Debtors (Scotland) Act 1987

Invalidity, cessation and recall of poinding

8 (1) If, at any time before the sale of the poinded articles, the sheriff is satisfied that the poinding is invalid or has ceased to have effect he shall, on his own initiative or on an application by the debtor, make an order declaring the poinding to be void, and may make such consequential order as appears to him to be necessary in the circumstances.

(2) Without prejudice to paragraph 1(4) above, it shall not be competent for the sheriff to make an order under sub-paragraph (1) above on the ground that any poinded article is exempt from poinding under that paragraph.

(3) At any time before intimation is given to the debtor under paragraph 16 below of the date arranged for the removal of the poinded articles for sale or, if the articles are to be sold in the premises where they are situated, the date arranged for the sale, the sheriff may, on an application by the debtor, recall a poinding on any of the following grounds—

(a) that it would be unduly harsh in the circumstances for the poinded articles to be sold under the summary warrant;

(b) that the aggregate of the values of the poinded articles fixed under paragraph 5(4) above was substantially below the aggregate of the prices which they would have been likely to fetch if sold on the open market; or

(c) that the likely aggregate proceeds of sale of the poinded articles would not exceed the expenses likely to be incurred in the taking of further steps in the diligence, on the assumption that such steps are unopposed.

(4) The sheriff shall not grant an application on the ground mentioned in sub-paragraph (3)(c) above if an order for further poinding of articles belonging to the debtor has been authorised under paragraph 7(2) above or paragraphs 12(6) or 13(2) below, or has become competent by reason of paragraph 12(2), 21 (4) or 22(5) below.

(5) The sheriff shall not make an order under sub-paragraph (1) above, recall a poinding or refuse an application under this paragraph without first giving the debtor and the creditor—

(a) an opportunity to make representations; and

(b) if either party wishes to be heard, an opportunity to be heard.

(6) The sheriff clerk shall intimate to the debtor any order made under sub-paragraph (1) above by the sheriff on his own initiative.