Bankruptcy and Diligence (Scotland) Act 2024

4 Process for applying for recall of an award of sequestration

(1) Part 2 of the Bankruptcy (Scotland) Act 2016 is modified as follows.

(2) In section 29 (petitions for recall of sequestration), in subsection (4)—

(a) in paragraph (a), after “debtor” insert “(where the debtor is not the petitioner)”,

(b) in paragraph (b), after “any” insert “other”,

(c) in paragraph (c), after “trustee” insert “(where the trustee is not the petitioner)”,

(d) in paragraph (d), after “AiB” insert “(where AiB is not the petitioner)”.

(3) In section 31 (application to Accountant in Bankruptcy for recall of sequestration)—

(a) in subsection (3), in the opening words, before “persons” insert “other”,

(b) in subsection (4)—

(i) in paragraph (a), the words “(where the debtor is not the applicant)” are repealed,

(ii) in paragraph (c), after “trustee” insert “(where AiB is not the trustee)”,

(c) in subsection (5)—

(i) after “granted” insert “—

(a) where AiB is not the trustee,”,

(ii) at the end insert—

“(b) where AiB is the trustee, under section 35(6) (subject to any conditions imposed under section 35(6B)).”.

(4) In section 32 (application under section 31: further procedure)—

(a) for subsection (1) substitute—

“(1) This section applies where—

(a) an application is made under section 31, and

(b) AiB is not the trustee.”,

(b) the heading of the section becomes “Application under section 31: further procedure where Accountant in Bankruptcy is not trustee”.

(5) In section 33 (determination where amount of outlays and remuneration not agreed), in subsection (1)—

(a) the word “and” immediately following paragraph (a) is repealed,

(b) after paragraph (a), insert—

“(aa) AiB is not the trustee, and”.

(6) In section 34 (recall of sequestration by Accountant in Bankruptcy)—

(a) before subsection (1), insert—

“(A1) This section applies where AiB is not the trustee.”,

(b) after subsection (1), insert—

“(1A) Before recalling an award of sequestration AiB must take into account any representations made by an interested person within 21 days beginning with the day on which notice is given under section 31(3)(b).”,

(c) in subsection (2)(a), for “8 weeks” substitute “9 weeks”,

(d) the title to the section becomes “Recall of sequestration where Accountant in Bankruptcy is not trustee”.

(7) In section 35 (recall where Accountant in Bankruptcy trustee)—

(a) in subsection (1)(b)—

(i) before “considers” insert “either—

(i) receives an application under section 31, or

(ii)”,

(ii) for “should” substitute “may”,

(b) in subsection (2), after “must” insert “—

(a) where an application under section 31 is received, notify every creditor known to AiB that the application has been made within 7 days beginning with the day on which the application is received,

(b) where AiB is acting on its own accord,”,

(c) after subsection (2), insert—

“(2A) At the same time as giving notice under subsection (2)(b), AiB must give to the persons mentioned in subsection (2B) a notice informing the recipient that the person has a right to make representations to AiB in relation to the notification within 21 days beginning with the day on which the notice is given.

(2B) The persons are—

(a) the debtor, and

(b) any person who was a petitioner for, or concurred in a debtor application for, the sequestration.”,

(d) in subsection (5)(a), for “subsection (2)” substitute “subsection (2A) or, as the case may be, section 31(3)(b)”,

(e) after subsection (6), insert—

“(6A) AiB may not recall an award of sequestration after—

(a) where no appeal is made under section 37(5)(a), the day which is 9 weeks after the days mentioned in subsection (5)(a) have expired, or

(b) where such an appeal is made, such later day which is 14 days after the day on which the appeal is finally determined or abandoned.

(6B) If AiB does not under subsection (6) recall an award of sequestration, the sequestration must continue but is to be subject to such conditions as AiB thinks fit.

(6C) Despite notice being given under subsection (2)(b), the proceedings in the sequestration are to continue as if the notification had not been made until a recall of an award of sequestration is granted under subsection (6) (subject to any conditions imposed under subsection (6B)).”,

(f) the heading of the section becomes “Recall of sequestration where Accountant in Bankruptcy is trustee”.