Arrestees Duty Of Disclosure
Previously there was no legal obligation on arrestees to disclose the results of arrestments although in practice many did. On the other hand some took the stance that in the absence of any legal obligation they would not disclose the results of arrestment. This often led to dubiety as to the success or otherwise of an arrestment. The 2007 Act imposes an obligation on arrestees to make that disclosure and a statutory form has been provided for that purpose. A strict reading of the Act would suggest that this duty only applies where funds have been attached. We will have to see how strictly banks interpret this section as it is also useful to know when arrestments have been unsuccessful. It will however bring clarity to cases where funds have been attached. A procedure has been put in place to make an application to the court where disclosure is not made. We anticipate most arrestees will comply with the legislation and do not see this procedure being used often if at all.
What made arrestment a burdensome procedure was that once funds were attached, creditors often had to raise a separate court action, an Action of Furthcoming by which the court authorised the arrestee to release finds to the creditor. The more informal method of release by signed mandate is covered below. Actions of furthcoming will still be required where moveable goods are arrested. If funds are attached then the arrestee is authorised to release the funds to the creditor 14 weeks after the date of arrestment. There are two situations which prevent automatic release. The first is an application for release of property where the arrestment is unduly harsh which we will touch on further below. The other is where the debtor, arrestee or third party lodges a notice of objection with the court. There is a statutory form of this notice which has to be lodged within 4 weeks of the arrestment. The grounds for objection are restricted to the warrant being invalid, the execution of arrestment being incompetent or irregular or the funds belong to a third party. We do not anticipate there being grounds for objection in the vast majority of arrestments. Where an objection is lodged a hearing is fixed within 8 weeks of the objection being lodged. At the hearing the sheriff may recall or restrict the arrestment if he upholds the objection. If he does not uphold the objection he can make an order authorising release of the arrested funds.
Automatic Release - Arrestment on the Dependence
Automatic release works slightly different for Arrestments on the dependence. Creditors must intimate the award of a final decree as soon as reasonably practicable to the arrestee. The arrestee releases the funds within 14 days of that intimation unless there is a Notice of Objection. This form cannot be served by an officer of court but is served either by the creditor or their solicitor.
We mentioned the problem of the requirement to raise Furthcomings above. Creditors often got round that requirement by having the debtors signing a mandate authorising release of the funds. For practical reasons arrestees acted on these mandates. The 2007 Act has put the use of mandates on a statutory footing and are now formally a part of the process. A form of mandate has been provided which can be found in The Diligence (Scotland) Regulations 2009
Unduly Harsh Arrestments
As mentioned above it was not considered practical to exclude specific types of funds like benefits from arrestment. Again as stated the protected limit will in most cases offer protection to many payments that go into bank accounts. The Act however has attempted to give options to debtors who consider that an arrestment has been unduly harsh to make an application to the court to release property from arrestment. No definition is given in the Act as to what constitutes unduly harsh. What the sheriff has to take account of is what is the source of the funds and if they are earnings whether an earnings arrestment is already in place. As with a notice of objection, if the sheriff considers the arrestment is unduly harsh he can order recall or restriction of the arrestment. Alternatively he can order release of the funds to the creditor.