Request for information
Section 36 – Assignee’s duty to respond to request for information
168.This section provides for an entitled person (as defined) to be able to request information about an assignation from the person identified as the assignee in the assignations record. The request does not require to be in writing, but the response does.
169.Subsection (1) sets out that the information that may be requested is, first, whether a particular claim is assigned by the assignation document, second, whether the registered assignee has granted an assignation document which will further assign the claim and, third, whether a condition to which the assignation is subject has been satisfied. The right to request these types of information is of particular importance where a claim is assigned before it is held by the assignor (a “future” claim) or in the case of a conditional assignation.
170.Subject to subsection (8) (which enables the Scottish Ministers to modify this section so as to specify further entitled persons), by virtue of subsections (2) and (3), an entitled person is:
a person who may have a right to execute diligence against the claim (including, in the case of a charge for payment, where that right will only arise once the days of charge expire without payment),
a person who has the consent of the registered assignor to make the request.
171.Subsection (4) gives the person named as assignee in the assignations record 21 days to respond. An exception to the obligation to respond applies where—
it is clear that the registration of the assignation document is ineffective in relation to the claim being enquired about,
if the request relates to whether the claim is assigned by the assignation document, it is clear from the entry that the claim is not assigned by the document, or
the information has been given to the person within the last three months and it has not changed.
172.Subsection (5) allows the reasonable costs of responding to the request to be charged to the person making the request.
173.If the person of whom the request is made wishes to, they can apply to the court for either an exemption from complying (in whole or in part) or an extension. Subsection (6) gives the court power to grant either of these things. For example, depending on the circumstances, 21 days may be too short a period to assemble the necessary information.
174.If the entitled person does not receive a response, they can apply to the court in respect of that failure. Subsection (7) enables the court to order the person named as the assignee to comply with the request for information within 14 days or such other period as the court specifies. Failure to comply with such an order would risk the person being held to be in contempt of court.
175.The effect of this section is that persons with a legitimate interest in a claim that may be the subject of an assignation document will be able to obtain information that might not otherwise be available by searching the RoA.
Example
D Ltd is a plumbing business. It assigns its “future” customer invoices to B Ltd, to be identified on schedules to be sent to B Ltd. Subsequently D Ltd becomes insolvent. Its liquidator requires to see whether certain invoices have been assigned and makes an information request under this section.
176.Where incorrect information is supplied under this section, there may be consequences under section 38.
