Scottish Interim Orders for claims raised in other jurisdictions

Are you suing a defendant for damages? Does the defendant have assets in Scotland? Are you concerned that if you win your case you might not get paid? Would you like to freeze those assets with comparatively little risk or cost? If you have answered "yes" to these questions, then it's time to consider using a little known procedure in the Scottish Court of Session to secure your claim. Here's how it works.

Scotland, like many jurisdictions, allows claimants to arrest (i.e. freeze) moveable property (i.e. personal property) such as credit bank balances, goods belonging to or debts owed to a defendant (known as the "defender"). You can arrest "on the dependence" of an action (before it is concluded) or you can arrest "in execution" of a final judgment. An arrestment on the dependence is used to secure your claim, by preserving assets that can be realised to satisfy any money judgement that you might ultimately be awarded. Arrestment in execution is used to freeze assets in satisfaction of your judgement. The English equivalents would be a freezing order or a garnishee order. For present purposes however, we want to tell you about arrestment on the dependence.

Generally speaking, arrestments are normally used on the dependence of Scottish claims but what you should also know is that the "action" need not be limited to claims issued in the Scottish Courts. It could be a claim in any jurisdiction. So, for example, if you have issued a writ in the English High Court for damages you can rely on the English claim and petition the Court of Session in Edinburgh to grant an arrestment order to freeze the defendant's property in Scotland. Furthermore, all you have to do is issue the writ. You don't have to serve either the English or the Scottish writ in order to apply for an arrestment (although you must do so thereafter in order to preserve the property arrested).

Arrestments are not granted automatically. The decision to grant the power to arrest is discretionary - you have to show a state able case but unlike the English equivalents, you would not generally be required to give an undertaking in damages as a condition for granting the order. However, the process is not risk free. If you wrongfully arrest property causing the defendant loss, he can claim against you for that loss.

Incidentally, if it's land you want to secure then this is also possible by using a similar procedure called inhibition.

It is also possible to obtain an interim interdict in Scotland (the equivalent to an English interim injunction), based on a claim in any jurisdiction. In fact the claim need not have actually been raised for an interim interdict to be sought, it is sufficient for them to merely be contemplated.

For more information on arrestments or inhibitions, please contact Alex Green at [email protected] or on +44 (0)1224 622002.