Personnel of the enforcement system

Judicial officers can be instructed directly by any person who holds a court warrant – either for citation (i.e. service of a document) or diligence (i.e. enforcement). If the form of enforcement is directed against the debtor’s corporeal moveable property in his own possession, the attachment and auction procedure is overseen by the sheriff (judge) of the sheriff court district within whose jurisdiction the articles were attached. This means that the executing of such an attachment must be reported to the court and intimation of arrangements for an auction must also be made there, along with a final report. (If the judgment had been granted by the Court of Session, the supreme civil court, supervision of its enforcement by attachment would still be carried out by the sheriff court, not the Court of Session.) Moreover, it is the sheriff who has authority to review the operation of an earnings arrestment and it is to the sheriff that a notice of objection would be sent, applying for an order to recall or restrict any other type of arrestment. To this extent, the sheriff and sheriff clerk (clerk of court), together with the judicial officers, may be said to constitute the personnel of the executive department of the civil courts in Scotland.

Judicial officers

There are two corps of judicial officers: messengers-at-arms and sheriff officers. Messengers-at-arms are officers of the Supreme Courts (i.e. the Court of Session and High Court of Justiciary) and the Lyon Court, having authority to act anywhere in Scotland. They are admitted to office by the Lord Lyon King of Arms, following a recommendation for appointment by a judge of the Court of Session. Only a sheriff officer may be admitted to be a messenger-at-arms, so all messengers-at-arms are also sheriff officers.

Sheriff officers, as officers of the sheriff courts, are restricted to local jurisdictions. There are 49 sheriff court houses, throughout the country, organized within six sheriffdoms. The sheriff principal of each sheriffdom has authority to appoint sheriff officers. In practice, many officers hold commissions as officers of several of the sheriffdoms.

Whether acting as a messenger-at-arms or a sheriff officer, the judicial officer is an officer of the Crown and a public official. These posts have never been part of the civil service: this is an independent profession, the activities of which are under the control of the sheriffs principal and the Lord President of the Court of Session. The activities of judicial officers are regulated by the Messengers-at-Arms and Sheriff Officers Rules 1991 and the Code of Practice of the Society of Messengers-at-Arms and Sheriff Officers (2011).

1. What are the judicial officer’s activities?

The main, official functions of messengers-at-arms and sheriff officers are the service of documents and the enforcement of judgments. It is a legal principle (recorded in section 1 of the Code of Practice) that an officer’s duty is not to refuse to serve any document required under any legal process or to execute diligence, except in special circumstances.

The official functions of an officer of court (the generic term in Scots law for a judicial officer) are described as follows in the 1991 Rules: He may collect any debt constituted by decree or recoverable by summary warrant; execute diligence; or execute a citation or serve any document required under any legal process, in any place in respect of which he holds a commission as an officer of court. (A sheriff officer may also execute a warrant of a court of which he is an officer in any other part of Scotland.)

The extra-official activities of an officer, as stated in the Rules, may include collection for remuneration of any debt not constituted by decree (if the officer has applied to the sheriff principal (senior judge) for permission to collect such debts). When performing this extra-official activity, the officer must not state or imply that he is acting in his capacity as an officer of court.

The following comments, published in 1985, probably still record the balance between official and extra-official activities: “Most officers of court are engaged more or less full-time in performing their official functions. The main fields outside their official duties in which officers are regularly engaged appear to be debt collection; work as enquiry agents; and the service of statutory notices, such as notices under the Companies Acts, where the officers are not acting in their official capacity but merely as reliable witnesses to establish that the notice has been duly received.” (SCOT.LAW COM. No.95, 8.105)

Citation (i.e. service)

The legal formality of service of a document is called citation. There are no English equivalents to the precise French terms that distinguish between notification and signification, beyond the explanation that the former is postal citation, and the latter is delivery by the hand of the judicial officer. Postal service was introduced to Scotland in 1882. Most postal citations are served by solicitors, although a messenger-at-arms or sheriff officer (commissioned for the court in which the action was raised) would have the same authority to serve by post.

If the citation envelope is returned to the court as having been undelivered, the clerk of court returns it to the pursuer or his solicitor and, if service is still required, an officer must be instructed to serve it by hand. The service of court documents by hand therefore remains (with very few exceptions) a monopoly of judicial officers.

The methods of service, where the addressee cannot be found personally, have been regulated in Scotland since the Citation Act 1540. These are the current rules of the sheriff court for service in Scotland, by a sheriff officer:

• (1) … (a) personally; or (b) by being left in the hands of a resident at the person’s dwelling place or an employee at his place of business. …
• (2) Where service is executed under paragraph (1)(b), the certificate of citation or service shall contain the full name and designation of any person in whose hands the initial writ … or other order or writ, as the case may be, was left.
• (3) Where a sheriff officer has been unsuccessful in executing service in accordance with paragraph (1), he may, after making diligent enquiries, serve the document in question – (a) by depositing it in that person’s dwelling place or place of business; or (b) by leaving it at that person’s dwelling place or place of business in such a way that it is likely to come to the attention of that person.

Where service is executed under paragraphs (1)(b) or (3), the document must be placed in an envelope bearing the notice “This envelope contains a citation to or intimation from (insert name of sheriff court)” and sealed by the sheriff officer.

Where the address of a person to be cited or served with a document is not known and cannot reasonably be ascertained, the sheriff grants warrant for citation or service upon that person (a) by the publication of an advertisement in a specified newspaper circulating in the area of the last known address of that person, or (b) by displaying on the walls of court (i.e. court notice board) a copy. An officer, therefore, does not execute this form of service (although it is his function to serve documents on a person whose whereabouts are unknown in connection with diligence, or enforcement).

There is no provision at present for officers to serve documents through electronic means.

Diligence (i.e. enforcement)

The creditor has a free choice in the selection of enforcement measure. He could apply for a protective measure, termed diligence on the dependence. The onus is on the creditor to satisfy the court that an order granting warrant for such measures should be made.

In 2007 the procedure was codified by the insertion of section 15A of the Debtors (Scotland) Act 1987. Warrants for arrestment or inhibition on the dependence of an action may be granted by the court, if it is satisfied that the creditor has a prima facie case on the merits of the action; that there is a real and substantial risk that enforcement of any decree (judgment) in the action in favour of the creditor would be defeated or prejudiced by reason of (i) the debtor being insolvent or verging on insolvency; or (ii) the likelihood of the debtor removing, disposing of, burdening, concealing or otherwise dealing with all or some of the debtor’s assets; and that it is reasonable in all the circumstances to do so.

The 2007 Act also introduced a new form of attachment on the dependence, interim attachment. The effect of this innovation, in combination with the traditional diligences of inhibition and arrestment, is that the debtor’s land, his moveables in the hands or third parties, and his corporeal moveables in his own possession could be subject to diligence before the granting of decree or judgment.

Diligence in execution can proceed by virtue of the official extract of a decree or document of debt, as defined by section 221 of the 2007 Act. Such extracts contain “warrant for lawful execution hereon”. This means, in relation to an ordinary debt, the charging of the debtor to pay to the creditor within the period specified in the charge (usually 14 days) the sum specified in the extract and any interest accrued on the sum and, in the event of failure to make such payment within that period, the execution of an earnings arrestment and the attachment of articles (including money) belonging to the debtor. It also authorizes, without the need for a charge (a preliminary notice), arrestment of the debtor’s moveable property, except for his earnings, and inhibition.

All the forms of execution mentioned above are monopoly activities of judicial officers. Officers are also the only competent officials responsible for making arrangements for and supervising auctions. However, auction sales are usually conducted by auctioneers, not officers.

Which judicial officer must be selected?

The creditor, as well as having a free choice in the selection of the diligence, can choose the particular officer or firm who receives the instruction. He does not have to pick an officer with the nearest address to the place for service; indeed, he might prefer to send all his instructions to one office and leave it to that firm to distribute the work among the most conveniently placed officers. The EJE directory contains all the contact information that is needed.

Who pays the judicial officer?

All messengers-at-arms and sheriff officers must charge the same fees, which are prescribed by act of sederunt made by the Lord President. This protects the debtor: the creditor’s choice of officer should not cause the expense to be any greater than had he selected the nearest officer to the debtor’s address. Most of the official fees for diligence in execution are automatically chargeable against the debtor, although the instructing party is liable for the officer’s proper payment. An officer might ask to be paid his fee in advance.

How much are the fees?

A service in terms of a request under Regulation (EC) No. 1393/2007 costs £83.80, plus V.A.T., for service by hand by an officer. (Service by a messenger-at-arms of other documents costs from a minimum of £54.20 to £116.05, and more, depending on the distance that requires to be travelled.)

Arrestments are served at a basic cost of £54.20. Attachments of corporeal moveable property have a minimum fee of £89.10, increasing to £138.15 if the value of the attached articles is over £627 and up to £2,519. A percentage is charged if the appraised value is yet higher. (V.A.T. is chargeable on all fees mentioned.)

2. Discipline and responsibility of the judicial officer

All officers are members of the Society of Messengers-at-Arms and Sheriff Officers and, as a consequence of membership, must cooperate with the Society if complaints are being investigated. The public is encouraged to refer complaints to the Society’s office at 11 Alva Street, Edinburgh, EH2 4PH, www.smaso.org. However, all disciplinary powers over judicial officers are held by the judges and the Society would refer any serious matters to the sheriffs principal and the Lord President. Inspection of work, investigation of alleged misconduct and the courts’ powers in relation to offences or misconduct were all put on a statutory basis by Part V of the Debtors (Scotland) Act 1987.

Officers are under all the obligations to a client that apply in the provision of any professional service. They “should be conscientious and diligent in the performance of their duties,” the Code of Practice states. “They must execute lawful instructions as promptly as is reasonable and with all necessary skill.” But the Code further reminds them of the special character of their public offices: “A Messenger-at-arms or sheriff officer must at all times be aware that, above all else, his authority and duties are those of an officer of the court, and he must not act in any way which subordinates him to the instructing party or otherwise conflicts with the independent performance of his office.”

The Code requires officers to “be open, honest and truthful in their dealings, to the full extent that their duties of confidentiality permit.” It is explained that “private information which comes into the possession of officers in the course of their official duties must be treated as confidential.” So too is all information about their own clients to be treated. They are reminded that they “must not be improperly beholden to any person or institution and should avoid giving any impression of being improperly influenced by any such party.”

The officer is indeed the guarantor of the balance between the rights of the creditor, as set against the rights of the debtor. His is a neutral, ministerial role of the law. In fact, whereas a lawyer’s professional ethos would require him to decline to act for more than one party in a dispute, the officer’s duty is to carry out the lawful instructions of all parties, even in the very same action.