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(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.
(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; and
money 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; and
in 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.
(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 judicial officer has obtained prior authority from the sheriff for such commencement or continuation.
(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.
(1) The judicial officer 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 judicial officer must, as soon as reasonably practicable after attaching it, convert that cash into sterling.
(4) The judicial officer must take all reasonable steps to obtain the highest amount for such cash as is practicable.
(5) The judicial officer must deposit any cash attached and any proceeds of converting cash in a currency other than sterling in a bank account.
(6) The judicial officer—
(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 judicial officer 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 judicial officer 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.
(1) A judicial officer 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 judicial officer 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 judicial officer 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 judicial officer 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.
(1) The judicial officer 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 judicial officer; and
(b) must specify—
(i) the money attached; and
(ii) the value of that money, so far as ascertainable.
(3) The judicial officer 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 judicial officer complies with subsection (3) above.
(1) Where the judicial officer 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.
(1) The—
(a) creditor;
(b) judicial officer; 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 judicial officer—
(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.
(1) The judicial officer 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 judicial officer.
(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 judicial officer 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 judicial officer 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.
(1) This section applies where—
(a) money has been attached by a judicial officer 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 judicial officer; 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
(iii) any third party who opposes the application,
an opportunity to make representations; or
(b) holding a hearing.
(9) Where the debtor or, as the case may be a third party, opposes the application on the ground that money attached is not owned by the debtor, it is for the debtor or the third party to prove that fact.
(10) Where the sheriff is satisfied, after considering any opposition or on the sheriff’s own initiative, that there has been a material irregularity in the execution of the money attachment, the sheriff must make an order such as is mentioned in subsection (11) below.
(11) That order is an order—
(a) declaring that the money attachment ceases to have effect; and
(b) requiring the judicial officer 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 or, as the case may be, the person whose money it is.
(12) Where the sheriff is satisfied after considering any opposition or on the sheriff’s own initiative, that any money attached is not owned by the debtor—
(a) the sheriff must make an order such as is mentioned in subsection (11) above restricted to that money; and
(b) after the order is made, the judicial officer may attach other money owned by the debtor and kept at the place at which the original money attachment was executed.
(1) A payment order authorises the judicial officer—
(a) to realise the value of money attached; and
(b) subject to section 37 of the 1985 Act (effect of sequestration on diligence), to dispose of the proceeds of the money attachment by—
(i) retaining such amount as necessary to meet the fees and outlays of the officer;
(ii) paying to the creditor the remainder of those proceeds so far as necessary to meet the sum recoverable by the money attachment; and
(iii) paying to the debtor any surplus remaining.
(2) For the purposes of subsection (1) above, the payment order authorises the judicial officer—
(a) to act as the irrevocable agent of the debtor in relation to any banking instrument attached; and
(b) to take any of the steps mentioned in subsection (3) below.
(3) Those steps are—
(a) presenting the instrument for payment;
(b) if instructed by the creditor to do so, raising any action for payment that would have been open to the debtor to raise against any person liable to honour the instrument;
(c) except where the instrument is not negotiable, negotiating the instrument—
(i) for value; or
(ii) to the creditor for value credited against the sum recoverable by the money attachment;
(d) any other steps the debtor could have taken in relation to the instrument before the money attachment was executed.
(4) The judicial officer must, in taking any of the steps referred to in subsection (3) above, obtain the highest amount for the instrument as is reasonably practicable.
(5) In subsection (1)(b) above, “proceeds of the money attachment” includes any amount—
(a) deposited in a bank account by virtue of section 181(6) or 185(4)(b)(iii) of this Act;
(b) obtained as a result of taking any of the steps mentioned in subsection (3) above; and
(c) received by the judicial officer by virtue of section 191(2)(c) of this Act.
(1) The debtor may, before—
(a) a payment order is made; or
(b) the money attachment ceases to have effect,
apply to the sheriff for an order such as is mentioned in subsection (2) below.
(2) That order is one—
(a) providing that the money attachment ceases to have effect in relation to—
(i) the money attached; or
(ii) so much of it as the sheriff specifies; and
(b) requiring the judicial officer to return that money or, where the value of the money has been realised, a sum equivalent to that value, to the debtor.
(3) Where the sheriff is satisfied that, in the circumstances, the money attachment is unduly harsh to the debtor, the sheriff must, subject to subsection (4) below, make an order such as is mentioned in subsection (2) above.
(4) Where the value of the money attached exceeds £1,000 or such other amount as the Scottish Ministers may by regulations prescribe, the sheriff—
(a) may not specify money the value of which exceeds that amount; and
(b) may, where the money attached includes or comprises a banking instrument, authorise the judicial officer to—
(i) realise the value of the instrument;
(ii) pay to the debtor from the money and, as the case may be, proceeds of that realisation the sum specified; and
(iii) deposit any surplus remaining in a bank account.
(5) In a case to which subsection (4)(b) above applies, the order under subsection (3) above authorises the judicial officer—
(a) to act as the irrevocable agent of the debtor in relation to the instrument; and
(b) to take any of the steps mentioned in section 184(3) of this Act.
(6) Subsection (4) of section 184 of this Act applies to any steps taken by virtue of subsection (5) above.
(7) Where the amount realised under subsection (4)(b)(i) above is less than the amount specified, the order is to be deemed to have required the judicial officer to pay the amount realised only.
(1) Where, at any time before a payment order is made or the money attachment ceases to have effect, the sheriff is satisfied that there has been a material irregularity in the execution of the money attachment, the sheriff must make an order such as is mentioned in subsection (2) below.
(2) That order is an order—
(a) declaring that the money attachment ceases to have effect; and
(b) requiring the judicial officer 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 or, as the case may be, the person whose money it is.
(3) Where, at any time before a payment order is made or the money attachment ceases to have effect, the sheriff is satisfied that any money attached is not owned by the debtor—
(a) the sheriff must make an order such as is mentioned in subsection (2) above restricted to that money; and
(b) after the order is made, the judicial officer may attach other money owned by the debtor and kept at the place at which the original money attachment was executed.
(4) An order under this section may be made—
(a) on the application of—
(i) the debtor; or
(ii) a third party claiming an interest; or
(b) on the sheriff’s own initiative.
(5) Where such an order is made on the sheriff’s own initiative, the sheriff clerk must intimate the order to—
(a) the debtor;
(b) the creditor;
(c) the judicial officer; and
(d) any other person the sheriff thinks has an interest.
(6) The sheriff may not make an order under this section without first—
(a) giving—
(i) the debtor;
(ii) the creditor; and
(iii) any other person the sheriff thinks has an interest,
an opportunity to make representations; or
(b) holding a hearing.
(7) The sheriff must give reasons for making, or refusing to make, an order under this section.
(1) A money attachment ceases to have effect on the expiry of the period of 14 days beginning with the day on which the report of money attachment is made unless, within that period, the creditor—
(a) applies for a payment order; and
(b) sends a copy of the application to the judicial officer under section 183(4)(b) of this Act.
(2) A money attachment ceases to have effect if the sum recoverable by the money attachment is—
(a) paid to—
(i) the creditor;
(ii) the judicial officer; or
(iii) any other person who has authority to receive payment on behalf of the creditor; or
(b) tendered to any of those persons and the tender is not accepted within a reasonable time.
(3) Where a money attachment ceases to have affect by virtue of subsection (1) or (2) above, the judicial officer must return money attached or, where the value of any such money has been realised, a sum equivalent to that value, to the debtor.
(1) The debtor may, before the expiry of the period of 14 days beginning with the date on which the report of money attachment is made, redeem a banking instrument attached by the money attachment.
(2) The debtor may not redeem an instrument in relation to which an order under section 181(3) of this Act has been made.
(3) The amount for which such an instrument may be redeemed is the value of the instrument specified in the report of money attachment.
(4) The judicial officer must, on receiving payment from the debtor for the redemption of an attached instrument—
(a) grant a receipt in (or as nearly as may be in) the form prescribed by Act of Sederunt to the debtor; and
(b) report the redemption to the sheriff as soon as is reasonably practicable.
(5) The money attachment ceases, on the grant of such a receipt, to have effect in relation to the redeemed instrument.
(1) The judicial officer must, before the expiry of the period of 14 days beginning with the day mentioned in subsection (2) below, give a statement to the sheriff.
(2) The day referred to in subsection (1) above is the day on which—
(a) the judicial officer made payment to the creditor under a payment order; or
(b) the money attached (or the last part of it) was returned to the debtor or, as the case may be, a third party by virtue of section 182(6), 183(11), 185(3), 186, 187 or 188 of this Act,
whichever is the later.
(3) The statement mentioned in 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 judicial officer.
(4) The statement must specify—
(a) any banking instruments, the values of which have been realised;
(b) the value realised in respect of each such instrument;
(c) any sums paid by the debtor to account of the sum recoverable by the money attachment;
(d) any chargeable expenses;
(e) any sums paid to the creditor;
(f) any surplus paid or instruments returned to the debtor or, as the case may be, a third party; and
(g) any balance due by or to the debtor.
(5) The statement must contain a declaration by the judicial officer that all the information contained within it is, to the best of the officer’s knowledge, true.
(6) If the judicial officer—
(a) without reasonable excuse gives the statement after the expiry of the period mentioned in subsection (1) above; or
(b) wilfully refuses to make, or delays making, the statement after the expiry of that period,
the sheriff may make an order providing that the officer is liable for the chargeable expenses, either in whole or in part.
(7) An order under subsection (6) above does not prejudice the right of the sheriff to report the matter to the Commission by virtue of section 67(1)(b) of this Act (investigation into alleged misconduct by judicial officers).
Bankruptcy and Diligence etc (Scotland) Act 2007