What is Summary Diligence? It is a process that can only be used to enforce certain types of debts. It cannot be used to enforce debts like credit cards, bank loans or hire-purchase agreements, as these are regulated by the Consumer Credit Act 1974 (see s93A). It is the process that allows creditors to use diligence (legal debt recovery) that is summary, not the diligence itself.
For example, the types of debts that summary diligence can be used for is credit union loans, maintenance orders and guarantees provided to landlords (for both business leases and personal tenancies).
Summary diligence can only be executed by a Sheriff Officer or a Messenger at Arms.
Summary diligence is a special procedure that allows a debt to be registered for preservation and execution with the courts. It can be registered either with the Sheriff court or the Court of Session, in either the Sheriff Court Books or the Books of Council and Session.
The debtor must expressly consent to the process being used and they do this when they sign the agreement that creates the obligation, by stating they agree to the agreement being registered for “preservation and execution”.
What then happens is if the debtor defaults on the agreement, the creditor is then allowed to extract from the Sheriff Court Books or the Books of Council and Session the warrant that allows them to execute the debt.
How does a creditor execute a debt using Summary Diligence?
The legislation that governs the process of Summary Diligence is known as the Writs (Scotland) Act 1877. It allows them to extract the warrant that is registered, without having to go to court and to execute diligence against the debtor, as if they had been to court.
This could mean
- Serving a Charge for Payment
- Executing a bank arrestment;
- Executing a wage arrestment;
- Carrying out an attachment;
- Registering an inhibition; or
- Executing a Current Maintenance Arrestment
It is important to note that the process for executing these types of diligence is the same as it is for any other debt. Summary diligence does not change that.
If a charge for payment is served and expires the debtor will become apparently insolvent and the creditor may try and sequestrate them where they are owed more than £3,000.
It is may possible to interdict the creditor from using diligence where the Summary Diligence procedure is used, but legal advice should be sought immediately.
Writs (Scotland) Act 1877
The warrant inserted in an extract of a document registered in the Books of Council and Session or in sheriff court books which contains an obligation to pay a sum of money shall have the effect of authorising—
(a) in relation to an ordinary debt within the meaning of the Debtors (Scotland) Act 1987, the charging of the debtor to pay to the creditor within the period specified in the charge the sum specified in the extract and any interest accrued on the sum and, in the event of failure to make such payment within that period, the execution of an earnings arrestment…a money attachment and the attachment] of articles belonging to the debtor and, if necessary for the purpose of executing the … money attachment or attachment, the opening of shut and lockfast places;
(b) in relation to an ordinary debt within the meaning of the Debtors (Scotland) Act 1987, an arrestment other than an arrestment of the debtor’s earnings in the hands of his employer; and
(ba) in relation to an ordinary debt within the meaning of the Debtors (Scotland) Act 1987, inhibition against the debtor;
(c) if the document is a maintenance order within the meaning of the Debtors (Scotland) Act 1987, a current maintenance arrestment in accordance with Part III of that Act.