This information sheet provides an insight into the history of Messengers-at-Arms and Sheriff Officers, and explains their official duties in relation to serving court documents and enforcing civil court judgments.
A Messenger-at-Arms is an officer of the Court of Session which is the supreme civil court in Scotland. A messenger-at-arms can travel anywhere in Scotland, serve court documents and enforce court orders of the Supreme Court.
A Sheriff Officer is an officer of the regional civil court. Scotland is geographically divided into six sheriffdoms and 39 local sheriff court districts. Unlike a messenger-at-arms, a sheriff officer can only operate in the geographical area for which he holds a commission, which is issued by the Sheriff Principal.
The offices of messenger-at-arms and sheriff officer can be traced back several hundred years, long before the creation of our existing professional police force. Originally known by the title of Officer of the King, the office of messenger-at-arms is a public one under the Crown and holders of it form part of the corps of Her Majestys Officers of Arms. The messengers-at-arms owe their historic title to the fact that they are always issued with a silver badge with the Royal Arms thereon. Records from the year 1510 show that by that time messengers-at-arms were under the control and discipline of the Lord Lyon King of Arms and in the Officers of Arms Act 1587, they were counted amongst the "only two hundred persons wearing and bearing our Sovereign Lords arms in the whole bounds of the realm of Scotland". Since then, all holders of the office have been appointed by the Lord Lyon, and all appointments by him are now made on the recommendation of the Court of Session.
All messengers-at-arms, as a condition of their appointment, require to hold a commission as a sheriff officer. For centuries the sheriff, by virtue of his position as the local officer of the Crown, has appointed, controlled and disciplined officers of court (now termed sheriff officers but referred to in statutes of the fifteenth and sixteenth centuries by the synonymous terms of mair, sergeand or officer) who are officers of the Crown and of the Sheriff Court, within its jurisdiction and responsible for executing its warrants. The office of a sheriff officer is probably one of the oldest in the Scottish legal system since it is believed to have developed from the pre-feudal office of the mair.
The term Citation relates to all aspects of the service of summonses and writs requiring the defender in the action to appear in court or be represented by his solicitor.
There are specific rules which detail the methods of service for each type of action. Wherever possible an officer will endeavour to interview the defender in person so that he may explain the importance of the document. However, if the defender cannot be found then the onus is on the officer to make sufficient enquiries to satisfy himself that the person will receive the document if it is left at or inserted through the letter box at his dwelling place or place of business.
Diligence is the procedure which enables a person who has been successful in his court action to compel the defender to comply with the courts orders. The court will issue a document called an Extract Decree which authorizes an Officer to enforce the Judgment.
Although the majority of decrees enforced by an officer will relate to actions for recovery of money, he may be required to enforce decrees for recovery of goods or the repossession of heritable property (Evictions) or other miscellaneous matters.
The laws of diligence have been modernised in recent years by virtue of the following pieces of legislation: -
Debtors (Scotland) Act 1987
Debt Arrangement & Attachment (Scotland) Act 2002
Bankruptcy & Diligence etc. (Scotland) Act 2007.
An officer will usually be instructed to commence diligence by serving a Charge for Payment. This is a document demanding payment within a prescribed period, normally 14 days.
Should the debtor fail to satisfy the creditor at this stage, then if the debtors employment details are known, an Earnings Arrestment can be served on his employer which will require the employer to make a deduction on every pay day and remit the money directly to the creditor until the debt is paid in full.
Alternatively, the creditor can then instruct an officer to execute an attachment or obtain a Warrant to execute an Exceptional Attachment Order, which is an inventory and valuation of goods belonging to the debtor. It should be noted that both the Debtors (Scotland) Act 1987 and Debt Arrangement & Attachment (Scotland) Act 2002 carefully regulate which articles can be attached, thus ensuring that the debtor does not suffer undue hardship. The debtor will have an opportunity to object to the attachment, if he so wishes, by making a formal application to the appropriate court.
The Debt Arrangement & Attachment (Scotland) Act 2002 fully details the legal processes in respect of auctioning attached articles. Having completed the auction, the officer is required to lodge a report with the court detailing the various steps taken and showing a statement of debt, inclusive of all appropriate fees and the credit given to the debtor for the sale of attached goods. The officers report is duly audited by the Auditor of Court who will thereafter issue a certificate detailing the balance of the debt.
Another diligence available to a creditor which, in certain circumstances, does not require the prior service of a charge for payment, is known as a third party arrestment. The officer will serve an arrestment schedule on a third party (more often than not a Bank or financial institution) who is due to pay money or is holding goods belonging to the debtor against whom the warrant for diligence has been granted. At present, the third party is thereafter required by law not to release any funds or goods due to be paid or delivered to the debtor. As a result of legislation under the Bankruptcy & Diligence etc. (Scotland) Act, introduced on 22 April 2009, a ADuty of Disclosure@ was introduced which affects all Arrestees. The Arrestee will require, within 3 weeks beginning on the day on which the Arrestment is executed, to send to the Creditor, a note of the funds and any property other than funds which have been arrested. The Arrestee will, thereafter, require to automatically release the sum arrested on the date 14 weeks from either the intimation of final Decree (Arrestment on the Dependence) or the date of service of the Arrestment schedule (Arrestment in Execution) unless an objection is lodged by either the debtor, the Arrestee or any other person to whom the funds are due solely or in common with the debtor
A form of debtor mandate in Aprescribed form@ has been prepared to speed up the process of obtaining the funds from the Arrestee. An Action of Furthcoming is still required when AGoods@ have been arrested, unless a mandate has been signed by the debtor.
Officers also act in the service of writs in actions of divorce or separation, which often include a specific warrant granted against the defender called an Interim Interdict. This service is used in cases of domestic violence where spouses have been physically or verbally abused by their partners. In particularly serious cases the court can grant a further warrant to remove the offending spouse from the matrimonial home, which would be enforced by an officer.
Where a marriage has broken down and there is a dispute over custody of the children, resulting in perhaps one parent snatching a child, an officer may be called upon to search for and return the child to the parent to whom the court has granted custody. In doing so the officer may liaise with the local social services and do everything in his power to minimise any anguish caused to the child.
TLocal authorities usually contract to firms of sheriff officers for the collection of outstanding commercial rates and council tax. Although the firm of sheriff officers becomes a collecting agent.
on behalf of the local authority, the officer is still acting impartially in his official capacity and remains under the strict control of the rules governing our profession.
It should be noted that, unlike the position in England, it is not possible to imprison an individual for failure to pay community charges, council tax or rates.
The firm of sheriff officers will be paid on a commission basis and, where diligence is necessary, the tax payer will be liable for any diligence fees incurred. A ten percent surcharge is levied on the debt. This in effect gives the local authorities a cost effective and efficient method of recovering their outstanding taxes.
Instructing agents outwith Scotland should note that the service of High Court process at an address in Scotland should be effected by a messenger-at-arms and service of County Court process should be served by a sheriff officer. The use of private investigators for this purpose is prohibited. Furthermore, the enforcement of judgments can only be carried out by a messenger-at-arms or sheriff officer after the judgment has been duly registered in the appropriate Scottish court. The Court of Session and all local courts can provide a list of officers operating in their area or alternatively the administrative secretary of the Society of Messenger-at-Arms and Sheriff Officers will be happy to provide a similar list of officers.
The general principle is that officers of court are supervised and controlled by the courts whose warrants they execute, i.e. the Court of Session in the case of messengers-at-arms and by Sheriffs Principal in the case of sheriff officers.
Following the introduction of the Debtors (Scotland) Act 1987, the Advisory Council on Messengers-at-Arms and Sheriff Officers was created. This is a body formed from various branches of the law whose function is to review all matters relating to messengers-at-arms and sheriff officers.
In addition, the Messengers-at-Arms and Sheriff Officers Rules 1991 were issued to cover the procedural rules for the appointment and disciplining of officers of court.
Should an individual wish to embark on a career as a sheriff officer, he must be at least 20 years of age and in possession of the necessary minimum academic qualifications. He will require to gain employment with a sheriff officer with whom he will undergo a traineeship for a period of three years. This period may be reduced to one year by application to the Sheriff Principal.
Thereafter he will be required to sit and pass the Society of Messengers-at-Arms and Sheriff Officers examination which will test both his practical and technical knowledge. For this reason it is most important that the candidate has had several years experience in the field. The candidate will be allowed to sit the examination on not more than three occasions.
Having obtained a pass certificate, the candidate will thereafter make an application to the Sheriff Principal of the sheriffdom of the geographical location in which he wishes to practice. In addition to his employers certificate and examination pass certificate, he must provide two letters of reference of good character and his birth certificate.
His application will thereafter be displayed on the walls of every Sheriff Court where he wishes to practice for a period of 30 days and, in addition, the application will be advertised in a newspaper circulating in the appropriate area.
At this stage anyone can object to the candidates application, which would result in a hearing before the Sheriff Principal when the objector would be required to put forward a reasoned argument against the granting of the candidates commission.
The candidate is also required to obtain professional indemnity insurance. Thereafter the candidate will be interviewed by the Sheriff Principal and, if satisfied, the Sheriff Principal will administer the Oath de Fideli Administratione Officii to the successful candidate, thus becoming a commissioned sheriff officer authorised to serve citation and execute diligence.
Should a sheriff officer wish to become a messenger-at-arms, then he must have practiced as a sheriff officer for a period of not less than two years and thereafter sit a further examination, again set by the Examination Board of the Society of Messengers-at-Arms and Sheriff Officers, before making a similar application to the Court of Session. If the court approves of the application, it will be transferred to the Court of the Lord Lyon.If the Lord Lyon is also satisfied with the applicant, he will administer a further Oath of Loyalty to the Crown, and deliver the traditional badge of arms to the new messenger-at-arms.
Should anyone allege that an officer has been guilty of professional misconduct, then a complaint is sent to the appropriate Sheriff Principal, or in the case of a messenger-at-arms to the Court of Session. The officer will be given an opportunity to admit or deny the allegation. Thereafter the Sheriff Principal or Lord President will appoint a solicitor to undertake an investigation to establish if there is a justifiable case to bring proceedings against the officer.
The Society of Messengers-at-Arms and Sheriff Officers also has its own disciplinary procedures and it will consider any written complaint received at the Societys office. Most complaints are dealt with and resolved by the Society. However, where appropriate, the Society will refer serious matters to the appropriate Sheriff Principal or the Lord President.
Where an officer has been found guilty of misconduct, the officer can be suspended from practicing for a specified period of time or be deprived of office altogether. He may be fined, censored and where the misconduct relates to charging of excessive fees, the officer can be made to refund the individual concerned.
The fees which are charged for the service of citation and execution diligence are regulated by Acts of Sederunt, which are procedural rules emanating from the Court of Session. The fees are reviewed annually by an application by the Society of Messengers-At-Arms and Sheriff Officers to the Lord President. All applications are scrutinised and placed before Parliament before they will be granted and thereafter come into effect on a predetermined date.
Regardless of which officers you wish to instruct, the fee for carrying out the service should be identical and clearly described on the officers fee note. The officer should not refuse to accept any lawful instruction unless he has good reason. However, an officer can insist that his fee is paid in advance.
It should be noted that the discounting of fees by officers to entice business is forbidden.
The Society of Messengers-at-Arms and Sheriff Officers is our professional association which was founded as a national body in 1922. The Society has striven to enhance the profession by setting the highest standards for its membership. All members are required to abide by the Societys Code of Professional Ethics, thus ensuring confidentiality and good business practice.
Internationally, the Society of Messengers-at-Arms and Sheriff Officers is a member of the Union Internationale des Huissiers de Justice et Officers Judiciaires, which is the worldwide association of officers of civil courts. In addition to the current President, the Society has a permanent member who attends regular meetings of this body and provides a flow of information, thus ensuring that our Society is aware and able to influence any international issues affecting officers and their duties.
The Society also provides comprehensive training courses for the professional examinations for messengers-at-arms and sheriff officers. The examination board is regulated by the aforementioned rules and comprises three senior members of the Society and two other nominated persons from the legal fraternity.
The Society is always keen to provide informative speakers to attend business talks or other similar forums to give a first hand insight into the often misunderstood activities of messengers-at-arms and sheriff officers.
The Society has a full-time secretariat located at Forth House, 28 Rutland Square, Edinburgh EH1 2BW. Should you require any further information in respect of messengers-at-arms and sheriff officers then do not hesitate to contact our Administrative Secretary, Mr. Ian Munro, at the aforementioned address or by telephoning 0131-292-0321.
The Society also has a web site which can be found at: www.smaso.org