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457.Subsection (1) extends the powers of sheriffs by giving them the power to grant a warrant for inhibition on the dependence. Under the present law, a pursuer who wishes to inhibit on the dependence of a sheriff court action has to obtain the warrant to do so from the Court of Session using a procedure which involves preparation and presentation of an Act and Letters of Inhibition. This procedure is abolished by section 146(6) of this Act.
458.Subsection (2) provides that a warrant for arrestment on the dependence is competent only where the action on the dependence of which it is sought contains a conclusion for payment of a sum of money other than expenses. Warrant for inhibition on the dependence is competent only where the action contains a similar conclusion for payment of money or where it contains a conclusion seeking specific implement of an obligation to convey heritable property to the creditor or to grant the creditor a real right in security, or some other right, over heritable property.
459.Subsection (3) provides that “action” in this Part of the 1987 Act includes in the sheriff court those brought as summary causes, small claims and summary applications as well as those brought as ordinary actions.
460.Section 15B gives the Court of Session an additional power by providing that it is competent for the court to grant warrant for diligence by arrestment or inhibition on the dependence of a petition. How this power can be exercised is again given further content by subsection (2) and by sections 15C to 15F. Again, the court can grant warrant for arrestment on the dependence only where the petition contains a prayer for payment of a sum of money other than expenses. Warrant for inhibition on the dependence can be granted where the petition contains a similar prayer for payment or where it contains a prayer for specific implement of a similar obligation as that described in section 15A(2)(b)(ii).
461.Subsection (3) provides that legislation and rules of law relating to diligence on the dependence of actions are to apply to diligence on the dependence of petitions, so far as practicable and provided the contrary intention does not appear.
462.Section 15C provides that it will be competent for the Court of Session or the sheriff to grant warrant for diligence on the dependence of a conclusion for payment of a debt which is a future or contingent debt. Examples of such debts are aliment and financial support or a capital sum claimed in an action for divorce or nullity of marriage. These particular examples of future or contingent debts were formerly governed by section 19 of the Family Law (Scotland) Act 1985. That provision is now repealed (see schedule 6 to this Act). (See also paragraph 681681 below for a general description of what is meant by “future” and “contingent” debts).
463.Subsection (2) defines “court” for the purposes of sections 15D to 15M as the court before which the action or petition is being pursued. This will be either the Court of Session or the sheriff court except in the case of petitions, in relation to which (by virtue of section 15B) only the Court of Session may grant diligence on the dependence.
464.Section 15D(1) provides that at any time before a final decision has been taken in a court action, the “creditor” may apply for warrant for diligence on the dependence. In the scheme of the 1987 Act, “creditor” in this new Part means the person seeking to do diligence, and “debtor” means the person against whom that diligence is sought. Those terms are used throughout this Part. Section 15D should also be read with section 15G, which makes it clear that warrant for diligence on the dependence can be applied for, granted and executed before service of the summons in the action.
465.Subsection (2) requires the application for the warrant: (a) to be in the form, or nearly as may be in the form specified in rules in court; (b) to be intimated to the debtor and any other interested party; (c) to state where an immediate warrant is being sought before a hearing on the application; and (d) to include any other information which the Scottish Ministers require such applications to contain. That power is exercisable by regulations which (by virtue of section 104(1) of the 1987 Act) are subject to negative resolution procedure.
466.Subsection (3) provides that, where an immediate warrant is sought before a hearing of the application under section 15F, the application for warrant for diligence on the dependence need not be intimated.
467.Subject to section 15E, which enables the court to grant warrant without an initial hearing, subsection (4) requires the court to fix a date for a hearing on the application and to order the creditor to intimate that date to the debtor and any other person the court thinks has an interest.
468.Subsections (1) and (2) of section 15E give the court power to grant a warrant for diligence on the dependence before an initial hearing of the application provided it is satisfied that—
the creditor has a prima facie case on the merits of the court action;
there would be a real and substantial risk of the debtor frustrating enforcement of a decree found in favour of the creditor by being or becoming insolvent, or putting the debtor’s assets beyond the reach of the creditor, if warrant for diligence on the dependence were not granted in advance of such a hearing; and
it is reasonable in all the circumstances including the effect granting warrant may have on any person having an interest, to grant the warrant.
469.Subsection (3) puts the onus of satisfying the court of the case for granting warrant in advance of a hearing on the creditor.
470.Subsection (4) requires the court, on granting warrant for diligence on the dependence without a hearing on the application to fix a date for a hearing under section 15K (recall of diligence on the dependence) and to require the creditor to intimate that date to the debtor and any other interested party.
471.Where a hearing has been fixed under subsection (4)(a), subsection (5) applies section 15K as if the debtor or a person having an interest had applied to the court for an order under that section.
472.In applying section 15K, this means that at the hearing the court must consider the validity of the warrant and any diligence on the dependence executed under it. The effect of section 15K(10) is to place the onus on the creditor to satisfy the court that a recall or restriction order should not be made.
473.Where the court is satisfied the warrant is invalid, it is under a duty to make an order recalling the warrant or any diligence on the dependence which has been executed under it (the court can also make an ancillary order) (section 15K(5)).
474.Subsection (6) provides that, where the court decides that a warrant should not be granted without a hearing and the creditor insists on pursuing the application, the court is obliged to fix a date for a hearing on the application under section 15F and to require the creditor to so notify the debtor and any other interested party.
475.Section 15F sets out the procedure to be followed at a hearing on an application for warrant for diligence on the dependence. Such a hearing on an application takes place in respect of applications where the creditor either doesn’t apply for a warrant to be granted in advance of a hearing or where the court refuses to make an order granting a warrant without a hearing.
476.Subsection (1) places a duty on the court, at the hearing, to give any person who received intimation of the hearing date (namely the debtor and any person appearing to the court to have an interest) the chance to make representations before the court makes a decision on the application.
477.Under subsections (2) and (3) the court may grant the warrant if it is satisfied as to the same matters which it is obliged to consider under section 15E(2), namely that—
the creditor has a prima facie case on the merits of the court action;
there would be a real and substantial risk of the debtor frustrating enforcement of a decree found in favour of the creditor by being or becoming insolvent, or putting the debtor’s assets beyond the reach of the creditor, if warrant for diligence on the dependence were not granted; and
it is reasonable in all the circumstances, including the effect granting warrant may have on any person having an interest, to grant the warrant.
478.Subsection (4) puts the onus of satisfying the court that it should grant warrant on the creditor.
479.Subsection (5) provides for intimation by the creditor of the court’s decision to the debtor and any other person it thinks has an interest.
480.Subsection (6) provides that, in refusing the warrant, the court may impose such conditions as it thinks fit. Subsection (7) gives examples of particular conditions which the court might impose under subsection (6). So, where the court refuses to grant warrant for diligence on the dependence but is satisfied that, nevertheless, there is a risk of any ultimate decree for payment in favour of the creditor not being met, it can order the defender to consign a sum into court against that eventuality.
481.Section 15G applies where diligence on the dependence is executed before the summons in the action is served on the debtor. By virtue of sections 15A(3) and 15B(3), “summons” (which is the initiating document in a Court of Session action) is construed here as meaning also a petition (in the Court of Session) and, in the sheriff court, an initial writ (in an ordinary action and in a summary application) and a summons (in a summary cause and in a small claim).
482.Subsection (2) provides that if the summons is not served on the debtor within 21 days of the execution of the diligence on the dependence, the diligence ceases to have effect. This is subject to the power of the court to extend the period within which the summons needs to be served if the diligence is not to fall.
483.Subsections (3) and (4) deal with this and provide that the court may, on the application of the creditor, extend the period having regard to the efforts of the creditor to serve the summons within 21 days and any special circumstances preventing or obstructing service within that period.
484.This section and section 15J change the effect of diligence on the dependence. Currently, there is no monetary or other limit of value placed on a warrant for diligence on the dependence. This means that where an arrestment on the dependence is served the whole funds owed to the debtor by the arrestee are frozen, not just the amount sued for. Similarly an inhibition upon the dependence of an action affects all heritable property of the debtor even if it is worth far more than the amount sued for.
485.Subsections (1) and (2) provide that the court, when granting warrant for arrestment on the dependence, may limit the warrant by specifying an amount, which must not exceed a maximum amount calculated by reference to the formula set out in subsection (2). The maximum limit is calculated as being the aggregate of—
the principal sum claimed;
a sum of up to 20% of the principal sum (or such other percentage as the Scottish Ministers prescribe by regulations, subject to negative resolution procedure);
interest at the judicial rate on the principal sum which would be accrued in 1 year;
any sum which the Scottish Ministers prescribe by virtue of their power under subsection (3), being a sum which they think reasonably represents the likely expenses of an arrestment incurred by a creditor and chargeable against a debtor (the power being exercisable by regulations subject to negative procedure).
486.Subsection (4) provides that section 73F of the 1987 Act (which is inserted into that Act by section 206 of this Act) applies to arrestment on the dependence. The court, under section 15H, may restrict the total sum which may be arrested. But section 73F will operate whenever a creditor seeks to arrest a bank account to protect a minimum balance in that account. This paragraph should therefore be read with paragraphs 688 to 692 below.
487.Section 15J provides that where a court grants warrant for inhibition on the dependence in a case where the action is specifically to oblige the debtor to convey heritable property, to grant a real right in security or to grant some other right over the property to the creditor, the court must limit the property attached to that particular property. In any other case, the court may limit the property attached to such property it may specify.
488.Under section 15K, the debtor or any other person having an interest can apply to the court for any order set out in subsection (2). Those orders are an order recalling or restricting the warrant granted, if the warrant has been executed, an order recalling or restricting any arrestment or inhibition so executed, an order determining any question as to the validity, effect or operation of the warrant or an order ancillary to any other order sought.
489.Subsection (3) provides that any application under subsection (2) is to be in the form set out in Act of Sederunt (in other words rules of court). The application must be sent to the creditor and any other person with an interest. Subsection (4) provides that at the hearing about an application made under subsection (2), all interested parties will be able to be heard by the court before any order is made.
490.Subsection (5) provides that, where the court is satisfied the warrant is invalid, it is under a duty to make an order recalling the warrant and any diligence on the dependence which has been executed under it (the court can also make an ancillary order).
491.Subsection (6) imposes a duty on the court to recall the diligence if the court is satisfied that an arrestment or inhibition exercised in pursuance of the warrant being challenged is incompetent. Again, the court may make any orders ancillary to such a recall as it thinks fit.
492.By virtue of subsection (7), where the court decides the warrant is valid it may still make an order recalling or restricting the warrant or diligence done under it (and any other order mentioned in subsection (2)) if it considers that an arrestment or inhibition executed in pursuance of the warrant is irregular or ineffective or if 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 power in subsection (7) is subject to subsection (8).
493.Subsection (8) imposes a duty on the court to make an order recalling the warrant and any arrestment or inhibition executed in pursuance of it and gives the court power to make an ancillary order, where it is no longer satisfied as to the matters set out in subsection (9). Those matters mirror the considerations which the court must take into account when determining whether to grant a warrant (see section 15F(3)).
494.Subsection (10) places the onus on the creditor to satisfy the court that a recall or restriction order should not be made. Subsections (11) and (12) enable the court to impose any conditions it thinks fit when making an order which may include requiring the debtor to consign money into court, to find caution or to give some other kind of security as the court thinks fit. The court will order the debtor to inform the creditor and any other interested party about the order (subsection (13)).
495.Subsection (14) provides that this section applies regardless of whether the warrant for diligence on the dependence was obtained, or executed, before the section came into force.
496.Under section 15L, the court may, on an application by the debtor, vary an order under section 15K(7) restricting a warrant for diligence on the dependence, or vary or remove a condition imposed under section 15F(6) or 15K(11). Any application under section 15L(1) is to be in the form set out in rules of court. The application must be sent to the creditor and any other person with an interest. Subsection (3) provides that at the hearing about an application made under subsection (2), all interested parties will be able to be heard by the court before any order is made. The court must order the debtor to inform the creditor and any other interested party about the order.
497.Section 15M(1) provides that a creditor will generally be entitled to the expenses incurred in obtaining a warrant for diligence on the dependence and the costs in executing an arrestment or inhibition. This is subject to subsection (3)(a) which provides that the court may modify or refuse those expenses where it finds that the creditor was acting unreasonably in applying for the warrant or considers the modification or refusal to be reasonable in all the circumstances, including how the action was decided.
498.Subsection (2) entitles the debtor to claim the expenses incurred in opposing the warrant where the warrant was granted and the court is satisfied that the creditor was acting unreasonably in applying for the warrant. This section is subject to subsection (3)(b) which gives the court a power to modify or refuse those expenses where it is satisfied that it is reasonable in all the circumstances of the case, including the outcome of the case, to do so.
499.Subsection (4) provides that, apart from the matters covered by subsections (1) to (3), the court retains its discretion to deal with expenses as it thinks fit.
500.Subsection (5) provides that expenses incurred in obtaining or opposing warrant for diligence on the dependence are expenses of process.
501.Subsection (6) preserves existing rules in legislation or common law on the recovery of expenses chargeable against a debtor as are incurred in executing an arrestment or inhibition on the dependence of an action. In particular, section 93 of the 1987 Act applies to the recovery of expenses incurred in executing arrestments.
502.Section 15N applies this Part of this Act where it is consistent 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. However, sections 15H (sum attached by arrestment on dependence), 15J (property affected by inhibition on the dependence) and 15M (expenses) do not apply. See also schedule 4 to this Act, which inserts a new section 47B on expenses into the 1956 Act.
503.This section inserts a new section 95A into the 1987 Act as a replacement for section 22 of the Debtors (Scotland) Act 1838 (which is repealed by schedule 6). This section applies to arrestments on the dependence and to arrestments in execution.
504.Section 95A(1)(a) provides that, where an arrestment on the dependence of an action is not insisted in, for example where no action is taken on it, then it prescribes (and cannot be enforced) after the expiry of 3 years from the date on which a final interlocutor is obtained by the creditor for payment of all or part of the principal sum which was sought in the action.
505.Subsection (1)(b) provides that, where an arrestment in execution of an extract decree or other extract registered document relating to a debt which is due (so not a future or contingent debt) is not insisted in, it prescribes (and cannot be enforced) after the expiry of 3 years from the date on which the arrestment was executed.
506.Subsection (2) provides that an arrestment securing or enforcing a future or contingent debt, if not insisted in, prescribes after the expiry of 3 years from the date the debt became due.
507.Subsection (3) provides that any time during which a time to pay direction, an interim order under section 6(3) of the 1987 Act or a time to pay order is in effect is to be disregarded when determining the date the arrestment will expire.
508.Subsection (4) excludes earnings arrestments, current maintenance arrestments and conjoined arrestment orders from the application of this section.
509.Subsection (5) provides that this section will apply irrespective of whether warrant for the arrestment is obtained, or the arrestment is executed, before this section comes into force.
510.Subsection (6) defines “final interlocutor” for the purposes of subsection (1)(a).
511.Loosing is a method, by way of signeted letters of loosing, of releasing arrested property which does not extinguish the arrestment itself until the debtor uplifts the arrested property. Section 171(1) abolishes loosing. Subsection (2) provides that the abolition of loosing does not affect the law relating to the loosing of an arrestment of a ship or its cargo, nor does it affect the exercise of any other power of the court to recall or restrict an arrestment.
512.Adjudication in security is similar to adjudication for debt but is available only in relation to future or contingent debts. Section 172 abolishes adjudication in security. Adjudication for debt is abolished by section 79 (see paragraphs 236 and 237 above). (See also paragraph 681681 below for a general description of what is meant by “future” and “contingent” debts).
513.Section 173 inserts a new Part 1A into the 2002 Act (after section 9).
514.Part 2 of the 2002 Act established the diligence of attachment in execution to replace the former diligence over the corporeal moveable property of debtors (poinding). Part 1A provides for attachment (known as “interim attachment”) on the dependence. Interim attachment will allow a creditor to attach a debtor’s tangible assets (also known as corporeal moveable property) on the dependence of a court action for payment.
515.Section 9A(1) creates interim attachment by giving the court power, subject to sections 9B to 9E, to grant a warrant which will authorise the attachment of corporeal moveable property (owned either solely by the debtor or in common with a third party) on the dependence of a court action.
516.Subsection (2) provides that a warrant for interim attachment is competent only where the court action on the dependence of which it is sought contains a conclusion for payment of a sum of money other than expenses.
517.Subsection (3) has the effect of allowing interim attachment on the dependence of petitions in the Court of Session.
518.Subsection (4) makes it clear that interim attachment is available in all sheriff court actions and also sets out definitions of “court”, “creditor” and “debtor” for this Part of the 2002 Act. It also provides that expressions used in Part 1A of the 2002 Act which are also used in Part 2 of that Act have the same meanings in Part 1A as those expressions have in Part 2, unless the context otherwise requires. As an example, in Part 1A the “officer” means “the judicial officer appointed by the creditor” by virtue of section 45 in Part 2 of the 2002 Act (as amended by paragraph 30(13) of schedule 5 to this Act).
519.Section 9B provides that interim attachment may not be used to attach the following assets—
those inside the debtor’s home;
those which are exempt under section 11 of the 2002 Act, namely—
equipment which the debtor reasonably requires for a profession, trade or business provided it doesn’t exceed £1,000 in aggregate value (or any other sum prescribed in regulations);
any vehicle reasonably required by the debtor which is not worth more than £1,000 (or any other sum prescribed in regulations);
a mobile home which is the debtor’s only or principal residence;
any equipment reasonably required for maintenance of a garden or yard beside or associated with the debtor’s home; and
by virtue of the amendment of section 11 by schedules 4 and 5 to this Act, cargo onboard ships and money (as defined in section 175 of this Act);
a mobile home which is the only or main residence of a person other than the debtor;
those which are perishable or with potential to deteriorate quickly and to a great extent in condition or value; and
material for a manufacturing process or goods to be sold as a normal part of a debtor’s stock in trade.
520.Section 9C(1) provides that, at any time before a final decision has been taken in a court action, the creditor may apply for warrant for interim attachment. This section should be read with section 9G, which makes it clear that warrant for interim attachment can be applied for, granted and executed before service of the summons in the action.
521.Subsection (2) requires the application for the warrant: (a) to be in the form, or nearly as may be in the form, specified in rules in court; (b) to be intimated to the debtor and any other interested party; (c) to state where an immediate warrant is being sought before a hearing on the application; and (d) to include any other information which the Scottish Ministers require such applications to contain. That power is exercisable by regulations which (by virtue of section 62 of the 2002 Act) are subject to negative resolution procedure.
522.Subsection (3) provides that, where an immediate warrant is sought before a hearing of the application under section 9E, the application for warrant for interim attachment need not be intimated.
523.Subject to section 9D, which enables the court to grant warrant without an initial hearing, subsection (4) requires the court to fix a date for a hearing on the application and to order the creditor to intimate that date to the debtor and any other person the court thinks has an interest.
524.Subsections (1) and (2) of section 9D give the court power to grant a warrant for interim attachment without an initial hearing on the application provided it is satisfied that—
the creditor has a prima facie case on the merits of the court action;
there would be a real and substantial risk of the debtor frustrating enforcement of a decree found in favour of the creditor by being or becoming insolvent, or putting the debtor’s assets beyond the reach of the creditor, if warrant for interim attachment were not granted in advance of such a hearing; and
it is reasonable in all the circumstances, including the effect granting warrant may have on any person having an interest, to grant the warrant.
525.Subsection (3) puts the onus of satisfying the court of the case for granting warrant in advance of a hearing on the creditor.
526.Subsection (4) requires the court, on making an order granting warrant for interim attachment without a hearing on the application, to fix a date for a hearing under section 9M (recall of interim attachment) and to require the creditor to intimate that date to the debtor and any other interested party.
527.Where such a hearing has been fixed under subsection (4)(a), subsection (5) applies section 9M as if the debtor or a person having an interest had applied to the court for an order under that section.
528.In applying section 9M, this means that at the hearing the court must consider the validity of the warrant and any interim attachment executed under it. The effect of section 9M(10) is to place the onus on the creditor to satisfy the court that a recall or restriction order should not be made.
529.Where the court is satisfied the warrant is invalid it is under a duty to make an order recalling the warrant or any interim attachment which has been executed under it (the court can also make an ancillary order) (section 9M(5)).
530.Subsection (6) provides that where the court decides that a warrant should not be granted without a hearing and the creditor insists on pursuing the application, the court is obliged to fix a date for a hearing on the application under section 9E and to require the creditor to intimate that date to the debtor and any other interested party.
531.Section 9E sets out the procedure to be followed at a hearing on an application for warrant for interim attachment. Such a hearing on an application takes place in respect of applications where the creditor either doesn’t apply for a warrant to be granted in advance of a hearing or where the court refuses to make an order granting a warrant without a hearing.
532.Subsection (1) places a duty on the court, at the hearing, to give any person who received intimation of the hearing date (namely the debtor and any person appearing to the court to have an interest) the chance to make representations before the court makes a decision on the application.
533.Under subsections (2) and (3) the court may grant the warrant if it is satisfied as to the same matters which it is obliged to consider under section 9D(2), namely that—
the creditor has a prima facie case on the merits of the court action;
there would be a real and substantial risk of the debtor frustrating enforcement of a decree found in favour of the creditor by being or becoming insolvent, or putting the debtor’s assets beyond the reach of the creditor if warrant for interim attachment were not granted; and
it is reasonable in all the circumstances, including the effect granting warrant may have on any person having an interest, to grant the warrant.
534.Subsection (4) puts the onus of satisfying the court that it should grant warrant on the creditor.
535.Subsection (5) provides for intimation of the court’s decision to the debtor and any other person it thinks has an interest.
536.Subsection (6) provides that in refusing the warrant the court may impose such conditions as it thinks fit. Subsection (7) gives examples of particular conditions which the court might impose. This is similar to section 15F(6) of the 1987 Act (inserted by section 169 of this Act) – see paragraph 480480 above.
537.Section 9F(1) applies sections 12, 13, 15 and 17 (subject to modifications and not section 17(3)(b) and (4)) of the 2002 Act to the execution of interim attachment. Section 12 states on which days, and during which times, it is not competent to execute an attachment. Section 13 allows a judicial officer, when executing an attachment, to assume that articles are owned by the debtor, although the officer is required to enquire as to ownership when attaching articles. Section 15 allows an officer executing an attachment to open shut and lockfast places and requires the officer to value articles attached (or arrange for their valuation). Section 17 requires the officer to make a report of the attachment to the court.
538.Subsection (2) requires the judicial officer, immediately after executing an interim attachment, to serve a schedule of interim attachment on the debtor. Subsection (3) makes further provision in relation to the schedule which should be in accordance with the form prescribed in court rules, should be signed by the officer and should specify the attached articles and their value so far as ascertainable. By virtue of subsection (4), the judicial officer is obliged to provide the debtor with a copy of the schedule of interim attachment or, where that is not practicable, to give a copy of it to a person who is present at the location of the interim attachment. Alternatively, where there is no such person, the officer must leave a copy of the schedule at that location.
539.Subsection (5) makes it clear that references elsewhere in Part 1A of the 2002 Act to the day on which an interim attachment is executed are references to the day on which the schedule of interim attachment is given to the debtor, to a person present or left at the premises where the interim attachment was executed by a judicial officer.
540.Section 9G applies where an interim attachment is executed before the summons in the action is served on the debtor. By virtue of section 9A(3) and (4), “summons” (which is the initiating document in the Court of Session) is construed here as meaning also a petition (in the Court of Session) and, in the sheriff court, an initial writ (in an ordinary action and in a summary application) and a summons (in a summary cause and in a small claim).
541.Subsection (2) provides that, where the summons is not served on the debtor within 21 days of the execution of the interim attachment, the attachment ceases to have effect. This is subject to the power of the court to extend the period within which the summons needs to be served of the attachment is not to fall.
542.Subsections (3) and (4) deal with this and provide that the court may, on the application of the creditor, extend the period having regard to the efforts of the creditor to serve the summons within 21 days and any special circumstances preventing or obstructing service within that period.
543.Section 9H provides the court with power, on the application of the creditor, the judicial officer or the debtor, to make an order for the safe keeping of articles subject to an interim attachment. The court can, under this section, order attached goods to be moved if they are at risk of damage, for example, by flooding. This section is the equivalent, for interim attachment, of section 20 of the 2002 Act.
544.Section 9J applies the provisions of section 21 (except subsections (3) and (15)) of the 2002 Act (what constitutes an unlawful act after an attachment has been executed) to interim attachment, with relevant modifications.
545.Section 21 prohibits the removal, sale, gifting or other disposal of attached articles and their wilful destruction or damage. To do so is in breach of the attachment and may be dealt with as a contempt of court. Contempt of court is punishable by any of, or a combination of, admonition, fine and, in extreme cases, imprisonment or detention. Section 21(7) requires the debtor to give notification to the creditor and the officer if an attached article is stolen and of any insurance claim which the debtor intends to make. Section 21(10) provides that, where attached articles have been damaged, destroyed or stolen, the court may order that others be attached. Damaged articles may, on the authority of the court, be revalued. Section 21(11) to (14) makes provision for a sum of money to be consigned into court in circumstances where an article is made unavailable (by being moved, damaged, lost, stolen or sold) by the debtor or any third party who knows the article is attached.
546.Section 9K(1) provides that the court may make an order releasing an article from an interim attachment where it is satisfied a third party owns the article.
547.Subsection (2) gives the court similar power to release an article from an interim attachment where the court is satisfied that a third party owns the article in common with the debtor and that the continued attachment of the article in question would be unduly harsh to the third party.
548.Subsection (3) applies section 34(2) of the 2002 Act where a third party claims sole ownership of the article as it applies where a third party makes an application for the purposes of section 34(1)(b)(ii). This has the effect of preserving a third party’s rights so that that the third party is not precluded from taking any other proceedings for the recovery of the article.
549.Subsection (4) provides that, where the interim attachment of an article ceases to have effect under subsection (1) or (2), the judicial officer may attach other articles which are owned by the debtor and kept at the place at which the original interim attachment was executed.
550.Section 9L(1) provides that an interim attachment, unless recalled, will continue to have effect—
for a period of 6 months after the conclusion of the action on the dependence of which interim attachment was executed provided—
the creditor obtains a final interlocutor for payment of all or part of a principal sum concluded for;
the creditor obtains a final interlocutor in the creditor’s favour in respect of another remedy concluded for in that action such as an action for delivery; or
where the final interlocutor is of absolvitor or dismissal, the court grants a decree in relation to expenses under section 9Q(1)(b);
until the court grants decree of absolvitor in favour of the debtor or dismisses the action and no decree for expenses under section 9Q(1)(b) is granted; or
when, by virtue of section 9L(3), the creditor agrees to the interim attachment ceasing to be in force in relation to every attached item.
551.Subsection (2) provides that an interim attachment ceases to have effect if an attached item is attached by the creditor in execution of the final interlocutor or decree mentioned in subsection (1)(a).
552.Subsection (3) provides that the creditor may at any time agree in writing to the interim attachment ceasing to have effect in relation to a specific attached item. The attachment ceases when the court is so notified.
553.Subsection (4) provides that the court may, on application by the creditor, extend the time an interim attachment continues to have effect after final interlocutor in the creditor’s favour, but only if the application is made before the 6-month period expires and the court is satisfied that exceptional circumstances make it reasonable to grant the application.
554.Subsection (5) provides that an application by a creditor under subsection (4) for an extension to the 6-month period must be in the form prescribed in rules of court and must be intimated by the creditor to the debtor and any other interested parties. The creditor must also intimate the court’s decision on the application to the same parties (see subsection (6)).
555.Where an application is made under subsection (4) but not determined before the expiry of the 6-month period, subsection (7) has the effect of extending that period until the application is disposed of.
556.Subsection (8) makes it clear that the calculation of the 6-month period under subsection (1)(a) should not include any period during which a time to pay direction, interim order or time to pay order under the 1987 Act is in existence.
557.Subsection (9) defines, for the purposes of subsection (1), what a “final interlocutor” is and when an action is “disposed of”.
558.Where warrant for interim attachment has been granted, the debtor or any other person having an interest can apply to the court for any order set out in section 9M(2). Those orders are an order recalling or restricting the warrant granted, if the warrant has been executed, an order recalling or restricting any interim attachment so executed, an order determining any question as to the validity, effect or operation of the warrant or an order ancillary to any other order sought.
Bankruptcy and Diligence etc (Scotland) Act 2007