Bankruptcy and Diligence (Scotland) Act 2024

Arrestment and action of furthcoming

14 Service of documents and arrestee’s duty of disclosure

(1) Part 3A of the Debtors (Scotland) Act 1987 is modified as follows.

(2) After section 73C, insert—

“73CA Service of documents for purposes of sections 73B and 73C

(1) In relation to the service of documents for the purposes of sections 73B and 73C, the documents must be served on the arrestee either—

(a) by being sent to the proper address of the arrestee—

(i) by a registered post service (as defined in section 125(1) of the Postal Services Act 2000), or

(ii) by a postal service which provides for the delivery of the document to be recorded, or

(b) by being transmitted to the arrestee electronically.

(2) But, despite subsection (1), if it is impossible or impracticable for the documents to be served on the arrestee in either of the ways described in that subsection, service of the documents may instead be effected by any other competent mode of service.

(3) For the purpose of subsection (1)(a), the proper address of the arrestee is—

(a) in the case of a body corporate, the address of the registered or principal office of the body,

(b) in the case of a partnership, the address of the principal office of the partnership,

(c) in any other case, the last known address of the arrestee.

(4) Where a document is served as mentioned in subsection (1)(a) on an address in the United Kingdom it is to be taken to have been received 48 hours after it is sent unless the contrary is shown.

(5) For the purpose of subsection (1)(b)—

(a) electronic transmission of a document must be effected in a way that the arrestee has indicated to the creditor or officer of court that the arrestee is willing to receive the document,

(b) the arrestee’s indication of willingness to receive a document in a particular way may be—

(i) specific to the document in question or generally applicable to documents of that kind,

(ii) expressed specifically to the creditor or officer of court or generally (for example on a website),

(iii) inferred from the arrestee having previously been willing to receive documents from the creditor or officer of court in that way and not having indicated unwillingness to do so again,

(c) the creditor or officer of court’s uploading of a document to an electronic storage system from which the arrestee is able to download the document may constitute electronic transmission of the document, where the arrestee is sent a notification that the document has been uploaded in that way,

(d) a notice transmitted electronically is taken to have been received on the day of transmission unless the contrary is shown.”.

(3) In section 73G(4) (arrestee’s duty of disclosure)—

(a) in paragraph (a), the word “and” after sub-paragraph (ii) is repealed,

(b) after paragraph (b), insert—

“(c) where no property is attached, the reason why (for example, the arrestee does not hold funds standing to the credit of the debtor, or does hold such funds but the sum held is less than sum mentioned in section 73F(3)(a)).”.

(4) In section 73H (failure to disclose information)—

(a) in subsection (1)(b), for “mentioned in section 73F(4) of this Act” substitute “of £500”,

(b) after subsection (4), insert—

“(5) The Scottish Ministers may by regulations modify subsection (1)(b) so as to vary the sum mentioned there.”.

15 Attachment of property or funds: duty to consult and power to make further provision

(1) The Scottish Ministers must, within 1 year of this section coming into force—

(a) consult such persons as they consider appropriate about the merits of—

(i) attaching particular types of funds or other property in pursuance of any provision under Part 3A of the Debtors (Scotland) Act 1987 (“the 1987 Act”),

(ii) establishing, or modifying, a process for a debtor to apply to a decision-maker for an order requiring an arrestee to release to a debtor funds due to, or other property of, the debtor attached by an arrestment in accordance with that Part,

(b) after having had regard to the views expressed, prepare a report which—

(i) summarises the consultation responses received, and

(ii) sets out what steps (if any) the Scottish Ministers propose to take as a result of the findings (including, for example, the exercise of their regulation making powers under section 73U of the 1987 Act to modify Part 3A of that Act).

(2) The Scottish Ministers must, as soon as reasonably practicable after preparing the report, lay the report before the Scottish Parliament.

(3) The Scottish Ministers must comply with the duties in subsections (1) and (2) before laying a draft of a Scottish statutory instrument containing the first regulations under section 73U of the 1987 Act before the Scottish Parliament.

(4) The Debtors (Scotland) Act 1987 is modified by subsection (5).

(5) After section 73T, insert—

“73U Power to make provision about attaching particular property or funds

(1) The Scottish Ministers may by regulations modify this Part to make provision—

(a) about the types of funds or other property that may not be attached by an arrestment,

(b) establishing, or modifying, a process for a debtor to apply to a person specified in the regulations (a “decision-maker”) for an order requiring an arrestee to release to a debtor funds due to, or other property of, the debtor attached by an arrestment.

(2) Regulations under subsection (1) may (among other things)—

(a) in respect of regulations under paragraph (a) of that subsection, include provision specifying—

(i) cases or circumstances in which particular funds or property may not be attached by an arrestment,

(ii) particular types of funds which must be disregarded when calculating the protected minimum sum mentioned in section 73F(3)(a),

(b) in respect of regulations under paragraph (b) of that subsection, include provision about—

(i) the manner in which debtors may apply to a decision-maker for an order,

(ii) the information to be provided as part of an application,

(iii) the factors which a decision-maker must have regard to in deciding whether to give an order (for example, that the attachment of particular funds or property is unduly harsh),

(iv) the process for determining if an order should be given (for example, by conferring a discretion on a decision-maker or other person to decide any matter),

(v) how an application for an order may be challenged,

(vi) the effect of an order given by the decision-maker (including the obligations, or restrictions, on a debtor, creditor or arrestee to whom the arrestment concerned), and

(vii) appeals against an order (including providing for the fees payable in relation to such an appeal).

(3) Regulations under subsection (1) may—

(a) make different provision for different purposes,

(b) include incidental, supplementary, consequential, transitional, transitory or saving provision.

(4) Regulations under subsection (1) are subject to the affirmative procedure (as defined by section 29 of the Interpretation and Legislative Reform (Scotland) Act 2010).”.