The onus is on the creditor throughout the process to satisfy the court that the warrant should be granted. If the court decides that a hearing is required the warrant may still be granted at that hearing. A certified copy of the interlocutor granting the warrant is authority to officers of court to execute the diligence.
Diligence on the Dependence Before Service
Where diligence on the dependence has been used before service of the writ or summons, that writ or summons must be served within 21 days or the diligence on the dependence falls. This brings uniformity to the time for service to the various types of civil court action
Arrestment on the Dependence - Sum Attached
Practice varied between firms of officers as to how much was arrested for in an arrestment on the dependence. Account was taken of a future award of expenses and interest that would accrue. There was no statutory test and it is understood firms added around 10% to 20% to arrive at a figure for arrest. The new section 15H of the Debtors (Scotland) Act 1987 now provides that when the court grants warrant to arrest it can set a sum to be arrested. Parameters are provided for calculating a maximum sum to be arrested and AMA will be using that formula to calculate the sum, unless otherwise instructed. The sum is calculated as follows
- Sum sued for
- 20%of that sum
- a sum equal to one years interest
- any other sum specified by Ministers (Ministers have not yet added any sums to be added in to the calculation but have reserved the right to do so.)
This provision should bring uniformity to calculations of sums to be attached and clarity of the position for both creditors and debtors.
Statutory Recall - Should we mention it.
A new statutory procedure has been brought into force to allow application for recall or restriction of arrestment on the dependence. Recall or restriction cannot be awarded without the creditor having an opportunity to be heard at a Hearing. The onus remains on the creditor at such a hearing to justify the diligence on the dependence remaining in force.
Expenses of Diligence on the Dependence
There was always an elemewnt of dubiety as to whether expenses of diligence on the dependence could be recovered from debtors. This was clearly a discouragement for creditors. The situation is clarified by the 2007 Act in that expenses of diligence on the dependence are now recoverable from the debtor.