DMBM671170 - Summary warrant: Variation of a conjoined arrestment order

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Applying for a variation of a conjoined arrestment order

Where the employer informs you that the defender's earnings are already subject to a conjoined arrestment order you can apply on a form 49 (obtainable from the court) for avariation of that conjoined arrestment so that your debt may also be included.

Before making the application to the court you must ask the employer for details of the conjoined arrestment already in force. You will need details of the:

  • name and address of the other creditors
  • date and place of execution of the earnings arrestment
  • amount of the debt specified in the arrestment schedule

If the employer fails to provide you with this information then you must apply on a (court) form 48 (obtainable from the court) for an order requiring him to do so.

Signature on form 49

Wherever possible the officer who signed the summary warrant application should sign the (court) form 49. If, however, this is not possible then you must attach a letter ofexplanation to the application.

Where to make the (court) form 49 application

You must make your application for a variation of the conjoined arrestment order to the court in the sheriffdom that granted the original conjoined arrestment order. The application should be made by hand, if convenient, or by Hays DX system (or by first class post if for whatever reason this is not possible).

How the (court) form 49 application will be heard

The application will be heard before the sheriff in whose sheriffdom the conjoined arrestment was granted. An experienced officer who is fully conversant with the case and the requirements of the Debtors (Scotland) Act 1987 should attend this hearing.

Once the sheriff has considered the case, his decision will be final. If your application is refused the earnings arrestment will remain valid but the employer will not operate it until the debt recoverable by the prior conjoined arrestment has been cleared.

What happens when the (court) form 49 application has been granted

When the sheriff grants such an application the employer will be responsible to the court for all matters relating to it.

Deductions made from the defender's earnings will be sent to the sheriff clerk who will arrange payment to each creditor of their appropriate share.

The method of operation and the intervals at which payments will be made to creditors may vary from court to court. You should:

  • liaise with the sheriff clerk to ascertain when payments may be expected
  • BF your papers accordingly

Note: You must not send reminders to the sheriff clerk's office unless you have reason for serious concern regarding the matter.

Advising the sheriff clerk when the debt is cleared

As soon as the debt covered by the variation of the conjoined arrestment order has been paid or otherwise cleared (by discharge for example) you must notify the sheriff clerk in writing immediately. If you do not do so the Department will be liable to repay the defender any excess deductions made by the employer plus interest on that sum.

In addition the defender may apply to the sheriff for an order requiring the department to pay him twice the amount of the excess.