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Glossary of Scots Law Terms

 

Administration

Administration is when a person, 'the administrator', is appointed to manage a company's affairs, business and property for the benefit of the creditors.

Advocate

Scottish equivalent of English Barrister.

Answers

Written pleadings given into court in defence to a claim or action.

Attachment

A form of diligence over corporeal moveable property for recovery of money owed.

Arrears

Money that is owed and should have been paid earlier.

Arrestment

To arrest is to attach the funds or property of a debtor or the defender of an action in the hands of a third party. Arrestment may be in execution of diligence, or in security for an action.

Assets

A resource with economic value that an individual, corporation or country owns or controls with the expectation that it will provide future benefit.

Avizandum

The time during which the court considers its judgment. A sheriff or judge may "Make Avizandum" at conclusion of hearing evidence, to consider what decision is to be made in the case.

Bank Arrestment

A form of diligence following the expiry of a Charge for Payment, whereby a creditor requires the debtor’s bank to deduct sums from the account to pay the creditor. 

Caveat

Caveats are Scottish court instruments that give you prior warning of any attempt to obtain interim interdict or an interim winding up order against your business or a bankruptcy order against you.  

Calling Date

The date the case will first call in court if there is an intention to Defend, or the date upon which Decree will be granted in Small Claims and Summary Cause actions if no intention to defend is lodged.

Charge For Payment

A legal document demanding payment of a debt. The charge follows upon Decree. A Sheriff Officer usually serves it, and the debtor is required to comply with the order within a specified time (usually 14 days).

Conjoined Arrestment 

Process whereby two or more arrestment orders in effect at the same time are combined and the proceeds of the arrestment apportioned by the sheriff clerk among the arresting creditors.

Condescendence

Part of a pursuer’s written pleadings in court action, which contains a statement of the facts on which he relies.

Creditor

An expression to indicate a party has delivered a product, service or loan, and is owed money for such.

Debtor

Any person who owes money to another.

Decree

A Judgement by the Scottish courts; an official order that has the force of law. 

In England these are sometimes referred to as CCJs.

Defender

Person whom court action is made against.

Diligence

Technical term for debt enforcement in Scottish law.

Earnings Arrestment

A form of diligence following the expiry of a Charge for Payment, whereby a creditor requires the debtor’s employers to deduct sums from the debtor’s wages or salary and to pay the creditor. 

Exceptional Attachment Order

In exceptional circumstances, a court can make an exceptional attachment order that allows the removal and auction of a debtor’s possessions.

Expenses

The Scottish legal term for the costs of an action.

Induciae

Time limit for response to a court action.

Inhibition

A diligence that prevents the debtor from transferring or disposing of title to heritable property without the debt of the inhibiting creditor being settled.

Initial Writ

The form of court writ initiating an action in Ordinary Cause procedure the Sheriff Court actions.

Insolvency

The incapacity to pay debts when they become due in the ordinary course of business.

Insolvency Practitioner

A person licensed and authorised to act as a trustee in sequestrations or trust deeds and also as liquidator, administrator, or receiver of a limited company.

Interlocutor

The official and effective expression of an order or judgement pronounced by the Court in the course of a civil action.

Joint & Several Liability

Where two or more persons are liable in respect of the same liability.

Judicial Expenses

Court costs awarded as due by the court.

If you are successful in a court action, the opponent is usually (not always) ordered to pay your expenses.  These are Judicial Expenses.  They are calculated on a different rate from fees charged by solicitors. Judicial Expenses are prepared on the basis of a

Statutory fixed Table of Fees. If an Account of Judicial Expenses cannot be agreed by the parties, then the account will require to go to Taxation

Letter Before Action

Letter sent to debtor requesting payment is made within 7 days.

Lien

Right to retain the property of a debtor until a debt is settled.

Liquidation

The winding up of a business by selling off its assets to convert them into cash to pay its debts.

Litigation

The process of taking legal action.

Notice of Potential Liability for Costs (NOPL)

A notice giving details of certain maintenance or work carried out in relation to a flat specified, that is capable of being recorded in the General register of Sasines or registered in the Land Register of Scotland. If registered, the effect is that an incoming owner will be liable for the cost of such maintenance or work.

Ordinary Cause

Procedure that can be used in the sheriff court where the value of the claim is over £5000.

Partnership

Contractual relationship between 2 or more persons carrying on a business in common with a view to profit. 

Petition

Legal term for a formal application to the court.

Pre-litigation

Term used to describe activity that happens regarding a legal claim before it is raised in court.

Pursuer

The party who initiates proceedings in a court of Scotland.

Retention

Withholding by one party to a contract of performance of his obligations under the contract until the other party performs his obligations under it. 

Return Date

The deadline for a reply to the Court action, i.e. advising the court and the pursuing party’s solicitors that a Defence is to be made to the action.

Sequestration

The Scottish legal term for bankruptcy.

Sheriff Officers

An officer of the Scottish Sheriff Court, responsible for serving documents and enforcing court orders.

Sist

To stay or suspend court proceedings by order of the court.

Small Claims

Sheriff Court procedure that can be used where the value of the claim is up to and including £3000.

SME

Abbreviation for Small and medium-sized businesses.

Sole Trader

Type of business entity owned and run by one individual.

Standard Security

The legal instrument by which a secured debt is created.

Statutory Demand

Legal document requesting payment of debt that will be served by a Sheriff Officer.

Summary Cause

A summary cause is a type of court procedure used where the value of the claim is over £3000 and up to (and including) £5000.

Summons

The form of court writ initiating an action in Small Claims or Summary Cause procedure the Sheriff Court actions, and actions at the Court of Session.

Taxation

If an account of expenses cannot be agreed, it will be submitted to the Court Auditor for "Taxation" which is effectively an adjudication of the sum to be awarded. A Court Auditor has discretion to vary elements of the account and generally the Court Auditor’s decision will be final.

Title

The right to the ownership of property.

Trace

Investigation techniques used to attempt to find information concerning a debtor.

Trust

The vesting of certain funds, rights or interests in property in another person or persons (trustees) to be applied or administered for the benefit of others (beneficiaries) in accordance with the terms of the trust.

Warrant

The Order from the court allowing service of the court action on Defender(s).