Office of Public Sector Information
(introduced by section 226)
1 In section 114 of the Companies Clauses Consolidation (Scotland) Act 1845 (summary remedy against parties failing to account), after “attachment” insert “or money attachment”.
2 In section 46 of the Harbours, Docks and Piers Clauses Act 1847 (power of justice or sheriff to settle disputes over costs of diligence), after “attachment” insert “or money attachment”.
3 In section 3 of the Titles to Land Consolidation (Scotland) Act 1868 (definitions), in the definition of the “deed” and “conveyance”—
(a) after “adjudged” insert “in implement”; and
(b) after “adjudication”, where it third occurs, insert “in implement”.
4 In section 3(a) of the Writs Execution (Scotland) Act 1877 (warrant in extract writ to authorise diligence)—
(a) after “arrestment” insert “, a land attachment, a residual attachment, a money attachment”; and
(b) after “executing the” insert “land attachment, residual attachment, money attachment or”.
5 In section 11A of the Judicial Factors (Scotland) Act (application for judicial factor on estate of deceased person)—
(a) in subsection (1)—
(i) for “petition to the Court of Session or” substitute “application”; and
(ii) for “petition”, where it second occurs, substitute “application”; and
(b) in subsection (2), for “petition” substitute “application”.
6 (1) The Sheriff Courts (Scotland) Extracts Act 1892 is amended as follows.
(2) In section 7(1)(a) (warrant in extract decree to authorise diligence)—
(a) after “arrestment” insert “, a land attachment, a residual attachment, a money attachment”; and
(b) after “executing the” insert “land attachment, residual attachment, money attachment or”.
(3) In section 7(4) (warrant in extract decree of removing), for the words “forty-eight hours” in both places where they occur substitute “14 days”.
(4) In section 8 (persons who may execute on extracts), for the words “messengers-at-arms, officers of court,” substitute “judicial officers”.
7 (1) The Execution of Diligence (Scotland) Act 1926 is amended as follows.
(2) In section 2 (execution by registered letter)—
(a) in subsection (1)(b), for “sheriff officer” substitute “judicial officer”;
(b) in subsection (2)(b)—
(i) for the words from “sheriff officer”, where they first occur, to “situated” substitute “judicial officer”;
(ii) for “sheriff officer, or messenger-at-arms” substitute “judicial officer”; and
(iii) for “law agent enrolled in such sheriffdom” substitute “solicitor”;
(c) in subsection (2)(c), for “law agent, messenger-at-arms or sheriff officer” substitute “solicitor or judicial officer”; and
(d) in subsection (2)(g), for “rule 111” substitute “rule 6.1”.
(3) In section 3 (authorisation by sheriff to do diligence)—
(a) for “messenger-at-arms or sheriff officer”, in both places where it occurs, substitute “judicial officer”; and
(b) for “law agent” substitute “solicitor”.
(4) In section 6 (regulations, forms and fees), for “messengers-at-arms, sheriff officers” substitute “judicial officers”.
8 (1) The Local Government (Scotland) Act 1947 is amended as follows.
(2) In section 247(3) (diligences which can be used to recover rates), after paragraph (a) insert—
“(aa) a money attachment;”.
(3) In section 247A(1) (sheriff officer’s fees and outlays), after “attachment)” insert “and section 196(1) of the Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3) (expenses of money attachment)”.
9 (1) The Taxes Management Act 1970 is amended as follows.
(2) In section 63(2) (diligences which can be used to recover tax), after paragraph (a) insert—
“(aa) a money attachment;”.
(3) In section 63A(1) (sheriff officer’s fees and outlays), after “attachment)” insert “and section 196(1) of the Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3) (expenses of money attachment)”.
10 In section 32(1) of the Sheriff Courts (Scotland) Act 1971 (power of Court of Session to regulate sheriff court civil procedure), in paragraph (l), for the words “an attachment” substitute “an interim attachment, an attachment, a money attachment, a land attachment or a residual attachment”.
11 In section 92(3) of the Animal Health Act 1981 (power of local authority to apply to sheriff for warrant), for the words “the officers of the court” substitute “a judicial officer”.
12 In section 27 of the Civil Jurisdiction and Judgments Act 1982 (power of Court of Session to grant provisional and protective measures in respect of proceedings outwith Scotland)—
(a) in subsection (1), after paragraph (b), insert—
“(ba) subject to subsection (2)(c) below, grant a warrant for the interim attachment of corporeal moveable property situated in Scotland;”; and
(b) in subsection (2)(c), for the words “and (b)” substitute “, (b) and (ba)”.
13 (1) The 1985 Act is amended as follows.
(2) In section 31 (vesting of estate in trustee), in subsection (1)—
(a) after “shall”, where it first occurs, insert “, by virtue of the trustee’s appointment,”; and
(b) after “vest”, where it first occurs, insert “in the trustee”.
(3) In section 37 (effect of sequestration on diligence)—
(a) in subsection (1)(b), for “a completed poinding” substitute “an attachment”;
(b) in subsection (2), for “No” substitute “Where an”;
(c) in subsection (4)—
(i) after “arrestment” insert “, money attachment, interim attachment”; and
(ii) after “attached” insert “, or any funds released under section 73J(2) of the Debtors (Scotland) Act 1987 (c. 18) (automatic release of funds)”;
(d) in subsection (5)—
(i) after “arrestment”, where it first occurs, insert “, money attachment, interim attachment”;
(ii) in paragraph (a), after “obtaining” insert—
“(i) warrant for interim attachment; or
(ii)”;
(iii) after “arrestment”, where it second occurs, insert “, money attachment”; and
(iv) in paragraph (b), after “arrestment” insert “, money attachment, interim attachment”;
(e) after subsection (5A) insert—
“(5B) No land attachment of heritable property of the debtor created within the period of six months before the date of sequestration and whether or not subsisting at that date shall be effectual to create a preference for the creditor.
(5C) A creditor who creates a land attachment within the period of six months mentioned in subsection (5B) above shall be entitled to payment, out of the attached land or out of the proceeds of the sale of it, of the expenses incurred—
(a) in obtaining the extract of the decree, or other document, containing the warrant for land attachment; and
(b) in—
(i) serving the charge for payment;
(ii) registering the notice of land attachment;
(iii) serving a copy of that notice; and
(iv) registering certificate of service of that copy.”;
(f) after subsection (8) insert—
“(8A) A notice of land attachment registered—
(a) on or after the date of sequestration against land forming part of the heritable estate of the debtor (including any estate vesting in the trustee by virtue of section 32(6) of this Act); or
(b) before that date in relation to which, by that date, no land attachment is created,
shall be of no effect.
(8B) Subject to subsections (8C) to (8F) below, it shall not be competent for a creditor to insist in a land attachment—
(a) created over heritable estate of the debtor before the beginning of the period of six months mentioned in subsection (5B) above; and
(b) which subsists on the date of sequestration.
(8C) Where, in execution of a warrant for sale, a contract to sell the land has been concluded—
(a) the trustee shall concur in and ratify the deed implementing that contract; and
(b) the appointed person shall account for and pay to the trustee any balance of the proceeds of sale which would, but for the sequestration, be due to the debtor after disbursing those proceeds in accordance with section 116 of the Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3) (disbursement of proceeds of sale of attached land).
(8D) Subsection (8C) above shall not apply where the deed implementing the contract is not registered before the expiry of the period of 28 days beginning with the day on which—
(a) the certified copy of the order of the sheriff granting warrant is recorded under subsection (1)(a) of section 14 of this Act; or
(b) the certified copy of the determination of the Accountant in Bankruptcy awarding sequestration is recorded under subsection (1A) of that section,
in the register of inhibitions.
(8E) Where a decree of foreclosure has been granted but an extract of it has not registered, the creditor may proceed to complete title to the land by so registering that extract provided that the extract is registered before the expiry of the period mentioned in subsection (8D) above.
(8F) The Scottish Ministers may—
(a) prescribe such other period for the period mentioned in subsection (8D) above; and
(b) prescribe different periods for the purposes of that subsection and subsection (8E) above,
as they think fit.”; and
(g) at the end insert—
“(10) Expressions used in subsections (5B), (5C) and (8A) to (8F) above which are also used in Chapter 2 of Part 4 of the Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3) have the same meanings in those subsections as they have in that Chapter.”.
14 (1) The Insolvency Act 1986 is amended as follows.
(2) After section 61(1) (which sets out the process by which a receiver may dispose of property subject to both the floating charge and to another security, other encumbrance or diligence) insert—
“(1B) For the purposes of subsection (1) above, an arrestment is an effectual diligence only where it is executed before the floating charge, by virtue of which the receiver was appointed, attaches to the property comprised in the company’s property and undertaking.”.
(3) In section 185(1)(a) (effect of diligence in the winding up of a company registered in Scotland), after “subsection (6)” insert “, (8A) to (8F) and (10)”.
15 In Part 2 of Schedule 2 to the Legal Aid (Scotland) Act 1986 (proceedings in which civil legal aid is not available)—
(a) in paragraph 4, after “(asp 17)” insert “or Part 8 of the Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3)”; and
(b) in paragraph 5, after “(asp 17)” insert “or Part 8 of the Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3)”.
16 (1) The 1987 Act is amended as follows.
(2) In section 2 (effect of time to pay direction on diligence)—
(a) in subsection (1)(b), after sub-paragraph (iv) insert—
“(v) a money attachment;
(vi) a land attachment;
(vii) a residual attachment,”;
(b) in subsection (2), at beginning insert “Subject to subsection (2A) below,”;
(c) after that subsection insert—
“(2A) Where the arrestment which remains in effect as mentioned in subsection (2) above is an arrestment such as is mentioned in subsection (1) of section 73J of this Act, while the time to pay direction is in effect—
(a) it shall not be competent to release funds under subsection (2) of that section; and
(b) the period during which the direction is in effect shall be disregarded for the purposes of determining whether the period mentioned in subsection (3) of that section has expired.
(2B) While a time to pay direction is in effect an interim attachment shall remain in effect—
(a) if it has not been recalled; or
(b) to the extent that it has not been restricted under subsection (3) below.”;
(d) in subsection (3), after “restrict” insert “an interim attachment or”;
(e) in subsection (4)—
(i) after “If” insert “an interim attachment or”; and
(ii) after “restriction of the” insert “interim attachment or”; and
(f) after subsection (5) insert—
“(5A) Where—
(a) a time to pay direction is recalled or ceases to have effect as mentioned in subsection (5) above; and
(b) an arrestment such as is mentioned in section 73J(1) of this Act is in effect,
the clerk of court or sheriff clerk shall intimate the fact of that recall or cessation to the arrestee.”.
(3) In section 3 (variation and recall of time to pay direction and arrestment)—
(a) in subsection (1)(a), after “reasonable” insert “in all the circumstances”;
(b) in subsection (1)(b)—
(i) after “if” insert “an interim attachment or”;
(ii) after “restrict the” insert “interim attachment or”; and
(c) in subsection (2), after “If” insert “an interim attachment or”.
(4) In section 5 (time to pay orders)—
(a) in subsection (5), for paragraph (a) substitute—
“(a) articles belonging to the debtor have been attached and notice of an auction given under section 27(4) of the Debt Arrangement and Attachment (Scotland) Act 2002 (asp 17) but no auction has yet taken place;
(aa) money owned by the debtor has been attached and removed;”;
(b) for paragraph (c) and the word “or” immediately preceding it substitute—
“(c) land owned by the debtor has been attached and an order under section 97(2) of the Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3) (in this Part, the “2007 Act”) granting warrant for sale of the land has been made but that warrant has not yet been executed; or
(d) property owned by the debtor has been attached by residual attachment and a satisfaction order under section 136(2) of the 2007 Act has been made but not yet executed,”; and
(c) after subsection (5) insert—
“(5A) Where, in respect of a debt to which this section applies, an arrestment such as is mentioned in subsection (1) of section 73J of this Act has been executed, the sheriff may make a time to pay order in respect of that debt only if less than 8 weeks of the period mentioned in subsection (3) of that section have expired.”.
(5) In section 6 (application for time to pay order), in subsection (6), leave out paragraph (b) and the word “and” immediately preceding it and insert—
“(b) serve on—
(i) the creditor; and
(ii) where an arrestment such as is mentioned in section 73J(1) of this Act is in effect, the arrestee,
a copy of the interim order; and
(c) serve on the creditor a copy of any order under subsection (4) above.”.
(6) In section 7 (disposal of application for time to pay order), in subsection (4)(a), for “and the creditor” substitute “, the creditor and, where an arrestment such as is mentioned in section 73J(1) of this Act is in effect, the arrestee”.
(7) In section 8 (effect of interim order on diligence)—
(a) in subsection (1)—
(i) before paragraph (a) insert—
“(za) to attach in execution of the decree any articles which have been attached by interim attachment;”;
(ii) in paragraph (a), for “auction any articles which have been attached” substitute “give, in relation to any articles which have been attached, notice of an auction under section 27(4) of the Debt Arrangement and Attachment (Scotland) Act 2002 (asp 17)”;
(iii) after paragraph (a) insert—
“(aa) to execute a money attachment;”;
(iv) in paragraph (c), at the beginning insert “subject to subsection (1A) below,”; and
(v) for paragraph (d) substitute—
“(d) subject to subsection (1B) below, to register, under section 83(1)(c) of the 2007 Act, a notice of land attachment;
(e) subject to subsection (1C) below, to apply, under section 130(1) of the 2007 Act, for a residual attachment order.”; and
(b) after subsection (1) insert—
“(1A) Where the arrestment mentioned in subsection (1)(c) above is an arrestment such as is mentioned in subsection (1) of section 73J of this Act, while the interim order is in effect—
(a) it shall not be competent to release funds under subsection (2) of that section; and
(b) the period during which the order is in effect shall be disregarded for the purposes of determining whether the period mentioned in subsection (3) of that section has expired.
(1B) Where, before the interim order is made—
(a) a notice of land attachment is registered, it shall not be competent to take any steps other than—
(i) serving, under subsection (5) of section 83 of the 2007 Act, a copy of that notice; and
(ii) registering, under subsection (6) of that section, a certificate of service; or
(b) a land attachment is created, it shall not be competent to make, under section 97(2) of the 2007 Act, an order granting a warrant for sale of the attached land.
(1C) Where, before the interim order is made, a residual attachment order has been made, it shall not be competent—
(a) to take any steps other than serving, under section 133(1) of the 2007 Act, a schedule of residual attachment; or
(b) to make, under section 136(2) of the 2007 Act, a satisfaction order.”.
(8) In section 9 (effect of time to pay order on diligence)—
(a) in subsection (1)(b), after sub-paragraph (iv) insert—
“(v) a money attachment;
(vi) a land attachment;
(vii) a residual attachment,”;
(b) in subsection (2), for paragraph (c) substitute—
“(c) where a notice of land attachment has been registered under section 83(1)(c) of the 2007 Act, shall make an order prohibiting the taking of any steps other than—
(i) the serving, under subsection (5) of that section, of a copy of the notice; and
(ii) the registration, under subsection (6) of that section, of a certificate of service;
(ca) where a residual attachment order has been made under section 132(2) of the 2007 Act, shall make an order prohibiting the taking of any steps other than the serving, under section 133(1) of the 2007 Act, of a schedule of residual attachment;
(cb) may make an order recalling an interim attachment;”;
(c) after subsection (2) insert—
“(2A) While a time to pay order is in effect, it shall not be competent in respect of the debt—
(a) to make, under section 97(2) of the 2007 Act, an order granting warrant for sale of attached land; or
(b) to make, under section 136(2) of the 2007 Act, a satisfaction order.”;
(d) in subsection (3)—
(i) after “If” insert “an interim attachment,” and
(ii) for “or the recall of” substitute “, the recall of the interim attachment or”;
(e) in subsection (4)—
(i) at the beginning insert “Subject to subsection (4A) below,”; and
(ii) for “(2)(d) or (e)” substitute “(2)(cb), (d) or (e)”;
(f) after subsection (4) insert—
“(4A) Where, in relation to an arrestment such as is mentioned in subsection (1) of section 73J of this Act, the sheriff does not exercise the power conferred on him by subsection (2)(e) above to recall that arrestment, he shall make an order—
(a) prohibiting, while the time to pay order is in effect, the release of funds under subsection (2) of section 73J of this Act; and
(b) providing that the period during which the time to pay order is in effect shall be disregarded for the purposes of determining whether the period mentioned in subsection (3) of that section has expired.”;
(g) in subsection (6), for “(2)(d) or (e)” substitute “(2)(cb), (d) or (e)”;
(h) in subsection (7), after paragraph (b) insert “; and
(c) where any order under subsection (4A) above is made in relation to an arrestment such as is mentioned in section 73J(1) of this Act is in effect, intimate that order to the arrestee.”; and
(i) in subsection (8)—
(i) for paragraph (a) substitute—
“(a) to sell articles which have been attached (other than by virtue of section 20(1) or 22(3) of the Debt Arrangement and Attachment (Scotland) Act (asp 17);”; and
(ii) in paragraph (b), at the beginning insert “to grant”.
(9) In section 10 (variation and recall of time to pay order and arrestment)—
(a) in subsection (1)(a), after “reasonable” insert “in all the circumstances”;
(b) in subsection (1)(b), after “if” insert “an interim attachment,”; and
(c) in subsection (2), after “If” insert “an interim attachment,”.
(10) In section 13 (saving of creditor’s rights and remedies), in the full-out words to subsection (2), for “poinding”, in any place where it occurs, substitute “attachment”.
(11) In section 87(2)(a) (warrant in extract decree to authorise diligence)—
(a) after “arrestment” insert “, a land attachment, a residual attachment, a money attachment”; and
(b) after “executing the” insert “land attachment, residual attachment, money attachment or”.
(12) In section 104 (regulations), after “Regulations” insert “and orders”.
(13) In section 105 (application to Crown)—
(a) the existing words become subsection (1);
(b) after “1947” insert “and subject to subsection (2) below”; and
(c) at the end insert—
“(2) Section 70B of this Act does not affect Her Majesty in Her private capacity as an employer.”
(14) In section 106 (interpretation)—
(a) after the definition of “current maintenance”, insert—
““debt advice and information package” has the meaning given to it in section 47(4) of this Act;”;
(b) after the definition of “employer”, insert—
““enactment” includes an Act of the Scottish Parliament and any enactment comprised in subordinate legislation under such an Act;”; and
(c) in the definition of “officer of court”, for the words from “a” where it first occurs to the end substitute “a judicial officer”.
17 (1) Schedule 2 to the Abolition of Domestic Rates etc. (Scotland) Act 1987 is amended as follows.
(2) In paragraph 7(3) (diligences which can be used to recover community charge), after paragraph (a) insert—
“(aa) a money attachment;”.
(3) In paragraph 8(1) (sheriff officer’s fees and outlays), after “attachment)” insert “and section 196(1) of the Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3) (expenses of money attachment)”.
18 In section 38 of the Child Support Act 1991 (enforcement of liability orders by diligence)—
(a) in subsection (1)—
(i) after paragraph (a) insert—
“(aa) for the Secretary of State—
(i) to charge the person to pay the appropriate amount; and
(ii) to execute, in respect of the person’s land, a land attachment;”; and
(ii) for the words from “and”, where it fifth occurs, to the end, substitute—
“(c) for an inhibition.”; and
(b) for subsection (2) substitute—
“(2) In subsection (1)—
(a) the “appropriate amount” means the amount in respect of which the order was made, to the extent that it remains unpaid; and
(b) in paragraph (aa), “land” has the same meaning as in section 82 of the Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3).”.
Bankruptcy and Diligence etc (Scotland) Act 2007