Getting Started:
After having obtained your Small Claims Action the Court will send you an Extract
Decree for Payment. This document authorizes a Sheriff Officer to enforce the
Court Order and the original document must be sent to the Sheriff Officer when
requesting enforcement.
Time to pay Direction:
Where the Court has granted a Time to Pay Direction (payment by instalments or
deferred lump sum) the Terms or the Direction will be included in the Decree.
The Court Order cannot be enforced until the Direction lapses. The date on which
the Direction starts is when a copy of the Decree is intimated or delivered to
the Defender. A Sheriff Officer can intimate a copy of the Decree for the Defender.
Once the Direction has a start date you have to monitor the payments to calculate
if or when it lapses.
If paymen is by instalments, the Direction will lapse if an aggregate of two instalments
is outstanding when the next one becomes due, or if payment is in one lump sum
it will lapse 24 hours after the due date if any part of the balance is unpaid.
When the Direction lapses you are able to enforce recovery of the full balance
remaining.
NB. A Sheriff Officer will be unable to enforce the Decree unless there is evidence
that the Time to Pay Direction has been intimated and that it has subsequently
lapsed through miss payment.
Time to pay Order:
Where a Time to Pay Direction was not applied for before Decree, a debtor may
apply for a Time to Pay Order after Decree has been granted. The Order is effectively
the same as a Direction, insofar as payment can be made by instalments or in one
lump sum. Any enforcement of the Decree is suspended until the Court deals with
the debtors application.
As a Time to Pay Direction, you will be given the opportunity to consider the
offer and object to it if necessary. The Court’s decision is final and the
Sheriff Clerk intimates the decision to you and the debtor.
As with a Direction, it is important to monitor payment dates and amounts to establish
when the Order will lapse. The date of intimation is the date it is notified by
the Sheriff Clerk.
What do I send to the Sheriff Officer?
When instructing a Sheriff Officer to enforce a Decree, you need to send the Principal
or original Decree and an accompanying letter of instruction clearly stating what
action you require to be taken. The Officer will normally request that the fee
be paid in advance and we recommend that you contact the Officer in advance to
establish the fee. Service by a Sheriff Officer attracts VAT and this can be recovered
from the debtor if you are not VAT registered. Please remember to advise the Sheriff
Officer if you are not VAT registered.
What methods of recovery are available to me?
The Extract Decree authorizes a Sheriff Officer to enforce your Decree by:
(a) Arrestment (of money or moveable property)
(b) Charge
(c) Earnings Arrestment
(d) Attachment and Sale
(e) Inhibition
(a) Arrestment:
This method of enforcement would be appropriate if it was known that the debtor
has funds/monies due to him under the control of a third party. The most common
example of this is money in a bank account. An Arrestment is served upon the
third party or Arrestee, in this occasion a bank. If the debtor has funds in
his bank account, these funds are arrested. Following the Arrestment we would
recommend that you make contact with the Arrestee to establish the effect of
the arrestment.
(b) Charge:
This is a written, formal demand to the debtor to pay the full outstanding balance
to you within fourteen days, with a warning that further enforcement will follow
after that period. The charge itself does not enforce the Court Order but is
useful in several aspects. It is served in person by a Sheriff Officer attending
the debtors home or place of business, allowing the Officer to give a report
on the likely recovery prospects and to legitimately gather information about
the debtors circumstances. In legal terms it is essential that a Charge is served
before an Earnings Arrestment or Attachment is carried out although it is not
needed for an Arrestment to be served.
(c) Earnings Arrestment:
Following service of the Charge and after 14 days have elapsed, an Earnings
Arrestment can be served on the debtors employer to remit a percentage of the
debtors earnings to you on every pay day. This is a one off service and remains
in effect until the debt is paid or the debtor leaves that employer. It should
be noted that there must be an employer / employee relationship and it is not
possible to effect an Earnings Arrestment if the debtor is treated as a contractor
or is on a self employed basis.
(d) Attachment and Sale:
Another method of enforcing recovery is to consider making an inventory of property
belonging to the debtor with a view to selling it at auction. The inventory
of ‘moveable’ property belonging to the debtor is called Attachment
and can only be carried out after a Charge has been served and the 14 day period
has expired. In the first instance, Attachment can only be carried out in relation
to articles outside a persons ‘dwelling house’ – the place where
that person normally resides. This may mean articles physically not in the house
or, in relation to a debtor who has a place of business, a workshop or office
for example. Where the Officer has carried out an Attachment, the fee is based
on the total value of the items included in the Attachment. A report of the
Attachment is then made to the appropriate Sheriff Court. Where it has not been
possible to attach goods out with the dwelling place and it is thought that
there are goods available within the residence, then it is possible in certain
circumstances to apply for an ‘Exceptional Attachment Order’.
(e) Inhibition:
This has the effect of inhibiting a person to dispose of his house(s). No Charge
for Payment of Debt is required to be served as a precursor.
How long will it take and how much will it cost?
The length of the enforcement process depends on the method of recovery, the
financial circumstances / assets of the debtors willingness to make settlement.
In addition there are various time limits involved and the process may take
weeks or months to conclude.
At each stage of the enforcement process the Sheriff Officer will provide a
report and a certificate (execution) of service and keep you appraised of the
up to date position. As stated earlier, all Sheriff Officers charges the same
fees as laid down by statute. A fee is payable at each stage of the enforcement
process, is chargeable to the debtor and is recovered out of the successful
enforcement.
The circumstances of the procedure is all too long to be included in this note,
but the Sheriff Officer or Sheriff Clerk will be able to provide you with advice
on this process. Following diligence the debtor may wish to pay by instalments.
An arrangement can be accepted without prejudicing your right to proceed with
further diligence.
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