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Lloyd's Maritime and Commercial Law Quarterly

SHIP ARREST IN SCOTLAND

The context and background

The Act of Union of 1707 expressly preserved the Scottish legal system and its courts. Since 1999 Scotland has had its own Parliament1 with legislative competence in relation to, inter alia, matters which are not reserved to the UK Parliament. Although there are many similarities between Scots and English Admiralty law, they are not the same, and the sources of the law in and the procedures and language applied by the two jurisdictions are different. Scotland’s statutory law and procedure is found in part of the Administration of Justice Act 1956, Part V (“the 1956 Act”)2 (an Act of the UK Parliament which now extends only to Scotland and which the Scottish Parliament has amended) and the relevant Rules of Court.3
The scheme affecting the law of ship arrest in Scotland has now been subjected to a number of reforms that were brought into effect on 1 July 2010. The reforms came in to force by virtue of an unexcitingly named Scottish Statutory Instrument4 which brought into force Part 14 of and Schedule 4 to the Bankruptcy & Diligence Etc (Scotland) Act 2007 (“the 2007 Act”),5 an Act which at first sight may not be one that would be thought to have much application to shipping. The reforms had, however, been the subject of much consideration in a Discussion Paper,6 a Consultation Paper,7 a Report,8 a Consultation Document,9 and finally the consultation on and the passage of the 2007 Act through the Scottish Parliament.
In Scotland, diligence (ie, the method of enforcing an unpaid debt) can be on the dependence (ie, while an action is progressing through the courts but has not yet proceeded to judgment) or in execution (ie, post judgment). Diligence on the dependence is used to give the party bringing the claim (the pursuer) security for a claim for payment of a sum of money. An arrestment classically may attach trading debts or moveable property due to the debtor by a third party, so preserving the funds or property in security for the claim. Recent developments in Scots law, particularly since the coming into force of the Human Rights Act 1998,10 and specifically the requirement for proportionality, have meant that the granting of warrants to arrest on the dependence have become judicial acts rather than administrative acts available as of right as they were in the past.11

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