After winning a small claim action in court, you may be wondering what next step to take in order to recover your money. Once you're in receipt of your Decree for Payment, this document will authorise Sheriff Enforcement to proceed to serve the document upon the opposing party.
When instructing a Sheriff Officer, we send the original Decree won in court and instructions on how it should be enforced.
The Decree authorise Sheriff Officers to enforce using the following methods:
This method is most appropriate where a debtor owns property belonging to them under the control of a third party. The most commonly known is money in an active Bank Account. An arrestment effectively "freezes" funds in the account held in a debtor's name. The aim is provoke contact from the defender and enter into a settlement agreement on the basis the arrestment will then cease.
Should a debtor be unwilling to enter into settlement, you can force the transfer of funds by raising further court proceedings known as an 'Action of Furthcoming.' The debtor is also held responsible for your expenses in doing so.
A charge is a written demand to a debtor requesting they pay the full, outstanding balance to you in fourteen days and failure to do so will result in further enforcement. This charge is not used to enforce a court decree, rather it is used to provoke payment and discussion as well as providing Sheriff Officers with the opportunity to serve the paperwork in person at the debtors' home, place of business or employment and gain a report on the likely recovery prospects. Doing so gathers useful information on the debtors' circumstances and for use with regards to future enforcement. A charge is not required to be served in order to perform a money arrestment (detailed above) but is required by law to be served before engaging in any other form of enforcement.
Following the fourteen day lapse during which a charge for payment expires, an earnings arrestment may be served on the debtors' employer. This type of diligence (enforcement) requires an employer to provide information on the debtors' employment and wage status and, if specific requirements are met, remit a portion of the debtors pay to you from their pay cheque. It is important to note that the debtor must have clear proof of employment and it is not possible to arrest earnings of a debtor treated as a contractor or someone who is self-employed.
Attachment takes an inventory of moveable property belonging to a debtor with the potential that the property will be sold at auction in order for monies to be recovered. Moveable property, for the most part, means articles outside of the place where the debtor usually resides. Attachment cannot be carried out until a charge has been served and has expired. Where an attachment is carried out, the Sheriff Officer fee is based on the total value of the items inventoried. A report is written up detailing the items and their actionable value and attachment orders usually last for up to six months, but you can be granted an extension by the court.
Where it has not been possible to attach goods out with the Moveable property and it is thought there are goods inside the known residence of the debtor, it is possible on some occasions to apply for an 'exceptional attachment order.' This can be a rather long and expensive process and the facts are case specific.
Following a threatened attachment, a debtor may wish to pay by instalments. An agreement can be reached without losing your right to proceed to an auction should settlement not be forthcoming. If a debt remains unpaid, Sheriff Officers can be instructed to proceed to arrange for the attached articles to be moved and put up for auction.
Following legal proceedings, the length of the enforcement process is related to the method of recovery used, the financial and ownership status of the debtor and the willingness of both parties to make settlement. The process can take a matter of weeks or months to complete.