Obtaining a Simple Procedure Decision is not a guarantee in itself that you will necessarily be successful in recovering the money you are owed. This depends on the circumstances of the respondent and what assets they have and what is known about their financial circumstances. The costs of engaging a sheriff officer is something you are liable to pay although where the enforcement step taken is successful those costs are added to the debt owed.
You have won your simple procedure claim for payment and the court has sent you a decision form. What happens next?
First of all you have to wait 28 days from the date sent on the decision before taking any steps to enforce it.
Does the decision specify that the respondent is to make payment by weekly or monthly instalments, or after a fixed period? (called a time to pay direction)
You have to allow the respondent to make payment in terms of the direction.
To get this started a copy of the decision must be sent to the respondent. You can do this by recorded delivery --include a letter telling the respondent where and how payment should be made. Keep the recorded delivery receipt as it will be needed later.
If postal service proves to be a problem, a sheriff officer can deliver a copy in person for you.
The period for making the (first) payment will be stated in the decision. The period will only commence when you send a copy of the decision to the respondent so you should send it as soon as possible. The date when the first payment is due will be stated in the decision.
Keep a record of the date and amount of each payment received by you.
You can send a letter to the respondent advising that a decision has been obtained and that payment should be sent to you immediately or you could send the decree to a sheriff officer to enforce it.
You can still take payment in a form acceptable to you. If you agree to instalments, treat it as a time to pay direction and follow the guidance outlined above.
No payment is received or a payment plan has lapsed.
If payment is not received within the time allowed by you or an instalment plan lapses, you can send the decree to a sheriff officer for enforcement. If the instalment plan was a formal time to pay direction set out in the decision you will need to include details of dates and amounts paid and the recorded delivery slip showing when the decree was posted and proof of deliveryin your letter to the sheriff officer.
Lapse. The technical bit...where payment is by instalments, the direction will lapse if an aggregate of two instalments is outstanding when the next one becomes due, or if payment was to be made in one lump sum it will lapse 24 hours after the due date if any part of the balance is unpaid. The sheriff officer cannot enforce the court order unless the instalment plan has lapsed.
Send the decision to a sheriff officer. It is this document that authorises a sheriff officer to enforce the court’s order. Include in your letter an instruction stating what action you require to be taken. See the section headed “what methods are available” below.
As the person pursuing enforcement, you will be liable for the fees of the action taken by the sheriff officer and you should be aware that, as with any other sums due by the debtor, no guarantee can be made that full recovery will be made.
All sheriff officers charge the same fees, and will normally request payment in advance. We recommend that you contact the officer in advance to establish the fee. Let the sheriff officer know if you are VAT registered.
You can obtain details of local sheriff officers from the sheriff court. Try to pick one in the area where the debtor is located. You can also obtain a list of sheriff officers with their contact details from the Society of Messengers-at-Arms and Sheriff Officers website www.smaso.org.uk Sheriff officers are all members of the Society and are all bound by a strict code of conduct, thus ensuring that you will receive a professional and reliable service.
This depends on what you know about the respondent’s financial circumstances. Include as much information as you can about the respondent, such as where he works, his bank details, the details of his car or other assets. It is your decision as to how to proceed but you may wish to discuss the best option with the sheriff officer.
The options are:
(b) Arrestment (of money or moveable property)
(d) Earnings arrestment
(e) Attachment and auction
(a) Charge: This is a formal demand to the debtor to pay the full outstanding balance to you in fourteen days, with a warning that further enforcement will follow after that period. The charge in itself does not enforce the court order but is useful in several aspects. It is served in person by a sheriff officer attending the respondent’s home or place of business, allowing the officer to give a report on the likely recovery prospects and to gather information about the debtor’s circumstances.
In legal terms it is essential that a charge is served before other enforcement (except arrestment and inhibition) can follow.
(b) Arrestment: This method of enforcement would be appropriate if it was known that the respondent had property belonging 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” which has the effect of "freezing" whatever is lawfully available at the date and time the arrestment is served. Following the arrestment the arrestee has 3 weeks in which to tell you the precise amount that has been arrested. This sum would be paid to you 14 weeks after the date of service. Where the arrestment is for an individual and is served on a financial institution such as a bank there is a protected minimum balance which is exempt from the arrestment, this is currently £529.90 although is regularly reviewed. The application of the arrestment is outwith the officer’s control and relies on the arrestee.
(c) Inhibition. This process is useful if the respondent is known to be trying to sell a house or land (known as heritable property) or is attempting to obtain a secured loan on his house. An inhibition is served on the respondent and is registered with the land registers in Edinburgh. The inhibition will prevent the respondent completing his transaction until you release the order upon full payment of your debt. The inhibition stays in force for five years once it has been served.
(d) Earnings arrestment: An earnings arrestment can be served on the respondent's employer (where that information is known) which requires the employer to remit a percentage of the respondent's earnings to you on every pay day. The earnings arrestment remains in effect until the debt is paid or the respondent leaves that employment. It should be noted that there must be an employer/employee relationship and it is not possible to arrest wages if the respondent is treated as a contractor or is self-employed.
(e) Attachment and auction: This method of enforcing recovery is the making of an inventory of property belonging to the respondent with a view to selling it at auction. In the first instance, attachment can only be carried out in relation to articles outside a person's "dwellingplace".
Where it has not been possible to attach goods outwith a dwellingplace and it is thought that there are goods belonging to him within the residence, then it is possible in certain circumstances to apply for an "'exceptional attachment order". The circumstances of the procedure are too lengthy to be included in this note, but the sheriff officer or sheriff clerk will be able to provide you with procedural advice on making an application.
Following an attachment the respondent may wish to pay by instalments. An arrangement can be accepted without prejudicing your right to proceed to auction. However, if payment is going to take longer than six months you may have to ask the court to extend the duration of the attachment.
If the debt remains unpaid, the officer will proceed to arrange for the uplift of the attached articles for sale by public auction at an auction room.
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 respondent and the respondent's 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 (known as an execution) of service and keep you appraised of the up to date position.