The ultimate aim of any court action is to obtain a judgement from the court in your favour. Depending on the type of court procedure (such as, Simple Procedure or Ordinary Cause Procedure) this is known as a Decision Form or Decree.

What happens once a judgement has been obtained?

There are a wide range of options available to you to enforce the judgement against the losing party in the court action (known as ‘diligence’). These options allow you to attempt to recover the money the court has determined you are owed.

The most common forms of diligence are set out below.

Charge for Payment

Usually the first step and a precursor to further forms of diligence, a Charge for Payment is formal demand which allows the debtor 14 days to pay the amount the court has determined you are owed.

Failure to formally challenge the Charge for Payment or settle the debt can have serious consequences. For companies, that can include, but not restricted to, winding up petition.

For individuals, the consequences can include, but not restricted to, earnings arrestments or sequestration petition. Further options for enforcement can include the following:-

Inhibition

An inhibition effectively prevents the debtor from selling heritable property (usually their home in the case of individuals) whilst the debt remains due/ until the inhibition is discharged. This can be utilised regardless of whether a Charge for Payment has been served.

Earnings Arrestment

This remedy can be available when the debtor is an individual. It can be used to ingather monthly instalments from the debtor’s earnings directly from his/ her employer (if the debtor is employed and has earnings over certain levels set by regulation). We can also assist you in tracing the debtor’s employer.

Bank/ Third Party Arrestment

This remedy allows us to ‘freeze’ monies in the debtor’s bank account/ owed to the debtor by a third party as at the date upon which the arrestment is served (subject to a minimum protected balance).

The arrested monies are held for a period, after which the monies are automatically released to us on your behalf – unless the debtor challenges the arrestment during the relevant period.

Arrestments are mostly commonly served on banks, but can also be served on third parties where it is thought that they may owe the debtor money/hold money on behalf of the debtor.

Attachment

Attachment is a means by which certain goods belonging to the debtor (i.e. moveable property outwith the debtor’s residence) can be removed and sold at auction. Attachments on individuals are subject to a number of restrictions.

Sequestration/ Liquidation

Sequestration (i.e. bankruptcy of individuals) or liquidation (i.e. winding-up companies) is often the ultimate remedy, in particular, where other remedies have not been effective. Both involve specific court procedures which we can guide you through. We can also assist in obtaining information on the debtor to help assess whether you would wish to go down that route.

Our experienced team can advise on the most appropriate enforcement options available to you and likely the costs and timescales involved.