Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2013] CSOH 36
P239/11	OPINION OF LORD TYRE in Petition of DR SOHAIL RAZA CHAUDHRY Petitioner; against THE ADVOCATE GENERAL FOR SCOTLAND, FOR AND ON BEHALF OF THE COMMISSIONERS FOR HER MAJESTY'S REVENUE AND CUSTOMS Respondent: ________________

Petitioner: Party

Respondent: Artis; Office of the Advocate General

6 March 2013

Introduction

[1] On 25 October 2010 a summary warrant was granted by the sheriff at Glasgow Sheriff Court in favour of an officer of HM Revenue and Customs ("HMRC") for recovery of a sum of £11,657.55 allegedly due by the petitioner in respect of income tax, national insurance contributions, interest, penalties and surcharge. On 5 November 2010, on the instructions of HMRC, sheriff officers served on the petitioner a charge for payment of the sum in respect of which the summary warrant had been granted. Payment not having been received, a petition was presented by HMRC to Glasgow Sheriff Court on 2 December 2010 for sequestration of the petitioner's estate.

[2] In this petition (which is not an application for judicial review), the petitioner seeks an order suspending the summary warrant, the charge for payment and the petition for sequestration. He also seeks declarator that HMRC do not have the right by virtue of the summary warrant to institute proceedings for sequestration of his estate. The averment seeking declarator was substituted by amendment, at an earlier stage of the procedure, for one seeking interdict and interim interdict, following an unsuccessful application by the petitioner to this court for interim suspension and interim interdict. The sequestration proceedings in the sheriff court are sisted pending the outcome of the present petition. The matter came before me on the procedure roll for debate of the respondent's pleas to the competency of the petition and the relevancy of the petitioner's averments.

Factual background

[3] The petitioner's pleadings are succinct and there is little by way of factual background to add to what has already been said. Following service of the charge, the petitioner wrote to HMRC "denying the debt", which appears to consist of liabilities said to have accrued during the tax years 2001-02 to 2005-06. At the very close of the debate the petitioner, who presented his own submissions with the assistance of a friend, made brief reference to having made an appeal which HMRC "did not take further". There are, however, no pleadings or documentary evidence regarding any such appeal having been made and I am unable to attach any weight to this assertion. The petitioner does not deny that the summary warrant and the charge are ex facie valid and regular. His contention is that having chosen to proceed by way of summary warrant rather than court action, it was not open to HMRC subsequently to apply for his sequestration instead of utilising one of the forms of diligence specified in the legislation applicable to recovery of tax by summary warrant procedure.

Competency

[4] It is appropriate to begin with the competency issues argued by the respondent. I shall summarise the arguments for the parties before addressing them in more detail.

Arguments for the Respondent

[5] Counsel for the respondent submitted that it was not competent to seek the remedy of suspension against the Crown in civil proceedings. An order for suspension was not in substance different from an order for interdict, which was prohibited by proviso (a) in section 21(1) of the Crown Proceedings Act 1947. Reference was made to Ralston v Scottish Ministers 2004 SLT 1263 (Lady Smith). An application for sequestration was of the nature of civil proceedings or, to use the phraseology of Lord Rodger of Earlsferry in Davidson v Scottish Ministers 2006 SC (HL) 41, private law proceedings. When charging for a debt or petitioning for sequestration, HMRC were utilising civil remedies available to all creditors, including ordinary citizens. The present case accordingly fell squarely within the prohibition. It was analogous to McDonald v Secretary of State for Scotland 1994 SC 234 and distinguishable from Davidson, where it was held that proceedings invoking the supervisory jurisdiction were not civil proceedings for the purposes of section 21.

[6] Counsel further submitted that it was not competent to seek the remedy of declarator in petition procedure unless expressly authorised by statute or rules of court as in, for example, an application for judicial review. This traditional approach differentiating ordinary procedure from petition procedure remained applicable: see Maxwell, Court of Session Practice (1982), p.433, and the cases there cited. In Renyana-Stahl Anstalt v MacGregor 2001 SLT 1247, Lord MacFadyen expressed the view at para 52 that the passage in Maxwell remained a correct statement of practice. It was accepted that in certain respects there had been an erosion in modern practice of the distinction between the two forms of procedure, and that the desirability of maintaining such technical rules had been questioned recently by Lord Malcolm in Fraser &Anor, Petitioners [2012] CSOH 184. Nevertheless it remained the case that, with the exception of applications for judicial review, petition procedure was not the place for declaratory conclusions.

[7] Counsel made a third submission, which he did not develop, that it was incompetent and in any event premature to seek to suspend in this court a sequestration process in the sheriff court, the proper course being to seek to persuade the sheriff that there was cause why the sequestration could not competently be awarded.

Arguments for the petitioner

[8] The petitioner submitted that I should regard the case of Ralston v Scottish Ministers as distinguishable on its facts from the present case. In Ralston, the consequence of granting suspension would have been to compel the Crown to act in a particular way, namely to transfer a prisoner out of segregation. In contrast, suspension in the present case would not require the Crown to do anything, although it would remain open to them, if they chose, to proceed against the petitioner in a more appropriate way by beginning with an action for payment. The petitioner further submitted that I should not, in any event, follow the decision in Ralston because the distinction drawn by Lady Smith (at para 21) between technical effect and actual effect was not consistent with the later decision of the House of Lords in Davidson.

[9] So far as the prayer for declarator was concerned, the petitioner referred to section 21(1) of the 1947 Act which expressly conferred power on the court to make orders declaratory of a party's rights in proceedings against the Crown. It would be odd and unfortunate if the petitioner's substitution of an application for declarator for his previous application for interdict resulted in a need to raise a fresh action using ordinary procedure.

Decision: competency

[10] I deal firstly with the competency of granting an order for suspension of the summary warrant, charge for payment and petition for sequestration. Section 21(1) of the Crown Proceedings Act 1947, so far as material, provides as follows:

"In any civil proceedings by or against the Crown, the court shall, subject to the provisions of this Act, have power to make all such orders as it has power to make in proceedings between subjects, and otherwise to give such appropriate relief as the case may require:

Provided that:

(a) where in any proceedings against the Crown any such relief is sought as might in proceedings between subjects be granted by way of injunction or make an order for specific performance, the court shall not grant an injunction or make an order for specific performance, but may in lieu thereof make an order declaratory of the rights of the parties ..."

For the avoidance of any doubt, section 43(a) provides that in the application of the Act to Scotland, the expression "injunction" means interdict.

[11] In McDonald v Secretary of State for Scotland 1994 SC 234, a serving prisoner claimed to have been subject to illegal searches on at least 3,000 occasions. He sought interdict and interim interdict against the defender or his representatives from searching him without lawful authority, and reparation for each allegedly unlawful search that had occurred. The sheriff's refusal of the pursuer's crave for interim interdict as incompetent was upheld by the Court. Lord Justice-Clerk Ross (with whom the other members of the Court concurred) observed at page 242G:

"So far as the present case is concerned, I am quite satisfied that the granting of interdict or interim interdict is prohibited by virtue of the provisions of section 21(1) of the 1947 Act. The action which the pursuer has raised plainly constitutes civil proceedings. Moreover these clearly are civil proceedings against the Crown since directing the proceedings against the Secretary of State for Scotland is one method by which civil proceedings can be instituted against the Crown. The matter appears to me to be clearly covered by the provisions of section 21(1)(a), and it follows that the sheriff was well founded in refusing the crave for interim interdict as incompetent."

Lord Justice-Clerk Ross went on (page 243H) to express the obiter view that "there would be formidable difficulties in the way of any submission to the effect that application to the supervisory jurisdiction of the Court of Session did not constitute civil proceedings within the meaning of section 21". That view has now been disapproved by the House of Lords in Davidson v Scottish Ministers. The opinions of Lord Nicholls of Birkenhead and Lord Rodger of Earlsferry include a detailed account of the effect of section 21 on the remedies available against the Crown in England and Wales, and reach the conclusion that it could not have been the intention of Parliament in 1947 to restrict the scope of remedies by way of judicial review which had previously been available in Scotland and which were now being made available in England and Wales. The members of the Judicial Committee held unanimously that the prohibition in section 21 against granting an order against the Crown for interdict or specific performance applied only to "civil proceedings" properly so-called. In other words it applied only to cases where a subject sues the Crown in proceedings which are similar to proceedings between two subjects. Lord Rodger construed the references in the Act to "proceedings between subjects" as referring to private law proceedings. He concluded (para 88):

"It follows that the court cannot grant an interim or final interdict or an interim or final order for specific performance in private law proceedings against the Crown, but in other proceedings against the Crown the section is no bar to such remedies. In particular, since a pursuer's contractual, proprietary and other private law rights are not enforced by invoking the supervisory jurisdiction of the Court of Session, I agree with my noble and learned friend, Lord Nicholls of Birkenhead, that references to civil proceedings in section 21 are to be read as not including proceedings invoking that supervisory jurisdiction in respect of acts or omissions of the Crown or its officers."

Lord Rodger went on to express the view (para 90) that the Court in McDonald had reached the correct decision, but for the wrong reasons.

[12] Applying these authorities to the circumstances of the present case, two questions require to be addressed: (i) Are the present proceedings "civil proceedings" so as to fall within the ambit of section 21(1); and (ii) if so, does the petitioner's application for suspension fall within the restriction of the court's power to grant interdict?

[13] As to the first of these questions, I am satisfied that the present proceedings are properly to be categorised as civil proceedings. The essence of the petitioner's application is the suspension of the sequestration process instituted by HMRC in the sheriff court. In seeking such a remedy, the petitioner is, in my opinion, attempting to enforce his proprietary right not to be divested of his estate in favour of a trustee in bankruptcy. Such a right falls clearly within the category of private law rights described by Lord Rodger. The nature of the sequestration proceedings is, in my view, no different from that of sequestration proceedings in which application is made by a subject, who might be an individual or a company, against another subject. The same applies, in my opinion, to suspension of the charge for payment, a procedure available to any creditor and not only to the Crown. It also applies to suspension of the summary warrant: although this latter procedure is not open to every creditor, its availability is not restricted to the Crown. This is not an application to the supervisory jurisdiction of the court; it does not seek relief "in respect of an act or omission of the Crown or of an officer of the Crown acting as such" (Lord Hope of Craighead in Davidson at para 54). Section 21 is accordingly engaged.

[14] As to the second question, I am equally satisfied that, at least in the circumstances of the present case, there is no distinction between the remedy sought by the petitioner by way of suspension and the remedy of interdict which falls within the prohibition in section 21(1)(a). The petitioner seeks an order of the court which would preclude HMRC from taking any further steps in the current petition for his sequestration. Were such an order to be granted it would in my opinion constitute relief by way of interdict. It is not, in my view, material that, perhaps in contrast to the facts of Ralston v Scottish Ministers, no positive action on the part of the Crown would be required in order to comply with the order of the court. The prohibition in section 21(1)(a) covers orders both of a negative character (interdict) and of a positive character (specific performance). Neither type of order can competently be granted by the court in civil proceedings against the Crown. For these reasons I hold that the petitioner's application for suspension is incompetent and must be refused.

[15] Turning now to the competency of seeking declarator in petition procedure, counsel for the respondent acknowledged that the point which he was taking was a technical one, and that it could not be contended that the respondent sustained prejudice by virtue of declarator being sought in a petition rather than in an ordinary action. That is undoubtedly so. It is also the case that in certain respects, as counsel acknowledged, distinctions between ordinary and petition procedure have been rendered less sharp as a result of amendments to rules of court. Two important examples of this are mentioned by Lord MacFadyen in Renyana-Stahl Anstalt v MacGregor (above) at para 52: namely applications for judicial review and applications under what is now section 994 of the Companies Act 2006. In each of these cases the court may grant a wide range of remedies yet applications must be made by petition. Conversely, interdict unaccompanied by any other substantive remedy may be sought by summons. The present case is distinguishable from Renyana-Stahl Anstalt v MacGregor in so far as that case was concerned with rectification of a document, for which particular provision had been made in the rules of court permitting rectification to be sought by ordinary action when other remedies were also being sought. Lord MacFadyen declined to innovate to the opposite effect on established practice by permitting an application for declarator to be incorporated into a petition for rectification. The issue in the present case rather more closely resembles that which arose in Fraser & Anor, Petitioners (above), where a remedy (reduction) was sought which according to established practice could only be pursued in an ordinary action. Having identified certain passages in Lord MacFadyen's opinion and in certain other judgments which might suggest that the "technical rules" could be overridden if such be expeditious in the circumstances of a particular case, Lord Malcolm allowed parties an opportunity to address him on the question whether there was an alternative to dismissal of the action and concluded his opinion with the observation:

"Whatever the ultimate outcome, the fact that this debate has taken place adds force to the recommendation of the Scottish Civil Courts Review, chaired by the current Lord President, to the effect that the proposed Civil Justice Council for Scotland should address the abolition of the distinction between ordinary and petition procedure in the Court of Session."

[16] I do not disagree in any way with this observation. It does, however, appear to me to emphasise that the appropriate mechanism for changing such a long-established practice as the category of remedies available under petition procedure is by amendment to the Rules of Court, such amendment being effected by Act of Sederunt following appropriate consultation. That is how matters have proceeded with regard to those categories of application, mentioned above, where a wider range of remedies has been made available in a petition procedure. The established practice is well known and I do not consider that it is either necessary or appropriate for me to innovate upon it. In the present case the issue arises as a consequence of an amendment made by the petitioner after commencement of the present proceedings, following an attack upon the competency of his seeking interim interdict. Had the petitioner chosen to seek declarator from the outset (as he ought to have done, given the terms of section 21(1)), then he could have done so by means of an ordinary action.

[17] For these reasons I am of the opinion that it is not competent for the petitioner to seek declarator in the present petition proceedings. That being so, all of the substantive orders sought by the petitioner are, in my opinion, incompetent, and for that reason I sustain the respondent's second plea-in-law and dismiss the petition. I should mention in passing that I would not have accepted the respondent's third submission on competency. I have already observed that the petitioner seeks in the present petition to suspend not only the application for sequestration but also the charge for payment and the summary warrant. I was not referred to any authority for the proposition that these two ex facie valid documents could competently have been subjected to challenge in the sequestration process. In the light of my decision on the other competency arguments, this point does not require to be addressed at any greater length.

Relevancy

[18] Although it is not strictly necessary to do so, it would be wrong of me not to express my opinion on the relevancy issue which was argued before me. It was the matter to which the parties devoted the greatest attention and it raises what appears to me to be a point of some importance. Moreover I recognise that I have upheld the respondent's competency argument at least partly on a technicality which could be cured by seeking declarator in an ordinary action instead of a petition.

Argument for the petitioner

[19] On this aspect of the case it is convenient to begin with the argument for the petitioner, which is founded upon the fact that HMRC commenced the process for recovery of the sum allegedly due to them not by seeking decree in an action for payment but by obtaining a summary warrant from the sheriff. The procedure for obtaining such a warrant is now contained in section 128 of the Finance Act 2008, which applies to Scotland only. Application may be made by an officer of Revenue and Customs and must be accompanied by a certificate, signed by the officer, which states inter alia that the officer has demanded payment of the sum specified in the application from each person specified in it, and that a period of fourteen days has expired without payment since the demand was made. If the requirements of the section are met, section 128(6) states that the sheriff must grant a summary warrant in the form prescribed by Act of Sederunt. Section 128(7) then provides as follows:

"A summary warrant granted under subsection (6) authorises the recovery of the sum payable by -

(a) attachment

(b) money attachment

(c) earnings arrestment

(d) arrestment and action of furthcoming and sale."

[20] The petitioner's argument was straightforward: section 128(7) specifies the forms of diligence that may be used by HMRC to recover sums for whose recovery a summary warrant has been granted. These do not include sequestration. If HMRC wished to retain the option of sequestrating a debtor, it was necessary for them to sue for payment by ordinary action. In contrast to summary warrant procedure, the alleged debtor would thereby obtain notice of the action against him and would have an opportunity to challenge the liability. Use of summary warrant procedure gives the state an unfair advantage: the application is made ex parte by an officer of HMRC and the debtor only discovers afterwards that the application has been made and granted. There is no opportunity at any stage to state a defence to the claim that payment is due. There appeared to have been a change of practice by HMRC: in the past they had proceeded by ordinary action. In the event of decree for payment being pronounced in their favour, that decree could be enforced, in accordance with section 87 of the Debtors (Scotland) Act 1987, by charging the debtor to pay and then, if necessary, petitioning for the debtor's sequestration. There was nothing in section 87 to suggest that the same method of enforcement was available in the absence of a decree. A summary warrant should be construed as a warrant to do any of the things listed in section 128(7), but not anything else.

Argument for the respondent

[21] Counsel for the respondent submitted that there were no relevant averments to impugn any of the grant of the summary warrant, the validity of the charge, or the application for sequestration on the ground of the petitioner's apparent insolvency following expiry of the days of charge without payment. It was important to bear in mind that the petitioner had not availed himself of the statutory appeal procedure to challenge the assessment to tax or any of the ancillary matters. That being so, it would not have been open to him to challenge the liability on its merits either as a defence to an action for payment by the respondent (cf Lord Advocate v McKenna 1989 SC 158, especially at page 165 where the dictum of Lord Denning MR in IRC v Pearlberg [1953] 1 WLR 331 at 333 is cited with approval) or as a defence to the award of sequestration (cf Murdoch v Newman Industrial Control Ltd 1980 SLT 13, Lord Ordinary (Maxwell) at page 15). Expiry of the days of charge without payment was presumptive proof of apparent insolvency: Bankruptcy (Scotland) Act 1985, section 7(1)(c)(ii). It would be novel and surprising, to say the least, if service of a charge following the grant of a summary warrant could never lead to sequestration of the debtor. A petition for sequestration was not a form of diligence (see eg the definition of diligence by Graham Stewart, Diligence (1898) at page 1, and the observations of Sheriff JC McInnes QC in G & A Barnie v Stevenson 1993 SCLR 318 at 320-1). One would not expect to find sequestration included in a list of forms of available diligence. Use of the various diligences listed in section 128(7) actually requires the service of a charge: see the Debt Arrangement and Attachment (Scotland) Act 2002, section 10(3) (attachment); Bankruptcy and Diligence (Scotland) Act 2007, section 174(2) (money attachment); Debtors (Scotland) Act 1987, section 90(1) (earnings arrestment) and section 73A(2) (arrestment and action of furthcoming). Since a charge for payment is required before diligence can proceed upon a summary warrant, it must be implicit that service of a charge is authorised by the grant of such a warrant, which accordingly has the same practical effect as a decree. Charging for payment did not imply that a particular remedy will be pursued if the debtor fails to pay. Once the days of charge had expired, the provisions of the Bankruptcy (Scotland) Act 1985 applied in the ordinary way.

Decision: relevancy
[22] In order to understand why section 128(7) refers to various forms of diligence but not to sequestration, it is useful to trace the history, and in particular the recent history, of the section and its predecessors. That history is a long one. As the petitioner correctly identified in the course of the procedure roll hearing, the original version appears to be contained in an Act of 1812 (52 Geo III c.95), section 13. This section permitted any two commissioners for the affairs of taxes for any shire etc, or the sheriff depute or substitute for such shire etc, upon certification made to them by the sub-collector that duties remained unpaid, to issue and grant a warrant to the sub-collector to recover such duties by poinding and distraining the goods of any person mentioned in the certificate, followed by sale not less than four days later unless the goods were redeemed by payment of the sum due. This provision was not, however, as the petitioner suggested, merely an emergency measure which fell into disuse until a recent revival. Rather it and its successors have provided the revenue authorities since 1812 with an expeditious procedure for recovery of unpaid tax. It can be traced through various consolidations as section 97 of the Taxes Management Act 1880, section 167 of the Income Tax Act 1918, section 76 of the Income Tax Act 1952, and section 63 of the Taxes Management Act 1970 in its original form, as substituted in its entirety by the Debtors (Scotland) Act 1987, Sch 4, para 2, and as further amended by the Debt Arrangement and Attachment (Scotland) Act 2002, Sch 3, para 11.

[23] A number of features of this succession of statutory provisions are worth noting. In each Act up to and including the Taxes Management Act 1970 in its original form, the only form of diligence specified for recovery of tax was poinding and sale of the debtor's goods. That diligence was abolished and replaced by attachment in the 2002 amendment to section 63 of the 1970 Act. The 1987 re-casting of section 63 had also specified, for the first time, earnings arrestment and arrestment and action of furthcoming and sale as authorised alternatives to poinding and sale. This appears to have been done as part of the implementation of the recommendations of the Scottish Law Commission in its Report No 95 on Diligence and Debtor Protection (1985), chapter 7, to remove differences between diligences to enforce payment of taxes to the revenue authorities on the one hand and diligences to enforce payment of rates due to local authorities on the other. One of those differences concerned terminology: prior to the 1987 amendment, the expression "summary warrant" did not appear in the legislation relating to recovery of taxes although it had been used in legislation relating to recovery of rates by local authorities since at least the Local Government (Scotland) Act 1947 (see section 247(2)). The Scottish Law Commission appears to have regarded the word "summary" as a reference to the ex parte nature of the procedure (see Second Memorandum on Diligence: Poindings and Warrant Sales (Memorandum No 48), para 7.2; Report No 95 (above), para 7.2).

[24] Significantly, however, McBryde (Bankruptcy, 2^nd ed, 1995), para 3-13, offers a different explanation for the term "summary warrant": according to McBryde "...  The warrant is 'summary' because a charge is not necessary". Whether or not this is indeed the correct interpretation of the word "summary", McBryde's observation highlights what was an important feature of the "summary" procedures for recovery of both taxes and local rates up to and including the re-casting of section 63 of the 1970 Act in 1987: charging for payment formed no part of the statutory procedures of recovery. The Commissioners of Inland Revenue - or, as the case may be, the local authority - were entitled to proceed directly from the grant of a summary warrant to the execution of diligence in a permitted form. It follows that, as a matter of practicality, no charge needed to be served which could subsequently be used as an indication of apparent insolvency for the purpose of sequestration proceedings.

[25] So how and when did the change come about? The requirement to serve a charge for payment following the grant of a summary warrant but before the execution of diligence was introduced, in relation to each of the forms of diligence now listed in section 128(7), by various provisions in the Bankruptcy and Diligence (Scotland) Act 2007. The genesis of this change appears to have been the Scottish Law Commission Report No 177 on Poinding and Warrant Sale (2000), which recommended that execution of the then available diligences (poinding and earnings arrestment) should no longer be competent unless a charge for payment had been served on the debtor and the days of charge had expired without payment being made. The rationale for this recommendation was contained in paragraph 4.8 of the Report, as follows:

"... We see merit in the argument that there should be a formal intimation made by a summary warrant creditor to the debtor ... The major disadvantage of requiring service of a charge is expense. However we believe that there are advantages which outweigh the costs of such a requirement. In the first place, service of a charge should lead to parties making arrangements for payment at an earlier stage than at present. As a result there will be a decrease in the number of summary warrant poindings, with consequent savings in the overall cost which poindings give rise to. Furthermore service of a charge will provide summary warrant creditors with some of the information they require if they need to apply for special warrant to execute a poinding in a dwellinghouse."

A similar argument for requiring service of a charge in summary warrant procedure was set out in the Scottish Government Consultation Document entitled "Enforcement of Civil Obligations in Scotland" (2002):

"The purpose of reform in this respect would be to provide a further opportunity and encouragement to debtors to settle or negotiate payment terms ahead of diligence proceeding ... Personal service is also known to have the effect of focusing debtors' attention on resolving their situation by enabling them to obtain a personal explanation about the enforcement process from the officer and direction to advice services."

Neither the Scottish Law Commission Report nor the Scottish Government Consultation Document contains any indication that one of the intended consequences of requiring service of a charge prior to execution of diligence on a summary warrant was to open up to summary warrant creditors the additional avenue of sequestration in the event of expiry of the days of charge without payment.

[26] I am, nevertheless, satisfied that the 2007 legislative changes have had precisely this consequence. It can hardly be doubted that statutory provisions which require the service of a charge for payment also implicitly authorise such service. I was not referred to any authority which indicated that, prior to 2007, the grant of a summary warrant operated as authorisation to serve a charge for payment. Whatever may have been the position then, it is in my opinion clear that the grant of a summary warrant does now provide a sufficient legal basis for the service of a charge. I am further of the view that once the charge has been served, its effect in relation to the bankruptcy legislation is no different from that of service of a charge on any other basis, such as an extract decree or a document registered for execution. Section 7(1)(c)(ii) of the Bankruptcy (Scotland) Act 1985 is in entirely general terms as to the constitution of apparent insolvency on expiry of the days of charge without payment: so, for example, as McBryde notes (op cit, para 3-15), the expiry of the days of charge may allow sequestration by a creditor other than the one who served the charge. It follows, in my opinion, that service of a charge following the grant of a summary warrant is capable of leading to apparent insolvency if the days of charge expire without payment.

[27] For this reason, had I held the petition to be competent, I would have sustained the respondent's first plea-in-law and dismissed the petition as irrelevant. I have, however, reached this decision with a feeling of unease as to whether the opening up of this route to sequestration truly reflects the intention of the Scottish Parliament when enacting the 2007 changes. At least part of the rationale for the change in the law appears to have been to assist debtors as well as creditors by encouraging payment without the need for use of diligence and by directing debtors to advice services. I can identify no indication that one of the perceived benefits of the reform was facilitation of the use of sequestration by a creditor without the need for a decree granted in an action for payment. There may be cases - of which the present is not one - where a debtor would have a stateable defence to an action for payment but is prevented from advancing it because the creditor chooses to proceed by way of summary warrant followed by service of a charge. I would respectfully recommend that summary diligence creditors, including HMRC, give further consideration to whether, as a matter of policy, they regard it as appropriate to proceed to sequestration on expiry of a charge which has not itself followed upon the obtaining of decree in an ordinary action for payment. The goal may not be offside, but the ball, as it appears to me, has undoubtedly taken a deflection on its way to the net.

Disposal

[28] For all of the foregoing reasons the petition is dismissed. If parties wish to address me on expenses, a motion should be enrolled.