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Enforcing an order following Simple Procedure

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  • Enforcing an order following Simple Procedure

    Hi
    I pursued a Simple Procedure through the Sheriff Court earlier this year, against a tradesman who was paid for and did not complete a job for me. His business was a limited company however the claimant was named as an individual in the order.

    After no reply from the respondent I had a decision made that they should pay me the full claim which amounts to 4800.

    I was surpised to find that after receiving the order it's over to me to pursue it. I was advised by the court and by Consumeradvice.scot to send the trader an email with the order and ask them to pay or reply in 14 days. I was a bit unsure about that - however I did it. I then received a string of threatening Whatsapp messages from the respondent.

    I am really unsure how to proceed. Do i simply reach out to the local Sheriff Officers with the court order?

    Many thanks for any guidance.
    Last edited by chickenpie; 29th July 2022, 15:27:PM.
    Tags: None

  • #2


    Not many here are up to speed with Scottish procedures so tagging ScottishSolicitor for you.
    In the meantime have a read here: https://www.scotcourts.gov.uk/taking...f-the-decision

    Comment


    • #3
      Yes you have only ticked off stage 1. Stage 2 is enforcement which can be easy, difficult or sometimes impossible. You have limited options in the circs described. Sh Officers or a solicitor could assist you.

      Comment


      • #4
        So there is a concern with this one, which I will go over before I describe how you have this enforced.

        You state that his business was a limited company, but that he was named as an individual. Did the contract state director liability? If not, he should not have been named as an individual unless he was carrying on business as a sole trader, instead of under his limited company. This may come back to bite you in the future if he pulls this back into court.

        However, we shall proceed with your question which was how to enforce the decision you have at the moment.

        All enforcement must be undertaken by a Sheriff Officer (or firm thereof) by first serving the respondent with a Charge for Payment. This will cost you up-front, but all expenses related to the enforcement will be recouped through said enforcement (except in very specific circumstances that the Sheriff Officer shall describe if it comes to it).

        After the Charge for Payment is served, the respondent has two weeks to propose payment (be it in full or through a payment plan). Once the two weeks are up, if the respondent hasn't paid in full or you have not agreed a payment plan with them then you are free to undertake a number of avenues of enforcement. I shall describe some here briefly but you must discuss with your Sheriff Officer which is most likely to see a return.

        You may attempt a bank arrestment. This shall attempt to arrest funds in the respondent's bank account. There is a minimum balance that is protected (was 530 or so a couple of years back, your SO will be able to tell you what it is). Anything above that can be seized for payment. Obviously anything over the amount owed is returned. If they are operating in an overdraft, you will get nothing.

        You could attempt to attach a vehicle (most likely to succeed in my opinion). They can argue they need the vehicle but whether the court accepts that story is down to the value of it. There is a minimum value that a SO will not typically attach (around 1-2k) because after auction fees etc, it generally isn't worth it. However if they vehicle is leased or on finance, it can't be touched because someone else has a financial lien on it.

        You could attempt an earnings arrestment (which you get paid a portion of their wages every time they get paid) but as they are a director of their own LC and/or a sole trader, this probably won't go far.

        You could attempt to force the sale of property they own, but if it they are in rented accommodation or if someone else is on the mortgage with them, that will be a no go. Linked to this is an inhibition which prevents them divesting any property they have a share in but it must be a specific property. You can't just slap an inhibition on "any property" they own.

        Finally you could sequestrate them (bankruptcy) if the amount is large enough but realistically this is used as a threat to get them to pay. Never actually seen someone who isn't the HMRC sequestrate someone.

        In short, Google search "Sheriff Officers near me" and go speak to them.
        ----- DISCLAIMER -----

        I am a former trainee Sheriff Officer who became disillusioned with the Scottish legal system so left the industry. I will offer insights from my first-hand experience, but *I am not a legal professional and you should always seek independent legal advice before acting on anything I say*.

        Comment


        • #5
          Nostrus has made some errors here - you cannot force a property sale in Scotland unless indirectly via bankruptcy. But the debt is not above the current level for bankruptcy.

          Inhibition to the contrary is not linked to a specific property. It is on the individual and would cover any and all properties they own.

          Comment


          • #6
            Thank you ScottishSolicitor and Nostrus, that was really helpful. My local SO has been in touch and they are starting with Charge for Payment. I'm not hopefuly given that he send me threatening messages last week and told me the business had been wound up and i would get 'f all'.

            Comment

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