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Mark Higgins, THE ENFORCEMENT OF HERITABLE SECURITIES Edinburgh: W Green (www.wgreen.co.uk), 2010. xxvii + 327 pp. ISBN 9780414017818. £75.

Document Cited authorities 3 Cited in Related
Vincent
DOI10.3366/elr.2011.0077
Date01 September 2011
Pages510-511
Published date01 September 2011

This is effectively the second edition of Mark Higgins original text entitled Scottish Repossessions (2002). As the title suggests the second edition focuses on the overall question of enforcement rather than simply repossession and sale. The enforcement of standard securities is one of the areas of law where social policy has had as much, if not a greater, effect than judicial decisions or legislation. When the first edition was published in 2002 the Mortgage Rights (Scotland) Act 2001 had just come into effect. It provided a discretionary power to the court to delay repossession orders. The second edition takes into account the new protections for debtors contained in the Owner and Debtor Protection (Scotland) Act 2010. The effect of these provisions is that there can be no repossession without a hearing before a sheriff although there are provisions for voluntary surrender of property. The author devotes a whole chapter to voluntary surrender (chapter 13), and there are separate chapters devoted to the preliminary procedures of calling up and notices of default. Such is the extent of legislative regulation of enforcement now that the author has had to devote additional chapters in relation to pre-action requirements and procedural considerations for both residential proceedings and commercial court proceedings. There is also now the obligatory chapter on human rights.

As with all social or quasi-social legislation which seeks to alleviate suffering in harsh economic conditions both the Mortgage Rights (Scotland) Act 2001 and the Home Owner and Debtor Protection (Scotland) Act 2010 contain ill-defined and sweeping phrases such as “reasonable in all the circumstances” and “within a reasonable period”. As the author points out the inconsistency in the decisions of various courts under the 2001 Act is likely to continue under the 2010 Act. It is perhaps significant that there were no decisions of any superior court under the 2001 Act. It is therefore difficult to predict with any certainty how the rights of creditors will be affected by the latest legislation. One thing is clear and that is that it will be much more difficult for secured creditors to obtain decrees and even if they do it is likely to be after a lengthy process if there is no voluntary surrender.

An interesting point raised in chapter 6 is the issue of liability for the expenses of the now elongated procedure. The general rule of course is that an award of expenses should follow success and...

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