Reconsidering Economic Loss arising out of Breach of Arrestment

Abstract

It is common when litigating in Scotland to arrest on the dependence. It remains a central plank of litigation practice, albeit matters of practice have been re-considered in light of human rights issues. This article re-considers what happens when the pursuer finds that the arrestee has paid the fund away. The issue is worth examining not least because a leading Scots law firm has published an internet commentary on the recent English case HM Commissioners of Customs & Excise v Barclays Bank plc., (Henceforth HMCCE). In that article it is suggested that the English case “contains important pointers to questions which would arise if the same situation arose in Scotland.” Later the article continues, “It is submitted that the judgment would equally apply to Scottish Arrestments on the Dependence, which again are granted without the bank being given an opportunity to enter appearance. So long as a Scottish bank did not deliberately allow a breach of the arrestment, they ought not to have any duty of care towards the third party.”