on the open market.
(3) Where the officer considers that an article is such that a valuation by a professional valuer or other suitably skilled person is appropriate, the officer shall arrange for such a valuation and a valuation so arranged shall proceed on the basis set out in subsection (2) above.
(1) Where a mobile home which is the only or principal residence of a person other than the debtor has been attached—
(a) the officer shall give notice to that other person of that fact; and
(b) the sheriff may, on an application by the debtor or that other person, order that the attachment of the mobile home is to cease to have effect.
(2) The sheriff—
(a) shall consider any application for an order under subsection (1) above which is made before the date which is 14 days after the date on which the mobile home is attached; and
(b) may, on cause shown, consider any such application which is made at any time after that date but before the date on which the attached mobile home is auctioned.
(1) The officer shall, within 14 days of the execution of an attachment (or such longer period as the sheriff on cause shown may allow on application by the officer), make to the sheriff a report of the attachment.
(2) A report made under subsection (1) above shall—
(a) be in the form prescribed by Act of Sederunt; and
(b) be signed by the officer.
(3) Such a report shall specify—
(a) whether any person, in response to enquires made under section 13(2) above, asserted that any attached article is not owned by the debtor (or is owned in common by the debtor and a third party);
(b) whether any attached article has been redeemed under section 18(1) below.
(4) Such a report need not be made in respect of any article or vehicle which has been sold in pursuance of an order made under section 20(1)(b) or, as the case may be, 22(3) below.
(5) The sheriff may refuse to receive such 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 attachment to which the report relates is to cease to have effect; and
(b) the sheriff clerk shall intimate the refusal to—
(i) the debtor; and
(ii) if another person is in possession of the attached articles, that person.
(1) Subject to any order made under section 20(1)(b) below, the debtor is entitled, within 14 days of the date on which an article is attached, to redeem that article.
(2) The amount for which such an article may be redeemed is the value fixed under subsection (2) or (3) of section 15 above.
(3) The officer shall, on receiving payment from the debtor for the redemption of an attached article, grant a receipt in the form prescribed by Act of Sederunt to the debtor.
(4) The attachment of the article is, on the grant of such a receipt, to cease to have effect.
(5) Where an article is redeemed after the officer has made a report under section 17(1) above in respect of the attachment, the officer shall report the redemption as soon as is reasonably practicable to the sheriff.
(1) The officer who attached articles may, after the report of attachment has been received by the sheriff—
(a) make arrangements for the auction of the attached articles; and
(b) on the date specified in the notice given under section 27(4) below, remove the attached articles from the place at which they are kept.
(2) The officer may open shut and lockfast places for the purpose of so removing the attached articles.
(3) The officer may not remove any vehicle in respect of which an application for an order under subsection (1) or (3) of section 22 below has been made but not disposed of.
(4) The officer may remove to the place at which the auction is to be held such attached articles as, if sold at their values fixed under subsection (2) or, as the case may be, (3) of section 15 above, would realise in aggregate the sum recoverable at the time of the auction.
(5) The remaining attached articles will cease to be subject to attachment.
(6) An attached article shall not, subject to any order made under section 20(1)(b) or 22(3) below, be auctioned before the date which is 7 days after the date on which the article is removed by the officer from the place at which it was attached.
(1) The sheriff may, on an application by the creditor, the officer or the debtor, at any time after articles have been attached make an order—
(a) for the security of any of the attached articles;
(b) in relation to any of the articles which are of a perishable nature or which are likely to deteriorate substantially and rapidly in condition or value, for the creditor or the officer to make arrangements for their immediate sale and for any proceeds of the sale to be consigned in court.
(2) An application for an order under subsection (1) above—
(a) by the creditor or the officer, shall be intimated by the creditor or, as the case may be, the officer to the debtor;
(b) by the debtor, shall be intimated to the creditor and the officer,
at the time when it is made.
(3) A decision of the sheriff to make an order under subsection (1)(b) above shall not be subject to appeal.
(4) Any sum consigned in court in pursuance of an order made under subsection (1)(b) above shall, where an attachment ceases to have effect before the auction of attached articles is held, be paid to the creditor to the extent necessary to meet the sum recoverable, any surplus thereof being paid to the debtor.
(1) The debtor or person in possession of an attached article shall not move it from the place at which it was attached.
(2) If an article is so moved—
(a) the debtor or, as the case may be, the person in possession of the attached articles is acting in breach of the attachment; and
(b) the sheriff may, on an application by the creditor or by the officer, by order authorise the attachment of other articles which are owned by the debtor and kept at the place at which the original attachment was executed.
(3) Subsection (1) above does not apply in relation to any vehicle in respect of which an application for an order under subsection (1) or (3) of section 22 below has been made but not disposed of.
(4) The debtor shall not sell, make a gift of or otherwise relinquish ownership of any attached article.
(5) If an attached article is so sold, gifted or otherwise disposed of the debtor is acting in breach of the attachment.
(6) Any person who wilfully damages or destroys any article which that person knows has been attached is acting in breach of the attachment.
(7) Where an attached article is stolen, the debtor shall give notice to the creditor and the officer of that fact and of any related claim which the debtor makes, or intends to make, under a contract of insurance.
(8) Any debtor who fails to give notice as required by subsection (7) above is acting in breach of the attachment.
(9) Any act which is, under subsection (2), (5), (6) or (8) above, a breach of the attachment may be dealt with as a contempt of court.
(10) Where attached articles are damaged, destroyed or stolen the sheriff, on an application by the creditor or by the officer, may by order authorise—
(a) the attachment of other articles which are owned by the debtor and kept at the place at which the original attachment was executed;
(b) the revaluation of any damaged article in accordance with subsection (2) or (3) of section 15 above.
(11) Where the debtor or any third party who knows that an article is attached—
(a) moves it from the place at which the attachment was executed, and it is—
(i) damaged, destroyed, lost or stolen; or
(ii) acquired from or through the debtor or, as the case may be, the third party by another person without knowledge of the attachment and for value; or
(b) wilfully damages or destroys it,
the sheriff may order the debtor or, as the case may be, the third party to consign the sum set out in subsection (12) below in court.
(12) That sum is—
(a) where the article has been damaged but not so damaged as to make it worthless, a sum equal to the difference between the value of the article fixed under subsection (2) or (3) of section 15 above or, as the case may be, under section 51 or 54(1) below and the value of the article so damaged; or
(b) in any other case, a sum equal to the value of the article as fixed under subsection (2) or (3) of section 15 above or, as the case may be, under section 51 or 54(1) below.
(13) For the purposes of subsection (12)(a) above, the officer shall, subject to subsection (14) below, value a damaged article at the price which it is likely to fetch if sold in that condition on the open market.
(14) Where the officer considers that a damaged article is such that a valuation by a professional valuer or other suitably skilled person is appropriate, the officer shall arrange for such a valuation and a valuation so arranged shall proceed on the basis set out in subsection (13) above.
(15) Any sum consigned in court in pursuance of an order made under subsection (11) above shall, where the attachment of a damaged article ceases to have effect before it is auctioned, be paid to the creditor to the extent necessary to meet the sum recoverable, any surplus thereof being paid to the debtor.
(1) The sheriff may, on an application by the debtor and on being satisfied that the auction of any vehicle which has been attached would be unduly harsh in the circumstances, make an order—
(a) providing that the attachment of the vehicle is to cease to have effect; and
(b) where the vehicle has been removed by the officer from the place at which it was attached, requiring the officer to return the vehicle to that place.
(2) The sheriff may not make an order under subsection (1) above unless the value of the vehicle (as fixed under subsection (2) or (3) of section 15 above) does not exceed £1,000 or such other amount as may be prescribed in regulations made by the Scottish Ministers.
(3) Where the value (as fixed under subsection (2) or (3) of section 15 above) of an attached vehicle does exceed £1,000 or, as the case may be, such other prescribed amount the sheriff may, on an application by the debtor and on being satisfied that the auction of any vehicle which has been attached would be unduly harsh in the circumstances, make an order requiring the officer to—
(a) make arrangements for the immediate sale of the vehicle;
(b) pay to the debtor from any proceeds of such sale the sum of £1,000 (or such lesser amount as the sheriff may specify); and
(c) consign any surplus remaining in court.
(4) Where the amount realised on the sale of a vehicle in pursuance of an order has been made under subsection (3) above is less than the amount which the officer is required by that order to pay to the debtor, the order shall be deemed to have required the officer to pay the amount realised only.
(5) Where the officer is unable to sell the vehicle in pursuance of an order made under subsection (3) above within 14 days of the date on which the order was made, the attachment of that vehicle is to cease to have effect.
(6) The sheriff may consider an application for an order under subsection (1) or (3) above only where it is made within 14 days of the date on which the vehicle is attached.
(1) Where the sheriff is satisfied that the aggregate of the values of attached articles fixed under section 15(2) or (3) above or, as the case may be, section 51 or 54(1) below is substantially below the aggregate of the prices which they are likely to fetch if sold on the open market, the sheriff may, on or before the day which immediately precedes the day on which the articles are to be auctioned, order that the attachment is to cease to have effect.
(2) The sheriff may make an order under subsection (1) above on the application of the debtor or on the sheriff’s own accord.
(3) The sheriff shall not make such an order without first giving the debtor and the creditor—
(a) an opportunity to make representations; and
(b) if either party wishes to be heard, an opportunity to be heard.
(1) An attachment shall, subject to subsections (6), (7) and (8) below, have effect only until—
(a) the earlier of—
(i) the date which is six months after the date on which the article is attached; and
(ii) the date which is 28 days after the date on which the attached article is removed by the officer from the place at which it was attached; or
(b) such other date as may be specified in an order made under subsection (2) or section 29(4)(b) below or in an exceptional attachment order.
(2) Where the sheriff is satisfied—
(a) that, if the date on which an attachment is to cease to have effect were to be substituted with a later date, the debtor is likely to comply with an agreement between the creditor and the debtor for the payment of the sum recoverable by instalments or otherwise; or
(b) that the auction of the attached articles cannot take place before the date on which the attachment is to cease to have effect due to circumstances for which the creditor cannot be held responsible and that the attachment ceasing to have effect on that date would prejudice the creditor,
the sheriff may, on an application by the creditor or by the officer, by order provide that the attachment is to remain in effect until such later date as the sheriff considers reasonable in the circumstances.
(3) Where the period for which an attachment is to have effect is extended by an order made under subsection (2) above, an application may be made for another order under that subsection so as to further extend that period.
(4) The sheriff may consider an application for an order under subsection (2) above only where it is made during the period in respect of which an extension is being sought.
(5) A decision of the sheriff on such an application shall be intimated to the debtor by the sheriff clerk.
(6) Where such an application is made but not disposed of before the date on which the attachment in respect of which it is made would, but for this subsection, cease to have effect, the attachment shall continue to have effect until the application is disposed of.
(7) Where such an application is—
(a) made on the ground referred to in paragraph (a) of subsection (2) above; and
(b) refused by the sheriff within 14 days of the date on which the attachment in respect of which it is made would, but for this subsection, cease to have effect,
the attachment shall continue to have effect until the date which is 14 days after the date of the refusal.
(8) Where—
(a) arrangements for an auction of attached articles are, under section 29(1) below, cancelled; and
(b) the agreement in respect of which the cancellation is made is breached by the debtor,
the period which begins with the date on which the report of agreement was made under section 29(3) below and which ends with the date on which the debtor breaches the agreement is to be disregarded in determining the date on which the attachment is, under subsection (1) above, to cease to have effect.
(1) Subject to—
(a) section 9(12) (which provides that a debt which remains outstanding on the recall or cessation of a time to pay order may be enforced by certain diligences) of the Debtors (Scotland) Act 1987 (c. 18);
(b) any order made under subsection (2)(b) or (10)(a) of section 21 above; and
(c) sections 34(3) and 35(4) below,
where articles are attached (or are purported to be attached) at any place, it is not competent to attach other articles kept at that place to enforce the same debt unless those other articles are brought to that place after the execution of the first attachment.
(2) It is not competent to attach any article in respect of which an attachment has—
(a) previously been executed in enforcement of the same debt; and
(b) ceased, by virtue of section 16, 18(4), 22(1), 34(1), 35(3), 55(2) or 56(4) of this Act, to have effect.
(1) Where, at any time before the auction of an article which has been or purports to have been attached, the sheriff is satisfied that—
(a) the attachment has ceased to have effect; or, as the case may be
(b) the purported attachment is invalid (by reason of the attachment being incompetent or otherwise),
the sheriff shall make an order declaring that to be the case and may make such consequential order as appears to the sheriff to be necessary in the circumstances.
(2) An order under subsection (1) above may be made on an application by the debtor or on the sheriff’s own initiative.
(3) Where such an order is made on the sheriff’s own initiative, the sheriff clerk shall intimate the order to the debtor.
(4) The sheriff shall not make an order under subsection (1) above without first giving the debtor and the creditor—
(a) an opportunity to make representations; and
(b) if either party wishes to be heard, an opportunity to be heard.
(5) Where—
(a) an order is made under subsection (1) above; and
(b) the officer has removed the article from the place at which it was, or purported to be, attached,
the officer shall return the article to the place from which it was removed.
(6) The sheriff shall give reasons for a refusal to grant an order under subsection (1) above.
(1) The auction of attached articles shall, subject to subsections (2) and (3) below, be by public auction held in an auction room.
(2) If it is impractical to hold the auction of an attached article in an auction room the auction may be held at such other place (other than the debtor’s dwellinghouse) as the officer considers appropriate.
(3) The auction of other articles which have been attached together with an article which is to be auctioned at a place other than an auction room may, if the officer considers it appropriate (having had regard, in particular, to the expenses which are likely to be incurred in connection with the auction), also be held at that other place.
(4) The officer authorised to arrange the auction shall give notice to the debtor and to any other person in possession of the attached articles of—
(a) the date on which the auction is to be held;
(b) the location of the auction room or, as the case may be, the other place at which the auction is to be held; and
(c) where sections 15 to 19 above apply in relation to the attached articles, the date arranged for the removal of those attached articles from the place at which they are kept.
(5) The officer shall advertise the auction by public notice.
(1) Subject to subsection (2) below and without prejudice to section 29(4) below, the creditor or the officer is not, after notice has been given under section 27(4) above to the debtor, entitled to arrange—
(a) a new date for the auction; or
(b) where sections 15 to 19 above apply in relation to the attached articles, a new date for the removal of those articles from the place where they are kept.
(2) Where, for any reason for which neither the creditor nor the officer is responsible, it is not possible—
(a) for the auction to be held on the date specified in the notice given under section 27(4) above; or
(b) for the attached articles to be removed from the place where they are kept on the date so specified,
the creditor may instruct the officer to arrange a new date for the auction or, as the case may be, a new date for the removal and the officer shall intimate the new date to the debtor and to any other person in possession of the attached articles.
(3) A new date arranged under subsection (2) above shall not in any case be fewer than 7 days after the date of intimation under that subsection.
(1) The officer may, for the purposes of enabling the sum recoverable to be paid in accordance with an agreement between the creditor and the debtor, cancel arrangements for an auction of attached articles.
(2) The officer may not cancel the arrangements for such an auction on more than two occasions.
(3) Where an auction has been cancelled the officer shall—
(a) make to the sheriff a report of the agreement reached; and
(b) arrange for the return of any attached articles which have been removed for auction to the place from which they were removed.
(4) The sheriff, if satisfied on an application by the creditor that the debtor is in breach of any agreement which has been reported under subsection (3) above, may by order provide—
(a) if the arrangements for the auction of the attached articles can still be implemented in accordance with the provisions of this Part and Part 3 of this Act, that the officer may resume making arrangements for the auction in accordance with those provisions;
(b) if for any reason for which neither the creditor nor the officer is responsible arrangements for the auction cannot be implemented in accordance with those provisions, that the provisions of this Part and Part 3 of this Act which prevent such implementation are not to apply for the purposes of the attachment and auction of those articles.
(5) The sheriff shall not make an order under subsection (4) above without first giving the debtor—
(a) an opportunity to make representations; and
(b) if the debtor so wishes, an opportunity to be heard.
(1) The officer shall attend the auction and maintain a record of the attached articles which are sold.
(2) Such a record shall specify the amount for which each attached article is sold.
(3) The officer shall be accompanied at the auction by another person who shall witness the proceedings.
(4) Any attached article exposed for sale in the auction may be purchased by—
(a) any creditor, including the creditor on whose behalf the article was attached;
(b) a third party who owns the attached article in common with the debtor.
Debt Arrangement and Attachment (Scotland) Act 2002