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 will mainly use arrestment to obtain money from a defender's earnings or money held in a bank / building society account.

When an arrestment is laid on monies due to the common debtor (the defender in your action) it prevents the bank or building society (the arrestee) from releasing those funds to the debtor.

Note however that it does not give you any right to receive 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 the bank / building society to release sufficient amount of the monies caught to cover your debt and all costs. Where however this is not forthcoming you need to consider raising an action of furthcoming in the court whereby the court may order that the requisite amount due be paid over to you from the funds caught.

Earnings arrestment

An earnings arrestment is precisely what it suggests  it is the arrestment of sums of money payable by an employer to the defender. The rules for operating this form of diligence are as laid down in Part III of the Debtors (Scotland) Act 1987 and a summary of what 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 the jurisdiction of the Scottish courts. A place of business in Scotland is sufficient to establish 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.