KNOWLEDGE

Debt Recovery: What action can creditors take now that lockdown restrictions are easing?

MortonFraser_Jen Andrew
Author
Jennifer Andrew
Associate
PUBLISHED:
04 June 2020
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With sheriff officers and the courts restricting their operations at the start of the Covid-19 outbreak creditors were effectively unable to take action to recover debts except in urgent cases which were few and far between. 

Now that lockdown restrictions are easing, sheriff officers and the Sheriff courts have issued guidance (following the Scottish Government route map for exiting lockdown) that sets out what services will re-open in each phase. An overview of the services available in each phase in so far as they relate to debt and asset recovery is set out in the table below.

Phase 1: What can creditors do right now?

Court actions

If a court action was lodged prior to or during lockdown, the court will now process this which will allow service of the action on the debtor and for the action to progress. The courts will also resume issuing decrees (court judgments), which will allow creditors to take payment enforcement action.

New court actions will not be processed until phase 2 which will take effect no earlier than 15 June 2020. Creditors may wish to seek advice now so that they're in a position to raise court action when we move to step 2, if required.

Payment enforcement

If a creditor already has a court decree (judgment) for payment or a registered document of debt suitable for summary diligence, they can now take the following payment enforcement action:

  • Charge for payment at business & commercial premises only: this gives the debtor 14 days to make payment which failing a creditor can take further payment enforcement action. During phase 1 a charge can only be served at business and commercial premises so is not an option where a debtor only has a residential address.
  • Arrestment: served on the debtor's bank and freezes funds in their account up to the sum due to be paid (if the debtor is an individual, only funds above £529.90 are frozen).
  • Inhibition: served on the debtor and once registered should prevent them from selling or re-financing any property they own in Scotland without first obtaining the creditor's consent which tends to be provided in exchange for payment of the debt. 

If a charge for payment was served on a debtor prior to lockdown measures being introduced, expired without payment, and is still valid then a creditor can proceed with the following:

  • Earnings arrestment: served on a debtor's employer and requires the employer to make a deduction to the debtor's pay and pay this directly to the creditor.

What next?

It is promising that the courts and sheriff officers are taking steps towards returning to normal business. Whilst it's not clear when we will be able to progress to phase 2, the current options available should allow creditors to make progress in recovering sums due to them as it is often the case that service of a court action or payment enforcement action prompts a response from debtors and facilitates repayment or a repayment arrangement being agreed.

If you would like specific advice on your options for recovering debts then please do get in touch and we will be happy to assist.

Overview: Resumption of Sheriff court and sheriff officer services

Phase

Sheriff Courts

Sheriff Officers

 

1

 

Now

  • The court will work through the court actions and other documents lodged with the court  during lockdown
  • New urgent business will be progressed

Service of the following will resume:

  • Simple procedure claim forms, initial writs & summonses
  • Arrestments, inhibitions and earnings arrestments
  • Charges for payment at business and commercial premises

 

2

 

No earlier than 15 June 2020

  • Non-urgent court actions will be processed other than those for payment of £5,000 or less, or for removing occupiers from land or buildings
  • Existing court actions that were not progressed during lockdown will be progressed
  • Hearings where witness evidence is needed are unlikely to take place but other hearings will take place remotely

In addition to the above, service of the following will resume:

  • Statutory demands
  • Charges for payment at residential addresses
  • Charges for Removing and Notices of Removal in respect of evictions
  • Attachments and ejections at business and commercial premises

 

3

 

No earlier than 30 July 2020

 

  • New court actions for payment of £5,000  or less can be lodged electronically
  • Actions for recovery of heritable property (land or buildings) will be progressed

In addition to the phase 1 and 2 services, the following services will resume:

  • Attachments, money attachments, ejections and exceptional attachment orders

 

4

No specific services are mentioned in the guidance note but we expect that all services will be provided.

All services will resume and will operate in line with public health advice

 

 

 

Disclaimer

The content of this webpage is for information only and is not intended to be construed as legal advice and should not be treated as a substitute for specific advice. Morton Fraser LLP accepts no responsibility for the content of any third party website to which this webpage refers.  Morton Fraser LLP is authorised and regulated by the Financial Conduct Authority.