Litigation - Scottish Construction Contracts - page 333

theissuesindispute.WhileitisashadowoftheEnglishCivilProcedurePre-Action
protocols, it reflects the same desire to make litigation in the courts the final step in
the resolution of claims as opposed to the first.
15.2.3 Protective measures
The right to seek protective measures to secure the claim or the subject matter of the
dispute, pending the outcome of proceedings, may be exercised at the outset of Sheriff
Court or Court of Session proceedings, or at a later date by application to the court.
In this section we consider the principal protective measures available in Scotland.
Arrestment and inhibition
The principal protective measures are the rights to arrest or inhibit pending the out-
come of the action, known as arrestment and inhibition on the dependence.
Arrestment is a means of attaching money or other moveable property of the
defender in the hands of a third party. So, for example, a pursuer in an action might
attach any funds at credit in the defender's bank account by placing an arrestment in
the hands of the bank. That freezes the money in that account and prevents the bank
from releasing it to the defender. Warrant to arrest can be granted in either the Court
of Session or the Sheriff Court.
Inhibition is similar but attaches heritable property of the defender preventing the
defender from selling it. Since he Bankruptcy and Diligence etc. (Scotland) Act 2007
('the2007 Act'), which came intoforcein April2008, warrant to inhibitcan be granted
in either the Court of Session or the Sheriff Court. The 2007 Act makes significant
changes to the law of diligence. Following a series of cases involving Article 1 of the
First Protocol to the European Convention on Human Rights, see Karl Construction
Ltd v. Palisade Properties plc (2002), Advocate General for Scotland v. Taylor (2004),
Barry D Trentham Ltd v. Lawfield Investments Ltd (2002), Fab-Tek Engineering Ltd v.
Carillion Construction Ltd (2002), Gillespie v. Toondale Ltd (2005) and FGHawkes
(Western) Ltd v. Szipt Ltd (2007), the 2007 Act sets out as law the practice adopted by
the court in these cases, particularly Karl Construction .
The new regime is contained in section 169 of the 2007 Act (which introduces new
sections 15A-5N of the Debtors (Scotland) Act 1987). An application for warrant
for diligence is made by motion accompanied by a form setting out the basis upon
which diligence is sought. Often there is also some reference to the basis upon which
diligenceissoughtinthewrittenpleadings.
There is a new statutory test to justify the need for diligence. A party applying for a
warrant must show:
1. that he has a prima facie case on the merits (a relevant and persuasive case on
the face of the facts as set out);