We will only consider proceeding to start a court action (litigation), where the customer has failed to contact us or failed to maintain an agreed repayment plan. By starting a court action, the customer will immediately incur court costs which will be added to debt. We will only charge additional fees, which are lawfully chargeable in accordance with the Scottish Courts’ recognised charging structure, and statutory controlled Sheriff Officer enforcement fees.
Overview of Litigation and Enforcement Process
Litigation: The starting point of a court action is the service of Claim Form or Writ. This is known as Citation, being the legal process for notifying a person of legal proceedings against them. In Scotland, citation can be done by:
- Registered letter (first class recorded delivery) sent by the Court, Lawyer or Sheriff Officer
- Hand service by Sheriff Officer
For claims up to and including £5,000, the Scottish Simple Procedure will be used. The goal of the simple procedure is to provide a speedy, inexpensive and informal way to resolve disputes. It is designed to be less complex and more accessible than other court procedures.
Parties can represent themselves or be represented by a solicitor or other qualified legal professional. The respondent has specified period of time to respond to the claim by submitting a Response Form. If the claim is disputed, the Sheriff will manage the case and may issue orders, hold hearings, and make decisions. It is also possible to ask for “time to pay”, which means the judgment cannot be enforced as long as regular payments are being made.
After having considered all relevant facts, the Sheriff will issue his Decision (decree) which can be appealed to the Sheriff Appeal Court. This will include an award of court expenses, which can then be recovered by enforcing the Decision. This process is known as Diligence.
Diligence: This is the legal process for enforcing the court order, decree or decision, to recover a debt. Examples of diligence include:
- A charge for payment – A formal command to pay, hand served by a Sheriff Officer. This must be served prior to lodging an earnings arrestment.
- Arrestment in execution – This is the freezing of a person’s assets held by a third party (most commonly a bank) subject to a protected minimum sum.
- Earnings arrestment – This enables a creditor to take a portion of a person’s earnings directly from their employer to pay a debt. The deduction is based on a sliding scale, based on the level of earnings.
- Inhibition – This prevents a person from selling / transferring heritable property (land and buildings), or using their property to secure further borrowing, including re-mortgaging, while the inhibition remains in force.