Stephen Cowan

What is a summary warrant?

The normal process for Scottish legal recovery is for court action to be raised and thereafter, once judgment (decree) is forthcoming for that to be enforced. This will usually be preceded by pre-collection activity such as sending a letter before action to the debtor or otherwise making contact requesting payment to be made.

The position is quite different when money is due for council tax arrears and outstanding sums due to Revenue Scotland, both of whom have privileged positions when it comes to recovering monies using the court process.

Rather than having to navigate through the often lengthy court processes, its associated complexities and delays these creditors ( who essentially are local and central Scottish government) have the benefit of a speedier process which, in effect, allows them to achieve the equivalent of a court’s judgment with alacrity.

Essentially summary warrant procedure bypasses the court’s processes and allows the creditor to gain their remedy far faster than if court action were taken.

So far as Revenue Scotland are concerned typically the process is as follows:

• The debtor will be issued with a demand for payment for a sum of money which is owed to them.
• A 14 day period will be given for the sum to be paid.
• Thereafter an application will be made to the sheriff for a signed certificate stating that the debt is unpaid, payment has been demanded for the sums due and that 14 days have expired without payment having been made.

A sheriff who receives such an application must grant a “summary warrant”. This will allow the sheriff officer to recover the sums due under the warrant along with their fees (which can often be 10% of the principal sum).

What is the effect of a summary warrant?

Essentially, once granted, a summary warrant has the same effect as if the creditor had initiated the legal recovery process with court action and had decree granted.

However, with a summary warrant, the creditor will be able to immediately proceed with diligence (judgment enforcement). All enforcement options will be available including a charge for payment; attachment of goods and possibly their sale; money attachment; arrestment(freezing of bank accounts and sums due to the debtor by a third party) and earnings arrestment.

So what’s the problem?

From the creditor’s perspective, there is no problem. Summary warrant procedure allows and facilities for the quick collection of sums outstanding by effectively bypassing the litigation process.

The problem arises whether the debt is due in the first place - and this issue does sometimes arise when it comes to council tax arrears. Issues may arise whether the correct amount is due as stated under the warrant or, indeed, whether any sums are due at all.

There have been several reported incidents of former occupiers of premises receiving a summary warrant for council tax for a period during which they did not occupy rented accommodation. Despite the individual having advised their landlord that the tenancy had terminated and that the premises had been vacated, all in terms of the lease, the landlord may have simply forgotten to advise the local authority.

In the absence of notification, the council will write to the previous occupier/tenant at the rented address (this perhaps being the only address which the council have for them) demanding payment. The former tenant will, of course, not receive the letter as the property will have by then been vacated. The council will then make an application for a summary warrant for the arrears and pass this to sheriff officers to enforce. The officers will attend the premises to serve this on the “debtor”. The officers will then discover that the “debtor” has vacated that address but may then be able to trace them to a new address where the “debtor” currently resides.

Unlike court action, there is no process of recalling the summary warrant. The only action which can be taken is for the individual concerned to approach the council to explain that they are not due to pay the council tax and to produce evidence to support their position. This will not, however, be a judicial process and will often rely on the former landlord’s assistance and co-operation. If such assistance is not forthcoming the only effective judicial remedy will be for the individual to take an action of interdict which, if granted, will prevent the council from taking any further enforcement action.

An unsatisfactory conclusion

Whilst it may be open for the individual to take an action of interdict this will likely be costly and also cause anxiety and needless stress. Whilst it is appreciated that local authorities and the revenue should have accelerated processes in place for the recovery of monies rightfully due to them, perhaps quicker than ordinary commercial creditors, the use of such processes should still be fair and allow an individual with a genuine dispute some sort of process to judicially intervene.

There is currently no review of summary warrant procedure on the agenda. One can only hope that the creditors who use it are responsive to genuine complainers thus saving them time and expense in resolving the dispute and ensuring that unwarranted and unjustified judgment enforcement does not take place.

Stephen Cowan is managing director of Yuill + Kyle