Register of Protests
Background
The register was created in an 1811 Act of Sederunt:
“concerning the Registration of Deeds, Probative Writs, and Instruments of Protest, in the Books of Council and Session … there shall be kept … another series of minute books and registers for entering and recording all instruments of protest on bills and promissory notes…”
The main piece of legislation governing this subject is the Bills of Exchange Act 1882.
Bills of Exchange Act 1882 (external link)
This register is seldomly used. It is over 10 years since there was a registration in the Register of Protests. However the Bills of Exchange Act 1882 is still in force and therefore the register is still active.
The guidance on this page requires to be reviewed by Policy.
General requirements
The general requirements are laid out in section 51(7) of the Bills of Exchange Act 1882 as follows:
“A protest must contain a copy of the bill, and must be signed by the notary making it, and must specify:
(a) The person at whose request the bill is protested.
(b) The place and date of protest, the cause or reason for protesting the bill, the demand made, and the answer given, if any, or the fact that the drawee or acceptor could not be found.”
However, section 94(1) provides an alternative form of protest that can be used when a notary is not accessible:
“Where a dishonoured bill or note is authorised or required to be protested, and the services of a notary cannot be obtained at the place where the bill is dishonoured, any householder or substantial resident of the place may, in the presence of two witnesses, give a certificate, signed by them, attesting the dishonour of the bill, and the certificate shall in all respects operate as if it were a formal protest of the bill.
The form given in Schedule 1 to this Act may be used with necessary modifications, and if used shall be sufficient.”
There are two possible forms that an application for registration of a protest might take:
- A protest signed by a notary and accompanied by a copy of the bill. There is no requirement for the protest to be witnessed.
- A protest, where a notary is not accessible, must be signed by the protestor and two witnesses. This must be accompanied by either the original bill or a copy of the bill underwritten.
Where a copy of the bill is provided, that must be underwritten. This means signed by the protestor at the bottom of the last page, rather than at the bottom of every page or sheet of paper.
It is not necessary for the original bill to be submitted. We can also accept a copy of a bill or written particulars of the bill where the original has been mislaid or destroyed.
Any application which is submitted for registration in the Register of Protests must be referred to the Registration Practice team.
Must the deed be in self-proving form?
The 1995 Act specifies that a document must be in self-proving form in order to be registrable in the Books of Council and Session, unless authorised by enactment. In this case, the enactments authorising registration are the acts of 1681 and 1696 which authorise, respectively, registration of foreign and inland bills of exchange in the Books of Council and Session. Both are still in force, with the 1696 act simply applying the terms of the 1681 Act to inland bills.
Therefore the document does not have to be in self-proving form. However the requirement noted above that the bill must be signed by the notary and witnessed does apply.
Is a clause of consent necessary?
A document registered for execution must contain a clause of consent to registration for that purpose (Writs Execution (Scotland) Act 1877; section 1 and section 138 of the Titles to Land Consolidation (Scotland) Act 1868).
However it is not necessary for the bill of exchange or promissory note being protested to contain a clause of consent to registration for execution.
Execution passing on a registered protest is different from execution proceeding on a document of debt, and that different requirements apply. For protest, the type of document appears to be the critical point upon which summary diligence can be carried out (or not).
Therefore consent is not required where the creditor is the holder of a dishonoured bill of exchange or promissory note, but not a cheque. What is registered is the notarial instrument of dishonour.
The other case where summary diligence is competent is where the debtor has consented to it in a probative deed, the proper form of words being 'I consent to the registration of these presents for preservation and execution'.
Other requirements
The 1681 Act quoted above provides that registration of the protest must be within a six month period from the date of dishonour. Due to the requirements of the 1882 Act, it should be clear from the face of the protest that registration is being requested during the competent period.
It is necessary to check that the protest has been executed within six months of the date of dishonour.
Example documents
Any application which is submitted for registration in the Register of Protests must be referred to the Registration Practice team.
Registers of Scotland (RoS) seeks to ensure that the information published in the CAJR Manual is up to date and accurate but it may be amended from time to time.
The Manual is an internal document intended for RoS staff only. The information in the Manual does not constitute legal or professional advice and RoS cannot accept any liability for actions arising from its use.
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