Debt collectors telephone your place of work looking for payments,
or call you at home late at night, every night?
Debt recovery agents arrive on your doorstep and demand monies,
and say they'll keep coming back and back until the debt's repaid?
Does the law provide you with any help in Scotland?
Creditors are, of course, entitled to require the repayment of debts
lawfully due to them. Problems often arise where
creditors wish to avoid the expense or time of going to court and
either engage or sell-on debts to a debt recovery company.
If you think you are being harassed by a creditor or a debt recovery
agent you should note the following:
Consumer Credit Act 1974. Where goods have been purchased on
credit or money has been borrowed under £25,000 (in a single
transaction), it is likely that the Consumer Credit Act 1974 will apply.
Creditors and debt collection agencies must generally obtain a
licence under the 1974 Act in order to carry out the business of
lending money and collecting credit debts. If you feel
you have are being harassed by a creditor, you may be able to
complain to the Director
General of the Office of Fair Trading - which
administers the licensing scheme under the 1974 Act - you can write
to the DG at OFT, Fleetbank House, 2-6 Salisbury Square, London, EC4Y 8JX.
Some examples of practices which the OFT would consider relevant to
the fitness of creditors and debt collection agencies holding a
licence under the Consumer Credit Act 1974.
(1) Any practice which is liable or intended to mislead the debtor -
whether as to the origin or authority of any document or as to any
other material matter - is likely to be regarded by the OFT as
deceitful or oppresive or otherwise unfair or improper within the
meaning of section 25(2)(d) of the 1974 Act.
(2) The imposition of 'debt collection charges' in the absence of
express contractual provision in the credit agreement. Debtors
should not be led or allowed to believe that they are legally liable
to pay such charges where this is not the case.
In the case of repeated phone calls late at night etc., you may wish
to argue that these are oppresive and unfair.
Telecommunications Act 1984. It is a criminal offence to
use a telephone to cause gross offence or convey a message of a
menacing character. Section 43 or the 1984 Act (which applies
across the UK) provides as follows:
43 (1) A person who
(a) sends, by means of a public telecommunication system, a message
or other matter that is grossly offensive or of an indecent, obscene
or menacing character or
(b) sends by those means, for the purpose of causing annoyance,
inconvenience or needless anxiety to another, a message that he knows
to be false or persistently makes use for that purpose of a public
shall be guilty of an offence and liable on summary conviction to
imprisonment for a term not exceeding six months or a fine not
exceeding level 5 on the standard scale or both.
(2) Subsection (1) above does not apply to anything done in the
course of providing a programme service (within the meaning of the
Broadcasting Act 1990).
Protection from Harassment Act 1997. Upsetting or
distressing conduct by creditors or debt collection agencies may
constitute 'harassment' in Scotland in terms of section 8 of the
Protection from Harassment Act 1997. You may wish to consider
raising a civil action under the 1997 Act, seeking damages and either
interim interdict/interdict or a non-harassment order - to prevent
repetition of the conduct complained against. If you are in
receipt of benefits or on a modest income you may be eligible for
civil legal aid, to enable such an action to be brought before the court.
You can find out more from a solicitor.
8. - (1) Every individual has a right to be free from harassment and,
accordingly, a person must not pursue a course of conduct which
amounts to harassment of another and-
(a) is intended to amount to harassment of that person; or
(b) occurs in circumstances where it would appear to a
reasonable person that it would amount to harassment of that person.
(2) An actual or apprehended breach of subsection (1) may be
the subject of a claim in civil proceedings by the person who is or
may be the victim of the course of conduct in question; and any such
claim shall be known as an action of harassment.
(3) For the purposes of this section-
"conduct" includes speech;
"harassment" of a person includes causing the person
alarm or distress; and a course of conduct must involve conduct on at
least two occasions.
(4) It shall be a defence to any action of harassment to show that
the course of conduct complained of-
(a) was authorised by, under or by virtue of any enactment or
rule of law;
(b) was pursued for the purpose of preventing or detecting
(c) was, in the particular circumstances, reasonable.
(5) In an action of harassment the court may, without prejudice
to any other remedies which it may grant-
(a) award damages;
(i) interdict or interim interdict;
(ii) if it is satisfied that it is appropriate for it to do so
in order to protect the person from further harassment, an order, to
be known as a "non-harassment order", requiring the
defender to refrain from such conduct in relation to the pursuer as
may be specified in the order for such period (which includes an
indeterminate period) as may be so specified, but a person may not be
subjected to the same prohibitions in an interdict or interim
interdict and a non-harassment order at the same time.
(6) The damages which may be awarded in an action of harassment
include damages for any anxiety caused by the harassment and any
financial loss resulting from it.
(7) Without prejudice to any right to seek review of any
interlocutor, a person against whom a non-harassment order has been
made, or the person for whose protection the order was made, may
apply to the court by which the order was made for revocation of or a
variation of the order and, on any such application, the court may
revoke the order or vary it in such manner as it considers appropriate.
(8) In section 10(1) of the Damages (Scotland) Act 1976
(interpretation), in the definition of "personal injuries",
after "to reputation" there is inserted ", or injury
resulting from harassment actionable under section 8 of the
Protection from Harassment Act 1997".
If in doubt about your rights, contact your local law centre,
local firm of solicitors or a local CABx. Contact
addresses are listed in the yellow pages etc., (try searching under
Legal Services, Solicitors, or Advice).