DMBM671160 | Summary warrant: Conjoined arrestment orders

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General

If you discover that an earnings arrestment which you have served on an employer cannot be operated because there is already another earnings arrestment in place you and / or any other creditor can apply to the court for a conjoined arrestment order.

If the conjoined arrestment is granted then the original earnings arrestment will be recalled and a fresh order made requiring the employer to forward deductions to the sheriff clerk.

The sheriff clerk will oversee the operation of the conjoined arrestment order and be responsible for making pro-rata payments to the creditors named in the order.

This will then mean that whilst there is still only one earnings arrestment in operation the proceeds from it will be divided between the creditors who have been conjoined in the order.

Applying for a conjoined arrestment order

To apply for a conjoined arrestment order you must

• obtain (court) form 43 from the court and

• request the employer to supply you with

If exceptionally the employer fails to provide you with this information then you must apply on a (court) form 42 (again available from the court) for an order requiring him to do so.

Signature on (court) form 43 application

Wherever possible the officer who signed the summary warrant application should sign the (court) form 43. If however this is not possible then you must attach a letter of explanation to the application.

Where to make the (court) form 43 application

You must make your application for a conjoined arrestment order to the court in the sheriffdom where the earnings arrestment has been laid. This may be a different court from that which granted the summary warrant.

The application should be made by hand, if convenient, or by the Hays DX system (or by first class post if for whatever reason this is not possible).

Hearing the form 43 application

The application will be heard before the sheriff in whose sheriffdom the earnings arrestment has been laid. An experienced officer who is fully conversant with the case and the requirements of the Debtors (Scotland) Act 1987 should attend the hearing.

Once the sheriff has considered the case his decision will be final. If your application is refused the earnings arrestment will remain valid but the employer will not operate it until the debt recoverable by the prior arrestment has been cleared.

Form 43 application granted

When the sheriff grants an application the employer will be responsible to the court for all matters relating to it.

Deductions made from the defender’s earnings will be sent to the sheriff clerk wh owill arrange for payment of their appropriate share to be made to each creditor.

The method of operation and the intervals at which payments will be made to the creditors may vary from court to court.

You should note:

• the name and address of the other creditor

• the date and place of execution of the earnings arrestment

• the amount of the debt specified in the arrestment schedule and

• whether there is already a conjoined arrestment order in operation against the earnings.

• liaise with the sheriff clerk to ascertain when payments may be expected and

• B/F your papers accordingly.

You must not sent reminders to the sheriff clerk's office unless you have reason for serious concern regarding the matter

Advising the sheriff clerk when the debt is cleared

• As soon as the debt covered by the conjoined arrestment order has been paid or otherwise cleared (by discharge for example) you must notify the sheriff clerk in writing immediately. If you do not do so the Department will be liable to repay the defender any excess deductions made by the employer plus interest on that sum.
  
  In addition to this the defender may apply to the sheriff for an order requiring the Department to pay him twice the amount of the excess.