DMBM670930 - Summary warrant: Types of arrestment

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General arrestment

Many debts owing to the defender can be “attached” but in practice you willmainly use arrestment to obtain money from a defender’s earnings or money held in abank/building society account.

When an arrestment is laid on monies due to the “common debtor” (the defender inyour action) it prevents the bank or building society (the arrestee) from releasing thosefunds to the debtor.

Note however that it does not give you any right toreceive these funds it simply freezes them in the hands of the third party.

You need to either arrange with the defender to sign a mandate authorising thebank/building society to release sufficient amount of the monies caught to cover your debtand all costs. Where however this is not forthcoming you need to consider raising anaction of furthcoming in the court whereby the court may order that the requisite amountdue be paid over to you from the funds caught.

Earnings arrestment

An earnings arrestment is precisely what it suggests – it is the arrestment ofsums of money payable by an employer to the defender. The rules for operating this form ofdiligence are as laid down in Part III of the Debtors (Scotland) Act 1987 and a summary ofwhat constitutes “earnings” for the purposes of the Act is given at para 73(2).

Scottish court jurisdiction

An earnings arrestment can only be served on an employer who is subject to thejurisdiction of the Scottish courts. A place of business in Scotland is sufficient toestablish domicile in Scotland and render the employee subject to Scottish jurisdiction.

Restrictions on use of earnings arrestment

You cannot use an earnings arrestment in respect of the income of the self-employed,such as share fishermen.