No debtor? No problem. Raising proceedings against absent debtors with Scottish heritable property

In today’s international commercial environment, debtors often move jurisdictions while retaining assets in Scotland. Traditional methods of raising proceedings become difficult, particularly where jurisdiction would normally depend on domicile or residence.

Where the debtor cannot be found, or indeed you know they live somewhere in another jurisdiction, many creditors assume recovery in Scotland ends there. A frequently overlooked jurisdictional route is where a debtor has an interest in immovable property in Scotland. 

The Scottish courts may have jurisdiction under Schedule 8 of the Civil Jurisdiction and Judgments Act 1982, even where the debtor cannot be located or resides in another jurisdiction.

The Act preserves special jurisdictional rules relating to immovable property: 

1. Rule 2(h) provides that where the debtor is not domiciled in the UK, proceedings may be raised in any place where any immoveable property in which he has a beneficial interest is situated. 
2. Rule 2(k) provides that where a debt is secured over immovable property, proceedings may be raised in the courts where the property is situated. 
3. Under Rule 2(p), where a contractual claim is combined with proceedings relating to rights in immovable property against the same debtor, proceedings may also be raised where the property is situated. 

Ownership of Scottish heritable property may therefore provide a basis for proceedings in Scotland where other jurisdictional grounds are unavailable or impractical. This is not a procedural shortcut, but it can allow creditors to obtain a decree against an absent debtor. 

The nature of the claim, the remedy sought, and the connection between the proceedings and the property remain important considerations. Nevertheless, Scottish practitioners should not overlook this route simply because the debtor no longer lives in Scotland or cannot be found. Practitioners and creditors looking to pursue an absent debtor would be well advised to conduct an asset search in the Scottish property register before abandoning the claim or seeking to raise proceedings elsewhere, which could be an expensive alternative. 

While every case requires careful analysis, practitioners and creditors alike should not assume an absent debtor is beyond legal reach.

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Hilary Steer is a senior solicitor at Wright, Johnston & Mackenzie LLP. She specialises in commercial disputes, debt recovery, and insolvency, working largely with insolvency practitioners and creditors to find satisfactory, and commercially sensible, solutions in contentious matters.