Scottish Human Rights Law Group

The other pre-emptive and protective remedy commonly obtained as a matter of course when raising a court action in Scotland was a warrant to arrest, on the dependence of the action, any funds belonging to the defenders which were in the hands of third parties. [1] The authority for diligence was granted by a clerical act of a clerk of session but since diligence on the dependence was available as of right in cases where there were pecuniary claims, in theory a pursuer with a weak, exaggerated or unfounded claim could alter the balance of power by tying up the defender’s assets and damages for wrongful or unjustified use were available only in exceptional cases.    In Advocate General for Scotland v Taylor [2] the Inner House held that the availability of diligence as of right, irrespective of whether the pursuer’s claim was well founded in fact or in law and without any judicial assessment of the claim’s validity did not contravene Article 6 (because the civil rights and obligations of an individual were not determined by the grant of the warrant itself) and so a fair and public hearing by an independent and impartial tribunal established by law was not required.   However having regard to Article 1 Protocol 1 in order to justify the interference with property rights the court held that the grant of a warrant for diligence on the dependence should in essence be a judicial act where a judge himself had to consider the material placed before him before deciding to grant warrant for diligence or refuse it.   The court observed that the applicant for a warrant or letters of inhibition need only establish a prima facie case on the merits of the action and that the diligence sought was proportionate to the claim.

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[1] In Scottish Power Generation Limited v. British Energy Generation (UK) Limited, 2002 SC 517, IH the provisions of Section 47(2) of the Court of Session Act 1988 were sought to be used. in the context of on-going contractual relationship between the parties,  as an alternative means of providing proper security for both parties in respect of litigated claims.

[2] Advocate General for Scotland v Taylor, 2004 SC 339

Insolvency and Personal Bankruptcy, Property Law, Protocol 1, Art. 1 Right to Private Property, Taxation