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Debtors (Scotland) Act 1987

Type Public General Act

Publication 1987-05-15

Last updated 2025-04-06

State In force

Department Statute Law Database

Source legislation.gov.uk

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Reform history JSON API

(2) The sheriff may refuse to grant a warrant of sale—

(a) on his own initiative or on an objection by the debtor—

(i) on the ground that the poinding is invalid or has ceased to have effect;

(ii) on a ground mentioned in section 24(3)(b) or (c) of this Act;

(b) on an objection by the debtor, on the ground that the granting of the application would be unduly harsh in the circumstances.

(3) The creditor or officer of court, when making an application under subsection (1) above, shall serve a copy thereof on the debtor together with a notice in the form prescribed by Act of Sederunt informing him—

(a) that he may object to the application within 14 days after the date when it was made; and

(b) of his right to redeem poinded articles under section 33(2) of this Act.

(4) The sheriff shall not—

(a) refuse to grant a warrant of sale on his own initiative; or

(b) dispose of an application under subsection (1) above where the debtor has objected thereto in accordance with subsection (3)(a) above,

without first giving the parties an opportunity to be heard.

(5) It shall not be competent for the sheriff to refuse to grant a warrant of sale on the ground that any poinded article is exempt from poinding under section 16 of this Act.

(6) Where the sheriff refuses to grant a warrant of sale, the sheriff clerk shall intimate that refusal to the debtor and, if he is a different person from the debtor, to the person in possession of the poinded articles.

(7) A sale under a warrant of sale shall be known as a “warrant sale”.

Provisions of warrant of sale

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(1) Every warrant of sale shall provide that the warrant sale shall be by public auction and shall specify the location of the sale in accordance with section 32 of this Act.

(2) A warrant of sale shall—

(a) appoint an officer of court to make arrangements for the warrant sale in accordance with the warrant;

(b) specify a period within which the warrant sale shall take place; and

(3) Where the warrant of sale provides for the sale to be held in premises other than an auction room, it shall appoint to conduct the warrant sale—

(a) if the aggregate of the values of the poinded articles fixed under section 20(4) of this Act exceeds £1,000 or such other sum as may be prescribed by Act of Sederunt and a person who carries on business as an auctioneer is available, that person;

(b) in any other case, the officer of court appointed under subsection (2) above or another suitable person.

(4) A warrant of sale which provides for the warrant sale to be held in premises other than where the poinded articles are situated shall also empower the officer of court appointed by the warrant to remove the poinded articles to such premises for the sale.

Location of sale

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(1) The warrant of sale shall not provide for the warrant sale to be held in a dwellinghouse except with the consent in writing, in a form to be prescribed by Act of Sederunt, of the occupier thereof and, if he is not the occupier, of the debtor.

(2) Subject to subsection (3) below, where articles are poinded in a dwellinghouse and any consent required under subsection (1) above is not given, the warrant of sale shall provide for the warrant sale to be held in an auction room specified in the warrant.

(3) Where—

(a) articles are poinded in a dwellinghouse and any consent required under subsection (1) above is not given; and

(b) it appears to the sheriff that, if the sale were to be held in an auction room, the likely proceeds of the warrant sale would not exceed the expenses of the application for warrant of sale and the expenses likely to be incurred in any steps required to be taken under this Part of this Act in the execution of the warrant on the assumption that that application and any such steps are unopposed,

if the creditor is able to offer suitable premises in which the warrant sale could be held, the warrant of sale shall, subject to subsection (1) above and subsections (4) and (5) below, provide for the sale to be held in those premises, but otherwise the sheriff shall refuse to grant a warrant of sale.

(4) Subject to subsection (5) below, the warrant of sale shall not provide for the sale to be held in premises (other than a dwellinghouse or an auction room) which are occupied by a person other than the debtor or the creditor except with the consent in writing, in a form to be prescribed by Act of Sederunt, of the occupier thereof.

(5) Where the occupier of premises (other than a dwellinghouse or an auction room) where poinded articles are situated does not give his consent under subsection (4) above to the holding of the warrant sale in those premises, the warrant of sale may, if the sheriff considers that it would be unduly costly to require the removal of the poinded articles to other premises for sale, nevertheless provide that the warrant sale shall be held in the premises where they are situated.

(6) In this section “occupier”, in relation to premises where there are 2 or more occupiers, means each of them.

Release or redemption of poinded articles after warrant

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(1) Where a warrant sale is to be held in premises other than where the poinded articles are situated, the officer of court may, in pursuance of section 31(4) of this Act, remove to those premises only such poinded articles as, if sold at their values fixed under section 20(4) of this Act, would realise in total the sum recoverable at the time of the sale; and shall release the remaining poinded articles from the poinding.

(2) Subject to section 21(1) of this Act, the debtor may, within 7 days after the date when a copy of an application for warrant of sale has been served on him, redeem any poinded article by paying to the officer of court a sum equal to its value fixed under section 20(4) of this Act.

(3) The officer of court shall, on receiving payment from the debtor under subsection (2) above, grant a receipt in the form prescribed by Act of Sederunt to the debtor; and the receipt shall operate as a release of the article from the poinding.

(4) The creditor and the debtor may by agreement release articles from the poinding.

(5) Any release or redemption of poinded articles under this section—

(a) shall be mentioned in the next subsequent application (if any) which is made for warrant of sale or for variation of warrant of sale; or

(b) if it takes place after an application for warrant of sale (or variation thereof) has been made and before it has been disposed of, shall be reported as soon as is reasonably practicable by the officer of court to the sheriff; or

Intimation and publication of sale

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(1) The officer of court appointed under section 31(2)(a) of this Act to make arrangements for the warrant sale shall—

(a) as soon as is reasonably practicable intimate to the debtor and, if the person in possession of the poinded articles is not the debtor, to that person, the date arranged for the warrant sale; and

(b) not later than the date of intimation under paragraph (a) above, serve a copy of the warrant of sale on the debtor and any such person.

(2) Where the warrant sale is not to be held in the premises where the poinded articles are situated, the officer of court referred to in subsection (1) above shall, not less than 7 days before the date arranged for the removal of the poinded articles from those premises, intimate to the debtor and, if he is not the debtor, to the person in possession of the poinded articles—

(a) the place where the sale is to be held; and

(b) the date arranged for the removal.

(3) The sheriff clerk shall arrange for such particulars of the warrant of sale as are prescribed by Act of Sederunt to be displayed on the walls of court.

(4) The warrant sale shall be advertised by public notice and, where the sale is to be held otherwise than in an auction room, the public notice shall be as directed by the warrant of sale.

(5) Where the warrant sale is to be held in premises not belonging to the debtor, the public notice under subsection (4) above shall not name him or disclose that the articles for sale are poinded articles.

(6) Where the warrant sale is to be held in premises other than the debtor’s premises or an auction room, any public notice of the sale shall state that the articles to be sold do not belong to the occupier of the premises where the sale is to be held.

Alteration of arrangements for sale

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(1) Where, for any reason for which neither the creditor nor the officer of court is responsible, the arrangements made for the warrant sale cannot be implemented in accordance with the provisions of the warrant of sale, the sheriff may, on an application by the creditor or by the officer of court on his behalf, grant a variation of the warrant of sale.

(2) Subject to subsection (3) below, the sheriff may, on his own initiative or on an objection by the debtor, refuse to grant an application under subsection (1) above on the ground that—

(a) the poinding is invalid or has ceased to have effect; or

(b) the proposed variation is unsuitable.

(3) It shall not be competent for the sheriff to refuse to grant an application under subsection (1) above on the ground that any poinded article is exempt from poinding under section 16 of this Act.

(4) Section 32 of this Act shall apply to a warrant of sale as varied under this section.

(5) A creditor or officer of court who makes an application under subsection (1) above shall at the same time—

(a) serve on the debtor a copy thereof together with a notice in the form prescribed by Act of Sederunt, informing him that he may object to the application within 7 days after the date of such service; and

(b) serve on any other person in possession of the poinded articles a copy of the application.

(6) The sheriff shall not—

(a) refuse to grant a variation under subsection (1) above on his own initiative; or

(b) dispose of an application under that subsection where the debtor has objected thereto in accordance with subsection (5) above,

without first giving the parties an opportunity to be heard.

(7) On granting a variation under subsection (1) above, the sheriff may make such consequential orders as he thinks fit including, where appropriate—

(a) an order requiring service on the debtor, and on any other person in possession of the poinded articles, of the warrant of sale as varied;

(b) the retaking of any steps in the diligence which have already been taken.

(8) Where the sheriff refuses to grant a variation under subsection (1) above, the sheriff clerk shall intimate that refusal to the debtor and to any other person in possession of the poinded articles.

(9) Subject to subsection (10) below and without prejudice to section 36(3) of this Act, after intimation has been given under section 34 of this Act to the debtor of the date arranged for the warrant sale or for the removal for sale of the poinded articles from the premises where they are situated, the creditor or officer of court shall not be entitled to arrange a new date for the sale or for such removal.

(10) Where, for any reason for which neither the creditor nor the officer of court is responsible, it is not possible for the warrant sale or, as the case may be, the removal for sale of the poinded articles from the premises where they are situated, to take place on the date arranged for it, the creditor may instruct the officer of court to arrange a new date in accordance with subsection (11) below, and the officer of court shall intimate the new date to the debtor and to any other person in possession of the poinded articles.

(11) The new date arranged under subsection (10) above—

(a) shall not in any case be less than 7 days after the date of intimation under that subsection; and

(b) in the case of a new date arranged for a warrant sale, shall be a date within the period specified in the warrant of sale as the period within which the sale is required to be held.

Payment agreements after warrant of sale

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(1) Without prejudice to section 35(1) and (10) of this Act, in order to enable the sum recoverable to be paid by instalments or otherwise in accordance with an agreement between the creditor and the debtor, the creditor may, after the granting of a warrant of sale, cancel the arrangements for the warrant sale on not more than 2 occasions.

(2) The creditor or the officer of court on his behalf shall as soon as is reasonably practicable after any agreement of the kind referred to in subsection (1) above has been entered into make a report of the agreement to the sheriff.

(3) Where, following cancellation of the warrant sale in pursuance of subsection (1) above, the debtor is in breach of the agreement—

(a) if the provisions of the original warrant of sale still allow, the creditor may instruct the officer of court to make arrangements for the warrant sale in accordance with those provisions;

(b) if, for any reason for which neither the creditor nor the officer of court is responsible, arrangements for the warrant sale cannot be implemented in accordance with the provisions of the original warrant of sale, the sheriff may, on an application by the creditor or by the officer of court on his behalf made within 6 months after the date when the report was made under subsection (2) above, grant a variation of the warrant of sale under section 35(1) of this Act.

(4) For the purposes of subsection (3) above, the original warrant of sale shall be deemed to have specified that the sale is required to be held within the period of 6 months after the date when the latest report was made under subsection (2) above.

The warrant sale

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(1) Where the warrant of sale does not appoint as auctioneer the officer of court appointed under section 31(2)(a) of this Act to conduct the warrant sale, that officer—

(a) shall attend the sale and keep a record of any articles which are sold and the amount for which they are sold and of any articles whose ownership passes to the creditor under subsection (6) below; and

(b) if the sale is to be held in premises other than an auction room, shall supervise the sale.

(2) Where the officer of court appointed under section 31(2)(a) of this Act is appointed as auctioneer to conduct the sale, he shall be attended at the sale by one witness.

(3) In the warrant sale there shall be no reserve price unless the creditor chooses to have one and, if he does so choose, it shall not exceed the value of the article fixed under section 20(4) of this Act.

(4) The value of a poinded article fixed under section 20(4) of this Act and the reserve price, if any, fixed by the creditor under subsection (3) above need not be disclosed to any person bidding for the article.

(5) In the warrant sale any poinded article exposed for sale may be purchased by—

(a) any creditor, including the creditor on whose behalf the poinding was executed; or

(b) a person who owns the article in common with the debtor.

(6) Subject to subsection (7) below and without prejudice to the rights of any third party, where the sum recoverable has not been realised by the warrant sale, ownership of a poinded article which remains unsold after being exposed for sale shall pass to the creditor.

(7) Without prejudice to the rights of any third party, where the warrant sale is held in premises belonging to the debtor, the ownership of a poinded article which has passed to the creditor under subsection (6) above shall revert to the debtor unless the creditor uplifts the article by 8 p.m. (or such other time as may be prescribed by Act of Sederunt)—

(a) if the premises are a dwellinghouse in which the debtor is residing, on the day when the sale is completed;

(b) in any other case, on the third working day following that day,

and the officer of court may remain on or re-enter any premises (whether open, shut or lockfast) for the purpose of enabling the creditor to uplift any such article.

(8) For the purposes of subsection (7) above “working day” means a day which is not—

Saturday;

Sunday;

1st or 2nd January;

Good Friday;

Easter Monday;

25th or 26th December;

a public holiday in the area in which the premises are situated.

(9) Subject to subsection (10) below, where at the warrant sale any article is unsold or is sold at a price below the value fixed under section 20(4) of this Act, the debtor shall be credited with an amount equal to that valuation.

(10) Where—

(a) any damaged article has been revalued under section 20(4) of this Act on the authority of the sheriff given under section 29(2) of this Act;

(b) the damage was not caused by the fault of the debtor; and

(c) no order has been made under section 29(3) of this Act requiring a third party to consign a sum in respect of the article, or such an order has been made but has not been complied with,

the amount credited to the debtor under subsection (9) above shall be an amount equal to the original valuation and not the revaluation referred to in paragraph (a) above.

Disposal of proceeds of sale

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The officer of court appointed under section 31(2)(a) of this Act shall dispose of the proceeds of the warrant sale—

(a) by paying to the creditor the proceeds so far as necessary to meet the sum recoverable (subject to any agreement between the officer of court and the creditor relating to the fees or outlays of the officer of court) or, if the sheriff so directs, by consigning such proceeds in court; and

(b) by paying to the debtor any surplus remaining after the sum recoverable has been paid or, if the debtor cannot be found, by consigning such surplus in court.

Report of warrant sale

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(1) The officer of court appointed under section 31(2)(a) of this Act shall within a period of 14 days after the date of completion of the warrant sale make to the sheriff a report in the form prescribed by Act of Sederunt (referred to in this Part of this Act as “the report of sale”) setting out—

(a) any articles which have been sold and the amount for which they have been sold;

(b) any articles which remain unsold;

(d) any surplus paid to the debtor; and

(e) any balance due by or to the debtor.

(2) The report of sale shall be signed by the officer of court and, if a witness was required to attend at the sale under section 37(2) of this Act, by that witness.

(3) If an officer of court—

(a) without reasonable excuse makes a report of sale after the expiry of the period mentioned in subsection (1) above; or

(b) wilfully refuses or delays to make a report of sale after the expiry of that period,

the sheriff may, without prejudice to his right to report the matter to the Court of Session or the sheriff principal under section 79(1)(b) of this Act, make an order that the officer of court shall be liable for the expenses chargeable against the debtor under Schedule 1 to this Act, either in whole or in part.

(4) The report of sale shall be remitted by the sheriff to the auditor of court who shall—

(a) tax the expenses chargeable against the debtor under Schedule 1 to this Act;

(b) certify the balance due by or to the debtor following the poinding and sale; and

but shall not alter the amount of the expenses or of the balance referred to in paragraph (b) above without first giving all interested persons an opportunity to make representations.

(5) On receipt of the auditor’s report, the sheriff may make an order—

(a) declaring the balance due by or to the debtor, as certified by the auditor;

(b) declaring such a balance after making modifications to the balance as so certified; or

(c) if he is satisfied that there has been a substantial irregularity in the poinding and sale (other than the making of the report of sale after the expiry of the period mentioned in subsection (1) above), declaring the poinding and sale to be void, in which case (subject to subsection (9) below) he may make such consequential order as appears to him to be necessary in the circumstances,

and the sheriff clerk shall intimate the sheriff’s order under this subsection to the debtor.

(6) The sheriff shall not make an order under subsection (5)(b) or (c) above without first giving all interested persons an opportunity to be heard.

(7) The auditor of court shall not be entitled to charge a fee in respect of his report.

(8) The report of sale and the auditor’s report shall be retained by the sheriff clerk for the period prescribed by Act of Sederunt and during that period they shall be open for inspection in the sheriff clerk’s office by any interested person on payment of such fee as may be prescribed in an order made under section 2 of the Courts of Law Fees (Scotland) Act 1895.

(9) An order under subsection (5)(c) above shall not affect the title of a person to any article acquired by him at the warrant sale, or subsequently, in good faith and for value.

(10) Any rule of law whereby the sheriff may refuse to receive the report of sale shall cease to have effect.

Articles belonging to third parties or in common ownership

Release from poinding of articles belonging to third party

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(1) An officer of court may, at any time after the execution of a poinding and before the warrant sale, release an article from the poinding if—

(a) he is satisfied that the article belongs to a third party; and

(b) the debtor or other person in possession of the article does not deny that it belongs to the third party.

(2) Where, on an application made to him by a third party, at any time after the execution of a poinding and before the warrant sale, the sheriff is satisfied that a poinded article belongs to that third party, he shall make an order releasing it from the poinding.

(3) The making of an application under subsection (2) above shall not prejudice the taking of any other proceedings by the third party for the recovery of a poinded article belonging to him, and an order of the sheriff under that subsection shall not be binding in any other proceedings.

(4) The release of a poinded article under subsection (1) above—

(a) shall be mentioned in the next subsequent application (if any) which is made for warrant of sale or for variation of warrant of sale; or

(b) if it takes place after an application for warrant of sale (or variation thereof) has been made and before it has been disposed of, shall be reported as soon as is reasonably practicable by the officer of court to the sheriff; or

(5) Where an article has been released from a poinding under this section, an officer of court may, notwithstanding section 25 of this Act, poind other articles belonging to the debtor in the same premises.

Poinding and sale of articles in common ownership

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(1) Articles which are owned in common by a debtor and a third party may be poinded and disposed of in accordance with this Part of this Act in satisfaction of the debts of that debtor.

(2) Where, at any time after the execution of a poinding and before the warrant sale, a third party—

(a) claims that a poinded article is owned in common by the debtor and himself; and

(b) pays to the officer of court a sum equal to the value of the debtor’s interest in the article,

the officer of court may, unless the debtor (or the person in possession of the article, if not the debtor) denies the claim, release the article from the poinding.

(3) If, on an application made by a third party, at any time after the execution of a poinding and before the warrant sale, the sheriff is satisfied that a poinded article is owned in common by the debtor and that third party and either—

(a) the third party undertakes to pay to the officer of court a sum equal to the value of the debtor’s interest in the article; or

(b) the sheriff is satisfied that the continued poinding of that article or its sale under warrant of sale would be unduly harsh to the third party in the circumstances,

he shall make an order releasing the article from the poinding.

(4) A release under subsection (2) above or where subsection (3)(a) above applies shall not become effective until the granting by the officer of court of a receipt for payment in accordance therewith, when the debtor’s interest in the released article shall be transferred to the third party.

(5) A release of a poinded article under subsection (2) above—

(a) shall be mentioned in the next subsequent application (if any) which is made for warrant of sale or for variation of warrant of sale; or

(b) if it takes place after an application for warrant of sale (or variation thereof) has been made and before it has been disposed of, shall be reported as soon as is reasonably practicable by the officer of court to the sheriff; or

(6) Where an article is released in pursuance of subsection (3)(b) above from a poinding, an officer of court may, notwithstanding section 25 of this Act, poind other articles belonging to the debtor in the same premises.

(7) This subsection applies where, at any time after the execution of a poinding, a third party claims that any of the poinded articles is owned in common by the debtor and himself but does not seek release of the article from the poinding, and either—

(a) the claim is admitted by the creditor and the debtor; or

(b) the claim is not admitted by both the creditor and the debtor, but the sheriff, on an application made to him, is satisfied that the claim is valid.

(8) Where subsection (7) above applies, the creditor shall pay to the third party—

(a) if the article is sold, the fraction of the proceeds of sale (or of the value of that article fixed under section 20(4) of this Act, whichever is the greater) which corresponds to the third party’s interest in the article;

(b) if ownership of the article passes to the creditor in default of sale, the fraction of the value of the article fixed under section 20(4) of this Act which corresponds to the third party’s interest in the article.

Supplementary

Certain proceedings under Part II to postpone further steps in the diligence

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(1) Where an application under any of the provisions of this Act listed in subsection (3) below has been made, it shall be not be competent during a relevant period to grant a warrant of sale in respect of the poinded articles, to remove them for sale or to hold a warrant sale.

(2) Where subsection (1) above applies, a relevant period shall be disregarded in calculating—

(a) the period within which a warrant sale is required to be held under section 31(2)(b) of this Act; or

(b) the period on the expiry of which the poinding ceases to have effect under section 27 of this Act.

(3) The provisions referred to in subsection (1) above are—

(a) section 16(4), 23(1), 40(2) or 41(3) (release of poinded articles);

(b) section 24(1) or (3) (invalidity, cessation or recall of poinding);

(d) section 28(4) (restoration of articles removed without consent or authority);

(e) section 28(5) (recall of order under section 28(4)).

(4) In subsections (1) and (2) above “a relevant period” means—

(a) the period while the application is pending;

(b) where the application has been disposed of by the sheriff—

(i) the period during which an application for leave to appeal may be made;

(ii) where an application for leave to appeal is made, the period until leave has been refused or the application has been abandoned;

(iii) where leave to appeal has been granted, the period during which an appeal may be made; or

(iv) where an appeal against the decision is made, the period until the matter has been finally determined or the appeal has been abandoned.

Conjoining of further poinding with original poinding

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(1) Subject to subsection (2) below, where a report of a further poinding by the same creditor to enforce the same debt executed in pursuance of section 9(12), 23(2), 28(2) or (6), 29(2), 40(5) or 41(6) of this Act has been received under section 22 of this Act, the sheriff shall, on an application made to him by the creditor or by an officer of court on his behalf, make an order conjoining the further poinding with the original poinding.

(2) It shall not be competent for the sheriff to make an order under subsection (1) above—

(a) where a warrant of sale has been granted in respect of the original poinding or the further poinding;

(b) until 14 days after the date of execution of the further poinding; or

(c) while an application under this Part of this Act in relation to the further poinding is pending or, where such an application has been disposed of by the sheriff—

(i) until the period for leave to appeal has expired without an application for leave having been made;

(ii) where an application for leave to appeal is made, until leave has been refused or the application has been abandoned;

(iii) where leave to appeal has been granted, until the period for an appeal has expired without an appeal being made; or

(iv) where an appeal against the decision is made, until the matter has been finally determined or the appeal has been abandoned.

(3) Where the sheriff makes an order under subsection (1) above, it shall not thereafter be competent for him to grant any application for warrant of sale relating to the original poinding which is pending when the order is made.

(4) The effect of an order under subsection (1) above shall be that thereafter the further poinding shall be treated for all purposes as if it were part of the original poinding, except that the references to a poinding being invalid or having ceased to have effect in sections 24(1), 30(2)(a)(i) and 35(2)(a) of this Act shall be construed as references to either poinding being invalid or having ceased to have effect.

(5) The decision of the sheriff under subsection (1) above shall not be subject to appeal.

Expenses of poinding and sale

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Schedule 1 to this Act shall have effect for the purposes of determining the liability, as between the creditor and the debtor, for expenses incurred in serving a charge and in the process of poinding and warrant sale.

Interpretation of Part II

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In this Part of this Act—

“dwellinghouse” includes a caravan, a houseboat and any structure adapted for use as a residence;

“the poinding schedule” means the schedule provided for in section 20(5) of this Act;

“the report of sale” means the report provided for in section 39(1) of this Act;

“the sum recoverable” means the total of—

(a) the amount outstanding of the sum due by the debtor under the decree or other document on which the diligence proceeds (including any interest thereon and any expenses decerned for);

(b) any sum due under section 93(5) of this Act; and

(c) any expenses which have been incurred in serving a charge and in the process of poinding and sale which are chargeable against the debtor under Schedule 1 to this Act.

PART III — DILIGENCE AGAINST EARNINGS

Introduction

New diligences against earnings

46

(1) The following diligences against earnings of a debtor in the hands of his employer shall replace the diligence of arrestment and action of furthcoming against such earnings—

(a) a diligence, to be known as an “earnings arrestment”, to enforce the payment of any ordinary debt which is due as at the date of execution of the diligence;

(b) a diligence, to be known as a “current maintenance arrestment”, to enforce the payment of current maintenance;

(c) an order, to be known as a “conjoined arrestment order”, to enforce the payment of two or more debts owed to different creditors against the same earnings.

(2) Any rule of law whereby there is exempted from arrestment of earnings of a debtor in the hands of his employer a reasonable amount for the subsistence of the debtor and his dependants shall cease to have effect.

Earnings arrestments

General effect of earnings arrestment

47

(1) Subject to section 69 of this Act, an earnings arrestment shall have the effect of requiring the employer of a debtor, while the arrestment is in effect, to deduct a sum calculated in accordance with section 49 or 49A of this Act from the debtor’s net earnings on every pay-day and, as soon as is reasonably practicable, to pay any sum so deducted to the creditor.

(2) Subject to sections 59 (priority among arrestments), 62 (relationship of conjoined arrestment order with certain other arrestments) and 90 (provisions relating to charges for payment) of this Act, an earnings arrestment—

(a) shall, subject to subsection (3) below, come into effect on the date of its execution, being the date on which a schedule in the form prescribed by Act of Sederunt (to be known as an “earnings arrestment schedule”) is served on the employer; and

(b) shall remain in effect until the debt recoverable has been paid or otherwise extinguished, the debtor has ceased to be employed by the employer, or the arrestment has been recalled or abandoned by the creditor or has for any other reason ceased to have effect.

(3) An earnings arrestment shall not come into effect unless, no earlier than 12 weeks before the date on which the earnings arrestment schedule is served, the creditor has provided the debtor with a debt advice and information package.

(4) In this section and in sections 51(2A) and 60(3A) of this Act, “debt advice and information package” means the debt advice and information package referred to in section 10(5) of the Debt Arrangement and Attachment (Scotland) Act 2002 (asp 17).

Debt recoverable by earnings arrestment

48

(1) Subject to subsections (2) and (3) below, the debt recoverable by an earnings arrestment shall consist of the following sums, in so far as outstanding—

(a) any ordinary debt and any expenses due under the decree or other document on which the earnings arrestment proceeds;

(b) any interest on those sums which has accrued at the date of execution of the earnings arrestment; and

(2) In relation to arrears of maintenance, the ordinary debt referred to in subsection (1)(a) above shall be the amount of those arrears less any sum which the debtor is entitled to deduct from that amount under any enactment in respect of income tax.

(3) Any sum mentioned in subsection (1) above shall be included in the debt recoverable only if, and to the extent that, it is specified in the earnings arrestment schedule.

(4) It shall be competent for a creditor to enforce payment of more than one debt payable to him by the same debtor by means of a single earnings arrestment, whether the arrestment is executed in pursuance of the same warrant or of 2 or more different warrants authorising diligence.

Deductions from net earnings to be made by employer

49

(1) Subject to section 49A of this Act, the sum to be deducted under section 47 of this Act on any pay-day shall be—

(a) where the debtor’s earnings are payable weekly, the sum specified in column 2 of Table A in Schedule 2 to this Act opposite the band in column 1 of that Table within which his net earnings payable on that pay-day fall;

(b) where his earnings are payable monthly, the sum specified in column 2 of Table B in that Schedule opposite the band in column 1 of that Table within which his net earnings payable on that pay-day fall;

(i) calculating what would be his weekly or monthly net earnings by dividing the net earnings payable to him on the pay-day by that whole number (of weeks or months, as the case may be);

(ii) ascertaining the sum specified in column 2 of Table A (if the whole number is of weeks) or of Table B (if the whole number is of months) in Schedule 2 to this Act opposite the band in column 1 of that Table within which the notional net earnings calculated under sub-paragraph (i) above fall; and

(iii) multiplying that sum by the whole number (of weeks or months, as the case may be).

(2) Where the debtor’s earnings are payable at regular intervals other than at intervals to which subsection (1) above applies, the sum to be deducted on any pay-day under section 47 of this Act shall be arrived at by—

(a) calculating what would be his daily net earnings by dividing the net earnings payable to him on the pay-day by the number of days in the interval;

(b) ascertaining the sum specified in column 2 of Table C in Schedule 2 to this Act opposite the band in column 1 of that Table within which the notional net earnings calculated under paragraph (a) above fall; and

(3) Where the debtor’s earnings are payable at irregular intervals, the sum to be deducted on any pay-day under section 47 of this Act shall be arrived at by—

(a) calculating what would be his daily net earnings by dividing the net earnings payable to him on the pay-day—

(i) by the number of days since earnings were last paid to him; or

(ii) if the earnings are the first earnings to be paid to him by the employer, by the number of days since he commenced his employment with the employer;

(b) taking the sum specified in column 2 of Table C in Schedule 2 to this Act opposite the band in column 1 of that Table within which the notional net earnings calculated under paragraph (a) above fall; and

(4) Where on the same pay-day there are paid to the debtor both earnings payable at regular intervals and earnings which are not payable at regular intervals, for the purpose of arriving at the sum to be deducted on that pay-day under section 47 of this Act, all those earnings shall be aggregated and treated as earnings payable at the regular interval.

(5) Where earnings payable to a debtor at regular intervals are paid to him on one pay-day and earnings which are not payable at regular intervals are paid to him on a different pay-day, the sum to be deducted on each of those pay-days under section 47 of this Act in respect of those earnings which are not paid at regular intervals shall be 20 per cent. of the net earnings paid to him on that pay-day.

(6) Where earnings are paid to a debtor by 2 or more series of payments at regular intervals—

(a) if the intervals are of different lengths—

(i) for the purpose of arriving at the sum to be deducted under section 47 of this Act, whichever of subsections (1) and (2) above is appropriate shall apply to the series with the shortest interval; and

(ii) in relation to the earnings paid in any other series, the said sum shall be 20 per cent. of the net earnings;

(b) if the intervals are of the same length and payments in more than one series are payable on the same day—

(i) the payments in those series shall be aggregated and whichever of subsections (1) and (2) above is appropriate shall apply to the aggregate; and

(ii) paragraph (a)(ii) above shall apply to every other series;

(c) if the intervals are of the same length and no 2 payments are payable on the same day paragraph (a)(i) above shall apply to such series as the employer may choose, and paragraph (a)(ii) above shall apply to every other series.

(7) The Lord Advocate may, by regulations, vary—

(a) Tables A, B and C of Schedule 2 to this Act;

(b) the percentage specified in subsections (5) and (6)(a)(ii) above,

and such regulations may make different provision for different cases.

(8) Subject to section 69(1) and (2) of this Act, regulations under subsection (7) above shall not apply in relation to an existing earnings arrestment unless and until the creditor or the debtor intimates the making of the regulations to the employer in the form prescribed by Act of Sederunt.

Review of earnings arrestment

50

(1) If the sheriff is satisfied that an earnings arrestment is invalid or has ceased to have effect he shall, on an application by the debtor or the person on whom the earnings arrestment schedule was served, make an order declaring that to be the case, and may make such consequential order as appears to him to be necessary in the circumstances; and the sheriff clerk shall intimate any order under this subsection to the debtor, the creditor and the person on whom the earnings arrestment schedule was served.

(2) An order under subsection (1) above declaring that an arrestment is invalid or has ceased to have effect shall not be subject to appeal.

(3) The sheriff, on an application by the debtor, the creditor or the employer, may make an order determining any dispute as to the operation of an earnings arrestment.

(4) Without prejudice to section 57(5) of this Act, the sheriff, when making an order under subsection (3) above, may order—

(a) the reimbursement of any payment made in the operation of the arrestment which ought not to have been made; or

(b) the payment of any sum which ought to have been paid in the operation of the arrestment but which has not been paid.

(5) An order under subsection (4) above shall require the person against whom it is made to pay interest on the sum to be paid by him under the order at the specified rate from such date as the sheriff shall specify in the order.

Current maintenance arrestments

General effect of current maintenance arrestment

51

(1) Subject to sections 58(2) and 69 of this Act, a current maintenance arrestment shall have the effect of requiring the employer of the debtor while the arrestment is in effect to deduct a sum calculated in accordance with section 53 of this Act from the debtor’s net earnings on every pay-day and as soon as is reasonably practicable to pay any sum so deducted to the creditor.

(2) Subject to sections 59 and 62 of this Act, a current maintenance arrestment—

(a) shall, subject to subsection (2A) below, come into effect on the date of its execution, being the date on which a schedule in the form prescribed by Act of Sederunt (to be known as a “current maintenance arrestment schedule”) is served on the employer of the debtor; and

(b) shall remain in effect until the debtor has ceased to be employed by the employer concerned, or the arrestment has been recalled or abandoned by the creditor or has ceased to have effect under section 55(8) of this Act or for any other reason.

(2A) A current maintenance arrestment shall not come into effect unless, no earlier than 12 weeks before the date on which the current maintenance arrestment schedule is served, the creditor has provided the debtor with a debt advice and information package.

(3) The expenses incurred in executing a current maintenance arrestment shall be recoverable from the debtor as an ordinary debt.

(4) Subject to section 52(2)(b) of this Act, a current maintenance arrestment schedule shall specify the maintenance payable by the debtor expressed as a daily rate.

(5) For the purposes of subsection (4) above the daily rate shall be arrived at—

(a) where the maintenance is paid monthly, by multiplying the monthly rate by 12 and dividing it by 365;

(b) where it is paid quarterly, by multiplying the quarterly rate by 4 and dividing it by 365.

(6) No interest shall accrue on any arrears of the maintenance which arise while a current maintenance arrestment is in effect.

Enforcement of 2 or more obligations to pay maintenance

52

(1) This section applies where one or more maintenance orders are in effect which provide for the payment by the same debtor to the same person (whether for his own benefit or for another person’s) of maintenance in respect of more than one individual.

(2) Where this section applies—

(a) all or any of the obligations to pay maintenance may be enforced by a single current maintenance arrestment against the same earnings; and

(b) in that case, the current maintenance arrestment schedule shall specify one daily rate of maintenance, being the aggregate of the daily rates calculated in accordance with section 51(5) of this Act.

Deductions from net earnings to be made by employer

53

(1) The sum to be deducted from a debtor’s net earnings on a pay-day under section 51 of this Act shall be whichever is the lesser of the amounts mentioned in paragraphs (a) and (b) of subsection (2) below, less any sum which the debtor is entitled to deduct under any enactment in respect of income tax.

(2) The amounts referred to in subsection (1) above are—

(a) subject to subsections (3) and (5) below, a sum arrived at by multiplying the daily rate of maintenance (as specified in the current maintenance arrestment schedule) by the number of days—

(i) since the last pay-day when a deduction was made in respect of the arrestment; or

(ii) if there was no such pay-day, since the date of execution of the arrestment; or

(b) any net earnings in so far as they exceed the sum of £24.66 per day for the number of days mentioned in paragraph (a) above.

(3) The sum specified in subsection (2)(b) above may be varied by regulations made by the Lord Advocate and such regulations may make different provision for different cases.

(4) Subject to section 69(1) and (2) of this Act, regulations under subsection (3) above shall not apply to an existing current maintenance arrestment unless and until the creditor or the debtor intimates the making of the regulations to the employer in the form prescribed by Act of Sederunt.

(5) An employer operating a current maintenance arrestment shall be entitled, but shall not be required, to apply a change in the small maintenance payments limits before the creditor or the debtor intimates the change to the employer in the form prescribed by Act of Sederunt.

(6) For the purposes of subsection (5) above, the small maintenance payment limits are the rates mentioned in section 351(2) of the Income and Corporation Taxes Act 1988.

Current maintenance arrestment to be preceded by default

54

(1) Subject to subsections (2) and (3) below, a current maintenance arrestment schedule may be served in pursuance of a maintenance order which is subsisting at the date of such service only if—

(a) the creditor has intimated to the debtor in the manner prescribed by Act of Sederunt—

(i) in the case of an order mentioned in paragraph (a) ... or (b) of the definition of “maintenance order” in section 106 of this Act, the making of the order;

(ii) in the case of an order mentioned in paragraph (c), (e), (f), (g) ... , (h) or (k) thereof, the registration mentioned in the paragraph concerned;

(iii) in the case of an order mentioned in paragraph (d) thereof, the confirmation of the order mentioned in that paragraph;

(b) at least 4 weeks have elapsed since the date of intimation under paragraph (a) above; and

(c) except where section 56 of this Act applies, at the time when it is proposed to serve the schedule, a sum not less than one instalment of maintenance remains unpaid.

(2) Subsection (1) above shall not apply where—

(a) the maintenance order is one that has been registered in Scotland as mentioned in paragraph (c), (e), (f) , (g)... or (k) of the said definition; and

(b) a certificate of arrears (within the meaning of section 21 of the Maintenance Orders (Reciprocal Enforcement) Act 1972) was produced to the court in Scotland which registered the order to the effect that at the time at which the certificate was issued the debtor was in arrears in his payment of instalments under the order.

(3) Where a current maintenance arrestment which was validly executed has ceased to have effect otherwise than by virtue of its recall under section 55(2) of this Act, the creditor may within 3 months after the date when the arrestment ceased to have effect execute another current maintenance arrestment without complying with subsection (1) above.

(4) In subsections (1) and (2), “order” includes decision, settlement and instrument.

(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Review and termination of current maintenance arrestment

55

(1) If the sheriff is satisfied, on an application by the debtor or the person on whom the current maintenance arrestment schedule was served, that a current maintenance arrestment is invalid or has ceased to have effect, he shall make an order declaring that to be the case, and may make such consequential order as appears to him to be necessary in the circumstances.

(2) If the sheriff is satisfied, on an application by the debtor, that the debtor is unlikely to default again in paying maintenance, he may make an order recalling a current maintenance arrestment.

(3) The sheriff clerk shall intimate any order made under subsection (1) or (2) above to the debtor, the creditor and the person on whom the current maintenance arrestment schedule was served.

(4) An order under subsection (1) above declaring that an arrestment is invalid or has ceased to have effect or under subsection (2) above shall not be subject to appeal.

(5) The sheriff, on an application by the debtor, the creditor or the employer, may make an order determining any dispute as to the operation of a current maintenance arrestment.

(6) Without prejudice to section 57(5) of this Act, the sheriff, when making an order under subsection (5) above, may order—

(a) the reimbursement of any payment made in the operation of the arrestment which ought not to have been made;

(b) the payment of any sum which ought to have been paid in the operation of the arrestment but which has not been paid.

(7) An order under subsection (6) above shall require the person against whom it is made to pay interest on the sum to be paid by him under the order at the specified rate, and such interest shall be payable as from such date as the sheriff shall specify in the order.

(8) A current maintenance arrestment shall cease to have effect—

(a) on the coming into effect of an order or decree which varies, supersedes or recalls a maintenance order which is being enforced by the arrestment;

(b) on an obligation to pay maintenance under a maintenance order being so enforced ceasing or ceasing to be enforceable in Scotland.

(9) In the case of an order mentioned in paragraph (c), (e), (f) , (g)... or (k) of the definition of “maintenance order” in section 106 of this Act, the reference in subsection (8)(a) above to the coming into effect of an order or decree shall be construed as a reference to the registration of the order in Scotland.

(10) In subsections (8)(a) and (9), “order” includes decision, settlement and instrument.

Effect of new maintenance order on current maintenance arrestment

56

(1) Where a maintenance order (referred to in this section as “the earlier order”) which is being enforced by a current maintenance arrestment is varied or superseded by an order or decree granted by a court in Scotland (referred to in this section as “the later order”), the later order may include a condition that it shall not come into effect until the earlier of—

(a) the expiry of such period specified in the later order as the court considers necessary to allow notice to be given to the employer that the earlier order has been varied or superseded; or

(b) the service of a new current maintenance arrestment schedule in pursuance of the later order.

(2) Subsection (1) above shall not apply where the earlier order includes an order for the payment of aliment for the benefit of a spouse and the later order includes an order for the payment of a periodical allowance on divorce or on the granting of a declarator of nullity of marriage for the benefit of that spouse.

General

Failure to comply with arrestment, manner of payment and creditor's duty when arrestment ceases to have effect

57

(1) Subject to section 69(4) of this Act, where an employer fails to comply with an earnings arrestment or a current maintenance arrestment—

(a) he shall be liable to pay to the creditor any sum which he would have paid to him under section 47(1) or 51(1) of this Act if he had so complied; and

(b) he shall not be entitled to recover any sum which he has paid to the debtor in contravention of the arrestment.

(2) Subject to subsection (3) below, a creditor shall not be entitled to refuse to accept payment under section 47(1) or 51(1) of this Act which is tendered by cheque or by such other method as may be prescribed by Act of Sederunt.

(3) If a cheque tendered in payment under section 47(1) or 51(1) of this Act is dishonoured or for any other reason the method of payment used by the employer is ineffectual, the creditor may insist that the payment concerned and any future payment under that provision shall be tendered in cash.

(4) Where—

(a) the debt recoverable under an earnings arrestment is paid or otherwise extinguished;

(b) a current maintenance arrestment ceases to have effect under section 55(8) above; or

the creditor shall, as soon as is reasonably practicable, intimate that fact to the employer.

(5) Where an event mentioned in subsection (4) above occurs, any sum paid by an employer—

(a) under an earnings arrestment, in excess of the debt recoverable; or

(b) under a current maintenance arrestment, in excess of the sum to be deducted under section 51(1) of this Act,

shall be recoverable by the debtor from the creditor with interest on that sum at the specified rate.

(6) Without prejudice to subsection (5) above, where a creditor has failed to comply with subsection (4) above the sheriff, on an application by the debtor, may make an order requiring the creditor to pay to the debtor an amount not exceeding twice the amount recoverable by the debtor under the said subsection (5).

Simultaneous operation of earnings and current maintenance arrestment

58

(1) Subject to subsection (2) below, one earnings arrestment and one current maintenance arrestment may be in effect simultaneously against earnings payable to the same debtor by the same employer.

(2) If on any pay-day N is less than S, the employer shall operate both the earnings arrestment and the current maintenance arrestment in accordance with subsection (3) below.

(3) The employer shall—

(a) for the purposes of section 47(1) of this Act, deduct the sum equal to—

$N×ES$

; and

(b) for the purposes of section 51(1) of this Act, deduct the sum equal to—

$N×CS$

(4) In subsections (2) and (3) above—

N is the amount of any net earnings in so far as they exceed the sum mentioned in subsection (2)(b) of section 53 of this Act for the number of days mentioned in subsection (2)(a) of that section;

E is the sum which the employer is required to deduct under section 47(1) of this Act;

C is the sum which the employer is required to deduct under section 51(1) of this Act; and

S is the total of E and C.

Priority among arrestments

59

(1) While an earnings arrestment is in effect, any other earnings arrestment against the earnings of the same debtor payable by the same employer shall not be competent.

(2) While a current maintenance arrestment is in effect, any other current maintenance arrestment against the earnings of the same debtor payable by the same employer shall not be competent.

(3) Where an employer receives on the same day 2 or more earnings arrestment schedules or 2 or more current maintenance arrestment schedules relating to earnings payable by him to the same debtor—

(a) if the employer receives the schedules at different times and he is aware of the respective times of receipt, only the earnings arrestment or, as the case may be, the current maintenance arrestment to which the first schedule he received relates shall have effect;

(b) in any other case, only such one of the earnings arrestments or, as the case may be, current maintenance arrestments as he shall choose shall have effect.

(4) Where a creditor (referred to in this section as “the second creditor”) serves on an employer an earnings arrestment schedule or, as the case may be, a current maintenance arrestment schedule and, by virtue of this section, the arrestment to which that schedule relates does not come into effect, the employer shall as soon as is reasonably practicable give the following information to the second creditor regarding any other earnings arrestment or current maintenance arrestment in effect against the earnings of the same debtor payable by the same employer—

(a) the name and address of the creditor;

(b) the date and place of execution; and

(c) the debt recoverable specified in the earnings arrestment schedule or, as the case may be, the daily rate of maintenance specified in the current maintenance arrestment schedule.

(5) If the employer fails without reasonable excuse to give information to the second creditor under subsection (4) above, the sheriff, on an application by the second creditor, may order the employer to give the required information to the second creditor.

Conjoined arrestment orders

Conjoined arrestment orders: general provision

60

(1) This section applies where at the date of an application under subsection (2) below—

(a) there is in effect against the earnings of a debtor in the hands of a single employer an earnings arrestment or a current maintenance arrestment or (under section 58 of this Act) both; and

(b) a creditor, who may be a creditor already enforcing a debt by an arrestment mentioned above, (referred to in this section as “a qualified creditor”) would be entitled, but for section 59(1) or (2) of this Act, to enforce his debt by executing an earnings arrestment or a current maintenance arrestment.

(2) Subject to subsection (4) below, where this section applies the sheriff, on an application made by a qualified creditor, shall make a conjoined arrestment order.

(3) A conjoined arrestment order shall—

(a) recall any arrestment mentioned in subsection (1)(a) above so that it shall cease to have effect on the coming into effect of the order; and

(b) require the employer concerned, while the order is in effect, to deduct a sum calculated in accordance with section 63 of this Act from the debtor’s net earnings on any pay-day and to pay it as soon as is reasonably practicable to the sheriff clerk.

(3A) It shall not be competent to make a conjoined arrestment order unless, no earlier than 12 weeks before the date of the application under subsection (2) above, the creditor has provided the debtor with a debt advice and information package.

(4) It shall not be competent to make a conjoined arrestment order—

(a) where all the debts concerned are maintenance payable by the same debtor to the same person (whether for his own benefit or for another person’s) so that, if the existing current maintenance arrestment were abandoned, they could all be enforced under section 52(2)(a) of this Act; or

(b) where there are only 2 debts, one an ordinary debt and one maintenance, so that they could be enforced under section 58(1) of this Act (one earnings arrestment and one current maintenance arrestment); or

(c) where the same person is the creditor or person to whom any maintenance is payable (as described in paragraph (a) above) in relation to all the debts sought to be enforced by the order.

(5) A conjoined arrestment order—

(a) shall come into effect 7 days after a copy of it has been served on the employer under subsection (7) below; and

(b) shall remain in effect until a copy of an order recalling the conjoined arrestment order has been served on the employer under section 66(7) of this Act or the debtor ceases to be employed by him.

(6) A conjoined arrestment order shall be in the form prescribed by Act of Sederunt, and—

(a) where an ordinary debt is to be enforced, the order shall specify the amount recoverable in respect of the debt under the order; and

(b) where current maintenance is to be enforced, the order shall specify the maintenance expressed as a daily rate or, as the case may be, as an aggregate of the daily rates; and subsection (5) of section 51 of this Act shall apply for the purposes of this paragraph as it applies for the purposes of subsection (4) of that section.

(7) The sheriff clerk shall as soon as is reasonably practicable serve a copy of the conjoined arrestment order on the employer and the debtor, and on the creditor in every arrestment mentioned in subsection (1)(a) above.

(8) A decision of the sheriff making a conjoined arrestment order shall not be subject to appeal.

(9) Subject to section 69(4) of this Act, where an employer fails to comply with a conjoined arrestment order—

(a) the employer shall be liable to pay to the sheriff clerk any sum which he would have paid if he had so complied;

(b) the employer shall not be entitled to recover any sum which he has paid to the debtor in contravention of the order; and

(c) the sheriff, on an application by the sheriff clerk, may grant warrant for diligence against the employer for recovery of the sums which appear to the sheriff to be due.

Amount recoverable under conjoined arrestment order

61

(1) Subject to subsection (2) below, the amount recoverable under any conjoined arrestment order in respect of an ordinary debt shall consist of the following sums, in so far as outstanding—

(a) any sum (including expenses) due under the decree or other document on which the creditor founds or, as the case may be, under section 51(3) of this Act;

(b) any interest on that sum which had accrued at the date of execution of the arrestment or, where no arrestment was executed, at the date of the making of the conjoined arrestment order; and

(2) Any sum mentioned in subsection (1) above shall be recoverable only if and to the extent that—

(a) it was specified in an earnings arrestment schedule in respect of an arrestment which is recalled under subsection (3)(a) of section 60 of this Act; or

(b) it is specified in the application under subsection (2) of that section.

(3) Where an obligation to pay maintenance is enforced by a conjoined arrestment order, no interest shall accrue on any arrears of maintenance which arise while the order is in effect.

(4) Subject to subsection (5) below, a creditor who makes an application under section 60(2) of this Act shall be entitled to recover as an ordinary debt under any conjoined arrestment order which is made his expenses in connection with the application to the extent that they are specified in the application.

(5) There shall not be recoverable under subsection (4) above any expenses incurred in serving an earnings arrestment schedule or a current maintenance arrestment schedule on the employer after the date of the application.

Relationship of conjoined arrestment order with earnings and current maintenance arrestments

62

(1) While a conjoined arrestment order is in effect, it shall not be competent to execute any earnings arrestment or current maintenance arrestment or for the sheriff to grant any other conjoined arrestment order against the earnings of the same debtor payable by the same employer.

(2) If, while a conjoined arrestment order is in effect, a creditor whose debt is not being enforced by it serves an earnings arrestment schedule or a current maintenance arrestment schedule, against earnings payable to the debtor, on the employer, the employer shall as soon as is reasonably practicable inform that creditor which court made the order.

(3) If, after an application is made under section 60(2) of this Act for a conjoined arrestment order and before any such order comes into effect, an earnings arrestment or a current maintenance arrestment against earnings payable by the employer to the debtor comes into effect under section 58(1) of this Act—

(a) the arrestment shall cease to have effect when the conjoined arrestment order comes into effect; and

(b) the employer shall, as soon as is reasonably practicable after the service of a copy of the conjoined arrestment order on him under section 60(7) of this Act, inform the creditor on whose behalf the arrestment was executed which court made the order.

(4) If an employer fails without reasonable excuse to give information to a creditor under subsection (2) or (3) above, the sheriff, on an application by the creditor, may order the employer to give the required information to the creditor.

(5) Where a conjoined arrestment order is in effect, the sheriff, on an application made by a creditor whose debt is not being enforced by the order and who, but for the order, would be entitled to enforce his debt by an earnings arrestment or a current maintenance arrestment, shall make an order varying the conjoined arrestment order so that the creditor’s debt is included among the debts enforced by the conjoined arrestment order; and section 61(1), (2), (4) and (5) of this Act shall apply in relation to an application under this subsection as it applies in relation to an application under section 60 of this Act.

(6) The sheriff clerk shall as soon as is reasonably practicable serve a copy of an order under subsection (5) above on the debtor, the employer and the other creditors whose debts are being enforced by the conjoined arrestment order.

(7) Subject to section 69(2) of this Act, an order under subsection (5) above shall come into effect 7 days after a copy of it has been served on the employer under subsection (6) above.

(8) Section 60(6) of this Act shall apply to a conjoined arrestment order as varied under subsection (5) above as it applies to a conjoined arrestment order mentioned in that section.

(9) A decision of the sheriff under subsection (5) above shall not be subject to appeal.

Sum payable by employer under conjoined arrestment order

63

(1) Subject to section 69(3) of this Act, this section shall have effect for the purpose of determining the sum to be deducted on a pay-day and paid to the sheriff clerk under a conjoined arrestment order.

(2) Where all the debts are ordinary debts, the said sum shall be the sum which the employer would pay under section 47(1) of this Act if the debts were one debt being enforced on the pay-day by an earnings arrestment.

(3) Where all the debts are current maintenance, the sum shall be whichever is the lesser of the amounts mentioned in paragraphs (a) and (b) of subsection (4) below, less any sum which the debtor is entitled to deduct under any enactment in respect of income tax.

(4) The amounts referred to in subsection (3) above are—

(a) the aggregate of the sums arrived at by multiplying each of the daily rates of maintenance (as specified in the conjoined arrestment order) by the number of days—

(i) since the last pay-day when a deduction from earnings was made by the employer under section 51(1) or 60(3)(b) of this Act in respect of the maintenance obligation; or

(ii) if there was no such previous pay-day, since the date when the conjoined arrestment order or any order under section 62(5) of this Act varying it came into effect; or

(b) any net earnings in so far as they exceed the sum of £21.56 per day for the number of days mentioned in paragraph (a) above.

(5) Where one or more of the debts are ordinary debts, and one or more are current maintenance, the sum shall be the aggregate of the following—

(a) the sum which the employer would pay under section 47(1) of this Act if the ordinary debt was being enforced on the pay-day by an earnings arrestment (where there is more than one ordinary debt, treating the aggregate amount of them as if it were one debt); and

(b) in relation to the debts which are current maintenance, the sum which would be payable under subsection (3) above if the only debts were the current maintenance debts and so much of the debtor’s net earnings as are left after deduction of the sum provided for in paragraph (a) above were his whole net earnings.

(6) The sum specified in subsection (4)(b) above may be varied by regulations made by the Lord Advocate and such regulations may make different provision for different cases.

(7) The sheriff clerk shall intimate to the employer operating a conjoined arrestment order, in the form prescribed by Act of Sederunt, the making of regulations under section 49(7) of this Act or subsection (6) above; and, subject to section 69(1) and (2) of this Act, such regulations shall not apply to the conjoined arrestment order until such intimation.

(8) An employer operating a conjoined arrestment order in relation to current maintenance shall be entitled, but shall not be required, to apply a change in the small maintenance payments limits before the sheriff clerk intimates the change to the employer in the form prescribed by Act of Sederunt.

(9) For the purposes of subsection (8) above, the small maintenance payment limits are the rates mentioned in section 351(2) of the Income and Corporation Taxes Act 1988.

(10) Subject to subsection (11) below, the sheriff clerk shall not be entitled to refuse to accept payment by the employer under section 60(3)(b) of this Act which is tendered by cheque or by such other method as may be prescribed by Act of Sederunt.

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