Diligence Flashcards
1
Q
What are the forms of diligence?
A
- attachment
- arrestment
- adjudication
- inhibition
2
Q
Relevant legislation for each of the 4 types of diligene?
A
- attachment: Debt Arrangement and Attachment (S) Act 2002
- arrestment: Debtors (S) Act 1987
- adjudication: largely common law
- inhibition: BAD Act 2007
3
Q
Heritable Reversionary Co Ltd v Millar
A
- private creditors cannot carry out diligence against trust property
4
Q
Morrison v Integer Systems
A
- recall of arrestments on dependence of actio refused
- outwith 60 days
- preference only given provided that arrestment carried out 60 days prior to sequestration
5
Q
Slater v Grampian
A
- if creditor is employer, can arrest in own hands (arrestment of earnings)
6
Q
Playfair Investments Ltd v McElvogue
A
- disposition of missives will not be struck by inhibition
- disposition is step as a result of missives entered prior to inhibition
- must fulfil legal obligation of missives
7
Q
Park Petrs.
A
- pre BAD Act 2007
- missives concluded in the day
- inhibition came into effect end of day
- therefore property could not be transferred out of debtors estate
8
Q
Hull v Campbell
A
- Held: ajudger (creditor) not entitled to windfall
- Court could grant order with requirement of creditor to pay surplus in value to debtor
9
Q
Advocate General for Scotland v Taylor
A
Diligence on dependence requirements.
1) creditor needs to show that diligence on dependence should be granted - prima facie case that money is owed
2) diligence sought is proportionate to the claim
10
Q
Karl Construction Ltd v Palisade Properties Plc
A
- case applicable only to inhibition on dependence
- use was contrary to ECHR art1
- introduced hearing requirement before warrant can be granted
11
Q
Macmillan.
A
Diligence and insolvency process - recievership
- overturned 5 bench decision LA v RBS
- competition between inhibition and floating charge
- Held: inhibition is effectually executed diligence
