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GLOSSARY OF SCOTTISH LEGAL TERMS
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ACTION
This word is used to refer to any civil proceedings brought before a court in which the party, the Pursuer, obtains Decree (Judgment) against another party, the defender.
ARRESTEE
Person, firm or company in whose hands an arrestment has been lodged.
ARRESTMENT
A method of enforcing a Decree whereby a creditor can freeze in the hands of a third party moveable items or funds of a Debtor or an obligation to account by the third party to the Debtor. Further procedure can then be taken to have any items or sums attached by the arrestment made over to the creditor.
ATTACHMENT ORDER
This has replaced the process of Poinding and Warrant Sale .Basically it is the process of valuing a debtors moveable assets for sale by public auction. An attachment is used for the valuation and sale of the debtor’s property if out with a dwelling house as opposed to Exceptional attachment which is a more complex process where the debtor’s goods are within a dwellinghouse.
AVERMENT
Any statement or allegation made in written pleadings.
BONA FIDE
In good faithCHARGE FOR PAYMENT
Document served on a Debtor by Sheriff Officers formally calling upon the Debtor to make payment within fourteen days. Service of a Charge for Payment is a pre-requisite of some enforcement procedures, such as poinding and warrant sale, earnings arrestment, and in most cases, sequestration and liquidation.
COMMON Debtor
Name given to a Debtor whose assets have been arrested in the hands of a third party.
CONDESCENDENCE
The part of the summons which sets out in numbered paragraphs the allegations of fact which form the grounds of action.
CONJOINED EARNINGS ARRESTMENT ORDER
An order made by the Court where more than one creditor attempts to lodge an earnings arrestment in the hands of a Debtors employer. The order provides for the sums deducted from the Debtors salary to be split between or amongst the creditors on a pro-rata basis.
CREDITOR
A creditor is a person to whom another person (the Debtor) is owed money. A secured Creditor is one who has been granted a formal deed usually in the form of a fixed security, providing security for the sum owed.
DECREE
A Decree is term used for the judgment of a court in a civil action.
DEFENDER
The person against whom a court action is raised (equivalent of a "defendant" in England)
DILIGENCE
Collective terms for the various methods of enforcement of decrees.EARNINGS ARRESTMENT
A method of enforcing a decree by having a specific sum deducted from the Debtors weekly or monthly wage.
EXCEPTIONAL ATTACHMENT ORDER
This has replaced the process of Poinding and Warrant Sale .An Exceptional Attachment will be used to value and sell the defenders moveable property situated within a dwellinghouse.It is quite a complex and time consuming process.
EXTRACT DECREENT
Order of Court (equivalent of judgment issued by an English Court)
FORTHCOMING
A type of court action which may require to follow an arrestment. The action seeks a Court order to have arrested funds released to the creditor.
HERITABLE
The most basic distinction between the types of property is that of heritable property and moveable property. Subject to a number of exceptions, heritable property denotes property in the form of land and buildings, moveable property is all other types. The classification is important as the nature of any diligence to be used will depend upon the type of property to be covered by it.
INHIBITION
A personal prohibition at the instance of a creditor which restrains the Debtor from voluntarily selling or granting any securities over heritable (ie real) property.
INITIAL WRIT
Form of document used to raise a court action where the sum sued for is more than £5,000.00.
JOINT & SEVERAL LIABILITY
This is where two or more Debtors are each responsible for the whole of a debt due to a common creditor.
JUDICIAL EXPENSES
The expenses awarded by the Court against the Debtor towards your legal expenses.
LIEN
A right to retain the Debtors property, in possession of the creditor, until the debt is paid.
LITIGIOUS
The condition attaching to property subject to an action of diligence which has the effect of prohibiting the alienation of the property.
ORDINARY CAUSE PROCEDURE
Court procedure used where debt is in excess of £5,000.00.
PLEADINGS
Pleadings in civil actions are the written allegations, admissions and denials of each party.
POINDING
(Pronounced "pinding") A method of enforcing a decree whereby the Debtors moveable property is inventoried and valued. The Debtor is then prohibited from selling, removing or otherwise disposing of the poinded items, with the sale proceeds going to the creditor on whose behalf the poinding was carried out.
This process is now redundant and has been replaced with 'Attachment Order' and 'Exceptional Attachment Order'
PROBATIVE
Probative documents, because of adherence to certain formalities are deemed to conclusively prove their own terms.
PRORATA PROPORTIONAL PURSUER
This is where if there is more then one debtor each is liable for their own proportionate share as opposed to joint and several liability where each debtor is responsible for the entire debt.
PURSUER
The person claiming in the action (equivalent to "plaintiff" in an English action)
SEQUESTRATION
The Scottish term for bankruptcy of an individual. The debt has to be £5,000 or greater
SHERIFF OFFICERS
Equivalent of English process servers and bailiffs.
SIST
The stopping of a process for some definite or indefinite time.
SMALL CLAIMS
Court procedure used for recovery of debts of up to £3,000.00
SUMMARY CAUSE
Court procedure used for recovery of debts of between £3,000.00 and £5,000.00.
SUMMONS
Form of document used to raise a court action where sum sued for is less than £5,000.00.
WARRANT OF SERVICE
Courts authority to serve a Writ or Summons on a Debtor (also known as warrant to cite.)
WARRANT SALE
Procedure following upon a poinding whereby the Debtors goods are sold at auction
This process is now redundant and has been replaced with 'Attachment Order' and 'Exceptional Attachment Order'
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