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The key bits of law
which are relevant here are reproduced below or linked to, and
summarised as follows:
209
Summary warrants, time to pay and charges to pay
(1)
Section 10(4) of the 2002 Act (no charge required for attachment in
pursuance of summary warrant) is repealed.
(2) In
section 1 of the 1987 Act (time to pay direction)—
(a)
subsection (5)(e) (certain debts in relation to which a time to pay
direction cannot be granted); and
(b)
subsection (9) (interpretation),
are repealed.
(3) In
section 5 of the 1987 Act (time to pay order)—
(a)
subsection (4)(c) and (e) (certain debts in relation to which a time
to pay order cannot be granted); and
(b)
subsection (9) (interpretation),
are repealed.
(4) In
section 15(3) of the 1987 Act (interpretation)—
(a) in
the definition of “decree or document of debt”, after
paragraph (a) insert—
“(aa)
a summary warrant;”; and
(b)
the words “or a summary warrant” are repealed.
(5) In
section 90 of the 1987 Act (provisions relating to charges)—
(a) in
subsection (1), the words “Subject to subsection (2) below,”
and “an attachment or” are repealed;
(b)
after subsection (1) insert—
“(1A)
The following subsections of this section apply to any case where it
is competent to execute diligence only if a charge for payment has
been served on the debtor.”;
(c)
subsection (2) (no charge required for attachment or earnings
arrestment in pursuance of summary warrant) is repealed;
(d) in
subsection (5), for “an attachment or an earnings
arrestment” substitute “diligence”; and
(e) in
subsection (6), for “an attachment or an earnings
arrestment” substitute “diligence”.
210
Time to pay directions and time to pay orders
(1)
The 1987 Act is further amended as follows.
(2) In
section 1 (time to pay directions)—
(a) in
subsection (1)—
(i)
after “Act,” insert “on an application by the
debtor,”; and
(ii)
for the words “may, on an application by the debtor,”
substitute “, shall, if satisfied that it is reasonable in all
the circumstances to do so, and having regard in particular to the
matters mentioned in subsection (1A) below,”; and
(b)
after subsection (1) insert—
“(1A)
The matters referred to in subsection (1) above are—
(a)
the nature of and reasons for the debt in relation to which decree is granted;
(b)
any action taken by the creditor to assist the debtor in paying that debt;
(c)
the debtor’s financial position;
(d)
the reasonableness of any proposal by the debtor to pay that debt; and
(e)
the reasonableness of any refusal by the creditor of, or any
objection by the creditor to, any proposal by the debtor to pay that debt.”.
(3) In
section 5 (time to pay orders)—
(a) in
subsection (2), for the words “may, on an application by the
debtor,” substitute “, on an application by the debtor,
shall, if satisfied that it is reasonable in all the circumstances to
do so, and having regard in particular to the matters mentioned in
subsection (2A) below,”; and
(b)
after subsection (2), insert—
“(2A)
The matters referred to in subsection (2) above are—
(a)
the nature of and reasons for the debt in relation to which the order
is sought;
(b)
any action taken by the creditor to assist the debtor in paying that debt;
(c)
the debtor’s financial position;
(d)
the reasonableness of any proposal by the debtor to pay that debt; and
(e)
the reasonableness of the objection by the creditor to the offer by
the debtor to pay that debt.”.
The
Bankruptcy and Diligence etc. (Scotland) Act 2007 (Commencement No.
3, Savings and Transitionals) Order 2008
Diligence
on the dependence, summary warrants, time to pay – proceedings
before 1st April 2008
10.—(1)
Nothing in any provision brought into force by this Order, except
sections 15K and 15L of the 1987 Act (inserted by section 169 of the
Act) and section 95A of the 1987 Act (inserted by section 170 of the
Act), has effect as regards any diligence on the dependence of an
action for which a warrant is applied for before 1st April 2008.
(2)
Nothing in any provision brought into force by this Order has effect
as regards–
(a)
any diligence which is–
(i)
authorised by a summary warrant granted before 1st April 2008; and
(ii)
executed before 1st July 2008; and
(b)
any application for a time to pay direction or a time to pay order
made before 1st April 2008.
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