Scottish court change ‘threatens recovery’

Experts are calling on those who use the Scottish courts to send representation to the Sheriff Court Rules Council, which initiated the change to the court rules. The change is due to be implemented on 1 December. From then, court actions regulated by the Consumer Credit Act 1974 will require a copy of the regulated agreement which will have to be attached to the writ or summons.

The council’s secretariat has told solicitors that individual sheriffs will take their own view as to what constitutes a copy and they may require a photocopy of the agreement rather than a ‘reconstituted copy’. Stephan Cowan, managing partner of Yuill & Kyle Solicitors, said this is surprising as creditors are usually required to provide ‘true copies’. “A true copy does not mean an exact copy and there is case law to support this,” he said.

The impact on lenders and debt purchasers could be significant as many financial institutions are only able to provide a ‘reconstituted copy’ – repopulating a template from computer records. They are bound to litigate in the debtor’s domicile and so would not be able to recover those debts.

The stance also differs from that taken by the Office of Fair Trading, which states that creditors must provide ‘true copies’ under sections 77 and 78 of the Consumer Credit Act and accepts reconstituted copies as valid.

The Rules Council is meeting on 6 November and has said it is willing to receive representations from creditors and industry groups concerned about the change. It can be contacted at smccourt@scotcourts.gov.uk (0131 221 6766) or by letter at: The Secretary, Sheriff Court Rules Council, Hayweight House, 23 Lauriston Street, Edinburgh EH3 9DQ.

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