Diligence
The Government is working to modernise the way in which civil obligations, especially debt, are enforced in Scotland. The aim is to make the system work more effectively and to strike a proportionate balance between the interests of debtors and creditors.
The Debt Arrangement and Attachment (Scotland) Act 2002 came into force on 30 December 2002 and introduced:.
- an alternative procedure to that of poinding and warrant sale, namely attachment and exceptional attachment orders
- a debt advice and information package for creditors to supply to debtors
- the framework for the debt arrangement scheme.
The debt arrangement scheme, accessed through the MoneyScotland web site, was introduced on 30 November 2004 and provides help in setting up a managed environment to repay multiple debts over time, free from the threat of enforcement action or bankruptcy.
The The Bankruptcy and Diligence etc (Scotland) Act 2007 which received Royal Assent on 15 January 2007, will modernise areas of the law of diligence (enforcement of civil obligations) to make the enforcement system more user friendly, transparent, effective for creditors and protective of debtors. It will make major changes to enforcement law, including changes to the Debt Arrangement Scheme
What is diligence about?
In the course of our lives, we all make a range of contractual, legal and financial relationships. These can be with, for example, other people, businesses or public authorities and frequently involve formal obligations. Mostly, these relationships work and obligations are met.
But, if a legal recognised obligation is not met, there must be effective and appropriate ways of enforcing it. For example, most likely the obligation is a debt and that debt is enforced by obtaining a court order for payment. Having the means to enforce such civil obligations is an essential part of any civil justice system and that is the role of the law of diligence.
Diligence varies depending on the type of asset the debtor has. Examples are the attachment of a motor vehicle or an arrestment of money in a bank account.
Diligence must be carried out by a qualified officer of court (messenger-at-arms or sheriff officer).
If you are in debt, any creditor wanting to use the diligence of attachment must first provide you with a copy of this booklet and the leaflet for the area where you live. Section 10 of theDebt Arrangement and Attachment (Scotland) Act 2002 introduced this requirement. It will be extended by the 2007 Act to almost all other diligences.