OF THE LAW SOCIETY OF SCOTLAND - The Journal Online

the 2001 Act, none of the rules on
service detailed above is changed.
It is therefore clear that service of
calling-up notices and notices of
default continue to be governed by
the 1970 Act and that either
recorded delivery or personal
service of those notices is entirely
competent under section 19(6) of
the 1970 Act. Similarly, as regards
service of court writs (as opposed
to the notices specified to
accompany them), there is nothing
in the 2001 Act which precludes
service by the normal service
methods, including by sheriff
officer4 . It is therefore submitted
that it is incorrect to say that
personal service is now
incompetent generally in
repossession actions or, indeed, that
there is any change to the existing
methods of service of calling-up
notices, notices of default or court
proceedings.
Service of forms introduced
by the 2001 Act
These forms include firstly each of
the forms which must be served on
the occupier, namely Forms BB & F
of Schedule 6 to the 1970 Act and
Form 2 of Part 2 of the Schedule to
the 2001 Act. Secondly, the forms
include the forms which must be
served along with court
proceedings, namely Form E of
Schedule 6 to the 1970 Act and
Form 1 of Part 2 of the Schedule to
the 2001 Act.There are in fact three
arguments as to how service of
these notices should be effected,
each of which is considered below.
Given the confusion which has
arisen over this issue, it is worth
repeating the relevant statutory
provisions in full.
The first argument is based on a
literal reading of the new provisions
in relation to service, inserted into
the 1970 Act by the 2001 Act.
Section 24 of the 1970 Act now
provides:
“(3) Where the creditor applies to
the court under subsection (1)
above, he shall…
■ serve on the debtor and (where
the proprietor is not the
debtor) on the proprietor a
notice in conformity with Form
E of Schedule 6 to this Act, and
■ serve on the occupier of the
security subjects a notice in
Journal
Repossession
conformity with Form F of that
Schedule.
(4) Notices under subsection (3)
above shall be sent by recorded
delivery letter addressed-
■ in the case of a notice under
subsection (3)(a), to the debtor
or…proprietor…
■ in the case of a notice under
subsection (3)(b), to ‘The
Occupier’…”
The argument goes that as the Act
simply requires the notices to be
sent by recorded delivery, the
creditor does not require to
establish receipt by the debtor,
whether through the recorded
delivery service or otherwise. The
creditor fulfils his requirements
under the Act when the letter is
sent.This argument is supported by
Cathie Craigie5 and by the Scottish
Executive.
This argument is an attractive
proposition on a reading of s24(4)
but matters are complicated by the
mandatory requirement on the
creditor in terms of s24(3) to
“serve…a notice”. Nonetheless, it is
submitted that the two subsections
must be read together. Doing so
suggests that the method of the
service mentioned in s24(3) is that
provided for in s24(4).This leads to
the conclusion that a creditor will
indeed have complied with his
duties if he simply sends the notices
in Forms E & F by recorded delivery
irrespective of whether actual
service results. The same argument
appears to hold good in relation to
the notice to the occupier which
must accompany service of a
calling-up notice or notice of
default.
The effect of the second argument,
if it was successful, would be to
make repossession extremely
difficult if a debtor did not answer
his door to accept recorded
delivery packages, or if the debtor
or occupier was not present at the
subjects for any reason. The nature
of the second argument is simply to
rebut the premise of the first that
sending the explanatory notices
which accompany proceedings or
the notices to the occupier is
sufficient service. If service cannot
be effected by recorded delivery,
the argument goes, it remains
incumbent on the creditor to