- Y Diweddaraf sydd Ar Gael (Diwygiedig)
- Pwynt Penodol mewn Amser (23/11/2009)
- Gwreiddiol (Fel y'i Deddfwyd)
Version Superseded: 07/09/2010
Point in time view as at 23/11/2009. This version of this Act contains provisions that are not valid for this point in time.
Bankruptcy (Scotland) Act 1985 (repealed) is up to date with all changes known to be in force on or before 17 August 2024. There are changes that may be brought into force at a future date. Changes that have been made appear in the content and are referenced with annotations.
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(1)The Accountant in Bankruptcy shall be appointed by the Scottish Ministers.
[F2(1A)The Accountant in Bankruptcy shall be an officer of the court.]
(2)The Scottish Ministers may appoint a member of the staff of the Accountant in Bankruptcy to be Depute Accountant in Bankruptcy to exercise all of the functions of the Accountant in Bankruptcy at any time when the Accountant in Bankruptcy is unable to do so.]
Textual Amendments
F1S. 1 and sidenote substituted (1.7.1999) by 1998 c. 46, s. 125(1), Sch. 8 para. 22 (with s. 126(3)-(11)); S.I. 1998/3178, art. 2(1)
F2S. 1(1A) inserted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 22, 227(3) (with s. 223); S.S.I. 2008/115, art. 3(1)(a) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
(1)The Accountant in Bankruptcy shall have the following general functions in the administration of sequestration and personal insolvency—
(a)the supervision of the performance by—
(i)interim trustees (not being the Accountant in Bankruptcy);
(ii)[F4trustees (not being the Accountant in Bankruptcy)]; and
[F5(iia)trustees under protected trust deeds;]
(iii)commissioners, of the functions conferred on them by this Act or any other enactment (including an enactment contained in subordinate legislation) or any rule of law and the investigation of any complaints made against them;
[F6(aa)the determination of debtor applications;]
(b)the maintenance of a register (in this Act referred to as the “register of insolvencies”), in such form as may be prescribed by the Court of Session by act of sederunt, which shall contain particulars of—
(i)estates which have been sequestrated; F7. . .
(ii)trust deeds which have been sent to him for registration F8. . . ;
[F9(iia)bankruptcy restrictions orders, interim bankruptcy restrictions orders and bankruptcy restrictions undertakings;]
[F10and
(iii)the winding up and receivership of business associations which the Court of Session has jurisdiction to wind up.]
(c)the preparation of an annual report which shall be presented to the Secretary of State and the Court of Session and shall contain—
(i)statistical information relating to the state of all sequestrations [F11and the winding up and receivership of business associations]of which particulars have been registered in the register of insolvencies during the year to which the report relates;
(ii)particulars of trust deeds registered as protected trust deeds in that year; and
(iii)particulars of the performance of the Accountant in Bankruptcy’s functions under this Act; F12. . .
(d)such other functions as may from time to time be conferred on him by the Secretary of State;[F13 and
(e)in this subsection “business association” has the meaning given in Section C2 of Part II of Schedule 5 to the Scotland Act 1998.]
(2)If it appears to the Accountant in Bankruptcy that a person mentioned in paragraph (a) of subsection (1) above has failed without reasonable excuse to perform a duty imposed on him by any provision of this Act or by any other enactment (including an enactment contained in subordinate legislation) or by any rule of law, he shall report the matter to the [F14sheriff who] , after hearing that person on the matter, may remove him from office or censure him or make such other order as the circumstances of the case may require.
(3)Where the Accountant in Bankruptcy has reasonable grounds to suspect that an offence has been committed—
(a)by a person mentioned in paragraph (a) of subsection (1) above in the performance of his functions under this Act or any other enactment (including an enactment contained in subordinate legislation) or any rule of law; or
(b)in relation to a sequestration, by the debtor in respect of his assets, his dealings with them or his conduct in relation to his business or financial affairs; or
(c)in relation to a sequestration, by a person other than the debtor in that person’s dealings with the debtor, the interim trustee or the F15. . . trustee in respect of the debtor’s assets, business or financial affairs,
he shall report the matter to the Lord Advocate.
(4)The Accountant in Bankruptcy shall—
(a)make the register of insolvencies, at all reasonable times, available for inspection; and
(b)provide any person, on request, with a certified copy of any entry in the register.
Textual Amendments
F3Ss. 1-1C substituted for s. 1 (1.4.1993, subject to savings in arts. 4, 5 of S.I. 1993/438) by 1993 c. 6, s. 1(1) (with s. 12(6)); S.I. 1993/438, art. 3
F4Words in s. 1A(1)(a)(ii) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 2(a) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F5S. 1A(1)(a)(iia) inserted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 23(2), 227(3) (with s. 223); S.S.I. 2008/115, art. 3(1)(a) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F6S. 1A(1)(aa) inserted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 14(1), 227(3) (with s. 223); S.S.I. 2008/115, art. 3(1)(a) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F7Word after s. 1A(1)(b)(i) omitted (1.7.1999) by virtue of S.I. 1999/1820, art. 4, Sch. 2 Pt. I para. 82(2)(a) (with art. 5)
F8Words in s. 1A(1)(b)(ii) repealed (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 226, 227(3), Sch. 6 (with s. 223); S.S.I. 2008/115, art. 3(1)(h)(i)(2)(3), Sch. 2 (with arts. 4-6, 10) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F9S. 1A(1)(b)(iia) inserted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 2(2), 227(3) (with s. 223); S.S.I. 2008/115, art. 3(1)(a) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F10Word and s. 1A(1)(b)(iii) inserted (1.7.1999) by S.I. 1999/1820, art. 4, Sch. 2 Pt. I para. 82(2)(a) (with art. 5)
F11Words in s. 1A(1)(c)(i) inserted (1.7.1999) by S.I. 1999/1820, art. 4, Sch. 2 Pt. I para. 82(2)(b) (with art. 5)
F12Word after s. 1A(1)(c) omitted (1.7.1999) by virtue of S.I. 1999/1820, art. 4, Sch. 2 Pt. I para. 82(2)(c) (with art. 5)
F13Word and s. 1A(1)(e) inserted (1.7.1999) by S.I. 1999/1820, art. 4, Sch. 2 Pt. I para. 82(2)(c) (with art. 5)
F14Words in s. 1A(2) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 2(b) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F15Word in s. 1A(3)(c) repealed (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 226, 227(3), Sch. 6 (with s. 223); S.S.I. 2008/115, art. 3(1)(h)(i)(2)(3), Sch. 2 (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
(1)The functions of the Accountant in Bankruptcy, other than functions conferred by section 1A of this Act, may be carried out on his behalf by any member of his staff authorised by him to do so.
(2)Without prejudice to subsection (1) above, the Accountant in Bankruptcy may appoint on such terms and conditions as he considers appropriate such persons as he considers fit to perform on his behalf any of his functions in respect of the sequestration of the estate of any debtor.
(3)A person appointed under subsection (2) above shall comply with such general or specific directions as the Accountant in Bankruptcy may from time to time give to such person as to the performance of his functions in relation to any sequestration.
(4)The Accountant in Bankruptcy may pay to a person appointed under subsection (2) above such fee as he may consider appropriate.
Textual Amendments
F16Ss. 1-1C substituted for s. 1 (1.4.1993, subject to savings in arts. 4, 5 of S.I. 1993/438) by 1993 c. 6, s. 1(1) (with s. 12(6)); S.I. 1993/438, art.3
(1)The Secretary of State may, after consultation with the Lord President of the Court of Session, give to the Accountant in Bankruptcy general directions as to the performance of his functions under this Act.
(2)Directions under this section may be given in respect of all cases or any class or description of cases, but may not be given in respect of any particular case.
(3)The Accountant in Bankruptcy shall comply with any directions given to him under this section.
Textual Amendments
F17Ss. 1-1C substituted for s. 1 (1.4.1993, subject to savings in arts. 4, 5 of S.I. 1993/438) by 1993 c. 6, s. 1(1) (with s. 12(6)); S.I. 1993/438, art.3
(1)Where the [F20sheriff] awards sequestration of the debtor’s estate and the petition for the sequestration—
(a)nominates a person to be [F21the] trustee;
(b)states that the person satisfies the conditions mentioned in subsection (3) below; and
(c)has annexed to it a copy of the undertaking mentioned in subsection (3)(c) below,
the [F20sheriff] may, if it appears to the [F20sheriff] that the person satisfies those conditions and if no interim trustee has been appointed in pursuance of subsection (5) below, appoint that person to be [F21the] trustee in the sequestration.
[F22(1A)Subject to subsection (1C) below, where the Accountant in Bankruptcy awards sequestration of the debtor's estate and the debtor application—
(a)nominates a person to be the trustee;
(b)states that the person satisfies the conditions mentioned in subsection (3) below; and
(c)has annexed to it a copy of the undertaking mentioned in subsection (3)(c) below,
the Accountant in Bankruptcy may, if it appears to him that the person satisfies those conditions, appoint that person to be the trustee in the sequestration.
(1B)Where the Accountant in Bankruptcy awards sequestration of the debtor's estate and does not appoint a person to be the trustee in pursuance of subsection (1A) above, the Accountant in Bankruptcy shall be deemed to be appointed to be the trustee in the sequestration.
(1C)Where—
(a)the debtor application is made by a debtor to whom section 5(2B)(c)(ia) applies; and
(b)the Accountant in Bankruptcy awards sequestration of the debtor's estate,
the Accountant in Bankruptcy shall be deemed to be appointed as trustee in the sequestration.]
(2)Where the [F20sheriff] awards sequestration of the debtor’s estate and—
(a)[F23he] does not appoint a person to be [F24the] trustee in pursuance of subsection (1) above; and
(b)no interim trustee has been appointed in pursuance of subsection (5) below,
the [F20sheriff] shall appoint the Accountant in Bankruptcy to be [F24the] trustee in the sequestration.
[F25(2A)Where the sheriff awards sequestration of the debtor's estate and an interim trustee has been appointed in pursuance of subsection (5) below, the sheriff may appoint—
(a)the interim trustee; or
(b)subject to subsection (2B) below, such other person as may be nominated by the petitioner,
to be the trustee in the sequestration.
(2B)A person nominated under subsection (2A)(b) above may be appointed to be the trustee in the sequestration only if—
(a)it appears to the sheriff that the person satisfies the conditions mentioned in subsection (3) below; and
(b)a copy of the undertaking mentioned in subsection (3)(c) below has been lodged with the sheriff.
(2C)Where the sheriff does not appoint a person to be trustee in pursuance of subsection (2A) above, the sheriff shall appoint the Accountant in Bankruptcy to be the trustee in the sequestration.]
(3)The conditions referred to in subsection (1) above are that the person—
(a)F26. . .
(b) is qualified to act as an insolvency practitioner; and
(c)has given an undertaking, in writing, that he will act[F27 as the trustee] in the sequestration .
(4)F28. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(5)Where a petition for sequestration is presented by a creditor or a trustee acting under a trust deed, the [F20sheriff] may appoint an interim trustee before sequestration is awarded—
(a)if the debtor consents; or
(b)if the trustee acting under the trust deed or any creditor shows cause.
(6)For the purposes of the appointment of an interim trustee under subsection (5) above—
(a)where a person is nominated as mentioned in subsection (1)(a) above and the provisions of that subsection apply, the [F20sheriff] may appoint that person; and
(b)where such a person is not appointed, the [F20sheriff] shall appoint the Accountant in Bankruptcy.
[F29(6A)The interim trustee's general function shall be to safeguard the debtor's estate pending the determination of the petition for sequestration.
(6B)Whether or not the interim trustee is still acting in the sequestration, the interim trustee shall supply the Accountant in Bankruptcy with such information as the Accountant in Bankruptcy considers necessary to enable him to discharge his functions under this Act.]
(7)Where
[F30(a)a trustee is appointed in a sequestration where the petition was presented by a creditor or the trustee acting under a trust deed; or
(b)an interim trustee is appointed in pursuance of subsection (5) above,
he] shall, as soon as practicable, notify the debtor of his appointment.]
Textual Amendments
F18S. 2 heading substituted (1.4.2008) by virtue of Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 6(1)(c), 227(3) (with s. 223); S.S.I. 2008/115, art. 3(1)(a) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F19S. 2 substituted (1.4.1993, subject to savings in arts. 4, 5 of S.I. 1993/438) by 1993 c. 6, s.2 (with s. 12(6)); S.I. 1993/438, art.3
F20Words in s. 2 substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007, ss. 36, 227(3), {Sch. 1 para. 3(2)} (with s. 223); S.S.I. 2008/115, art. 3(1)(a)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F21Words in s. 2(1) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 3(3) (with s. 223); S.S.I. 2008/115, art. 3(1)(a)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F22S. 2(1A)-(1C) inserted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 14(2), 227(3) (with s. 223); S.S.I. 2008/115, art. 3(1)(a) (with arts. 4-6, 10) (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5)
F23Word in s. 2(2) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 3(4)(a) (with s. 223); S.S.I. 2008/115, art. 3(1)(a)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F24Words in s. 2(2) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 3(4)(b) (with s. 223); S.S.I. 2008/115, art. 3(1)(a)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F25S. 2(2A)-(2C) inserted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 6(1)(a), 227(3) (with s. 223); S.S.I. 2008/115, art. 3(1)(a) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F26S. 2(3)(a) repealed (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 7(1), 227(3) (with s. 223); S.S.I. 2008/115, art. 3(1)(a) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F27Words in s. 2(3)(c) substituted for s. 2(3)(c)(i)(ii) (1.4.2008) by the Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3) ss. 36, 227(3), {Sch. 1 para. 3(5)} (with s. 223); S.S.I. 2008/115, art. 3(1)(a)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F28S. 2(4) repealed (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 226, 227(3), Sch. 6 (with s. 223); S.S.I. 2008/115, art. 3(1)(h)(i)(2)(3), Sch. 2 (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F29S. 2(6A)(6B) inserted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 6(1)(b), 227(3) (with s. 223); S.S.I. 2008/115, art. 3(1)(a) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F30Words in s. 2(7) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp. 3), ss. 36, 227(3), Sch. 1 para. 3(6) (with s. 223); S.S.I. 2008/115, art. 3(1)(a)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
(1)In every sequestration there shall be a F32. . . trustee whose general functions shall be—
(a)to recover, manage and realise the debtor’s estate, whether situated in Scotland or elsewhere;
(b)to distribute the estate among the debtor’s creditors according to their respective entitlements;
(c)to ascertain the reasons for the debtor’s insolvency and the circumstances surrounding it;
(d)to ascertain the state of the debtor’s liabilities and assets;
(e)to maintain a sederunt book during his term of office for the purpose of providing an accurate record of the sequestration process;
(f)to keep regular accounts of his intromissions with the debtor’s estate, such accounts being available for inspection at all reasonable times by the commissioners (if any), the creditors and the debtor; and
(g)whether or not he is still acting in the sequestration, to supply the Accountant in Bankruptcy with such information as the Accountant in Bankruptcy considers necessary to enable him to discharge his functions under this Act.
(2)A F32. . . trustee in performing his functions under this Act shall have regard to advice offered to him by the commissioners (if any).
(3)If the F32. . . trustee has reasonable grounds to suspect that an offence has been committed in relation to a sequestration—
(a)by the debtor in respect of his assets, his dealings with them or his conduct in relation to his business or financial affairs; or
(b)by a person other than the debtor in that person’s dealings with the debtor, the interim trustee or the F32. . . trustee in respect of the debtor’s assets, business or financial affairs,
he shall report the matter to the Accountant in Bankruptcy.
[F33(3A)If the trustee has reasonable grounds to believe that any behaviour on the part of the debtor is of a kind that would result in a sheriff granting, under section 56B(1) of this Act, an application for a bankruptcy restrictions order, he shall report the matter to the Accountant in Bankruptcy.]
(4)A report under subsection (3) [F34or (3A)] above shall be absolutely privileged.
F35[(5)Paragraph (g) of subsection (1) above and [F36subsections (3) and (3A)] above shall not apply in any case where the F32. . . trustee is the Accountant in Bankruptcy.
(6)A F32. . . trustee may apply to the sheriff for directions in relation to any particular matter arising in the sequestration.
(7)Where the debtor, a creditor or any other person having an interest is dissatisfied with any act, omission or decision of the F32. . . trustee, he may apply to the sheriff and, on such an application being made, the sheriff may confirm, annul or modify any act or decision of the F32. . . trustee or may give him directions or make such order as he thinks fit.]
[F37(8)The trustee shall comply with the requirements of subsections (1)(a) to (d) and (2) above only in so far as, in his view, it would be of financial benefit to the estate of the debtor and in the interests of the creditors to do so.]
Textual Amendments
F31S. 3: heading substituted (1.4.2008) by virtue of Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 6(2), 227 (with s. 223); S.S.I. 2008/115, art. 3(1)(a) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F32Words in s. 3 repealed (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 226, 227(3), Sch. 6 (with s. 223); S.S.I. 2008/115, art. 3(1)(h)(i)(2)(3), Sch. 2 (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F33S. 3(3A) inserted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 8(1)(a), 227(3) (with s. 223); S.S.I. 2008/115, art. 3(1)(a) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F34Words in S. 3(4) inserted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 8(1)(b), 227(3) (with s. 223); S.S.I. 2008/115, art. 3(1)(a) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F35S. 3(5)-(7) added (1.4.1993, subject to savings in arts. 4, 5 of S.I. 1993/438) by 1993 c. 6, s. 11(3), Sch. 1 para.1 (with s. 12(6)); S.I. 1993/438, art.3
F36Words in s. 3(5) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 8(1)(c), 227(3) (with s. 223); S.S.I. 2008/115, art. 3(1)(a) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F37S. 3(8) inserted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 8(1)(d), 227(3) (with s. 223); S.S.I. 2008/115, art. 3(1)(a) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
In any sequestration F38. . . commissioners, whose general functions shall be to supervise the intromissions of the F38. . . trustee with the sequestrated estate and to advise him, may be elected in accordance with section 30 of this Act.
Textual Amendments
F38Words in s. 4 repealed (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 226, 227(3), Sch. 6 (with s. 223); S.S.I. 2008/115, art. 3(1)(h)(i)(2)(3), Sch. 2 (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
(1)The estate of a debtor may be sequestrated in accordance with the provisions of this Act.
[[F39F40(2)The sequestration of the estate of a living debtor shall be—
(a)by debtor application made by the debtor, if either subsection (2A) or (2B) below applies to the debtor; or
(b)on the petition of—
(i)subject to subsection (2D) below, a qualified creditor or qualified creditors, if the debtor is apparently insolvent;
(ii)a temporary administrator;
(iii)a member State liquidator appointed in main proceedings; or
(iv)the trustee acting under a trust deed if, and only if, one or more of the conditions in subsection (2C) below is satisfied.]
(2A)This subsection applies to the debtor if a qualified creditor or qualified creditors concur in the [F41application] .
(2B)This subsection applies to the debtor where—
(a)the total amount of his debts (including interest) at the date [F42the debtor application is made] is not less than [F43£3,000 or such sum as may be prescribed] ;
(b)an award of sequestration has not been made against him in the period of 5 years ending on the day before the date [F42the debtor application is made] ; and
(c)the debtor F44. . . —
(i)is apparently insolvent;
[F45(ia)is unable to pay his debts and each of the conditions in section 5A of this Act is met;] or
(ii)has granted a trust deed [F46which is not a protected trust deed by reason of the creditors objecting, or not agreeing, in accordance with regulations under paragraph 5 of Schedule 5 to this Act, to the trust deed,]
and for the purposes of this paragraph a debtor shall not be apparently insolvent by reason only that he has granted a trust deed or that he has given notice to his creditors as mentioned in paragraph (b) of section 7(1) of this Act.
(2C)The conditions mentioned in subsection [F47(2)(b)(iv)] above are—
(a)that the debtor has failed to comply—
(i)with any obligation imposed on him under the trust deed with which he could reasonably have complied; or
(ii)with any instruction or requirement reasonably given to or made of him by the trustee for the purposes of the trust deed; or
(b)that the trustee avers in his petition that it would be in the best interests of the creditors that an award of sequestration be made.]
[F48(2D)No petition may be presented under subsection (2)(b)(i) above unless the qualified creditor has provided, by such time prior to the presentation of the petition as may be prescribed, the debtor with a debt advice and information package.
(2E)In subsection (2D) above, “debt advice and information package” means the debt advice and information package referred to in section 10(5) of the Debt Arrangement and Attachment (Scotland) Act 2002 (asp 17).]
(3)The sequestration of the estate of a deceased debtor shall be on the petition of—
(a)an executor or a person entitled to be appointed as executor on the estate;
(b)a qualified creditor or qualified creditors of the deceased debtor;
[F49(ba)a temporary administrator;
(bb)a member State liquidator appointed in main proceedings];or
(c)the trustee acting under a trust deed.
(4)In this Act “qualified creditor” means a creditor who, at the date of the presentation of the petition [F50or, as the case may be, the date the debtor application is made] , is a creditor of the debtor in respect of liquid or illiquid debts (other than contingent or future debts [F51or amounts payable under a confiscation order]), whether secured or unsecured, which amount (or of one such debt which amounts) to not less than [F52[F53£3,000]] or such sum as may be prescribed; and “qualified creditors” means creditors who at the said date are creditors of the debtor in respect of such debts as aforesaid amounting in aggregate to not less than [F52[F54£3,000]] or such sum as may be prescribed [F55; and in the foregoing provisions of this subsection “confiscation order ”[F56means a confiscation order under Part 2, 3 or 4 of the Proceeds of Crime Act 2002]].
[F57(4A)In this Act, “trust deed” means a voluntary trust deed granted by or on behalf of the debtor whereby his estate (other than such of his estate as would not, under section 33(1) of this Act, vest in the F58. . . trustee if his estate were sequestrated) is conveyed to the trustee for the benefit of his creditors generally.]
[F59(4B)A debtor application shall—
(a)be made to the Accountant in Bankruptcy; and
(b)be in such form as may be prescribed.
(4C)The Scottish Ministers may, by regulations, make provision—
(a)in relation to the procedure to be followed in a debtor application (in so far as not provided for in this Act);
(b)prescribing the form of any document that may be required for the purposes of making a debtor application; and
(c)prescribing the fees and charges which may be levied by the Accountant in Bankruptcy in relation to debtor applications.]
(5)Paragraphs 1(1) and (3), 2(1)(a) and (2) and 6 of Schedule 1 to this Act shall apply in order to ascertain the amount of the debt or debts for the purposes of subsection (4) above as they apply in order to ascertain the amount which a creditor is entitled to claim, but as if for any reference to the date of sequestration there were substituted a reference to the date of presentation of the petition [F60or, as the case may be, the date the debtor application is made] .
(6)The petitioner shall [F61, on the day the petition for sequestration is presented under this section, send a copy of the petition] to the Accountant in Bankruptcy.
[[F62F63(6A)In the case of a debtor application, the debtor shall send a statement of assets and liabilities to the Accountant in Bankruptcy along with the application.]]
(7)Where, after a petition for sequestration has been presented but before the sequestration has been awarded, the debtor dies then—
(a)F64. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(b)if the petitioner is a creditor, the proceedings shall continue in accordance with this Act so far as circumstances will permit.
[F65(7A)Where, after a debtor application is made but before the sequestration is awarded, the debtor dies, then the application shall fall.]
(8)Where, after a petition for sequestration has been presented under this section but before the sequestration has been awarded, a creditor who—
(a)is the petitioner F66. . . ; or
(b)has lodged answers to the petition,
withdraws or dies, there may be sisted in the place of—
(i)the creditor mentioned in paragraph (a) above, any creditor who was a qualified creditor at the date when the petition was presented and who remains so qualified at the date of the sist;
(ii)the creditor mentioned in paragraph (b) above, any other creditor.
[F67(8A)Where, after a debtor application is made but before the sequestration is awarded, a creditor who concurs in the application withdraws or dies, any other creditor who was a qualified creditor at the date the debtor application was made and who remains so qualified may notify the Accountant in Bankruptcy that he concurs in the application in place of the creditor who has withdrawn or died.]
[F68(9)If the debtor—
(a)fails to send to the Accountant in Bankruptcy in accordance with subsection [F69(6A)] above such statement of assets and liabilities; or
(b)fails to disclose any material fact in such statement of assets and liabilities; or
(c)makes a material misstatement in such statement of assets and liabilities,
he shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale or to imprisonment for a term not exceeding 3 months or to both such fine and imprisonment.
(10)In any proceedings for an offence under subsection (9) above, it shall be a defence for the accused to show that he had a reasonable excuse for—
(a)failing to send to the Accountant in Bankruptcy in accordance with subsection [F70(6A)] above such statement of assets and liabilities; or
(b)failing to disclose a material fact; or
(c)making a material misstatement.]
Textual Amendments
F39S. 5(2) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 14(3)(a), 227(3) (with s. 223); S.S.I. 2008/115, art. 3(1)(a) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F40S. 5(2)(2A)-(2C) substituted for s. 5(2) (1.4.1993, subject to savings in arts. 4,5 of S.I. 1993/438) by 1993 c. 6, s. 3(2) (with s. 12(6)); S.I. 1993/438, art. 3
F41Word in s. 5(2A) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 4(2) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F42Words in s. 5(2B)(a)(b) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 4(3)(a) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F43Words in s. 5(2B)(a) substituted (1.4.2008 for certain purposes, otherwise prosp.) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 25(a), 227(3), (with s. 223); S.S.I. 2008/115, art. 3(4), Sch. 3 (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F44Word in s. 5(2B)(c) repealed (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 15(1)(a), 227(3), (with s. 223); S.S.I. 2008/115, art. 3(1)(a) (with arts. 4-6, 10) (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F45S. 5(2B)(c)(ia) inserted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 15(1)(b), 227(3) (with s. 223); S.S.I. 2008/115, art. 3(1)(a) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F46Words in s. 5(2B)(c)(ii) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 4(3)(b) (with s. 223); S.S.I. 2008/115, art. 3(1)(a) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F47Words in s. 5(2C) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 4(4) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F48S. 5(2D)(2E) inserted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 26, 227(3) (with s. 223); S.S.I. 2008/115, art. 3(1)(a) (with arts. 4-6, 8, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F49S. 5(3)(ba)(bb) inserted (8.9.2003) by The Insolvency (Scotland) Regulations 2003 (S.I. 2003/2109), reg. 5(2)
F50Words in s. 5(4) inserted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 4(5) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F51Words inserted by Criminal Justice (Scotland) Act 1987 (c.41, SIF 39:1), ss. 45(5)(a)(i), 47(4)(a)
F52Words in s. 5(4) substituted (1.4.1993, subject to savings in arts. 4, 5 of S.I. 1993/438) by 1993 c. 6, s. 3(3) (with s. 12(6)); S.I. 1993/438, art. 3
F53Words in s. 5(4) substituted (1.4.2008 for certain purposes, otherwise prosp.) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 25(b), 227(3) (with s. 223); S.S.I. 2008/115, art. 3(1)(a)(iii)(ab) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F54Words in s. 5(4) substituted (1.4.2008 for certain purposes, otherwise prosp.) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 25(b), 227(3) (with s. 223); S.S.I. 2008/115, art. 3(1)(a)(iii)(ab) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F55Words added by Criminal Justice (Scotland) Act 1987 (c. 41, 39:1), ss. 45(5)(ii), 47(4)(a)
F56Words in s. 5(4) substituted (24.3.2003) by Proceeds of Crime Act 2002 (c. 29), ss. 456, 458(1)(3), Sch. 11 para. 15(2); S.I. 2003/333, art. 2(1), Sch. (subject to transitional provisions in arts. 3-14) (as amended by S.I. 2003/531); S.S.I. 2003/210, art. 2(1)(b), Sch. (subject to transitional provisions in arts. 3-7)
F57S. 5(4A) inserted (1.4.1993, subject to savings in arts. 4, 5 of S.I. 1993/438) by 1993 c. 6, s. 3(4) (with s. 12(6)); S.I. 1993/438, art. 3
F58Word in s. 5(4A) repealed (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss 226, 227(3), Sch. 6 Pt. 1 (with s. 223); S.S.I. 2008/115, {art. 3(1)(h)(2)(3), Sch. 2} (with arts. 4-6, 10) (as amended by S.S.I. 2011/31, art. 5)
F59S. 5(4B)(4C) inserted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 14(3)(b), 227(3) (with s. 223); S.S.I. 2008/115, art. 3(1)(a) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F60Words in s. 5(5) inserted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 4(6) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F61Words in s. 5(6) substituted (1.4.1993, subject to savings in arts. 4, 5 of S.I. 1993/438) by 1993 c. 6, s. 3(5) (with s. 12(6)); S.I. 1993/438, art. 3
F62S. 5(6A) substituted (1.4.2.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 4(7) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F63S. 5(6A) inserted (1.4.1993, subject to savings in arts. 4, 5 of S.I. 1993/438) by 1993 c. 6, s. 3(6) (with s. 12(6)); S.I. 1993/438, art. 3
F64S. 5(7)(a) repealed (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 226, 227(3), Sch. 6 Pt. 1 (with s. 223); S.S.I. 2008/115, art. 3(1)(h)(i)(2)(3), Sch. 2 (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F65S. 5(7A) inserted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 4(8) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F66Words in s. 5(8)(a) repealed (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 226, 227(3), Sch. 6 Pt. 1 (with s. 223); S.S.I. 2008/115, {art. 3(1)(h)(i)(2)(3), Sch. 2} (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F67S. 5(8A) inserted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 4(9) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F68S. 5(9)(10) inserted (1.4.1993, subject to savings in arts. 4, 5 of S.I. 1993/438) by 1993 c. 6, s. 3(7) (with s. 12(6)); S.I. 1993/438, art. 3
F69Words in s. 5(9)(a) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 4(10) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F70Words in s. 5(10)(a) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 4(11) (with s. 223); S.S.I. 2008/115, art. 3(1)(a) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
Modifications etc. (not altering text)
C1S. 5 amended (20.7.2001 for certain purposes and otherwise 1.12.2001) by 2000 c. 8, s. 372(1)(b); S.I. 2001/2632, art. 2, Sch. Pt. I; S.I. 2001/3538, art. 2(1)
C2S. 5(2D) modified (1.4.2008) by Bankruptcy (Scotland) Regulations 2008 (S.S.I. 2008/82), reg. 12(2)
(1)The conditions referred to in section 5(2B)(c)(ia) of this Act are as follows.
(2)The debtor's weekly income (if any) on the date the debtor application is made does not exceed £100 or such other amount as may be prescribed.
(3)The debtor does not own any land.
(4)The total value of the debtor's assets (leaving out of account any liabilities) on the date the debtor application is made does not exceed £1000 or such other amount as may be prescribed.
(5)The Scottish Ministers may by regulations—
(a)make provision as to how the debtor's weekly income is to be determined;
(b)provide that particular descriptions of income are to be excluded for the purposes of subsection (2) above;
(c)make provision as to how the value of the debtor's assets is to be determined;
(d)provide that particular descriptions of asset are to be excluded for the purposes of subsection (4) above;
(e)make different provision for different classes or description of debtor;
(f)add further conditions which must be met before a debtor application may be made by virtue of section 5(2B)(c)(ia) of this Act; and
(g)where such further conditions are added—
(i)remove; or
(ii)otherwise vary,
those conditions.]
Textual Amendments
F71S. 5A inserted (S.) (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 15(2), 227(3) (with s. 223); S.S.I. 2008/115, art. 3(1)(a) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
Yn ddilys o 15/11/2010
(1)A certificate for sequestration of a debtor's estate is a certificate granted by an authorised person certifying that the debtor is unable to pay debts as they become due.
(2)A certificate may be granted only on the application of the debtor.
(3)An authorised person must grant a certificate if, and only if, the debtor can demonstrate that the debtor is unable to pay debts as they become due.
(4)In this section “authorised person” means a person falling within a class prescribed under subsection (5)(a).
(5)The Scottish Ministers may by regulations—
(a)prescribe classes of persons authorised to grant a certificate under this section;
(b)make provision about certification by an authorised person, including—
(i)the form and manner in which a certification must be made;
(ii)the fee, if any, which an authorised person is entitled to charge for or in connection with granting a certificate;
(c)prescribe a period for the purpose of section 5(2B)(c)(ib) of this Act;
(d)make different provision for different cases or classes of case.]
Textual Amendments
F72S. 5B inserted (S.) (15.11.2010) by Home Owner and Debtor Protection (Scotland) Act 2010 (asp 6), ss. 9(2), 17(3)(4) (with s. 14); S.S.I. 2010/314, art. 6 (subject to transitional provisions and savings in S.S.I. 2010/316, arts. 4-7)
(1)Subject to subsection (2) below, the estate belonging to or held for or jointly by the members of any of the following entities may be sequestrated—
(a)a trust in respect of debts incurred by it;
(b)a partnership, including a dissolved partnership;
(c)a body corporate or an unincorporated body;
(d)a limited partnership (including a dissolved partnership) within the meaning of the M1Limited Partnerships Act 1907.
(2)It shall not be competent to sequestrate the estate of any of the following entities—
[F73(a)a company registered under the Companies Act 2006; or]
(b)an entity in respect of which an enactment provides, expressly or by implication, that sequestration is incompetent.
(3)The sequestration of a trust estate in respect of debts incurred by the trust shall be
[F74(a)by debtor application made by a majority of trustees, with the concurrence of a qualified creditor or qualified creditors; or
(b)on the petition of—
(i)a temporary administrator;
(ii)a member State liquidator appointed in main proceedings; or
(iii)a qualified creditor or qualified creditors, if the trustees as such are apparently insolvent.]
(4)The sequestration of the estate of a partnership shall be
[F75(a)by debtor application made by the partnership with the concurrence of a qualified creditor or qualified creditors; or
(b)on the petition of—
(i)a temporary administrator;
(ii)a member State liquidator appointed in main proceedings;
(iii)a trustee acting under a trust deed; or
(iv)a qualified creditor or qualified creditors, if the partnership is apparently insolvent.]
(5)A petition under [F76[F77subsection (4)(b)]] above may be combined with a petition for the sequestration of the estate of any of the partners as an individual where that individual is apparently insolvent.
(6)The sequestration of the estate of a body corporate or of an unincorporated body shall be
[F78(a)by debtor application made by a person authorised to act on behalf of the body, with the concurrence of a qualified creditor or qualified creditors; or
(b)on the petition of—
(i)a temporary administrator;
(ii)a member State liquidator appointed in main proceedings; or
(iii)a qualified creditor or qualified creditors, if the body is apparently insolvent.]
(7)The application of this Act to the sequestration of the estate of a limited partnership shall be subject to such modifications as may be prescribed.
(8)Subsections (6) [F79, (6A), (8) and (8A)] of section 5 of this Act shall apply for the purposes of this section as they apply for the purposes of that section.
Textual Amendments
F73S. 6(2)(a) substituted (1.10.2009) by The Companies Act 2006 (Consequential Amendments, Transitional Provisions and Savings) Order 2009 (S.I. 2009/1941), arts. 1(2), 2(1), Sch. 1 para. 60 (with art. 10).
F74S. 6(3)(a)(b) substituted (1.4.2008) for words in s. 6(3) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 14(4)(a), 227(3) (with s. 223); S.S.I. 2008/115, art. 3(1)(a) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F75S. 6(4)(a)(b) substituted (1.4.2008) for words in s. 6(4) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 14(4)(b), 227(3) (with s. 223); S.S.I. 2008/115, art. 3(1)(a) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F76Words in s. 6(5) substituted (8.9.2003) by The Insolvency (Scotland) Regulations 2003 (S.I. 2003/2109), reg. 6(2)
F77Words in s. 6(5) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 5 (with s. 223); S.S.I. 2008/115, art. 3(1)(a)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F78S. 6(6)(a)(b) substituted (1.4.2008) for words in s. 6(6) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 14(4)(c), 227(3) (with s. 223); S.S.I. 2008/115, art. 3(1)(a) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F79Words in s. 6(8) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 14(4)(d), 227(3) (with s. 223); S.S.I. 2008/115, art. 3(1)(a) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
Marginal Citations
(1)A petitioner for sequestration of a debtor’s estate shall, insofar as it is within the petitioner’s knowledge, state in the petition–
(a)whether or not the debtor’s centre of main interests is situated–
(i)in the United Kingdom; or
(ii)in another member State; and
(b)whether or not the debtor possesses an establishment–
(i)in the United Kingdom; or
(ii)in any other member State.
(2)If, to the petitioner’s knowledge, there is a member State liquidator appointed in main proceedings in relation to the debtor, the petitioner shall, as soon as reasonably practicable, send a copy of the petition to that member State liquidator.]
Textual Amendments
F80S. 6A inserted (8.9.2003) by The Insolvency (Scotland) Regulations 2003 (S.I. 2003/2109), reg. 7
(1)Where a debtor application is made, the debtor shall state in the application—
(a)whether or not the debtor's centre of main interests is situated—
(i)in the United Kingdom; or
(ii)in another member State; and
(b)whether not the debtor possesses an establishment—
(i)in the United Kingdom; or
(ii)in any other member State.
(2)If, to the debtor's knowledge, there is a member State liquidator appointed in main proceedings in relation to the debtor, the debtor shall, as soon as reasonably practicable, send a copy of the debtor application to that member State liquidator.]
Textual Amendments
F81S. 6B inserted (S.) (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 14(5), 227(3) (with s. 223); S.S.I. 2008/115, art. 3(1)(a) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
(1)A debtor’s apparent insolvency shall be constituted (or, where he is already apparently insolvent, constituted anew) whenever—
(a)his estate is sequestered, or he is adjudged bankrupt in England or Wales or Northern Ireland; or
(b)[F82not being a person whose property is for the time being affected by a restraint order or subject to a confiscation, or charging, order,] he gives written notice to his creditors that he has ceased to pay his debts in the ordinary course of business;
[F83(ba)he becomes subject to main proceedings in a member State other than the United Kingdom;] or
(c)any of the following circumstances occurs—
(i)he grants a trust deed;
(ii)following the service on him of a duly executed charge for payment of a debt, the days of charge expire without payment;
(iii)F84. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(iv)a decree of adjudication of any part of his estate is granted, either for payment or in security;
(v)F84. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(vi)F84. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
[F85or
(vii)a debt payment programme under the Debt Arrangement and Attachment (Scotland) Act 2002 is revoked, where any debt being paid under the programme is constituted by a decree or document of debt as defined in section 10 (attachment) of that Act,]
unless it is shown that at the time when any such circumstances occurred, the debtor was able and willing to pay his debts as they became due [F86or that but for his property being affected by a restraint order or subject to a confiscation, or charging, order he would be able to do so]; or
(d)a creditor of the debtor, in respect of a liquid debt which amounts (or liquid debts which in aggregate amount) to not less than £750 or such sum as may be prescribed, has served on the debtor, by personal service by an officer of court, a demand in the prescribed form requiring him either to pay the debt (or debts) or to find security for its (or their) payment, and within 3 weeks after the date of service of the demand the debtor has not—
(i)complied with the demand; or
(ii)intimated to the creditor, by recorded delivery, that he denies that there is a debt or that the sum claimed by the creditor as the debt is immediately payable.
[F87In paragraph (d) above, “liquid debt” does not include a sum payable under a confiscation order; and in the foregoing provisions of this subsection—
“charging order” has the meaning assigned F88. . . [F89F88. . . by section 78(2) of the Criminal Justice Act 1988][F90or by section 27(2) of the Drug Trafficking Act 1994];
F91. . . [F92 “confiscation order” and “restraint order” mean a confiscation order or a restraint order made under Part 2, 3 or 4 of the Proceeds of Crime Act 2002]].
(2)A debtor’s apparent insolvency shall continue, if constituted under—
(a)subsection (1)(a) above, until his discharge; F93. . .
(b)subsection (1)(b), (c) or (d) above, until he becomes able to pay his debts and pays them as they become due [F94; or
(c)subsection (1)(ba), [F95until] main proceedings have ended].
(3)The apparent insolvency of—
(a)a partnership shall be constituted either in accordance with the foregoing provisions of this section or if any of the partners is apparently insolvent for a debt of the partnership;
(b)an unincorporated body shall be constituted if a person representing the body is apparently insolvent, or a person holding property of the body in a fiduciary capacity is apparently insolvent, for a debt of the body.
(4)Notwithstanding subsection (2) of section 6 of this Act, the apparent insolvency of an entity such as is mentioned in paragraph (a) or (b) of that subsection may be constituted (or as the case may be constituted anew) under subsection (1) above; and any reference in the foregoing provisions of this section to a debtor shall, except where the context otherwise requires, be construed as including a reference to such an entity.
Textual Amendments
F82Words inserted by Criminal Justice (Scotland) Act 1987 (c. 41, SIF 39:1), ss. 45(5)(b)(i), 47(4)(a)
F83S. 7(1)(ba) inserted (8.9.2003) by The Insolvency (Scotland) Regulations 2003 (S.I. 2003/2109), reg. 8(1)
F84S. 7(1)(c)(iii)(v)(vi) repealed (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 226, 227(3), Sch. 6 Pt. 1 (with s. 223); S.S.I. 2008/115, {art. 3(2)(3), Sch. 2} (with arts. 4-6, 9, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F85S. 7(1)(c)(vii) and word inserted (30.11.2004) by The Debt Arrangement Scheme (Scotland) Regulations 2004 (S.S.I. 2004/468), regs. 1, 46(b) (as amended by S.S.I. 2004/470, reg. 3)
F86Words inserted by Criminal Justice (Scotland) Act 1987 (c. 41, SIF 39:1), ss. 45(5)(b)(ii), 47(4)(a)
F87Words added by Criminal Justice (Scotland) Act 1987 (c. 41, SIF 39:1), ss. 45(5)(b)(iii), 47(4)(a)
F88S. 7(1): words in the definition of charging order omitted (3.2.1995) by 1994 c. 37, ss. 65(1), 69(2), Sch. 1 para. 10(2)(a)
F89Words inserted by Criminal Justice Act 1988 (c. 33, SIF 39:1), ss. 123, 170, Sch. 8 para. 16, Sch. 15 para. 108(a)
F90S. 7(1): words in the definition of charging order inserted (3.2.1995) by 1994 c. 37, ss. 65(1), 69(2), Sch. 1 para. 10(2)(a)
F91Words in s. 7(1) repealed (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 226, 227(3), Sch. 6 Pt. 1 (with s. 223)); S.S.I. 2008/115, art. 3(2)(3), Sch. 2 (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F92Words in s. 7(1) substituted (24.3.2003) by virtue of Proceeds of Crime Act 2002 (c. 29), ss. 456, 458(1)(3), Sch. 11 para. 15(3); S.I. 2003/333, art. 2(1), Sch. (subject to transitional provisions in arts. 3-14) (as amended by S.I. 2003/531); S.S.I. 2003/210, art. 2(1)(b), Sch. (subject to transitional provisions in arts. 3-7)
F93Word in s. 7(2) repealed (8.9.2003) by The Insolvency (Scotland) Regulations 2003 (S.I. 2003/2109), reg. 8(2)(a)
F94S. 7(2)(c) and word inserted (8.9.2003) by The Insolvency (Scotland) Regulations 2003 (S.I. 2003/2109), reg. 8(2)(b)
F95Word in s. 7(2)(c) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 6 (with s. 223)); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
(1)Subject to subsection (2) below, a petition for the sequestration of a debtor’s estate (other than a deceased debtor’s estate) may be presented—
[F96(a)at any time by–
(i)F97. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(ii)a trustee acting under a trust deed;
(iii)a temporary administrator; or
(iv)a member State liquidator appointed in main proceedings;]
(b)by a qualified creditor or qualified creditors, only if the apparent insolvency founded on in the petition was constituted within 4 months before the petition is presented.
(2)A petition for the sequestration of the estate of a limited partnership may be presented within such time as may be prescribed.
(3)A petition for the sequestration of the estate of a deceased debtor may be presented—
[F98(a)at any time by–
(i)an executor;
(ii)a person entitled to be appointed as executor of the estate;
(iii)a trustee acting under a trust deed;
(iv)a temporary administrator; or
(v)a member State liquidator appointed in main proceedings;]
(b)by a qualified creditor or qualified creditors of the deceased debtor—
(i)in a case where the apparent insolvency of the debtor was constituted within 4 months before his death, at any time;
(ii)in any other case (whether or not apparent insolvency has been constituted), not earlier than 6 months after the debtor’s death.
(4)If an executor does not petition for sequestration of the deceased debtor’s estate or for the appointment of a judicial factor to administer the estate within a reasonable period after he knew or ought to have known that the estate was absolutely insolvent and likely to remain so, any intromission by him with the estate after the expiry of that period shall be deemed to be an intromission without a title.
(5)The presentation of [F99, or the concurring in,] a petition for sequestration shall bar the effect of any enactment or rule of law relating to the limitation of actions in any part of the United Kingdom.
(6)Where before sequestration is awarded it becomes apparent that a petitioning F100. . . creditor was ineligible so to petition F100. . . he shall withdraw, or as the case may be withdraw from, the petition but another creditor may be sisted in his place.
Textual Amendments
F96S. 8(1)(a) substituted (8.9.2003) by The Insolvency (Scotland) Regulations 2003 (S.I. 2003/2109), reg. 9(1)
F97S. 8(1)(a)(i) repealed (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 226, 227(3), Sch. 6 (with s. 223); S.S.I. 2008/115, art. 3(2)(3), Sch. 2 (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F98S. 8(3)(a) substituted (8.9.2003) by The Insolvency (Scotland) Regulations 2003 (S.I. 2003/2109), reg. 9(2)
F99Words in s. 8(5) repealed (S.) (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 226, 227(3), Sch. 6 (with s. 223); S.S.I. 2008/115, art. 3(2)(3), Sch. 2 (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F100Words in s. 8(6) repealed (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 226, 227(3), Sch. 6 (with s. 223); S.S.I. 2008/115, art. 3(2)(3), Sch. 2 (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
Modifications etc. (not altering text)
C3S. 8(5) applied with modifications by S.I. 1986/1915, Rule 4.76.
(1)Subject to subsection (2) below, a debtor application may be made at any time.
(2)A debtor application made in relation to the estate of a limited partnership may be made within such time as may be prescribed.
(3)The making of, or the concurring in, a debtor application shall bar the effect of any enactment or rule of law relating to the limitation of actions.
(4)Where, before sequestration is awarded, it becomes apparent that a creditor concurring in a debtor application was ineligible to so concur the Accountant in Bankruptcy shall withdraw him from the application but another creditor may concur in the place of the ineligible creditor and that other creditor shall notify the Accountant in Bankruptcy of that fact.]
Textual Amendments
F101S. 8A inserted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 14(6), 227(3) (with s. 223); S.S.I. 2008/115, art. 3(1)(a) (with arts. 4-6, 10) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
(1)[F102Where a petition is presented for the sequestration of an estate,] the [F103sheriff] shall have jurisdiction in respect of the sequestration of the estate of a living debtor or of a deceased debtor if the debtor had an established place of business in [F104the sheriffdom], or was habitually resident there, at the relevant time.
[F105(1A)The Accountant in Bankruptcy may determine a debtor application for the sequestration of the estate of a living debtor if the debtor had an established place of business in Scotland, or was habitually resident there, at the relevant time.]
(2)[F106Where a petition is presented for the sequestration of an estate,] the [F107sheriff] shall have jurisdiction in respect of the sequestration of the estate of any entity which may be sequestrated by virtue of section 6 of this Act, if the entity—
(a)had an established place of business in [F108the sheriffdom] at the relevant time; or
(b)was constituted or formed under Scots law, and at any time carried on business in [F108the sheriffdom] .
[F109(2A)The Accountant in Bankruptcy may determine a debtor application for the sequestration of the estate of any entity which may be sequestrated by virtue of section 6 of this Act, if the entity—
(a)had an established place of business in Scotland at the relevant time; or
(b)was constituted or formed under Scots law, and at any time carried on business in Scotland.]
(3)Notwithstanding that the partner of a firm, whether alive or deceased, does not fall within subsection (1) above, the [F110sheriff] shall have jurisdiction in respect of the sequestration of his estate if a petition has been presented for the sequestration of the estate of the firm of which he is, or was at the relevant time before his decease, a partner and the process of that sequestration is still current.
[F111(3A)Any proceedings under this Act which—
(a)relate to—
(i)a debtor application; or
(ii)the sequestration of a debtor's estate awarded following such an application; and
(b)may be brought before a sheriff,
shall be brought before the sheriff who would, under subsection (1) or (2) above, have had jurisdiction in respect of a petition for sequestration of the debtor's estate.]
(4)F112. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(5)In this section “the relevant time” means at any time in the year immediately preceding the date of presentation of the petition [F113, the date the debtor application is made] or the date of death, as the case may be.
[F114(6)This section is subject to Article 3 of the EC Regulation.]
Textual Amendments
F102Words in s. 9(1) inserted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 14(7)(a), 227(3) (with s. 223); S.S.I. 2008/115, art. 3(1)(a) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F103Word in s. 9(1) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 16(1)(a)(i), 227(3) (with s. 223); S.S.I. 2008/115, art. 3(1)(a) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F104Words in s. 9(1) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 16(1)(a)(ii), 227(3) (with s. 223); S.S.I. 2008/115, art. 3(1)(a) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F105S. 9(1A) inserted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 14(7)(b), 227(3) (with s. 223); S.S.I. 2008/115, art. 3(1)(a) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F106Words in s. 9(2) inserted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 14(7)(c), 227(3) (with s. 223); S.S.I. 2008/115, art. 3(1)(a) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F107Word in s. 9(2) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 16(1)(b)(i), 227(3) (with s. 223); S.S.I. 2008/115, art. 3(1)(a) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F108Words in s. 9(2) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 16(1)(b)(ii), 227(3) (with s. 223); S.S.I. 2008/115, art. 3(1)(a) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F109S. 9(2A) inserted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 14(7)(d), 227(3) (with s. 223); S.S.I. 2008/115, art. 3(1)(a) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F110Word in s. 9(3) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 16(1)(c), 227(3) (with s. 223); S.S.I. 2008/115, art. 3(1)(a) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F111S. 9(3A) inserted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 14(7)(e), 227(3) (with s. 223); S.S.I. 2008/115, art. 3(1)(a) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F112S. 9(4) repealed (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 16(1)(d), 227(3) (with s. 223); S.S.I. 2008/115, art. 3(1)(a) (with arts. 4-6, 10) (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5)
F113Words in s. 9(5) inserted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 7 (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F114S. 9(6) inserted (8.9.2003) by The Insolvency (Scotland) Regulations 2003 (S.I. 2003/2109), reg. 10
(1)If, in the course of sequestration proceedings (referred to in this section and in section 10A of this Act as the “instant proceedings”)—
(a)a petitioner for sequestration;
(b)the debtor; or
(c)a creditor concurring in a debtor application,
is, or becomes, aware of any of the circumstances mentioned in subsection (2) below, he shall as soon as possible take the action mentioned in subsection (3) below.
(2)Those circumstances are that, notwithstanding the instant proceedings—
(a)a petition for sequestration of the debtor's estate is before a sheriff or such sequestration has been awarded;
(b)a debtor application has been made in relation to the debtor's estate or sequestration has been awarded by virtue of such an application;
(c)a petition for the appointment of a judicial factor on the debtor's estate is before a court or such a judicial factor has been appointed;
(d)a petition is before a court for the winding up of the debtor under Part IV or V of the Insolvency Act 1986 (c. 45) or section 372 of the Financial Services and Markets Act 2000 (c. 8); or
(e)an application for an analogous remedy in respect of the debtor's estate is proceeding or such an analogous remedy is in force.
(3)The action referred to in subsection (1) above is—
(a)in a case where the instant proceedings are by petition for sequestration, to notify the sheriff to whom that petition was presented; and
(b)in a case where the instant proceedings are by debtor application, to notify the Accountant in Bankruptcy,
of the circumstance referred to in subsection (2) above.
(4)If a petitioner fails to comply with subsection (1) above, he may be made liable for the expenses of presenting the petition for sequestration.
(5)If a creditor concurring in a debtor application fails to comply with subsection (1) above, he may be made liable for the expenses of making the debtor application.
(6)If a debtor fails to comply with subsection (1) above, he shall be guilty of an offence and liable, on summary conviction, to a fine not exceeding level 5 on the standard scale.
(7)In this section and in section 10A of this Act “analogous remedy” means a bankruptcy order under the Bankruptcy Act 1914 (c. 59) or an individual voluntary arrangement or bankruptcy order under the Insolvency Act 1986 (c. 45) or an administration order under section 112 of the County Courts Act 1984 (c. 28) in England and Wales or under any enactment having the like effect in Northern Ireland or a remedy analogous to any of the aforesaid remedies, or to sequestration, in any other country (including England, Wales and Northern Ireland).]
Textual Amendments
F115Ss. 10, 10A substituted (1.4.2008) for s. 10 by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 8 (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
(1)Where, in the course of instant proceedings which are by petition, any of the circumstances mentioned in paragraphs (a) to (d) of section 10(2) of this Act exists, the sheriff to whom the petition in the instant proceedings was presented may, on his own motion or at the instance of the debtor or any creditor or other person having an interest, allow that petition to proceed or may sist or dismiss it.
(2)Without prejudice to subsection (1) above, where, in the course of instant proceedings which are by petition, any of the circumstances mentioned in paragraphs (a), (c) or (d) of section 10(2) of this Act exists, the Court of Session may, on its own motion or on the application of the debtor or any creditor or other person having an interest, direct the sheriff before whom the petition in the instant proceedings is pending, or the sheriff before whom the other petition is pending, to sist or dismiss the petition in the instant proceedings or, as the case may be, the other petition, or may order the petitions to be heard together.
(3)Without prejudice to subsection (1) above, where, in the course of instant proceedings which are by petition, the circumstance mentioned in paragraph (b) of section 10(2) of this Act exists, the sheriff to whom the petition in the instant proceedings was presented may, on his own motion or at the instance of the debtor or any creditor or other person having an interest, direct the Accountant in Bankruptcy to dismiss the debtor application.
(4)Where, in the course of instant proceedings which are by debtor application, any of the circumstances mentioned in paragraphs (a) to (d) of section 10(2) of this Act exists, the Accountant in Bankruptcy may dismiss the debtor application in the instant proceedings.
(5)Where, in respect of the same estate–
(a)a petition for sequestration is pending before a sheriff; and
(b)an application for an analogous remedy is proceeding or an analogous remedy is in force,
the sheriff, on his own motion or at the instance of the debtor or any creditor or other person having an interest, may allow the petition for sequestration to proceed or may sist or dismiss it.
(6)Where, in respect of the same estate–
(a)a debtor application has been made and has not been determined; and
(b)an application for an analogous remedy is proceeding or an analogous remedy is in force,
the Accountant in Bankruptcy may proceed to determine the application or may dismiss it.]
Textual Amendments
F116Ss. 10, 10A substituted (1.4.2008) for s. 10 by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 8 (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
(1)Every creditor, being a petitioner for sequestration, a creditor who concurs in a [F117debtor application] or a qualified creditor who becomes sisted under subsection (8)(i) of section 5 of this Act or under that subsection as applied by section 6(8) of this Act, shall produce an oath in the prescribed form made by him or on his behalf.
(2)The oath may be made—
(a)in the United Kingdom, before any person entitled to administer an oath there;
(b)outwith the United Kingdom, before a British diplomatic or consular officer or any person authorised to administer an oath or affirmation under the law of the place where the oath is made.
(3)The identity of the person making the oath and the identity of the person before whom the oath is made and their authority to make and to administer the oath respectively shall be presumed to be correctly stated, and any seal or signature on the oath shall be presumed to be authentic, unless the contrary is established.
(4)If the oath contains any error or has omitted any fact, the [F118sheriff to whom] the petition for sequestration was presented [F119or, in the case of a creditor concurring in a debtor application, the Accountant in Bankruptcy] may, at any time before sequestration is awarded, allow another oath to be produced rectifying the original oath; and this section shall apply to the making of that other oath as it applies to the making of the original oath.
(5)Every creditor must produce along with the oath an account or voucher (according to the nature of the debt) which constitutesprima facie evidence of the debt; and a petitioning creditor shall in addition produce such evidence as is available to him to show the apparent insolvency of the debtor.
Textual Amendments
F117Words in s. 11(1) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 9(a) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F118Words in s. 11(4) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 9(b)(i) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F119Words in s. 11(4) inserted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 9(b)(ii) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
[F120(1)Where a [F121 debtor application is made, the Accountant in Bankruptcy shall award sequestration forthwith if he is satisfied—]
[F121(a)that the application has been made in accordance with the provisions of this Act and any provisions made under this Act;]
(b)that either subsection (2A) or (2B) of section 5 of this Act applies to the debtor; and
(c)that the provisions of [F122subsection](6A) of that section have been complied with.]
[(1A)F123. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .]
(2)Where a petition for sequestration of a debtor’s estate is presented by a creditor or a trustee acting under a trust deed, the [F124sheriff to whom] the petition is presented shall grant warrant to cite the debtor to appear before [F125him] on such date as shall be specified in the warrant, being a date not less than 6 nor more than 14 days after the date of citation, to show cause why sequestration should not be awarded.
[F126(3)Where, on a petition for sequestration presented by a creditor or a trustee acting under a trust deed, the [F127sheriff] is satisfied—
(a)that, if the debtor has not appeared, proper citation has been made of the debtor;
(b)that the petition has been presented in accordance with the provisions of this Act;
(c)that the provisions of subsection (6) of section 5 of this Act have been complied with;
(d)that, in the case of a petition by a creditor, the requirements of this Act relating to apparent insolvency have been fulfilled; and
(e)that, in the case of a petition by a trustee, the averments in his petition as to any of the conditions in subsection (2C) of the said section 5 are true,
[F128he] shall, subject to [F129;subsections (3A) to (3C)] below, award sequestration forthwith.
(3A)Sequestration shall not be awarded in pursuance of subsection (3) above if—
(a)cause is shown why sequestration cannot competently be awarded; or
(b)the debtor forthwith pays or satisfies, or produces written evidence of the payment or satisfaction of, or gives or shows that there is sufficient security for the payment of—
(i)the debt in respect of which he became apparently insolvent; and
(ii)any other debt due by him to the petitioner and any creditor concurring in the petition.]
[F130(3B)Where the sheriff is satisfied that the debtor shall, before the expiry of the period of 42 days beginning with the day on which the debtor appears before the sheriff, pay or satisfy—
(a)the debt in respect of which the debtor became apparently insolvent; and
(b)any other debt due by the debtor to the petitioner and any creditor concurring in the petition,
the sheriff may continue the petition for a period of no more than 42 days.
(3C)Where the sheriff is satisfied—
(a)that a debt payment programme (within the meaning of Part 1 of the Debt Arrangement and Attachment (Scotland) Act 2002 (asp 17)) relating to—
(i)the debt in respect of which the debtor became apparently insolvent; and
(ii)any other debt due by the debtor to the petitioner and any creditor concurring in the petition,
has been applied for and has not yet been approved or rejected; or
(b)that such a debt payment programme will be applied for,
the sheriff may continue the petition for such period as he thinks fit.]
[F120(4)In this Act “the date of sequestration” means—
(a)where [F131a debtor application is made] , the date on which sequestration is awarded;
(b)where the petition for sequestration is presented by a creditor or a trustee acting under a trust deed—
(i)the date on which the [F132sheriff] grants warrant under subsection (2) above to cite the debtor; or
(ii)where more than one such warrant is granted, the date on which the first such warrant is granted.]
Textual Amendments
F120S. 12(1) substituted (1.4.1993, subject to savings in arts. 4, 5 of S.I. 1993/438) by 1993 c. 6, s. 4(2) (with s. 12(6)); S.I. 1993/438, art.3
S. 12(4) substituted (1.4.1993, subject to savings in arts. 4, 5 of S.I. 1993/438) by 1993 c. 6, s. 4(5) (with s. 12(6)); S.I. 1993/438, art.3
F121Words in s. 12(1) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 14(8), 227(3) (with s. 223); S.S.I. 2008/115, art. 3(1)(a) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F122Words in s. 12(1)(c) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 10(a) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F123S. 12(1A) repealed (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 226, 227(3), Sch. 6 Pt. 1 (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F124Words in s. 12(2) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 10(b)(i) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F125Word in s. 12(2) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 10(b)(ii) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F126S. 12(3)(3A) substituted for s. 12(3) (1.4.1993, subject to savings in arts. 4, 5 of S.I. 1993/438) by 1993 c. 6, s. 4(4) (with s. 12(6)); S.I. 1993/438, art.3
F127Word in s. 12(3) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 10(c)(i) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F128Word in s. 12(3) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 10(c)(ii) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10) (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F129Words in s. 12(3) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 27(2), 227(3) (with s. 223); S.S.I. 2008/115, art. 3(1)(a) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F130S. 12(3B)(3C) inserted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 27(3), 227(3) (with s. 223); S.S.I. 2008/115, art. 3(1)(a) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F131Words in s. 12(4)(a) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 10(d)(i) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F132Word in s. 12(4)(b)(i) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 10(d)(ii) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
[F134(A1)This section applies where an interim trustee is appointed under section 2(5) of this Act and the petition for sequestration has not been determined.]
(1)Where, under section 1A(2) of this Act, the [F135sheriff] removes from office an interim trustee, the [F135sheriff] shall, on the application of the Accountant in Bankruptcy, appoint a new interim trustee.
(2)Without prejudice to section 1A(2) of this Act or to subsection (1) above, where the [F135sheriff] is satisfied that an interim trustee—
(a)is unable to act [F136for any reason mentioned in subsection (2A) below or] by, under or by virtue of [F137any other] provision of this Act F138. . . ; or
(b)has so conducted himself that he should no longer continue to act F139. . . ,
the [F135sheriff] , on the application of the debtor, a creditor or the Accountant in Bankruptcy, shall remove from office the interim trustee and appoint a new interim trustee.
[F140(2A)The reasons referred to in subsection (2)(a) above are that the interim trustee—
(a)is incapable within the meaning of section 1(6) of the Adults with Incapacity (Scotland) Act 2000 (asp 4); or
(b)has some other incapacity by virtue of which he is unable to act as interim trustee.]
(3)An interim trustee (not being the Accountant in Bankruptcy) may apply to the [F135sheriff] for authority to resign office; and if the [F135sheriff] is satisfied that the grounds mentioned in paragraph (a) or (b) of subsection (2) above apply in relation to the interim trustee, [F141the sheriff] shall grant the application.
(4)Where, following an application under subsection (3) above, the interim trustee resigns office, the [F135sheriff] shall appoint a new interim trustee.
(5)Where the interim trustee has died, the [F135sheriff] , on the application of the debtor, a creditor or the Accountant in Bankruptcy, shall appoint a new interim trustee.
(6)No one (other than the Accountant in Bankruptcy) shall act as interim trustee in a sequestration if he would, by virtue of section 24(2) of this Act, be [F142ineligible to be elected as replacement] trustee in that sequestration; but where an interim trustee is, by virtue of this subsection, prohibited from so acting, he shall forthwith make an application under subsection (3) above.
(7)Subsections (1) and (2) of section 2 of this Act shall apply as regards the appointment of an interim trustee under this section as if for any reference to—
(a)the [F135sheriff] awarding sequestration of the debtor’s estate, there was substituted a reference to the [F135sheriff] appointing a new interim trustee; and
(b)the petition for sequestration there was substituted a reference to the application under this section for the appointment of a new interim trustee.]
Textual Amendments
F133S. 13 substituted (1.4.1993, subject to savings in arts. 4, 5 of S.I. 1993/438) by 1993 c. 6, s. 11(3), Sch. 1 para.2 (with s. 12(6)); S.I. 1993/438, art.3
F134S. 13(A1) inserted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 11(2) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F135Words in s. 13 substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 11(3) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F136Words in s. 13(2)(a) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 9(a)(i), 227(3) (with s. 223); S.S.I. 2008/115, art. 3(1)(a) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F137Words in s. 13(2)(a) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 9(a)(ii), 227(3) (with s. 223); S.S.I. 2008/115, art. 3(1)(a) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F138Words in s. 13(2)(a) repealed (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 9(a)(iii), 227(3) (with s. 223); S.S.I. 2008/115, art. 3(1)(a) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F139Words in s. 13(2)(b) repealed (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 226, 227(3), Sch. 6 Pt. 1 (with s. 223); S.S.I. 2008/115, art. 3(2)(3), Sch. 2 (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F140S. 13(2A) inserted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 9(1)(b), 227(3) (with s. 223); S.S.I. 2008/115, art. 3(1)(a) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F141Words in s. 13(3) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 11(4) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F142Words in s. 13(6) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 11(5) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
(1)This section applies where an interim trustee (not being the Accountant in Bankruptcy) is appointed under section 2(5) of this Act and the sheriff—
(a)awards sequestration and appoints another person as trustee under subsection (2A) or (2C) of section 2 of this Act; or
(b)refuses to award sequestration.
(2)Where the sheriff awards sequestration and appoints another person as trustee, the interim trustee shall hand over to the trustee everything in his possession which relates to the sequestration and shall thereupon cease to act in the sequestration.
(3)The sheriff may make such order in relation to liability for the outlays and remuneration of the interim trustee as may be appropriate.
(4)Within 3 months of the sheriff awarding or, as the case may be, refusing to award sequestration, the interim trustee shall—
(a)submit to the Accountant in Bankruptcy—
(i)his accounts of his intromissions (if any) with the debtor's estate; and
(ii)a claim for outlays reasonably incurred, and for remuneration for work reasonably undertaken, by him; and
(b)send a copy of his accounts and the claim to—
(i)the debtor;
(ii)the petitioner; and
(iii)in a case where sequestration is awarded, the trustee and all creditors known to the interim trustee.
(5)On a submission being made to him under subsection (4)(a) above, the Accountant in Bankruptcy shall—
(a)audit the accounts;
(b)issue a determination fixing the amount of the outlays and remuneration payable to the interim trustee;
(c)send a copy of the determination to—
(i)the interim trustee; and
(ii)the persons mentioned in subsection (4)(b) above; and
(d)where a trustee (not being the Accountant in Bankruptcy) has been appointed in the sequestration, send a copy of the audited accounts and of the determination to the trustee, who shall insert them in the sederunt book.
(6)Where the Accountant in Bankruptcy has been appointed as the trustee in the sequestration, the Accountant in Bankruptcy shall insert a copy of the audited accounts and the determination in the sederunt book.
(7)The interim trustee or any person mentioned in subsection (4)(b) above may, within 14 days after the issuing of the determination under subsection (5)(b) above, appeal to the sheriff against the determination.
(8)On receiving a copy of the Accountant in Bankruptcy's determination sent under subsection (5)(c)(i) above the interim trustee may apply to him for a certificate of discharge.
(9)The interim trustee shall send notice of an application under subsection (8) above to the persons mentioned in subsection (4)(b) above and shall inform them—
(a)that they may make written representations relating to the application to the Accountant in Bankruptcy within the period of 14 days after such notification; and
(b)of the effect mentioned in subsection (16) below.
(10)On the expiry of the period mentioned in subsection (9)(a) above the Accountant in Bankruptcy, after considering any representations duly made to him, shall—
(a)grant or refuse to grant the certificate of discharge; and
(b)notify the persons mentioned in subsection (4)(b) above accordingly.
(11)The interim trustee or any person mentioned in subsection (4)(b) above may, within 14 days after the issuing of the determination under subsection (10) above, appeal therefrom to the sheriff.
(12)If, following an appeal under subsection (11) above, the sheriff determines that a certificate of discharge which has been refused should be granted he shall order the Accountant in Bankruptcy to grant it.
(13)If, following an appeal under subsection (11) above, the sheriff determines that a certificate of discharge which has been granted should have been refused he shall revoke the certificate.
(14)The sheriff clerk shall send a copy of the decree of the sheriff following an appeal under subsection (11) above to the Accountant in Bankruptcy.
(15)The decision of the sheriff in an appeal under subsection (7) or (11) above shall be final.
(16)The grant of a certificate of discharge under this section by the Accountant in Bankruptcy shall have the effect of discharging the interim trustee from all liability (other than any liability arising from fraud) to the debtor, to the petitioner or to the creditors in respect of any act or omission of the interim trustee in exercising the functions conferred on him by this Act.
Textual Amendments
F143Ss. 13A, 13B inserted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 10, 227(3) (with s. 223); S.S.I. 2008/115, art. 3(1)(a) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
(1)This section applies where the Accountant in Bankruptcy is appointed as interim trustee under section 2(5) of this Act and the sheriff —
(a)awards sequestration and appoints another person as trustee under section 2(2A) of this Act; or
(b)refuses to award sequestration.
(2)Where the sheriff awards sequestration and appoints another person as trustee, the Accountant in Bankruptcy shall hand over to the trustee everything in his possession which relates to the sequestration and shall thereupon cease to act in the sequestration.
(3)The sheriff may make such order in relation to liability for the outlays and remuneration of the Accountant in Bankruptcy as may be appropriate.
(4)Within 3 months of the sheriff awarding or, as the case may be, refusing to award sequestration, the Accountant in Bankruptcy shall—
(a)send to the debtor and the petitioner—
(i)his accounts of his intromissions (if any) with the debtor's estate;
(ii)a determination of his fees and outlays calculated in accordance with regulations made under section 69A of this Act; and
(iii)the notice mentioned in subsection (5) below; and
(b)in a case where sequestration is awarded, send a copy of his accounts, the claim and the notice to all creditors known to him.
(5)The notice referred to in subsection (4)(a)(iii) above is a notice in writing stating—
(a)that the Accountant in Bankruptcy has commenced procedure under this Act leading to discharge in respect of his actings as interim trustee;
(b)that an appeal may be made to the sheriff under subsection (7) below; and
(c)the effect mentioned in subsection (9) below.
(6)The Accountant in Bankruptcy shall, unless the sheriff refuses to award sequestration, insert a copy of the accounts and the determination in the sederunt book.
(7)The debtor, the petitioner and any creditor may, within 14 days after the sending of the notice under subsection (4)(a)(iii) or, as the case may be, subsection (4)(b) above, appeal to the sheriff against—
(a)the determination of the Accountant in Bankruptcy mentioned in subsection (4)(a)(ii) above;
(b)the discharge of the Accountant in Bankruptcy in respect of his actings as interim trustee;
(c)both such determination and discharge,
and the sheriff clerk shall send a copy of the decree of the sheriff to the Accountant in Bankruptcy.
(8)The decision of the sheriff in an appeal under subsection (7) above shall be final.
(9)Where—
(a)the requirements of this section have been complied with; and
(b)no appeal is made to the sheriff under subsection (7) above or such an appeal is made but is refused as regards the discharge of the Accountant in Bankruptcy,
the Accountant in Bankruptcy shall be discharged from all liability (other than any liability arising from fraud) to the debtor, to the petitioner or to the creditors in respect of any act or omission of the Accountant in Bankruptcy in exercising the functions of interim trustee conferred on him by this Act.]
Textual Amendments
F143Ss. 13A, 13B inserted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 10, 227(3) (with s. 223); S.S.I. 2008/115, art. 3(1)(a) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
(1)The [F145sheriff clerk] shall forthwith after the date of sequestration send—
(a)a certified copy of the [F146order of the sheriff granting warrant under section 12(2) of this Act] to the keeper of the register of inhibitions and adjudications for recording in that register; and
(b)a copy of the order to the Accountant in Bankruptcy
[F147(c)a copy of the order to the DAS administrator (as defined in regulation 2(1) of the Debt Arrangement Scheme (Scotland) Regulations 2004), where the debtor is taking part in a debt payment programme under Part 1 of the Debt Arrangement and Attachment (Scotland) Act 2002.]
[F148(1A)Where the Accountant in Bankruptcy awards sequestration on a debtor application he shall forthwith after the date of sequestration send a certified copy of his determination of the application to the keeper of the register of inhibitions for recording in that register.]
(2)Recording under subsection (1)(a) [F149or (1A)] above shall have the effect as from the date of sequestration of an inhibition and of a citation in an adjudication of the debtor’s heritable estate at the instance of the creditors who subsequently have claims in the sequestration accepted under section 49 of this Act.
(3)The effect mentioned in subsection (2) above shall expire—
(a)on the recording under section 15(5)(a) or 17(8)(a) of , or by virtue of paragraph 11 of Schedule 4 to, this Act or a certified copy of an order;
[F150(aa)on the recording under paragraph 11(4)(a) of Schedule 4 to this Act of a certified copy of a certificate;] or
(b)subject to subsection (4) below, if the effect has not expired by virtue of [F151paragraphs (a) and (aa)] above, at the end of the period of 3 years beginning with the date of sequestration.
(4)The F152. . . trustee , if not discharged, [F153may] before the end of the period of 3 years mentioned in subsection (3)(b) above send a memorandum in a form prescribed by the Court of Session by act of sederunt to the keeper of the register of inhibitions and adjudications for recording in that register, and such recording shall renew the effect mentioned in subsection (2) above; and thereafter the said effect shall continue to be preserved only if such a memorandum is so recorded before the expiry of every subsequent period of 3 years.
(5)F154. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Textual Amendments
F144S. 14 heading substituted (1.4.2008) by virtue of the Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para 12(6) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F145Words in s. 14(1) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007, ss. 36, 227(3), {Sch. 1 para. 12(2)(a)} (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F146Words in s. 14(1)(a) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007, ss. 36, 227(3), {Sch. 1 para. 12(2)(b)} (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F147S. 14(1)(c) inserted (30.11.2004) by The Debt Arrangement Scheme (Scotland) Regulations 2004 (S.S.I. 2004/468), regs. 1, 5, Sch. 3 para. 1 (as amended by S.S.I. 2004/470, reg. 3)
F148S. 14(1A) inserted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007, ss. 36, 227(3), {Sch. 1 para. 12(3)} (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F149Words in s. 14(2) inserted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007, ss. 36, 227(3), {Sch. 1 para. 12(4)} (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F150S. 14(3)(aa) inserted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007, ss. 36, 227(3), {Sch. 1 para. 12(5)(a)} (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F151Words in s. 14(3)(b) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007, ss. 36, 227(3), {Sch. 1 para. 12(5)(b)} (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F152Word in s. 14(4) repealed (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 226, 227(3), Sch. 6 Pt. 1 (with s. 223); S.S.I. 2008/115, art. 3(2)(3), Sch. 2 (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F153Words in s. 14(4) substituted (1.4.1993, subject to savings in arts. 4, 5 of S.I. 1993/438) by 1993 c. 6, s. 11(3), Sch. 1 para.3 (with s. 12(6)); S.I. 1993/438, art.3
F154S. 14(5) repealed (22.4.2009) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 226, 227(3), Sch. 6 Pt. 1 (with s. 223); S.S.I. 2009/67, art. 3(2)(3), Sch. 2
(1)F155. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(2)The [F156sheriff] may at any time after sequestration has been awarded, on application being made to [F157him and subject to subsection (2A) below], transfer the sequestration F158. . . to any other sheriff.
[F159(2A)The debtor may, with leave of the sheriff, appeal to the sheriff principal against a transfer under subsection (2) above.]
(3)Where the [F160sheriff] makes an order refusing to award sequestration, the petitioner F161. . . may appeal against the order within 14 days of the date of making of the order.
[F162(3A)Where the Accountant in Bankruptcy, on determining a debtor application, refuses to award sequestration, the debtor or a creditor concurring in the application may appeal against such a determination within 14 days of it being made to the sheriff.]
(4)Without prejudice to any right to bring an action of reduction of an award of sequestration, such an award shall not be subject to review otherwise than by recall under sections 16 and 17 of this Act.
(5)Where a petition for sequestration is presented by a creditor or a trustee acting under a trust deed, the [F163sheriff clerk] shall—
(a)on the final determination or abandonment of any appeal under subsection (3) above in relation to the petition, or if there is no such appeal on the expiry of the 14 days mentioned in that subsection, send a certified copy of an order refusing to award sequestration to the keeper of the register of inhibitions and adjudications for recording in that register;
[F164(b)forthwith send a copy of the order refusing or awarding sequestration to–
(i)the Accountant in Bankruptcy;
(ii)the DAS administrator (as defined in regulation 2(1) of the Debt Arrangement Scheme (Scotland) Regulations 2004), where the debtor is taking part in a debt payment programme under Part 1 of the Debt Arrangement and Attachment (Scotland) Act 2002].
[F165(6)The F166. . . trustee shall, as soon as an award of sequestration has been granted, publish in the Edinburgh Gazette a notice—
(a)stating that sequestration of the debtor’s estate has been awarded;
(b)inviting the submission of claims to him; and
(c)giving such other information as may be prescribed.]
(7)Where sequestration has been awarded, the process of sequestration shall not fall asleep.
(8)Where a debtor learns, whether before or after the date of sequestration, that he may derive benefit from another estate, he shall as soon as practicable after that date inform—
(a)the F167. . . trustee of that fact; and
(b)the person who is administering that other estate of the sequestration.
(9)If the debtor fails to comply with subsection (8) above, he shall be guilty of an offence and liable, on summary conviction, to a fine not exceeding level 5 on the standard scale.
Textual Amendments
F155S. 15(1) repealed (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 16(2)(a), 227(3), (with s. 223); S.S.I. 2008/115, art. 3(1)(a) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F156Words in s. 15(2) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 16(2)(b)(i), 227(3) (with s. 223); S.S.I. 2008/115, art. 3(1)(a) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F157Words in s. 15(2) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 16(2)(b)(ii), 227(3), (with s. 223); S.S.I. 2008/115, art. 3(1)(a) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F158Words in s. 15(2) repealed (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 16(2)(b)(iii), 227(3) (with s. 223); S.S.I. 2008/115, art. 3(1)(a) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F159S. 15(2A) inserted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 16(2)(c), 227(3), (with s. 223); S.S.I. 2008/115, art. 3(1)(a) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F160Word in s. 15(3) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 16(2)(d), 227(3) (with s. 223); S.S.I. 2008/115, art. 3(1)(a) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F161Words in s. 15(3) repealed (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 226, 227(3) {Sch. 6 Pt. 1} (with s. 223); S.S.I. 2008/115, art. 3(2)(3), Sch. 2 (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F162S. 15(3A) inserted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 13 (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F163Words in s. 15(5) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 16(2)(e), 227(3) (with s. 223); S.S.I. 2008/115, art. 3(1)(a) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F164S. 15(5)(b) substituted (30.11.2004) by The Debt Arrangement Scheme (Scotland) Regulations 2004 (S.S.I. 2004/468), regs. 1, 5, {Sch. 3 para. 2.} (as amended by S.S.I. 2004/470, reg. 3)
F165S. 15(6) substituted (1.4.1993, subject to savings in arts. 4, 5 of S.I. 1993/438) by 1993 c. 6, s. 11(3), Sch. 1 para.4 (with s. 12(6)); S.I. 1993/438, art.3
F166Word in s. 15(6) repealed (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 226, 227(3), Sch. 6 Pt. 1 (with s. 223); S.S.I. 2008/115, art. 3(2)(3), Sch. 2 (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F167Words in s. 15(8)(a) repealed (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 226, 227(3) {Sch. 6 Pt. 1} (with s. 223); S.S.I. 2008/115, art. 3(2)(3), Sch. 2 (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
(1)A petition for recall of an award of sequestration may be presented to the [F168sheriff] by—
(a)the debtor, any creditor or any other person having an interest (notwithstanding that he was a petitioner, or concurred in the [F169debtor application], for the sequestration);
(b)the F170. . . trustee, or the Accountant in Bankruptcy.
(2)The petitioner shall serve upon the debtor, any person who was a petitioner, or concurred in the [F171debtor application], for the sequestration, the F172. . . trustee and the Accountant in Bankruptcy, a copy of the petition along with a notice stating that the recipient of the notice may lodge answers to the petition within 14 days of the service of the notice.
(3)At the same time as service is made under subsection (2) above, the petitioner shall publish a notice in the Edinburgh Gazette stating that a petition has been presented under this section and that any person having an interest may lodge answers to the petition within 14 days of the publication of the notice.
(4)Subject to [F173sections 41(1)(b) and 41A(1)(b)] of this Act, a petition under this section may be presented—
(a)within 10 weeks after the date of [F174the award of] sequestration; but
(b)at any time if the petition is presented on any of the grounds mentioned in paragraphs (a) to (c) of section 17(1) of this Act.
(5)Notwithstanding that a petition has been presented under this section, the proceedings in the sequestration shall continue (subject to section 17(6) of this Act) as if that petition had not been presented until the recall is granted.
(6)Where—
(a)a petitioner under this section; or
(b)a person who has lodged answers to the petition,
withdraws or dies, any person entitled to present or, as the case may be, lodge answers to a petition under this section may be sisted in his place.
Textual Amendments
F168Words in s. 16(1) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 16(3), 227(3) (with s. 223); S.S.I. 2008/115, art. 3(1)(a) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F169Words in s. 16(1)(a) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp. 3), ss. 36, 227(3), Sch. 1 para. 14(a) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F170Words in s. 16(1)(b) repealed (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp. 3), ss. 226, 227(3), Sch. 6 Pt. 1 (with s. 223); S.S.I. 2008/115, art. 3(2)(3), Sch. 2 (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F171Words in s. 16(2) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp. 3), ss. 36, 227(3), Sch. 1 para. 14(b) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F172Words in s. 16(2) repealed (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp. 3), ss. 226, 227(3), Sch. 6 Pt. 1 (with s. 223); S.S.I. 2008/115, {art. 3(2(3)}, Sch. 2 (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F173Words in s. 16(4) substituted (5.12.2005) by Civil Partnership Act 2004 (c. 33), ss. 261(2), 263, Sch. 28 para. 31; S.S.I. 2005/604, art. 2(c)
F174Words in s. 16(4)(a) inserted (1.4.1993, subject to savings in arts. 4, 5 of S.I. 1993/438) by 1993 c. 6, s. 11(3), Sch. 1 para.5 (with s. 12(6)); S.I. 1993/438, art.3
(1)The [F175sheriff] may recall an award of sequestration if [F176he] is satisfied that in all the circumstances of the case (including those arising after the date of the award of sequestration) it is appropriate to do so and, without prejudice to the foregoing generality, may recall the award if [F176he] is satisfied that—
(a)the debtor has paid his debts in full or has given sufficient security for their payment;
(b)a majority in value of the creditors reside in a country other than Scotland and that it is more appropriate for the debtor’s estate to be administered in that other country; or
(c)one or more other awards of sequestration of the estate or analogous remedies (as defined in [F177section 10(7)] of this Act) have been granted.
(2)Where one or more awards of sequestration of the debtor’s estate have been granted, the [F178sheriff] may, after such intimation as [F179he] considers necessary, recall an award whether or not the one in respect of which the petition for recall was presented.
(3)On recalling an award of sequestration , the [F180sheriff]—
(a)shall make provision for the payment of the outlays and remuneration of the interim trustee and [F181the] trustee by directing that such payment shall be made out of the debtor’s estate or by requiring any person who was a party to the petition for sequestration [F182or, as the case may be, the debtor application] to pay the whole or any part of the said outlays and remuneration;
(b)without prejudice to subsection (7) below, may direct that payment of the expenses of a creditor who was a petitioner, or concurred in the [F183debtor application] , for sequestration shall be made out of the debtor’s estate;
(c)may make any further order that [F184he] considers necessary or reasonable in all the circumstances of the case.
(4)Subject to subsection (5) below, the effect of the recall of an award of sequestration shall be, so far as practicable, to restore the debtor and any other person affected by the sequestration to the position he would have been in if the sequestration had not been awarded.
(5)A recall of an award of sequestration shall not—
(a)affect the interruption of prescription caused by the presentation of the petition for sequestration [F185, the making of the debtor application] or the submission of a claim under section 22 or 48 of this Act;
(b)invalidate any transaction entered into before such recall by the interim trustee or [F186the] trustee with a person acting in good faith.
[F187(c)affect a bankruptcy restrictions order which has not been annulled under section 56J(1)(a) of this Act.]
(6)Where the [F188sheriff] considers that it is inappropriate to recall or to refuse to recall an award of sequestration forthwith, [F189he] may order that the proceedings in the sequestration shall continue but shall be subject to such conditions as [F189he] may think fit.
(7)The [F190sheriff] may make such order in relation to the expenses in a petition for recall as [F191he] thinks fit.
(8)The [F192sheriff clerk] shall send—
(a)a certified copy of any order recalling an award of sequestration to the keeper of the register of inhibitions and adjudications for recording in that register; and
(b)a copy of any order recalling or refusing to recall an award of sequestration, or of any order under section 41(1)(b)(ii) [F193or 41A(1)(b)(ii)] of this Act, to—
(i)the Accountant in Bankruptcy; and
(ii)the F194. . . trustee (if any) who shall insert it in the sederunt book.
Textual Amendments
F175Words in s. 17(1) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 16(4)(a)(i), 227(3) (with s. 223); S.S.I. 2008/115, art. 3(1)(a) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F176Words in s. 17(1) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 16(4)(a)(ii), 227(3) (with s. 223); S.S.I. 2008/115, art. 3(1)(a) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F177Words in s. 17(1)(c) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 15(a) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F178Word in s. 17(2) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 16(4)(b)(i), 227(3) (with s. 223); S.S.I. 2008/115, art. 3(1)(a) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F179Word in s. 17(2) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 16(4)(b)(ii), 227(3) (with s. 223); S.S.I. 2008/115, art. 3(1)(a) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F180Words in s. 17(3) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 16(4)(c)(i), 227(3) (with s. 223); S.S.I. 2008/115, art. 3(1)(a) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F181Word in s. 17(3)(a) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 15(b)(ii) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F182Words in s. 17(3)(a) inserted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 15(b)(i) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F183Words in s. 17(3)(b) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 15(c) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F184Word in s. 17(3)(c) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 16(4)(c)(ii), 227(3) (with s. 223); S.S.I. 2008/115, art. 3(1)(a) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F185Words in s. 17(5)(a) inserted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 15(d)(i) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F186Word in s. 17(5)(b) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 15(d)(ii) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F187S. 17(5)(c) inserted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 15(d)(iii) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F188Word in s. 17(6) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 16(4)(d)(i), 227(3) (with s. 223); S.S.I. 2008/115, art. 3(1)(a) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F189Words in s. 17(6) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 16(4)(d)(ii), 227(3) (with s. 223); S.S.I. 2008/115, art. 3(1)(a) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F190Word in s. 17(7) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 16(4)(e)(i), 227(3) (with s. 223); S.S.I. 2008/115, art. 3(1)(a) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F191Word in s. 17(7) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 16(4)(e)(ii), 227(3) (with s. 223); S.S.I. 2008/115, art. 3(1)(a) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F192Words in s. 17(8) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 16(4)(f), 227(3) (with s. 223); S.S.I. 2008/115, art. 3(1)(a) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F193Words in s. 17(8)(b) inserted (5.12.2005) by Civil Partnership Act 2004 (c. 33), ss. 261(2), 263, Sch. 28 para. 32; S.S.I. 2005/604, art. 2(c)
F194Word in s. 17(8)(b)(ii) repealed (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 226, 227(3), Sch. 6 Pt. 1 (with s. 223); S.S.I. 2008/115, art. 3(2)(3), Sch. 2 (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
Textual Amendments
F195Cross-heading preceding s. 18 substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 16, 227(3), Sch. 1 para. 16(7) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
(1)The interim trustee may [F196, in pursuance of the function conferred on him by section 2(6A) of this Act,] give general or particular directions to the debtor relating to the management of the debtor’s estate.
(2)In exercising the [F197function] conferred on him by section [F1982(6A)] of this Act, an interim trustee may—
(a)require the debtor to deliver up to him any money or valuables, or any document relating to the debtor’s business or financial affairs, belonging to or in the possession of the debtor or under his control;
(b)place in safe custody anything mentioned in paragraph (a) above;
(c)require the debtor to deliver up to him any perishable goods belonging to the debtor or under his control and may arrange for the sale or disposal of such goods;
(d)make or cause to be made an inventory or valuation of any property belonging to the debtor;
(e)require the debtor to implement any transaction entered into by the debtor;
(f)effect or maintain insurance policies in respect of the business or property of the debtor;
(g)F199. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
[F200(h)carry on any business of the debtor or borrow money in so far as it is necessary for the interim trustee to do so to safeguard the debtor’s estate.]
[F201(2A)Section 43 of this Act applies to an interim trustee as it applies to a trustee.]
(3)The [F202sheriff] , on the application of the interim trustee, may—
F203(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(b)on cause shown, grant a warrant authorising the interim trustee to enter the house where the debtor resides or his business premises and to search for and take possession of anything mentioned in paragraphs (a) and (c) of subsection (2) above, if need be by opening shut and lock-fast places; or
(c)make such other order to safeguard the debtor’s estate as [F204he] thinks appropriate.
(4)The [F205sheriff] , on an application by the debtor on the grounds that a direction under subsection (1) above is unreasonable, may—
(a)if [F206he] considers the direction to be unreasonable, set aside the direction; and
(b)in any event, give such directions to the debtor regarding the management of his estate as [F206he] considers appropriate;
but, subject to any interim order of the [F205sheriff] , the debtor shall comply with the direction appealed against pending the final determination of the appeal.
(5)The debtor shall be guilty of an offence if—
(a)he fails without reasonable excuse to comply with—
(i)a direction under subsection (1) or (4)(b) above; or
(ii)a requirement under subsection (2)(a), (c) or (e) above; or
(b)he obstructs the interim trustee where the interim trustee is acting in pursuance of subsection (3)(b) above.
(6)A person convicted of an offence under subsection (5) above shall be liable—
(a)on summary conviction to a fine not exceeding the statutory maximum or—
(i)to imprisonment for a term not exceeding 3 months; or
(ii)if he has previously been convicted of an offence inferring dishonest appropriation of property or an attempt at such appropriation, to imprisonment for a term not exceeding 6 months,
or (in the case of either sub-paragraph) to both such fine and such imprisonment; or
(b)on conviction on indictment to a fine or to imprisonment for a term not exceeding 2 years or to both.
Textual Amendments
F196Words in s. 18(1) inserted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 16, 227(3), Sch. 1 para. 16(2) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F197Word in s. 18(2) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 16, 227(3), Sch. 1 para. 16(3)(a) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F198Words in s. 18(2) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 16, 227(3), Sch. 1 para. 16(3)(b) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F199S. 18(2)(g) repealed (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 226, 227(3), Sch. 6 Pt. 1 (with s. 223); S.S.I. 2008/115, art. 3(2)(3), Sch. 2 (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F200S. 18(2)(h) added (1.4.1993, subject to savings in arts. 4, 5 of S.I. 1993/438) by 1993 c. 6, s. 11(3), Sch. 1 para. 6(b) (with s. 12(6)); S.I. 1993/438, art.3
F201S. 18(2A) inserted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 16, 227(3), Sch. 1 para. 16(4) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F202Word in s. 18(3) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 16, 227(3), Sch. 1 para. 16(5)(a) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F203S. 18(3)(a) repealed (1.4.1993, subject to savings in arts. 4, 5 of S.I. 1993/438) by 1993 c. 6, s. 11(4), Sch.2 (with s. 12(6)); S.I. 1993/438, art.3
F204Word in s. 18(3)(c) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 16, 227(3), Sch. 1 para. 16(5)(b) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F205Words in s. 18(4) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 16, 227(3), Sch. 1 para. 16(6)(a) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F206Words in s. 18(4) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 16, 227(3), Sch. 1 para. 16(6)(b) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
(1)Where the [F208debtor has made a debtor application] he shall, not later than 7 days after the appointment of the [F209trustee under section 2 of this Act] (where he is not the Accountant in Bankruptcy), send to the F210. . . trustee such statement of assets and liabilities as was [F211sent to the Accountant in Bankruptcy in pursuance of section 5(6A)] of this Act.
(2)Where the petitioner for sequestration is a creditor or a trustee acting under a trust deed, the debtor shall, not later than 7 days after having been notified by the F210. . . trustee as mentioned in section [F2122(7)(a)] of this Act, send to the F210. . . trustee a statement of assets and liabilities.
(3)If the debtor—
(a)fails to send to the F210. . . trustee in accordance with subsection (1) or (2) above such statement of assets and liabilities; or
(b)fails to disclose any material fact in such statement of assets and liabilities; or
(c)makes a material misstatement in such statement of assets and liabilities,
he shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale or to imprisonment for a term not exceeding 3 months or to both such fine and imprisonment.
(4)In any proceedings for an offence under subsection (3) above, it shall be a defence for the accused to show that he had a reasonable excuse for—
(a)failing to send to the F210. . . trustee in accordance with subsection (1) or (2) above such statement of assets and liabilities; or
(b)failing to disclose a material fact; or
(c)making a material misstatement.]
Textual Amendments
F207S. 19 substituted (1.4.1993, subject to savings in arts. 4, 5 of S.I. 1993/438) by 1993 c. 6, s. 11(3), Sch. 1 para.7 (with s. 12(6)); S.I. 1993/438, art.3
F208Words in s. 19(1) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 16, 227(3), Sch. 1 para. 17(2)(a) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F209Words in s. 19(1) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 16, 227(3), Sch. 1 para. 17(2)(b) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F210Words in s. 19 repealed (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 226, 227(3), Sch. 6 Pt. 1 (with s. 223); S.S.I. 2008/115, art. 3(2)(3), Sch. 2 (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F211Words in s. 19(1) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 16, 227(3), Sch. 1 para. 17(2)(c) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F212Words in s. 19(2) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 16, 227(3), Sch. 1 para. 17(3) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
[F213(1)When the F214. . . trustee has received the statement of assets and liabilities, he shall, as soon as practicable, prepare a statement of the debtor’s affairs so far as within the knowledge of the F214. . . trustee and shall indicate in the statement of the debtor’s affairs whether, in his opinion, the debtor’s assets are unlikely to be sufficient to pay any dividend whatsoever in respect of the debts mentioned in paragraphs (e) to (h) of section 51(1) of this Act.]
(2)The F214. . . trustee shall, not later than 4 days before the date fixed for the statutory meeting, [F215or, where the trustee does not intend to hold such a meeting, not later than 60 days after the date on which sequestration is awarded,] send to the Accountant in Bankruptcy—
(a)[F213the statement] of assets and liabilities [F216(unless the statement has already been received by the Accountant in Bankruptcy by virtue of section 5(6A) of this Act)]; and
(b)[F217subject to subsection (2A) below,] a copy of the F218. . . statement of the debtor’s affairs; and
(c)written comments by the F214. . . trustee indicating what in his opinion are the causes of the insolvency and to what extent the conduct of the debtor may have contributed to the insolvency.
[F219(2A)The trustee need not send a statement of the debtor's affairs to the Accountant in Bankruptcy in accordance with subsection (2)(b) above if the trustee has sent a copy of the inventory and valuation to the Accountant in Bankruptcy in accordance with section 38(1)(c) of this Act.]
(3)The written comments made under subsection (2)(c) above shall be absolutely privileged.
(4)F220. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(5)F220. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
[F221(5A)Subsections (2) and (3) above do not apply in any case where the Accountant in Bankruptcy is the F214. . . trustee.]
Textual Amendments
F213S. 20(1) substituted (1.4.1993, subject to savings in arts. 4, 5 of S.I. 1993/438) by 1993 c. 6, s. 11(3), Sch. 1 para. 8(2) (with s. 12(6)); S.I. 1993/438, art.3
Words in s. 20(2)(a) substituted (1.4.1993, subject to savings in arts. 4, 5 of S.I. 1993/438) by 1993 c. 6, s. 11(3), Sch. 1 para. 8(3) (with s. 12(6)); S.I. 1993/438, art.3
F214Words in s. 20 repealed (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 226, 227(3), Sch. 6 Pt. 1 (with s. 223); S.S.I. 2008/115, art. 3(2)(3), Sch 2 (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F215Words in s. 20(2) inserted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 18(a)(i) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F216Words in s. 20(2)(a) inserted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 18(a)(ii) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F217Words in s. 20(2)(b) inserted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 18(a)(iii) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F218Word “preliminary” in s. 20(2)(b) repealed (1.4.1993, subject to savings in arts. 4, 5 of S.I. 1993/438) by 1993 c. 6, s. 11(4), Sch.2 (with s. 12(6)); S.I. 1993/438, art.3
F219S. 20(2A) inserted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 18(b) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F220S. 20(4)(5) repealed (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss, 226, 227(3), {Sch. 6 Pt. 1} (with s. 223); S.S.I. 2008/115, art. 3(2)(3), Sch. 2 (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F221S. 20(5A) inserted (1.4.1993, subject to savings in arts. 4, 5 of S.I. 1993/438) by 1993 c. 6, s. 11(3), Sch. 1 para. 8(4) (with s. 12(6)); S.I. 1993/438, art.3
A meeting of creditors called by the F223. . . trustee under section F223. . . 21A of this Act shall, in this Act, be referred to as “the statutory meeting”.]
Textual Amendments
F222S. 20A inserted (1.4.1993, subject to savings in arts. 4, 5 of S.I. 1993/438) by 1993 c. 6, s. 11(3), Sch. 1 para.9 (with s. 12(6)); S.I. 1993/438, art.3
F223Words in s. 20A repealed (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 226, 227(3), Sch. 6 Pt. 1 (with s. 223); S.S.I. 2008/115, art. 3(2)(3), Sch. 2 (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
Textual Amendments
F224Cross-heading preceding s. 21 substituted (S.) (1.4.2008) by virtue of Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 19 (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F225. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Textual Amendments
F225S. 21 repealed (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 11(1), 227(3) (with s. 223); S.S.I. 2008/115, art. 3(2)(3), Sch. 2 (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
(1)Subject to subsections (5) and (6) below, F228. . . the statutory meeting may be held at such time and place as the F229. . . trustee may determine.
(2)Not later than 60 days after the date [F230on which sequestration is awarded] , or such longer period as the sheriff may on cause shown allow, the F231. . . trustee shall give notice to every creditor known to him of whether he intends to call the statutory meeting.
(3)A notice given under subsection (2) above shall—
(a)be accompanied by a copy of the F231. . . trustee’s statement of the debtor’s affairs; and
(b)where the F231. . . trustee is notifying his intention not to hold the statutory meeting, inform creditors—
(i)of the effect of subsections (4) and (5) below; F232. . .
(ii)F232. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(4)Within 7 days of the giving of notice under subsection (2) above, any creditor may request the F231. . . trustee to call the statutory meeting.
(5)Where a request or requests under subsection (4) above are made by not less than one quarter in value of the debtor’s creditors, the F231. . . trustee shall call the statutory meeting not later than 28 days, or such other period as the sheriff may on cause shown allow, after the giving of notice under subsection (2) above.
(6)Where the F231. . . trustee gives notice under subsection (2) above that he intends to call the statutory meeting, such meeting shall be called not later than 28 days after the giving of such notice.
(7)Not less than 7 days before the date fixed for the statutory meeting, the F231. . . trustee shall notify every creditor known to him of the date, time and place of the meeting, and shall in such notice invite the submission of such claims as have not already been submitted and inform them of his duties under section 23(3) of this Act.
(8)The creditors may continue the statutory meeting to a date not later than 7 days after the end of the period mentioned in subsection (6) above or such longer period as the sheriff may on cause shown allow.
(9)F233. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .]
Textual Amendments
F226S. 21A heading substituted (1.4.2008) by virtue of Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 11(2)(b), 227(3) (with s. 223); S.S.I. 2008/115, art. 3(1)(a) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F227Ss. 21A, 21B inserted (1.4.1993, subject to savings in arts. 4, 5 of S.I. 1993/438) by 1993 c. 6, s.5 (with s. 12(6)); S.I. 1993/438, art.3
F228Words in s. 21A(1) repealed (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3) {ss. 11(2)(a)}, 227(3) (with s. 223); S.S.I. 2008/115, art. 3(1)(a) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F229Word in s. 21A(1) repealed (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 226, 227(3), Sch. 6 Pt. 1 (with s. 223); S.S.I. 2008/115, art. 3(2)(3) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F230Words in s. 21A(2) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 20 (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F231Words in s. 21A(2)-(7) repealed (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 226, 227(3), Sch. 6 Pt. 1 (with s. 223); S.S.I. 2008/115, art. 3(2)(3), Sch. 2 (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F232S. 21A(3)(b)(ii) and preceding word repealed (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 28(2), 227(3) (with s. 223); S.S.I. 2008/115, art. 3(1)(a) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F233S. 21A(9) repealed (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 226, 227(3), Sch. 6 Pt. 1 (with s. 223); S.S.I. 2008/115, art. 3(2)(3), Sch. 2 (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
(1)Where the F235. . . trustee does not call the statutory meeting and the period mentioned in section 21A(4) of this Act has expired, he shall—
(a)forthwith make a report to the [F236Accountant in Bankruptcy] on the circumstances of the sequestration; F237. . .
(b)F237. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
[F238(1A)This section does not apply in any case where the Accountant in Bankruptcy is the trustee.]
(2)F239. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Textual Amendments
F234Ss. 21A, 21B inserted (1.4.1993, subject to savings in arts. 4, 5 of S.I. 1993/438) by 1993 c. 6, s.5 (with s. 12(6)); S.I. 1993/438, art.3
F235Word in s. 21B repealed (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 226, 227(3), Sch. 6 Pt. 1 (with s. 223); S.S.I. 2008/115, art. 3(2)(3), Sch. 2 (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F236Words in s. 21B(1)(a) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 21(a) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F237S. 21B(1)(b) and preceding word repealed (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 226, 227(3), Sch. 6 Pt. 1 (with s. 223); S.S.I. 2008/115, art. 3(2)(3), Sch. 2 (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F238S. 21B(1A) inserted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 21(b) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F239S. 21B(2) repealed (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 226, 227(3), Sch. 6 Pt. 1 (with s. 223); S.S.I. 2008/115, art. 3(2)(3), Sch. 2 (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
(1)For the purposes of voting at the statutory meeting, a creditor shall submit a claim in accordance with this section to the F240. . . trustee at or before the meeting.
(2)A creditor shall submit a claim under this section by producing to the F240. . . trustee—
(a)a statement of claim in the prescribed form; and
(b)an account or voucher (according to the nature of the debt) which constitutes prima facie evidence of the debt:
Provided that the F240. . . trustee may dispense with any requirement under this subsection in respect of any debt or any class of debt.
(3)Where a creditor neither resides nor has a place of business in the United Kingdom, the F240. . . trustee—
(a)shall, if he knows where the creditor resides or has a place of business and if no notification has been given to that creditor under section [F24121A(2)] of this Act, write to him informing him that he may submit a claim under this section;
(b)may allow the creditor to submit an informal claim in writing.
(4)A creditor who has produced a statement of claim in accordance with subsection (2) above may at any time before the statutory meeting produce in place of that statement of claim another such statement of claim specifying a different amount for his claim.
(5)If a creditor produces under this section a statement of claim, account, voucher or other evidence which is false—
(a)the creditor shall be guilty of an offence unless he shows that he neither knew nor had reason to believe that the statement of claim, account, voucher or other evidence was false;
(b)the debtor shall be guilty of an offence if he—
(i)knew or became aware that the statement of claim, account, voucher or other evidence was false; and
(ii)failed as soon as practicable after acquiring such knowledge to report it to the F240. . . trustee F240. . . .
(6)A creditor may, in such circumstances as may be prescribed, state the amount of his claim in foreign currency.
(7)The F240. . . trustee shall, on production of any document to him under this section, initial the document and keep a record of it stating the date when it was produced to him, and, if requested by the sender, shall return it (if it is not a statement of claim) to him.
(8)The submission of a claim under this section shall bar the effect of any enactment or rule of law relating to the limitation of actions in any part of the United Kingdom.
(9)Schedule 1 to this Act shall have effect for determining the amount in respect of which a creditor shall be entitled to claim.
(10)A person convicted of an offence under subsection (5) above shall be liable—
(a)on summary conviction to a fine not exceeding the statutory maximum or—
(i)to imprisonment for a term not exceeding 3 months; or
(ii)if he has previously been convicted of an offence inferring dishonest appropriation of property or an attempt at such appropriation, to imprisonment for a term not exceeding 6 months,
or (in the case of either sub-paragraph) to both such fine and such imprisonment; or
(b)on conviction on indictment to a fine or to imprisonment for a term not exceeding 2 years or to both.
Textual Amendments
F240Words in s. 22 repealed (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 226, 227(3), Sch. 6 Pt. 1 (with s. 223); S.S.I. 2008/115, art. 3(2)(3), Sch. 2 (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F241Words in s. 22(3)(a) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 22 (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
Modifications etc. (not altering text)
C4S. 22 restricted (S.) (17.12.2001) by 2001 asp 13, s. 20, Sch. 6 para. 8(2) (with s. 29); S.S.I. 2001/456, art. 2
C5S. 22(5)(10) applied (with modifications) by S.I. 1986/1915, Rules 4.16(1)(a), 7.9(4) and by Rule 2.41(2) (as substituted (15.9.2003) by The Insolvency (Scotland) Amendment Rules 2003 (S.I. 2003/2111), Rule 3, Sch. 1 Pt. 1)
C6S. 22(5)(10) applied (with modifications) (14.11.2011) by The Investment Bank Special Administration (Scotland) Rules 2011 (S. I. 2011/2262), rules 2, 127
C7S. 22(8) applied with modifications by S.I. 1986/1915, Rule 4.76.
(1)At the commencement of the statutory meeting, the chairman shall be the F243. . . trustee who as chairman shall—
(a)for the purposes of subsection (2) below, accept or reject in whole or in part the claim of each creditor, and, if the amount of a claim is stated in foreign currency, he shall convert that amount into sterling, in such manner as may be prescribed, at the rate of exchange prevailing at the close of business on the date of sequestration;
(b)invite the creditors thereupon to elect one of their number as chairman in his place and shall preside over the election:
Provided that if a chairman is not elected in pursuance of this paragraph, the F243. . . trustee shall remain the chairman throughout the meeting; and
(c)arrange for a record to be made of the proceedings at the meeting.
(2)The acceptance of a claim in whole or in part under subsection (1) above shall, subject to section 24(3) of this Act, determine the entitlement of a creditor to vote at the statutory meeting.
(3)On the conclusion of the proceedings under subsection (1) above, the F243. . . trustee—
[F244(a)shall make available for inspection—
(i)the statement of assets and liabilities; and
(ii)his statement of the debtor’s affairs prepared under section 20(1) of this Act;]
(b)shall answer to the best of his ability any questions, and shall consider any representations, put to him by the creditors relating to the debtor’s assets, business or financial affairs or his conduct in relation thereto;
(c)shall, after considering any such representations as are mentioned in paragraph (b) above, indicate whether, in his opinion, the debtor’s assets are unlikely to be sufficient as mentioned in section 20(1) of this Act; and
[F244(d)shall determine whether it is necessary to revise his statement of the debtor’s affairs and, if he determines that it is necessary to revise the statement, he shall do so either at, or as soon as possible after, the statutory meeting.]
F245(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
[F244(5)Where the F243. . . trustee has revised his statement of the debtor’s affairs, he shall, as soon as possible after the statutory meeting, send a copy of the revised statement to every creditor known to him.]
Textual Amendments
F242S. 23 heading substituted (1.4.2008) by virtue of the Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 11(3), 227(3) (with s. 223); S.S.I. 2008/115, art. 3(1)(a) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F243Words in s. 23 repealed (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 226, 227(3), Sch. 6 Pt. 1 (with s. 223); S.S.I. 2008/115, art. 3(2)(3), Sch. 2 (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F244S. 23(3)(a) substituted (1.4.1993, subject to savings in arts. 4, 5 of S.I. 1993/438) by 1993 c. 6, s. 11(3), Sch. 1 para. 11(2)(a) (with s. 12(6)); S.I. 1993/438, art.3
S. 23(3)(d) substituted (1.4.1993, subject to savings in arts. 4, 5 of S.I. 1993/438) by 1993 c. 6, s. 11(3), Sch. 1 para. 11(2)(b) (with s. 12(6)); S.I. 1993/438, art.3
S. 23(5) substituted (1.4.1993, subject to savings in arts. 4, 5 of S.I. 1993/438) by 1993 c. 6, s. 11(3), Sch. 1 para. 11(3) (with s. 12(6)); S.I. 1993/438, art.3
F245S. 23(4) repealed (1.4.1993, subject to savings in arts. 4, 5 of S.I. 1993/438) by 1993 c. 6, s. 11(4), Sch.2 (with s. 12(6)); S.I. 1993/438, art.3
F247. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .]
Textual Amendments
F246S. 23A inserted (1.4.1993, subject to savings in arts. 4, 5 of S.I. 1993/438) by 1993 c. 6, s.6 (with s. 12(6)); S.I. 1993/438, art.3
F247s. 23A repealed (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 28(3), 227(3) (with s. 223); S.S.I. 2008/115, art. 3(1)(a) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
[F249(1)At the statutory meeting, the creditors shall, at the conclusion of the proceedings under section 23(3) of this Act, proceed to [F250a vote at which they shall—
(a)confirm the appointment of the trustee appointed under section 2 of this Act (referred to in this section and in sections 25 to 27 of this Act as the “original trustee”); or
(b)elect another person as the trustee in the sequestration (referred to in this section and in sections 13 and 25 to 29 of this Act as the “replacement trustee”),
such a vote being referred to in this Act as a “trustee vote”] .]
(2)None of the following persons shall be eligible for election as [F251replacement] trustee, nor shall anyone who becomes such a person after having been elected as [F251replacement] trustee be qualified to continue to act as F252. . . trustee—
(a)the debtor;
(b)a person who is not qualified to act as an insolvency practitioner or who, though qualified to act as an insolvency practitioner, is not qualified to act as such in relation to the debtor;
(c)a person who holds an interest opposed to the general interests of the creditors;
(d)F253. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
[F254(e)a person who has not given an undertaking, in writing, to act as F252. . . trustee;
(f)the Accountant in Bankruptcy.]
(3)The following persons shall not be entitled to vote in the [F255trustee vote]—
(a)anyone acquiring a debt due by the debtor, otherwise than by succession, after the date of sequestration;
(b)any creditor to the extent that his debt is a postponed debt.
[F254(3A)In any case where the Accountant in Bankruptcy is the [F256original] trustee, if—
(a)no creditor entitled to vote in the [F257trustee vote] attends the statutory meeting; or
(b)no [F258replacement] trustee is elected,
the Accountant in Bankruptcy shall forthwith report the proceedings at the statutory meeting to the sheriff and [F259shall continue to act as the trustee] .
(3B)F260. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .]
(4)[F254In any case where the Accountant in Bankruptcy is not the [F261original] trustee,] if no creditor entitled to vote in the [F262trustee vote] attends the statutory meeting or if no [F263replacement] trustee is elected, the [F261original] trustee shall forthwith—
(a)so notify the Accountant in Bankruptcy; and
(b)report the proceedings at the statutory meeting to the sheriff, F264. . . .
[F265and he shall continue to act as the trustee.]
[F254(4A)F260. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .]
(5)F260. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Textual Amendments
F248S. 24 heading substituted (1.4.2008) by virtue of Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 11(4)(b), 227(3) (with s. 223); S.S.I. 2008/115, art. 3(1)(a) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F249S. 24(1) substituted (1.4.1993, subject to savings in arts. 4, 5 of S.I. 1993/438) by 1993 c. 6, s. 11(3), Sch. 1 para. 12(2) (with s. 12(6)); S.I. 1993/438, art.3
F250Words in s. 24(1) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 11(4)(a), 227(3) (with s. 223); S.S.I. 2008/115, art. 3(1)(a) (with arts. 4-6, 10) (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5)
F251Words in s. 24(2) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 23(2) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F252Words in s. 24(2) repealed (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 226, 227(3), Sch. 6 Pt. 1 (with s. 223); S.S.I. 2008/115, art. 3(2)(3), Sch. 2 (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F253S. 24(2)(d) repealed (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 7(2), 227(3) (with s. 223); S.S.I. 2008/115, art. 3(1)(a) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F254S. 24(2)(e)(f) inserted (1.4.1993, subject to savings in arts. 4, 5 of S.I. 1993/438) by 1993 c. 6, s. 11(3), Sch. 1 para. 12(3) (with s. 12(6)); S.I. 1993/438, art.3
S. 24(3A)(3B) inserted (1.4.1993, subject to savings in arts. 4, 5 of S.I. 1993/438) by 1993 c. 6, s. 11(3), Sch. 1 para. 12(4) (with s. 12(6)); S.I. 1993/438, art.3
Words in s. 24(4) inserted (1.4.1993, subject to savings in arts. 4, 5 of S.I. 1993/438) by 1993 c. 6, s. 11(3), Sch. 1 para. 12(5) (with s. 12(6)); S.I. 1993/438, art.3
S. 24(4A) inserted (1.4.1993, subject to savings in arts. 4, 5 of S.I. 1993/438) by 1993 c. 6, s. 11(3), Sch. 1 para. 12(6) (with s. 12(6)); S.I. 1993/438, art.3
F255Words in s. 24(3) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 23(3) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F256Word in s. 24(3A) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 23(4)(a) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F257Words in s. 24(3A)(a) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 23(4)(b) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F258Word in s. 24(3A)(b) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 23(4)(c) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F259Words in s. 24(3A) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 23(4)(d) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F260S. 24(3B)(4A)(5) repealed (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 28(4), 227(3) (with s. 223); S.S.I. 2008/115, art. 3(1)(a) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F261Word in s. 24(4) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 23(5)(a) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F262Words in s. 24(4) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 23(5)(b) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F263Word in s. 24(4) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 23(5)(c) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F264Words in s. 24(4)(b) repealed (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 226, 227(3), Sch. 6 Pt. 1 (with s. 223); S.S.I. 2008/115, art. 3(2)(3), Sch. 2 (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F265Words in s. 24(4) inserted (1.4.2004) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 23(5)(d) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
[F267(A1)This section applies where a replacement trustee is elected by virtue of a trustee vote.]
(1)On the election of the [F268replacement] trustee—
(a)the [F269original] trustee shall forthwith make a report of the proceedings at the statutory meeting to the sheriff; and
(b)the debtor, a creditor, the [F269original] trustee, the [F268replacement] trustee or the Accountant in Bankruptcy may, within 4 days after the statutory meeting, object to any matter connected with the election; and such objection shall be by summary application to the sheriff, specifying the grounds on which the objection is taken.
(2)If there is no timeous objection under subsection (1)(b) above, the sheriff shall forthwith declare the elected person to be the [F270trustee in the sequestration] ; and the sheriff shall [F271make an order appointing him as such].
[F272(2A)F273. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .]
(3)If there is a timeous objection under subsection (1)(b) above, the sheriff shall forthwith give parties an opportunity to be heard thereon and shall give his decision.
(4)If in his decision under subsection (3) above the sheriff—
(a)rejects the objection, subsection (2) above shall apply as if there had been no timeous objection;
(b)sustains the objection, he shall order the [F274original] trustee to arrange a new meeting [F275at which a new trustee vote shall be held]; and sections 23 and 24 of this Act and this section shall apply in relation to such a meeting.
(5)Any declaration, [F276appointment] or decision of the sheriff under this section shall be final, and no expense in objecting under this section shall fall on the debtor’s estate.
(6)The [F277replacement] trustee shall—
(a)F278. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(b)F279. . . publish a notice in the Edinburgh Gazette F280. . .stating that he has been [F281appointed] as F279. . . trustee [F272and giving such other information as may be prescribed].
Textual Amendments
F266S. 25 heading substituted (1.4.2008) by virtue of Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 11(5)(b), 227(3) (with s. 223); S.S.I. 2008/115, art. 3(1)(a) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F267S. 25(A1) inserted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 11(5)(a), 227(3) (with s. 223); S.S.I. 2008/115, art. 3(1)(a) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F268Words in s. 25(1) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 226, 227(3), Sch. 1 para. 24(2)(a)(i) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F269Words in s. 25(1) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 226, 227(3), Sch. 1 para. 24(2)(b) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F270Words in s. 25(2) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 226, 227(3), Sch. 1 para. 24(3)(a) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F271Words in s. 25(2) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 226, 227(3), Sch. 1 para. 24(3)(b) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F272S. 25(2A) inserted (1.4.1993, subject to savings in arts. 4, 5 of S.I. 1993/438) by 1993 c. 6, s. 11(3), Sch. 1 para. 13(2) (with s. 12(6)); S.I. 1993/438, art.3
Words at the end of s. 26(6)(b) added (1.4.1993, subject to savings in arts. 4, 5 of S.I. 1993/438) by 1993 c. 6, s. 11(3), Sch. 1 para. 13(3) (with s. 12(6)); S.I. 1993/438, art.3
F273S. 25(2A) repealed (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 28(5), 227(3) (with s. 223); S.S.I. 2008/115, art. 3(1)(a) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F274Word in s. 25(4)(b) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 226, 227(3), Sch. 1 para. 24(4)(a) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F275Words in s. 25(4)(b) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 226, 227(3), Sch. 1 para. 24(4)(b) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F276Word in s. 25(5) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 226, 227(3), Sch. 1 para. 24(5) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F277Word in s. 25(6) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 226, 227(3), Sch. 1 para. 24(6)(a) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F278S. 25(6)(a) and word following it repealed (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3). ss. 226, 227(3), {Sch. 6 Pt. 1} (with s. 233); S.S.I. 2008/115, art. 3(2)(3), Sch. 2 (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F279Words in s. 25(6)(b) repealed (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3). ss. 226, 227(3), {Sch. 6 Pt. 1} (with s. 233); S.S.I. 2008/115, art. 3(2)(3), Sch. 2 (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F280Words in s. 25(6)(b) repealed (1.4.1993, subject to savings in arts. 4, 5 of S.I. 1993/438) by 1993 c. 6, s. 11(3), Sch.2 (with s. 12(6)); S.I. 1993/438, art.3
F281Words in s. 25(6)(b) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 226, 227(3), Sch. 1 para. 24(6)(b) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F283. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .]
Textual Amendments
F282S. 25A inserted (1.4.1993, subject to savings in arts. 4, 5 of S.I. 1993/438) by 1993 c. 6, s.7 (with s. 12(6)); S.I. 1993/438, art.3
F283S. 25A repealed (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 226, 227(3), Sch. 6 Pt. 1 (with s. 223); S.S.I. 2008/115, art. 3(2)(3), Sch. 2 (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
[F285(A1)This section applies where a replacement trustee is appointed under section 25 of this Act.]
(1)[F286The original trustee, shall, on the appointment of the replacement trustee], hand over to him everything in his possession which relates to the sequestration (including [F287the statement of assets and liabilities, and a copy] of the statement prepared under section 23(3)(d), and of the written comments sent under section 20(2)(c) of this Act) and shall thereupon cease to act in the sequestration.
(2)Within 3 months of the [F288appointment of the replacement trustee, the original] trustee shall—
(a)submit to the Accountant in Bankruptcy—
(i)his accounts of his intromissions (if any) with the debtor’s estate; and
(ii)a claim for outlays reasonably incurred, and for remuneration for work reasonably undertaken, by him; and
(b)send to the [F289replacement] trusteeF290. . . , a copy of what is submitted to the Accountant in Bankruptcy under paragraph (a) above.
[F291(2A)Where the original trustee was appointed under section 2(5) of this Act as the interim trustee in the sequestration, his accounts and the claim referred to in subsection (2)(a) above shall include accounts and a claim for the period of his appointment as interim trustee.]
(3)On a submission being made to him under subsection (2) above, the Accountant in Bankruptcy—
(a)shall—
(i)audit the accounts; and
(ii)issue a determination fixing the amount of the outlays and remuneration payable to the [F292original] trustee; and
(b)shall send a copy of—
(i)the said determination to the [F293original] trusteeF290. . . ; and
(ii)the [F294original] trustee’s audited accounts and of the said determination to the [F295replacement] trustee, who shall insert the copies in the sederunt book.
(4)The [F296original] trustee, the [F297replacement] trustee, the debtor or any creditor may appeal to the sheriff against a determination under subsection (3)(a)(ii) above within 14 days of its issue [F298; and the decision of the sheriff on such an appeal shall be final].
(5)The [F299replacement] trustee, on being [F300appointed] , shall make such insertions in the sederunt book as are appropriate to provide a record of the sequestration process before his [F301appointment] , but he shall make no insertion therein relating to the written comments made by the [F302original] trustee under section 20(2)(c) of this Act.
[F298(5A)This section does not apply in any case where the Accountant in Bankruptcy is the [F303original] trustee.]
Textual Amendments
F284S. 26 heading substituted (1.4.2008) by virtue of Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 26(10) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F285S. 26(A1) inserted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 25(2) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F286Words in s. 26(1) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 25(3) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F287Words in s. 26(1) substituted (1.4.1993, subject to savings in arts. 4, 5 of S.I. 1993/438) by 1993 c. 6, s. 11(3), Sch. 1 para. 14(2) (with s. 12(6)); S.I. 1993/438, art.3
F288Words in s. 26(2) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 25(4)(a) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F289Word in s. 26(2)(b) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 25(4)(b) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F290Words in s. 26(2)(b)(3)(b)(i) repealed (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss 226, 227(3), Sch. 6 Pt. 1 (with s. 223); S.S.I. 2008/115, art. 3(2)(3), Sch. 2 (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F291S. 26(2A) inserted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 25(5) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F292Word in s. 26(3)(a)(ii) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 25(6)(a) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F293Word in s. 26(3)(b)(i) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 25(6)(b) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F294Word in s. 26(3)(b)(ii) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 25(6)(c)(i) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F295Word in s. 26(3)(b)(ii) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 25(6)(c)(ii) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F296Word in s. 26(4) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 25(7)(a) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F297Word in s. 26(4) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 25(7)(b) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F298Words in s. 26(4) inserted (1.4.1993, subject to savings in arts. 4, 5 of S.I. 1993/438) by 1993 c. 6, s. 11(3), Sch. 1 para. 14(3) (with s. 12(6)); S.I. 1993/438, art.3
S. 26(5A) inserted (1.4.1993, subject to savings in arts. 4, 5 of S.I. 1993/438) by 1993 c. 6, s. 11(3), Sch. 1 para. 14(4) (with s. 12(6)); S.I. 1993/438, art.3
F299Word in s. 26(5) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 25(8)(a) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F300Word in s. 26(5) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 25(8)(b) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F301Word in s. 26(5) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 25(8)(c) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F302Word in s. 26(5) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 25(8)(d) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F303Word in s. 26(5A) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 25(9) (with s. 223); S.S.I. 2008/115, art. 3(1)(a)(i) (with arts. 4-6, 10) (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5)
(1)This section applies in any case where the Accountant in Bankruptcy was the [F305original] trustee and some other person [F306is appointed as replacement trustee under section 25 of this Act] .
(2)The Accountant in Bankruptcy shall, on [F307the appointment of the replacement trustee], hand over to the [F308replacement] trustee everything in his possession which relates to the sequestration and which he obtained in his capacity as [F309original] trustee (including the statement of assets and liabilities); and thereupon he shall cease to act as F310. . . trustee.
(3)The Accountant in Bankruptcy shall, not later than 3 months after the [F311appointment of the replacement] trustee, supply to the [F312replacement] trustee—
(a)his accounts of his intromissions (if any) as [F313original] trustee with the debtor’s estate;
(b)a determination of his fees and outlays calculated in accordance with regulations made under section 69A of this Act; and
(c)a copy of the notice mentioned in subsection (4)(b) below.
(4)The Accountant in Bankruptcy shall send to the debtor and to all creditors known to him—
(a)a copy of the determination mentioned in subsection (3)(b) above; and
(b)a notice in writing stating—
(i)that the Accountant in Bankruptcy has commenced the procedure under this Act leading to discharge in respect of his actings as F310. . . trustee;
(ii)that the accounts of his intromissions (if any) with the debtor’s estate are available for inspection at such address as the Accountant in Bankruptcy may determine;
(iii)that an appeal may be made to the sheriff under subsection (5) below; and
(iv)the effect of subsection (7) below.
(5)The [F314replacement] trustee, the debtor and any creditor may appeal to the sheriff against—
(a)the determination of the Accountant in Bankruptcy mentioned in subsection (3)(b) above;
(b)the discharge of the Accountant in Bankruptcy in respect of his actings as F310. . . trustee; or
(c)both such determination and discharge.
(6)An appeal under subsection (5) above shall be made not more than 14 days after the issue of the notice mentioned in subsection (4)(b) above; and the decision of the sheriff on such an appeal shall be final.
(7)Where—
(a)the requirements of this section have been complied with; and
(b)no appeal is made to the sheriff under subsection (5) above or such an appeal is made but is refused as regards the discharge of the Accountant in Bankruptcy,
the Accountant in Bankruptcy shall be discharged from all liability (other than any liability arising from fraud) to the creditors or to the debtor in respect of any act or omission of the Accountant in Bankruptcy in exercising the functions of F310. . . trustee in the sequestration.
(8)The [F315replacement] trustee, on being [F316appointed], shall make such insertions in the sederunt book as are appropriate to provide a record of the sequestration process before his [F317appointment] .]
Textual Amendments
F304S. 26A inserted (1.4.1993, subject to savings in arts. 4, 5 of S.I. 1993/438) by 1993 c. 6, s. 11(3), Sch. 1 para.15 (with s. 12(6)); S.I. 1993/438, art.3
F305Word in s. 26A(1) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 26(2)(a) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F306Words in s. 26A(1) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 26(2)(b) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F307Words in s. 26A(2) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 26(3)(a) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F308Word in s. 26A(2) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 26(3)(b) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F309Word in s. 26A(2) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 26(3)(c) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F310Words in s. 26A(2)(4)(5)(7) repealed (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 226, 227(3), Sch. 6 Pt. 1 (with s. 223); S.S.I. 2008/115, art. 3(2)(3), Sch. 2 (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F311Words in s. 26A(3) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 26(4)(a) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F312Word in s. 26A(3) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 26(4)(b) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F313Word in s. 26A(3)(a) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 26(4)(c) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F314Word in s. 26A(5) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 26(5) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F315Word in s. 26A(8) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 26(6)(a) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F316Word in s. 26A(8) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 26(6)(b) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F317Word in s. 26A(8) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 26(6)(c) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
(1)On receiving a copy of the Accountant in Bankruptcy’s determination sent under subsection (3)(b)(i) of section 26 of this Act the [F319original] trustee may apply to him for a certificate of discharge.
(2)The [F319original] trustee shall send notice of an application under subsection (1) above to the debtor [F320, to all creditors known to the original trustee] and to the [F321replacement] trustee and shall inform the debtor—
(a)that he, the [F321replacement] trustee or any creditor may make written representations relating to the application to the Accountant in Bankruptcy within a period of 14 days after such notification;
(b)that the audited accounts of his intromissions (if any) with the debtor’s estate are available for inspection at the office of the [F319original] trustee and that a copy of those accounts has been sent to the [F321replacement] trustee for insertion in the sederunt book; and
(c)of the effect mentioned in subsection (5) below.
(3)On the expiry of the period mentioned in subsection (2)(a) above the Accountant in Bankruptcy, after considering any representations duly made to him, shall—
(a)grant or refuse to grant the certificate of discharge; and
(b)notify (in addition to the [F319original] trustee) the debtor, the [F321replacement] trustee, and all creditors who have made such representations, accordingly.
(4)The [F319original] trustee, the [F321replacement] trustee, the debtor or any creditor who has made representations under subsection (2)(a) above may, within 14 days after the issuing of the determination under subsection (3) above, appeal therefrom to the sheriff and if the sheriff determines that a certificate of discharge which has been refused should be granted he shall order the Accountant in Bankruptcy to grant it; and the sheriff clerk shall send a copy of the decree of the sheriff to the Accountant in Bankruptcy.
[F322(4A)The decision of the sheriff in an appeal under subsection (4) above shall be final.]
(5)The grant of a certificate of discharge under this section by the Accountant in Bankruptcy shall have the effect of discharging the [F319original] trustee from all liability (other than any liability arising from fraud) to the creditors or to the debtor in respect of any act or omission of the [F319original] trustee in exercising the functions conferred on him by this Act.
(6)Where a certificate of discharge is granted under this section, the [F321replacement] trustee shall make an appropriate entry in the sederunt book.
(7)F323. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
[F322(7A)This section does not apply in any case where the Accountant in Bankruptcy is the [F319original] trustee.]
Textual Amendments
F318S. 27 heading substituted (1.4.2008) by virtue of the Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 27(2) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F319Words in s. 27 substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 27(1)(b) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F320Words in s. 27(2) inserted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 27(1)(a) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F321Words in s. 27 substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 27(1)(c) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F322S. 27(4A) inserted (1.4.1993, subject to savings in arts. 4, 5 of S.I. 1993/438) by 1993 c. 6, s. 11(3), Sch. 1 para. 16(2) (with s. 12(6)); S.I. 1993/438, art.3
S. 27(7A) inserted (1.4.1993, subject to savings in arts. 4, 5 of S.I. 1993/438) by 1993 c. 6, s. 11(3), Sch. 1 para. 16(3) (with s. 12(6)); S.I. 1993/438, art.3
F323S. 27(7) repealed (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 226, 227(3), Sch. 6 Pt. 1 (with s. 223); S.S.I. 2008/115, art. 3(2)(3), Sch. 2 (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
Textual Amendments
F324Cross-heading preceding s. 28 substituted (1.4.2008) by virtue of Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 28(6) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
[F326(1)The F327. . . trustee may apply to the [F328Accountant in Bankruptcy] for authority to resign office and, where the [F328Accountant in Bankruptcy] is satisfied that [F329 the trustee—
(a)is unable to act (whether by, under or by virtue of a provision of this Act or from any other cause whatsoever); or
(b)has so conducted himself that he should no longer continue to act,
the Accountant in Bankruptcy] shall grant the application.
(1A)The [F328Accountant in Bankruptcy] may make the granting of an application under subsection (1) above subject to the election of a new F327. . . trustee and to such conditions as he thinks appropriate in all the circumstances of the case.]
(2)Where the [F328Accountant in Bankruptcy] grants an application under F330. . . subsection (1) above—
(a)except where paragraph (b) below applies, the commissioners, or if there are no commissioners, the Accountant in Bankruptcy, shall call a meeting of the creditors, to be held not more than 28 days after the F327. . . trustee has resigned, for the election by them of a new F327. . . trustee;
(b)if the application has been granted subject to the election of a new F327. . . trustee, the resigning F327. . . trustee shall himself call a meeting of the creditors, to be held not more than 28 days after the granting of the application, for the purpose referred to in paragraph (a) above.
(3)Where the commissioners become, or if there are no commissioners the Accountant in Bankruptcy becomes, aware that the F327. . . trustee has died, they or as the case may be the Accountant in Bankruptcy shall as soon as practicable after becoming so aware call a meeting of creditors for the election by the creditors of a new F327. . . trustee.
(4)The foregoing provisions of this Act relating to the election [F331of a replacement trustee and the appointment of that]F327. . . trustee shall, subject to any necessary modifications, apply in relation to the election and [F332appointment] of a new F327. . . trustee in pursuance of subsection (1), [F333(1A),] (2) or (3) above.
[F334(5)Where no new F327. . . trustee is elected in pursuance of subsection (2) or (3) above
[F335(a)the Accountant in Bankruptcy; or
(b)such person as may be nominated by the Accountant in Bankruptcy (being a person who is not ineligible for election as replacement trustee under section 24(2) of this Act) if that person consents to the nomination,
may apply to the sheriff for appointment as trustee in the sequestration; and, on such application, the sheriff shall make an order so appointing the Accountant in Bankruptcy or, as the case may be, the person nominated by him.]]
(6)The new F327. . . trustee may require—
(a)delivery to him of all documents relating to the sequestration in the possession of the former trustee or his representatives, except the former trustee’s accounts of which he shall be entitled to delivery of only a copy;
(b)the former trustee or his representatives to submit the trustee’s accounts for audit to the commissioners or, if there are no commissioners, to the Accountant in Bankruptcy, and the commissioners or the Accountant in Bankruptcy shall issue a determination fixing the amount of the outlays and remuneration payable to the trustee or representatives in accordance with section 53 of this Act.
(7)The former trustee or his representatives, the new F327. . . trustee, the debtor or any creditor may appeal against a determination issued under subsection (6)(b) above within 14 days after it is issued—
(a)where it is a determination of the commissioners, to the Accountant in Bankruptcy; and
(b)where it is a determination of the Accountant in Bankruptcy, to the sheriff;
and the determination of the Accountant in Bankruptcy under paragraph (a) above shall be appealable to the sheriff.
[F333(8)The decision of the sheriff on an appeal under subsection (7) above shall be final.]
Textual Amendments
F325S. 28 heading substituted (1.4.2008) by virtue of Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 28(5) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F326S. 28(1)(1A) substituted for s. 28(1) (1.4.1993, subject to savings in arts. 4, 5 of S.I. 1993/438) by 1993 c. 6, s. 11(3), Sch. 1 para. 17(2) (with s. 12(6)); S.I. 1993/438, art.3
F327Words in s. 28 repealed (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 226, 227(3), Sch. 6 Pt. 1 (with s. 223); S.S.I. 2008/115, art. 3(2)(3), Sch. 2 (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F328Words in s. 28(1)(1A)(2) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), Sch. 1 para. 28(2) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F329Words in s. 28(1) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), s. 9(2), 227(3), (with s. 223); S.S.I. 2008/115, art. 3(1)(a) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F330Words in s. 28(2) repealed (1.4.1993, subject to savings in arts. 4, 5 of S.I. 1993/438) by 1993 c. 6, s. 11(4), Sch.2 (with s. 12(6)); S.I. 1993/438, art.3
F331Words in s. 28(4) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 28(3)(a) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F332Word in s. 28(4) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 28(3)(b) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F333Word in s. 28(4) inserted (1.4.1993, subject to savings in arts. 4, 5 of S.I. 1993/438) by 1993 c. 6, s. 11(3), Sch. 1 para. 17(3) (with s. 12(6)); S.I. 1993/438, art.3
S. 28(8) inserted (1.4.1993, subject to savings in arts. 4, 5 of S.I. 1993/438) by 1993 c. 6, s. 11(3), Sch. 1 para. 17(5) (with s. 12(6)); S.I. 1993/438, art.3
F334S. 28(5) substituted (1.4.1993, subject to savings in arts. 4, 5 of S.I. 1993/438) by 1993 c. 6, s. 11(3), Sch. 1 para. 17(4) (with s. 12(6)); S.I. 1993/438, art.3
F335Words in s. 28(5) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 28(4) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
(1)This section applies where a trustee acting as such in two or more sequestrations—
(a)dies; or
(b)ceases to be qualified to continue to act as trustee by virtue of section 24(2) of this Act.
(2)The Accountant in Bankruptcy may, by a single petition to the Court of Session, apply—
(a)in a case where subsection (1)(b) above applies, for the removal of the trustee from office in each sequestration in which he has so ceased to be qualified; and
(b)for the appointment of—
(i)the Accountant in Bankruptcy; or
(ii)such person as may be nominated by the Accountant in Bankruptcy (being a person who is not ineligible for election as replacement trustee under section 24(2) of this Act) if that person consents to the nomination,
as the trustee in each sequestration in which the trustee was acting.
(3)The procedure in a petition under subsection (2) above shall be as the Court of Session may, by act of sederunt, prescribe.
(4)An act of sederunt made under subsection (3) above may, in particular, make provision as to the intimation to each sheriff who awarded sequestration or to whom sequestration was transferred under section 15(2) of this Act of the appointment by the Court of Session of a trustee in that sequestration.]
Textual Amendments
F336S. 28A inserted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 12, 227(3) (with s. 223); S.S.I. 2008/115, art. 3(1)(a) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
(1)The F338. . . trustee may be removed from office—
(a)by the creditors (other than any such person as is mentioned in section 24(3) of this Act) at a meeting called for the purpose if they also elect forthwith a new F338. . . trustee; or
(b)without prejudice to section [F3391A(2)] of this Act, by order of the sheriff, on the application of—
(i)the Accountant in Bankruptcy;
(ii)the commissioners; or
(iii)a person representing not less than one quarter in value of the creditors,
if the sheriff is satisfied that cause has been shown on the basis of circumstances other than those to which subsection (9) below applies.
(2)The sheriff shall order any application under subsection (1)(b) above to be served on the F338. . . trustee and intimated in the Edinburgh Gazette, and before disposing of the application shall give the F338. . . trustee an opportunity of being heard.
(3)On an application under subsection (1)(b) above, the sheriff may, in ordering the removal of the F338. . . trustee from office, make such further order as he thinks fit or may, instead of removing the F338. . . trustee from office, make such other order as he thinks fit.
(4)The F338. . . trustee, the Accountant in Bankruptcy, the commissioners or any creditor may appeal against the decision of the sheriff on an application under subsection (1)(b) above within 14 days after the date of that decision.
(5)If the F338. . . trustee has been removed from office under subsection (1)(b) above or under section [F3391A(2)] of this Act or following an appeal under subsection (4) above, the commissioners or, if there are no commissioners, the Accountant in Bankruptcy shall call a meeting of creditors, to be held not more than 28 days after such removal, for the election by them of a new F338. . . trustee.
(6)Without prejudice to section [F3391A(2)] of this Act, where the sheriff is satisfied of any of the circumstances to which subsection (9) below applies he may, on the application of a commissioner, the debtor, a creditor or the Accountant in Bankruptcy, and after such intimation as the sheriff considers necessary—
(a)declare the office of F338. . . trustee to have become or to be vacant; and
(b)make any necessary order to enable the sequestration to proceed or to safeguard the estate pending the election of a new F338. . . trustee;
and thereafter the commissioners or, if there are no commissioners, the Accountant in Bankruptcy shall call a meeting of creditors, to be held not more than 28 days after such declaration, for the election by them of a new F338. . . trustee.
(7)The foregoing provisions of this Act relating to the election [F340of a replacement trustee and the appointment of that]F338. . . trustee shall, subject to any necessary modifications, apply in relation to the election and [F341appointment] of a new F338. . . trustee in pursuance of subsection (5) or (6) above.
(8)Subsections (5) to (7) of section 28 of this Act shall apply for the purposes of this section as they apply for the purposes of that section.
(9)The circumstances to which this subsection applies are that the F338. . . trustee—
(a)is unable to act (whether by, under or by virtue of a provision of this Act or from any other cause whatsoever other than death); or
(b)has so conducted himself that he should no longer continue to act in the sequestration.
[F342(10)This section does not apply in any case where the Accountant in Bankruptcy is the trustee.]
Textual Amendments
F337S. 29 heading substituted (1.4.2008) by virtue of Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), {Sch, 1 para. 29(4)} (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F338Words in s. 29 repealed (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss 226, 227(3), Sch. 6 Pt. 1 (with s. 223); S.S.I. 2008/115, art. 3(2)(3), Sch. 2 (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F339Words in s. 29(1)(b)(5)(6) substituted (1.4.1993, subject to savings in arts. 4, 5 of S.I. 1993/438) by 1993 c. 6, s. 11(3), Sch. 1 para.18 (with s. 12(6)); S.I. 1993/438, art.3
F340Words in s. 29(7) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 29(2)(a) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F341Word in s. 29(7) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), {Sch, 1 para. 29(2)(b)} (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F342S. 29(10) inserted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), {Sch, 1 para. 29(3)} (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
(1)At the statutory meeting or any subsequent meeting of creditors, the creditors (other than any such person as is mentioned in section 24(3) of this Act) may, from among the creditors or their mandatories, elect one or more commissioners (or new or additional commissioners); but not more than 5 commissioners shall hold office in any sequestration at any one time.
(2)None of the following persons shall be eligible for election as a commissioner, nor shall anyone who becomes such a person after having been elected as a commissioner be entitled to continue to act as a commissioner—
(a)any person mentioned in paragraph (a) or (c) of section 24(2) of this Act as not being eligible for election;
(b)a person who is an associate of the debtor or of the F343. . . trustee.
(3)A commissioner may resign office at any time.
(4)Without prejudice to section [F3441A(2)] of this Act, a commissioner may be removed from office—
(a)if he is a mandatory of a creditor, by the creditor recalling the mandate and intimating in writing its recall to the F343. . . trustee;
(b)by the creditors (other than any such person as is mentioned in section 24(3) of this Act) at a meeting called for the purpose.
Textual Amendments
F343Word in s. 30 repealed (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss 226, 227(3), Sch. 6 Pt. 1 (with s. 223); S.S.I. 2008/115, art. 3(2)(3), Sch. 2 (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F344Words in s. 30(4) substituted (1.4.1993, subject to savings in arts. 4, 5 of S.I. 1993/438) by 1993 c. 6, s. 11(3), Sch. 1 para.19 (with s. 12(6)); S.I. 1993/438, art.3
Modifications etc. (not altering text)
C8S. 30 modified (9.6.1997) by 1986 c. 53, s. 27A(3)(c) (as inserted (9.6.1997) by 1995 c. 26, s. 43, Sch. 7 para. 8; S.I. 1997/1427, art. 2(k)(n)(i))
Textual Amendments
F345Cross-heading preceding s. 31 substituted (1.4.2008) by virtue of Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 30(6) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
(1)Subject to section 33 of this Act [F346and section 91(3) of the Pensions Act 1995], the whole estate of the debtor shall [F347, by virtue of the trustee's appointment,] vest [F348in the trustee] as at the date of sequestration F349. . . for the benefit of the creditorsF350. . .
(a)F350. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(b)F350. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..
[F351(1A)It shall not be competent for—
(a)the trustee; or
(b)any person deriving title from the trustee,
to complete title to any heritable estate in Scotland vested in the trustee by virtue of his appointment before the expiry of the period mentioned in subsection (1B) below.
(1B)That period is the period of 28 days (or such other period as may be prescribed) beginning with the day on which—
(a)the certified copy of the order of the sheriff granting warrant is recorded under subsection (1)(a) of section 14 of this Act; or
(b)the certified copy of the determination of the Accountant in Bankruptcy awarding sequestration is recorded under subsection (1A) of that section,
in the register of inhibitions.]
(2)The exercise by the F352. . . trustee of any power conferred on him by this Act in respect of any heritable estate vested in him by virtue of [F353his appointment] shall not be challengeable on the ground of any prior inhibitionF354. . . .
(3)Where the debtor has an uncompleted title to any heritable estate in Scotland, the F352. . . trustee may complete title thereto either in his own name or in the name of the debtor, but completion of title in the name of the debtor shall not validate by accretion any unperfected right in favour of any person other than the F352. . . trustee.
(4)Any moveable property, in respect of which but for this subsection—
(a)delivery or possession; or
(b)intimation of its assignation,
would be required in order to complete title to it, shall vest in the F352. . . trustee by virtue of [F355his appointment] as if at the date of sequestration the F352. . . trustee had taken delivery or possession of the property or had made intimation of its assignation to him, as the case may be.
(5)Any non-vested contingent interest which the debtor has shall vest in the F352. . . trustee as if an assignation of that interest had been executed by the debtor and intimation thereof made at the date of sequestration.
[F356(5A)Any non-vested contingent interest vested in the trustee by virtue of subsection (5) above shall, where it remains so vested in the trustee on the date on which the debtor's discharge becomes effective, be reinvested in the debtor as if an assignation of that interest had been executed by the trustee and intimation thereof made at that date.]
(6)Any person claiming a right to any estate claimed by the F352. . . trustee may apply to the [F357sheriff] for the estate to be excluded from such vesting, a copy of the application being served on the F352. . . trustee; and the [F357sheriff] shall grant the application if [F358he] is satisfied that the estate should not be so vested.
(7)Where any successor of a deceased debtor whose estate has been sequestrated has made up title to, or is in possession of, any part of that estate, the [F359sheriff] may, on the application of the F352. . . trustee, order the successor to convey such estate to him.
(8)In subsection (1) above [F360, subject to section 31A of this Act,] the “whole estate of the debtor” means [F361, subject to subsection (9) below [F362[F363 and to [F364sections 71(10B), 78(3B) and 89(2)] of the Social Security Administration Act 1992]],] his whole estate at the date of sequestration, wherever situated, including—
(a)any income or estate vesting in the debtor on that date;
[F365(aa)any property of the debtor, title to which has not been completed by another person deriving right from the debtor;] and
(b)the capacity to exercise and to take proceedings for exercising, all such powers in, over, or in respect of any property as might have been exercised by the debtor for his own benefit as at, or on, the date of sequestration or might be exercised on a relevant date (within the meaning of section 32(10) of this Act).
[F366(9)Subject to subsection (10) below, the “whole estate of the debtor” does not include any interest of the debtor as tenant under any of the following tenancies—
(a)a tenancy which is an assured tenancy within the meaning of Part II of the M2 Housing (Scotland) Act 1988, or
(b)a protected tenancy within the meaning of the M3 Rent (Scotland) Act 1984 in respect of which, by virtue of any provision of Part VIII of that Act, no premium can lawfully be required as a condition of the assignation, or
[F367(c)a Scottish secure tenancy within the meaning of the Housing (Scotland) Act 2001 (asp 10).]
(10)On the date on which the F352. . . trustee serves notice to that effect on the debtor, the interest of the debtor as tenant under any of the tenancies referred to in subsection (9) above shall form part of his estate and vest in the F352. . . trustee as if it had vested in him under section 32(6) of this Act.]
Textual Amendments
F346Words in s. 31(1) inserted (6.4.1997) by 1995 c. 26, s. 122, Sch. 3 para. 13; S.I. 1997/664, art. 2(3), Sch. Pt. II
F347Words in s. 31(1) inserted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 226, 227(3), Sch. 5 para. 13(2)(a) (with s. 223); S.S.I. 2008/115, art. 3(2)(3), Sch. 1 (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F348Words in s. 31(1) inserted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 226, 227(3), Sch. 5 para. 13(2)(b) (with s. 223); S.S.I. 2008/115, art. 3(2)(3), Sch. 1 (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F349Words in s. 31(1) repealed (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 226, 227(3), Sch. 6 Pt. 1 (with s. 223); S.S.I. 2008/115, art. 3(2)(3), Sch. 2 (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F350S. 31(1)(a)(b) and preceding word repealed (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 226, 227(3), Sch. 6 Pt. 1 (with s. 223); S.S.I. 2008/115, art. 3(2)(3), Sch. 2 (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F351S. 31(1A)(1B) inserted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), {ss. 17 (1)(a)}, 227(3) (with s. 223); S.S.I. 2008/115, art. 3(1)(a) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F352Words in s. 31(2)-(7)(10) repealed (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 226, 227(3), Sch. 6 Pt. 1 (with s. 223); S.S.I. 2008/115, art. 3(2)(3), Sch. 2 (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F353Words in s. 31(2) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 30(2) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F354Words in s. 31(2) repealed (22.4.2009) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 226, 227(3), Sch. 6 Pt. 1 (with s. 223); S.S.I. 2009/67, art. 3(2)(3), Sch. 2
F355Words in s. 31(4) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 30(3) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F356S. 31(5A) inserted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 29, 227(3) (with s. 223); S.S.I. 2008/115, art. 3(1)(a) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F357Words in s. 31(6) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 30(4)(a) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F358Word in s. 31(6) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 30(4)(b) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F359Word in s. 31(7) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 30(5) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F360Words in s. 31(8) inserted (8.9.2003) by The Insolvency (Scotland) Regulations 2003 (S.I. 2003/2109), reg. 11
F361Words inserted by Housing Act 1988 (c. 50, SIF 75:1), s. 118(1)
F362S. 31(8): by 1997 c. 27, s. 33(2), Sch. 4 (with ss. 1, 2, 28); S.I. 1997/2085, art. 2(2) it is provided (6.10.1997) that the words “and to section 89(2) of the Social Security Administration Act 1992” are repealed
F363Words in s. 31(8) substituted (1.7.1992) by Social Security (Consequential Provisions) Act 1992 (c. 6), ss. 4, 7(2), Sch. 2 para.69.
F364Words in s. 31(8) substituted (7.10.1996) by 1995, c. 18, s. 41(4), Sch. 2 para. 8; S.I. 1996/2208, art. 2(b)
F365S. 31(8)(aa) inserted (1.4.2008.) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), {ss. 17 (1)(b)}, 227(3) (with s. 223); S.S.I. 2008/115, art. 3(1)(a) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F366S. 31(9)(10) added by Housing Act 1988 (c. 50, SIF 75:1), s. 118(2)
F367S. 31(9)(c) substituted (30.9.2002) by 2001 asp 10, s. 112, Sch. 10 para. 10; S.S.I. 2002/321, art. 2, Sch. (subject to arts. 3-5)
Modifications etc. (not altering text)
C9S. 31(8) excluded by Social Security Act 1989 (c.24, SIF 113:1), s. 22, Sch. 4 Pt. II para. 8(2)
C10S. 31(8) restricted (1.7.1992) by Social Security Administration Act 1992 (c. 5), s. 89(2) (with s. 93(1)).
Marginal Citations
In the application of this Act to insolvency proceedings under the EC Regulation, a reference to “estate” is a reference to estate which may be dealt with in those proceedings.]
Textual Amendments
F368S. 31A inserted (8.9.2003) by The Insolvency (Scotland) Regulations 2003 (S.I. 2003/2109), reg. 12
F369S. 31A renumbered (1.4.2008) as s. 31ZA by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 31 (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
(1)This section applies where—
(a)property is excluded from the debtor’s estate by virtue of section 420(2)(a) of the Proceeds of Crime Act 2002 (property subject to a restraint order),
(b)an order under section 50, F371. . . 128 [F372or 198] of that Act has not been made in respect of the property, and
(c)the restraint order is discharged.
(2)On the discharge of the restraint order the property vests in the F373. . . trustee as part of the debtor’s estate.
(3)But subsection (2) does not apply to the proceeds of property realised by a management receiver under section 49(2)(d) or 197(2)(d) of that Act (realisation of property to meet receiver’s remuneration and expenses).
Textual Amendments
F370Ss. 31A-31C inserted (24.3.2003) by Proceeds of Crime Act 2002 (c. 29), Ss. 456, 458(1)(3), Sch. 11 para. 15(4); S.I. 2003/333, art. 2(1) Sch. (subject to transitional provisions in arts. 3-14) (as amended by S.I. 2003/531); S.S.I. 2003/210, art. 2(1)(b), Sch. (subject to transitional provisions in arts. 3-7)
F371Word in s. 31A(1)(b) repealed (1.4.2008) by Serious Crime Act 2007 (c. 27), ss. 74(2), 92, 94, Sch. 8 para. 150(a), Sch. 14; S.I. 2008/755, art. 2(1)(b)(v) (subject to arts 3-14)
F372Words in s. 31A(1)(b) substituted (1.4.2008) by Serious Crime Act 2007 (c. 27), ss. 74(2), 94, Sch. 8 para. 150(b); S.I. 2008/755, art. 2(1)(a) (subject to arts 3-14)
F373Word in s. 31A(2) repealed (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 226, 227(3), Sch. 6 Pt. 1 (with s. 223); S.S.I. 2008/115, art. 3(2)(3), Sch. 2 (with arts 4-6, 10 (as amended by S.S.I 2009/67, art. 7 and S.S.I. 2011/31, art. 5))
(1)This section applies where—
(a)property is excluded from the debtor’s estate by virtue of section 420(2)(b), (c) or (d) of the Proceeds of Crime Act 2002 (property in respect of which an order for the appointment of a receiver or administrator under certain provisions of that Act is in force),F374. . .
(b)a confiscation order is made under section 6, 92 or 156 of that Act,
(c)the amount payable under the confiscation order is fully paid, and
(d)any of the property remains in the hands of the receiver or administrator (as the case may be).
(2)The property vests in the F375. . . trustee as part of the debtor’s estate.
Textual Amendments
F370Ss. 31A-31C inserted (24.3.2003) by Proceeds of Crime Act 2002 (c. 29), Ss. 456, 458(1)(3), Sch. 11 para. 15(4); S.I. 2003/333, art. 2(1) Sch. (subject to transitional provisions in arts. 3-14) (as amended by S.I. 2003/531); S.S.I. 2003/210, art. 2(1)(b), Sch. (subject to transitional provisions in arts. 3-7)
F374Word in s. 31B(1)(a) repealed (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 226, 227(3), Sch. 6 Pt. 1 (with s. 223); S.S.I. 2008/115, art. 3(2)(3), Sch. 2 (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F375Word in s. 31B(2) repealed (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 226, 227(3), Sch. 6 Pt. 1 (with s. 223); S.S.I. 2008/115, art. 3(2)(3), Sch. 2 (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
(1)This section applies where—
(a)property is excluded from the debtor’s estate by virtue of section 420(2)(a), (b), (c) or (d) of the Proceeds of Crime Act 2002 (property in respect of which a restraint order or an order for the appointment of a receiver or administrator under that Act is in force),
(b)a confiscation order is made under section 6, 92 or 156 of that Act, and
(c)the confiscation order is discharged under section 30, 114 or 180 of that Act (as the case may be) or quashed under that Act or in pursuance of any enactment relating to appeals against conviction or sentence.
(2)Any property in the hands of a receiver appointed under Part 2 or 4 of that Act or an administrator appointed under Part 3 of that Act vests in the F376. . . trustee as part of the debtor’s estate.
(3)But subsection (2) does not apply to the proceeds of property realised by a management receiver under section 49(2)(d) or 197(2)(d) of that Act (realisation of property to meet receiver’s remuneration and expenses).]
Textual Amendments
F370Ss. 31A-31C inserted (24.3.2003) by Proceeds of Crime Act 2002 (c. 29), Ss. 456, 458(1)(3), Sch. 11 para. 15(4); S.I. 2003/333, art. 2(1) Sch. (subject to transitional provisions in arts. 3-14) (as amended by S.I. 2003/531); S.S.I. 2003/210, art. 2(1)(b), Sch. (subject to transitional provisions in arts. 3-7)
F376Word in s. 31C repealed (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 226, 227(3), Sch. 6 Pt. 1 (with s. 223); S.S.I. 2008/115, art. 3(2)(3), Sch. 2 (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
(1)Subject to [F377subsections (2) and (4B)] below, any income of whatever nature received by the debtor on a relevant date, other than income arising from the estate which is vested in the F378. . . trustee, shall vest in the debtor.
(2)[F379Notwithstanding anything in section 11 or 12 of the Welfare Reform and Pensions Act 1999,] the sheriff, on the application of the F378. . . trustee, may, after having regard to all the circumstances, determine a suitable amount to allow for—
(a)aliment for the debtor; and
(b)the debtor’s relevant obligations;
and if the debtor’s income is in excess of the total amount so allowed the sheriff shall fix the amount of the excess and order it to be paid to the F378. . . trustee.
[F380(2WA)Subject to subsection (4L) below, no application may be made under subsection (2) above after the date on which the debtor's discharge becomes effective.
(2XA)An order made by the sheriff under subsection (2) above shall specify the period during which it has effect and that period—
(a)may end after the date on which the debtor's discharge becomes effective; and
(b)shall end no later than 3 years after the date on which the order is made.
(2YA)An order made by the sheriff under subsection (2) above may provide that a third person is to pay to the trustee a specified proportion of money due to the debtor by way of income.
(2ZA)If the debtor fails to comply with an order made under subsection (2) above, he shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale or to imprisonment for a term not exceeding 3 months or to both.]
[F381(2A)The amount allowed for the purposes specified in paragraphs (a) and (b) of subsection (2) above shall not be less than the total amount of any income received by the debtor—
(a)by way of guaranteed minimum pension; and
(b)in respect of his protected rights as a member of a pension scheme,
“guaranteed minimum pension” and “protected rights” having the same meanings as in the Pension Schemes Act 1993.]
(3)The debtor’s relevant obligations referred to in paragraph (b) of subsection (2) above are—
(a)any obligation of aliment owed by him (“obligation of aliment” having the same meaning as in the M4Family Law (Scotland) Act 1985);
(b)any obligation of his to make a periodical allowance to a former spouse [F382or former civil partner] ;
[F383(c)any obligation of his to pay child support maintenance under the Child Support Act 1991,]
but any amount allowed under that subsection for the relevant obligations [F384referred to in paragraphs (a) and (b) above] need not be sufficient for compliance with a subsisting order or agreement as regards such aliment or periodical allowance.
(4)In the event of any change in the debtor’s circumstances, the sheriff, on the application of the F378. . . trustee, the debtor or any other interested person, may vary or recall any order under subsection (2) above.
[F385(4A)The sheriff clerk shall send a copy of any order made under subsection (2) above (and a copy of any variation or recall of such an order) to the Accountant in Bankruptcy.
(4B)Where no order has been made under subsection (2) above, a debtor may enter into an agreement in writing with the trustee which provides—
(a)that the debtor is to pay to the trustee an amount equal to a specified part or proportion of his income; or
(b)that a third person is to pay to the trustee a specified proportion of money due to the debtor by way of income.
(4C)No agreement under subsection (4B) above may be entered into after the date on which the debtor's discharge becomes effective.
(4D)Subsection (2XA) above applies to agreements entered into under subsection (4B) above as it applies to orders made under subsection (2) above.
(4E)An agreement entered into under subsection (4B) above may, if subsection (4K) below has been complied with, be enforced, subject to subsection (4F) below, as if it were an order made under subsection (2) above.
(4F)Subsection (2ZA) above does not apply to an agreement entered into under subsection (4B) above.
(4G)An agreement entered into under subsection (4B) above may be varied—
(a)by written agreement between the parties; or
(b)by the sheriff, on an application made by the trustee, the debtor or any other interested person.
(4H)The sheriff—
(a)may not vary an agreement entered into under subsection (4B) above so as to include provision of a kind which could not be included in an order made under subsection (2) above; and
(b)shall grant an application to vary such an agreement if and to the extent that the sheriff thinks variation is necessary to determine a suitable amount to allow for the purposes specified in paragraphs (a) and (b) of subsection (2) above, being an amount which shall not be included in the amount to be paid to the trustee.
(4J)Where a third person pays a sum of money to the trustee under subsection (2YA) or (4B)(b) above, that person shall be discharged of any liability to the debtor to the extent of the sum of money so paid.
(4K)The trustee shall (unless he is the Accountant in Bankruptcy) send a copy of any agreement entered into under subsection (4B) above (and a copy of any variation of such an agreement) to the Accountant in Bankruptcy.
(4L)If the debtor fails to comply with an agreement entered into under subsection (4B) above, the sheriff, on the application of the trustee, may make an order under subsection (2) above—
(a)ending on the date on which the agreement would, had the debtor continued to comply with it, have ended; and
(b)on the same terms as the agreement.]
(5)Diligence [F386(which, for the purposes of this section, includes the making of a deduction from earnings order under the Child Support Act 1991)] in respect of a debt or obligation of which the debtor would be discharged under section 55 of this Act were he discharged under section 54 thereof shall not be competent against income vesting in him under subsection (1) above.
(6)Without prejudice to subsection (1) above, any estate, wherever situated, which—
(a)is acquired by the debtor on a relevant date; and
(b)would have vested in the F378. . . trustee if it had been part of the debtor’s estate on the date of sequestration,
shall vest in the F378. . . trustee for the benefit of the creditors as at the date of acquisition; and any person who holds any such estate shall, on production to him of a copy of the [F387order] certified by the sheriff clerk [F388or, as the case may be, by the Accountant in Bankruptcy appointing the trustee] , convey or deliver the estate to the F389. . . trustee:
Provided that—
if such a person has in good faith and without knowledge of the sequestration conveyed the estate to the debtor or to anyone on the instructions of the debtor, he shall incur no liability to the F378. . . trustee except to account for any proceeds of the conveyance which are in his hands; and
this subsection shall be without prejudice to any right or interest acquired in the estate in good faith and for value.
(7)The debtor shall immediately notify the F378. . . trustee of any assets acquired by him on a relevant date or of any other substantial change in his financial circumstances; and, if the debtor fails to comply with this subsection, he shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale or to imprisonment for a term not exceeding 3 months or to both.
(8)Subject to subsection (9) below, any dealing of or with the debtor relating to his estate vested in the F378. . . trustee under [F390this section or] section 31 of this Act shall be of no effect in a question with the F378. . . trustee.
(9)Subsection (8) above shall not apply where the person seeking to uphold the dealing establishes—
(a)that the F378. . . trustee—
(i)has abandoned to the debtor the property to which the dealing relates;
(ii)has expressly or impliedly authorised the dealing; or
(iii)is otherwise personally barred from challenging the dealing, or
(b)that the dealing is—
(i)the performance of an obligation undertaken before the date of sequestration by a person obliged to the debtor in the obligation;
(ii)the purchase from the debtor of goods for which the purchaser has given value to the debtor or is willing to give value to the F378. . . trustee; or
(iii)a banking transaction in the ordinary course of business between the banker and the debtor[F391; or
(iv)one which satisfies the conditions mentioned in subsection (9ZA) below,]
and that the person dealing with the debtor was, at the time when the dealing occurred, unaware of the sequestration and had at that time no reason to believe that the debtor’s estate had been sequestrated or was the subject of sequestration proceedings.
[F392(9ZA)The conditions are that —
(a)the dealing constitutes—
(i)the transfer of incorporeal moveable property; or
(ii)the creation, transfer, variation or extinguishing of a real right in heritable property,
for which the person dealing with the debtor has given adequate consideration to the debtor, or is willing to give adequate consideration to the trustee;
(b)the dealing requires the delivery of a deed; and
(c)the delivery occurs during the period beginning with the date of sequestration and ending on the day which falls 7 days after the day on which—
(i)the certified copy of the order of the sheriff granting warrant is recorded under subsection (1)(a) of section 14 of this Act; or
(ii)the certified copy of the determination of the Accountant in Bankruptcy awarding sequestration is recorded under subsection (1A) of that section,
in the register of inhibitions.]
[F393(9A)Where the trustee has abandoned to the debtor any heritable property, notice in such form as may be prescribed given to the debtor by the trustee shall be sufficient evidence that the property is vested in the debtor.
(9B)Where the trustee gives notice under subsection (9A) above, he shall, as soon as reasonably practicable after giving the notice, record a certified copy of it in the register of inhibitions.]
(10)In this section “a relevant date” means a date after the date of sequestration and before the date on which the debtor’s discharge becomes effective.
Textual Amendments
F377Words in s. 32(1) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 18(2), 227(3) (with s. 223); S.S.I. 2008/115, art. 3(1)(a) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F378Words in s. 32 repealed (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 226, 227(3), Sch. 6 Pt. 1 (with s. 223); S.S.I. 2008/115, art. 3(2)(3), Sch. 2 (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F379Words in s. 32(2) inserted (29.5.2000) by 1999 c. 30, s. 18, Sch. 2 para. 1; S.I. 2000/1382, art. 2(c)(e)
F380S. 32(2WA)-(2ZA) inserted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss 18(3), 227(3) (with s. 223); S.S.I. 2008/115, art. 3(1)(a) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F381S. 32(2A) inserted (6.4.1997) by 1995 c. 26, s. 122, Sch. 3 para. 14; S.I. 1997/664, art. 2(3), Sch. Pt. II
F382Words in s. 32(3)(b) inserted (5.12.2005) by Civil Partnership Act 2004 (c. 33), ss. 261(2), 263, Sch. 28 para. 34; S.S.I. 2005/604, art. 2(c)
F383S. 32(3)(c) inserted (4.4.1993) by Child Support Act 1991 (c. 48, SIF 20), s. 58(13), Sch. 5 para. 6(2)(a)(i) (with s. 9(2)); S.I. 1992/2644, art. 2.
F384Words in s. 32(3) inserted (4.4.1993) by Child Support Act 1991 (c. 48, SIF 20), s. 58(13), Sch. 5 para. 6(2)(a)(ii) (with s. 9(2)); S.I. 1992/2644, art. 2.
F385S. 32(4A)-(4L) inserted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss 18(4), 227(3) (with s. 223); S.S.I. 2008/115, art. 3(1)(a) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F386Words in s. 32(5) inserted (4.4.1993) by Child Support Act 1991 (c. 48, SIF 20), s. 58(13), Sch. 5 para. 6(2)(b) (with s. 9(2)); S.I. 1992/2644, art. 2.
F387Words in s. 32(6) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 32(a) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F388Words in s. 32(6) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 32(b) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F389Words in s. 32 repealed (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 226, 227(3), Sch. 6 Pt. 1 (with s. 223); S.S.I. 2008/115, art. 3(1)(h)(2)(3), Sch. 2 (with arts. 4-6, 10) (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5)
F390Words in s. 32(8) inserted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss 17(2)(a), 227(3) (with s. 223); S.S.I. 2008/115, art. 3(1)(a) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F391S. 32(9)(b)(iv) and preceding word inserted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss 17(2)(b), 227(3) (with s. 223); S.S.I. 2008/115, art. 3(1)(a) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F392S. 32(9ZA) inserted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss 17(2)(c), 227(3) (with s. 223); S.S.I. 2008/115, art. 3(1)(a) (with arts. 4-6, 10) (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5)
F393S. 32(9A)(9B) inserted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 19(1), 227(3) (with s. 223); S.S.I. 2008/115, art. 3(1)(a) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
Modifications etc. (not altering text)
C11S. 32(2) amended by Education (Student Loans) Act 1990 (c. 6, SIF 41:1, 2), s. 1(5), Sch. 2 para. 6(a)
S. 32(2) restricted (12.8.1998) by 1998/2003, art. 13(2)(a)
S. 32(2) restricted (7.7.2000) by S.S.I. 2000/200, art. 16
C12S. 32(6) amended by Education (Student Loans) Act 1990 (c. 6, SIF 41:1, 2), s. 1(5), Sch. 2 para. 6(b)
C13S. 32(8) excluded (25.4.1991) by Companies Act 1989 (c. 40, SIF 27), ss. 154, 155, 164(3), 175(4); S.I. 1991/878, art. 2, Sch.
C14S. 32(8) excluded (11.12.1999) by S.I. 1999/2979, reg. 16(3)
S. 32(8) excluded (11.12.1999) by S.I. 1999/2979, reg. 19(3)
Marginal Citations
(1)The following property of the debtor shall not vest in the F394. . . trustee—
[F395(a)any property kept outwith a dwellinghouse in respect of which attachment is, by virtue of section 11(1) of the Debt Arrangement and Attachment (Scotland) Act 2002 (asp 17), incompetent;
(aa)any property kept in a dwellinghouse which is not a non-essential asset for the purposes of Part 3 of that Act;]
(b)property held on trust by the debtor for any other person.
(2)The vesting of a debtor’s estate in a F394. . . trustee shall not affect the right of hypothec of a landlord.
(3)Sections 31 and 32 of this Act are without prejudice to the right of any secured creditor which is preferable to the rights of the F394. . . trustee.
Textual Amendments
F394Words in s. 33 repealed (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 226, 227(3), Sch. 6 Pt. 1 (with s. 223); S.S.I. 2008/115, art. 3(2)(3), Sch. 2 (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F395S. 33(1)(a)(aa) substituted (30.12.2002) for s. 33(1)(a) by Debt Arrangement and Attachment (Scotland) Act 2002 (asp 17), ss. 61, 64(2), Sch. 3 Pt. 1 para. 15(3)
Modifications etc. (not altering text)
C15S. 33(1)(a) continued (31.12.2002 or such earlier date as the Scottish Ministers may appoint) by 2001 asp 1, ss. 2(1)(a), 4(1) (with s. 2) (which amending Act was repealed (30.12.2002) by Debt Arrangement and Attachment (Scotland) Act 2002 (asp 17), s. 61, Sch. 3 Pt. 1 para. 27 (with s. 63))
(1)Where this subsection applies, an alienation by a debtor shall be challengeable by—
(a)any creditor who is a creditor by virtue of a debt incurred on or before the date of sequestration, or before the granting of the trust deed or the debtor’s death, as the case may be; or
(b)the F396. . . trustee, the trustee acting under the trust deed or the judicial factor, as the case may be.
(2)Subsection (1) above applies where—
(a)by the alienation, whether before or after the coming into force of this section, any of the debtor’s property has been transferred or any claim or right of the debtor has been discharged or renounced; and
(b)any of the following has occurred—
(i)his estate has been sequestrated (other than, in the case of a natural person, after his death); or
(ii)he has granted a trust deed which has become a protected trust deed; or
(iii)he has died and within 12 months after his death, his estate has been sequestrated; or
(iv)he has died and within the said 12 months, a judicial factor has been appointed under section 11A of the M5Judicial Factors (Scotland) Act 1889 to administer his estate and the estate was absolutely insolvent at the date of death; and
(c)the alienation took place on a relevant day.
(3)For the purposes of paragraph (c) of subsection (2) above, the day on which an alienation took place shall be the day on which the alienation became completely effectual; and in that paragraph “relevant day” means, if the alienation has the effect of favouring—
(a)a person who is an associate of the debtor, a day not earlier than 5 years before the date of sequestration, the granting of the trust deed or the debtor’s death, as the case may be; or
(b)any other person, a day not earlier than 2 years before the said date.
(4)On a challenge being brought under subsection (1) above, the court shall grant decree of reduction or for such restoration of property to the debtor’s estate or other redress as may be appropriate, but the court shall not grant such a decree if the person seeking to uphold the alienation establishes—
(a)that immediately, or at any other time, after the alienation the debtor’s assets were greater than his liabilities; or
(b)that the alienation was made for adequate consideration; or
(c)that the alienation—
(i)was a birthday, Christmas or other conventional gift; or
(ii)was a gift made, for a charitable purpose, to a person who is not an associate of the debtor,
which having regard to all the circumstances, it was reasonable for the debtor to make:
Provided that this subsection shall be without prejudice to any right or interest acquired in good faith and for value from or through the transferee in the alienation.
(5)In subsection (4) above, “charitable purpose” means any charitable, benevolent or philanthropic purpose whether or not it is charitable within the meaning of any rule of law.
(6)For the purposes of the foregoing provisions of this section, an alienation in implementation of a prior obligation shall be deemed to be one for which there was no consideration or no adequate consideration to the extent that the prior obligation was undertaken for no consideration or no adequate consideration.
(7)This section is without prejudice to the operation of section 2 of the M6Married Women’s Policies of Assurance (Scotland) Act 1880 (policy of assurance may be effected in trust for spouse, future spouse and children) [F397including the operation of that section as applied by section 132 of the Civil Partnership Act 2004] .
(8)A F396. . . trustee, the trustee acting under a protected trust deed and a judicial factor appointed under section 11A of the M7Judicial Factors (Scotland) Act 1889 shall have the same right as a creditor has under any rule of law to challenge an alienation of a debtor made for no consideration or for no adequate consideration.
(9)The F396. . . trustee shall insert in the sederunt book a copy of any decree under this section affecting the sequestrated estate.
Textual Amendments
F396Words in s. 34 repealed (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 226, 227(3), Sch. 6 Pt. 1 (with s. 223); S.S.I. 2008/115, art. 3(2)(3), Sch. 2 (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F397Words in s. 34(7) inserted (5.12.2005) by Civil Partnership Act 2004 (c. 33), ss. 261(2), 263, Sch. 28 para. 35; S.S.I. 2005/604 {art. 2(c)}
Modifications etc. (not altering text)
C16S. 34 restricted by Drug Trafficking Offences Act 1986 (c. 32, SIF 39:1), s. 16(6)(a)
C17S. 34 excluded (25.4.1991) by Companies Act 1989 (c. 40, SIF 27), ss. 154, 155, 165(2)(a); S.I. 1991/878, art. 2,Sch.
C18S. 34 restricted (25.4.1991) by Companies Act 1989 (c. 40, SIF 27), s. 182(4), Sch. 22 para. 8(2)(a); S.I. 1991/878, art. 2,Sch.
C19S. 34 restricted by Criminal Justice Act 1988 (c. 33, SIF 39:1), ss. 85(6)(a), 123, Sch. 8 para. 16
C20S. 34 amended by Criminal Justice Act 1988 (c. 33, SIF 39:1), ss. 85(6)(b), 123, Sch. 8 para. 16
C21S. 34 restricted (3.2.1995) by 1994 c. 37, ss. 33(6)(a), 69(2) (with s. 66(2))
S. 34 restricted (1.4.1996) by 1995 c. 43, ss. 44(1), 50(2), Sch. 2 para. 1(5)
C22S. 34 applied (with modifications) (4.4.2006) by The Cross-Border Insolvency Regulations 2006 (S.I.2006/1030), reg. 2(1), Sch. 1 Article 23 paras. 1-3 (subject to paras. 6, 9)
C23S. 34 restricted (24.3.2003) by Proceeds of Crime Act 2002 (c. 29), ss. 422(2), 458(1); S.I. 2003/333, art. 2(1), Sch. (subject to transitional provisions and savings in arts. 3-14) (as amended by S.I. 2003/531, art. 2)
C24S. 34 restricted (11.12.1999) by S.I. 1999/2979, reg. 17(2)(a)
Marginal Citations
(1)This section applies where—
(a)a court has made an order, whether before or after the coming into force of this section, under section 5 of the M8Divorce (Scotland) Act 1976 or section 8(2) of the M9Family Law (Scotland) Act 1985, for the payment by a debtor of a capital sum or [F398a court has, under the said section 8(2), made an order for the transfer of property by him or made a pension sharing order];
(b)on the date of the making of the order the debtor was absolutely insolvent or was rendered so by implementation of the order; and
(c)within 5 years after the making of the order—
(i)the debtor’s estate has been sequestrated other than after his death; or
(ii)he has granted a trust deed which has (whether or not within the 5 years) become a protected trust deed; or
(iii)he has died and, within 12 months after his death, his estate has been sequestrated; or
(iv)he has died and, within the said 12 months, a judicial factor has been appointed under section 11A of the Judicial Factors (Scotland) Act 1889 to administer his estate.
(2)Where this section applies, the court, on an application brought by the F399. . . trustee, the trustee acting under the trust deed or the judicial factor, may make an order for recall of the order made under the said section 5 or 8(2) and for the repayment to the applicant of the whole or part of any sum already paid, or as the case may be for the return to the applicant of all or part of any property already transferred, under that order, or, where such property has been sold, for payment to the applicant of all or part of the proceeds of sale:
Provided that before making an order under this subsection the court shall have regard to all the circumstances including, without prejudice to the generality of this proviso, the financial, and other, circumstances (in so far as made known to the court) of the person against whom the order would be made.
(3)Where an application is brought under this section in a case where the debtor’s estate has been sequestrated, the F399. . . trustee shall insert a copy of the decree of recall in the sederunt book.
Textual Amendments
F398Words in s. 35(1)(a) substituted (26.3.2002 for certain purposes and otherwise 6.4.2002) by 1999 c. 30, ss. 84, 89(1), Sch. 12 Pt. II para. 68; S.I. 2002/818, art. 3(b)
F399Words in s. 35 repealed (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 226, 227(3), Sch. 6 Pt. 1 (with s. 223); S.S.I. 2008/115, art. 3(2)(3), Sch. 2 (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
Modifications etc. (not altering text)
C25S. 35 applied (with modifications) (4.4.2006) by The Cross-Border Insolvency Regulations 2006 (S.I. 2006/1030), reg. 2(1), Sch. 1 Article 23 paras. 1-3 (subject to paras. 6, 9)
Marginal Citations
(1)Subject to subsection (2) below, subsection (4) below applies to a transaction entered into by a debtor, whether before or after the coming into force of this section, which has the effect of creating a preference in favour of a creditor to the prejudice of the general body of creditors, being a preference created not earlier than 6 months before—
(a)the date of sequestration of the debtor’s estate (if, in the case of a natural person, a date within his lifetime); or
(b)the granting by him of a trust deed which has become a protected trust deed; or
(c)his death where, within 12 months after his death—
(i)his estate has been sequestrated, or
(ii)a judicial factor has been appointed under section 11A of the M10Judicial Factors (Scotland) Act 1889 to administer his estate and his estate was absolutely insolvent at the date of death.
(2)Subsection (4) below shall not apply to any of the following transactions—
(a)a transaction in the ordinary course of trade or business;
(b)a payment in cash for a debt which when it was paid had become payable unless the transaction was collusive with the purpose of prejudicing the general body of creditors;
(c)a transaction whereby the parties thereto undertake reciprocal obligations (whether the performance by the parties of their respective obligations occurs at the same time or at different times) unless the transaction was collusive as aforesaid;
(d)the granting of a mandate by a debtor authorising an arrestee to pay over the arrested funds or part thereof to the arrester where—
(i)there has been a decree for payment or a warrant for summary diligence; and
(ii)the decree or warrant has been preceded by an arrestment on the dependence of the action or followed by an arrestment in execution.
(3)For the purposes of subsection (1) above, the day on which a preference was created shall be the day on which the preference became completely effectual.
(4)A transaction to which this subsection applies shall be challengeable by—
(a)any creditor who is a creditor by virtue of a debt incurred on or before the date of sequestration, the granting of the protected trust deed or the debtor’s death, as the case may be; or
(b)the F400. . . trustee, the trustee acting under the protected trust deed, or the judicial factor, as the case may be.
(5)On a challenge being brought under subsection (4) above, the court, if satisfied that the transaction challenged is a transaction to which this section applies, shall grant decree of reduction or for such restoration of property to the debtor’s estate or other redress as may be appropriate:
Provided that this subsection shall be without prejudice to any right or interest acquired in good faith and for value from or through the creditor in whose favour the preference was created.
(6)A F400. . . trustee, the trustee acting under a protected trust deed and a judicial factor appointed under section 11A of the M11Judicial Factors (Scotland) Act 1889 shall have the same right as a creditor has under any rule of law to challenge a preference created by a debtor.
(7)The F400. . . trustee shall insert in the sederunt book a copy of any decree under this section affecting the sequestrated estate.
Textual Amendments
F400Words in s. 36 repealed (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 226, 227(3), Sch. 6 Pt. 1 (with s. 223); S.S.I. 2008/115, art. 3(2)(3), Sch. 2 (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
Modifications etc. (not altering text)
C26S. 36 restricted (24.3.2003) by Proceeds of Crime Act 2002 (c. 29), ss. 422(2), 458(1); S.I. 2003/333, art. 2(1), Sch. (subject to transitional provisions and savings in arts. 3-14) (as amended by S.I. 2003/531, art. 2)
C27S. 36 restricted by Drug Trafficking Offences Act 1986 (c. 32, SIF 39:1), s. 16(6)(a)
C28S. 36 excluded (25.4.1991) by Companies Act 1989 (c. 40, SIF 27), ss. 154, 155, 165(2)(a); S.I. 1991/878, art. 2,Sch.
C29S. 36 restricted (25.4.1991) by Companies Act 1989 (c. 40, SIF 27), ss. 182(4), Sch. 22 para. 8(2)(a); S.I. 1991/878, art. 2,Sch.
C30S. 36 restricted by Criminal Justice Act 1988 (c. 33, SIF 39:1), ss. 85(6)(a), 123, Sch. 8 para. 16
C31S. 36 amended by Criminal Justice Act 1988 (c. 33, SIF 39:1), ss. 85(6)(b), 123, Sch. 8 para. 16
C32S. 36 restricted (3.2.1995) by 1994 c. 37, ss. 33(6)(a), 69(2) (with s. 66(2))
S. 36 restricted (1.4.1996) by 1995 c. 43, ss. 44(1), 50(2), Sch. 2 para. 1(5)(a)(b)
S. 36 restricted (11.12.1999) by S.I. 1999/2979, reg. 17(2)(a)
C33S. 36 applied (with modifications) (4.4.2006) by The Cross-Border Insolvency Regulations 2006 (S.I. 2006/1030), reg. 2(1), Sch. 1 Article 23 paras. 1-3 (subject to paras. 6, 9)
Marginal Citations
(1)Where a debtor’s estate has been sequestrated and he—
(a)has rights under an approved pension arrangement, or
(b)has excluded rights under an unapproved pension arrangement,
the F402. . . trustee may apply to the court for an order under this section.
(2)If the court is satisfied—
(a)that the rights under the arrangement are to any extent, and whether directly or indirectly, the fruits of relevant contributions, and
(b)that the making of any of the relevant contributions (“the excessive contributions”) has unfairly prejudiced the debtor’s creditors,
the court may make such order as it thinks fit for restoring the position to what it would have been had the excessive contributions not been made.
(3)Subsection (4) applies where the court is satisfied that the value of the rights under the arrangement is, as a result of rights of the debtor under the arrangement or any other pension arrangement having at any time become subject to a debit under section 29(1)(a) of the Welfare Reform and Pensions Act 1999 (debits giving effect to pension-sharing), less than it would otherwise have been.
(4)Where this subsection applies—
(a)any relevant contributions which were represented by the rights which became subject to the debit shall, for the purposes of subsection (2), be taken to be contributions of which the rights under the arrangement are the fruits, and
(b)where the relevant contributions represented by the rights under the arrangement (including those so represented by virtue of paragraph (a)) are not all excessive contributions, relevant contributions which are represented by the rights under the arrangement otherwise than by virtue of paragraph (a) shall be treated as excessive contributions before any which are so represented by virtue of that paragraph.
(5)In subsections (2) to (4) “relevant contributions” means contributions to the arrangement or any other pension arrangement—
(a)which the debtor has at any time made on his own behalf, or
(b)which have at any time been made on his behalf.
(6)The court shall, in determining whether it is satisfied under subsection (2)(b), consider in particular—
(a)whether any of the contributions were made for the purpose of putting assets beyond the reach of the debtor’s creditors or any of them, and
(b)whether the total amount of any contributions—
(i)made by or on behalf of the debtor to pension arrangements, and
(ii)represented (whether directly or indirectly) by rights under approved pension arrangements or excluded rights under unapproved pensions arrangements,
is an amount which is excessive in view of the debtor’s circumstances when those contributions were made.
(7)For the purposes of this section and sections 36B and 36C (“the recovery provisions”), rights of a debtor under an unapproved pension arrangement are excluded rights if they are rights which are excluded from his estate by virtue of regulations under section 12 of the Welfare Reform and Pensions Act 1999.
(8)In the recovery provisions—
“approved pension arrangement” has the same meaning as in section 11 of the Welfare Reform and Pensions Act 1999;
“unapproved pension arrangement” has the same meaning as in section 12 of that Act.]
Textual Amendments
F401Ss. 36A-36C substituted (11.11.1999 for certain purposes and 6.4.2002 in so far as not already in force) by 1999 c. 30, ss. 16, 89(5)(a); S.I. 2002/153, art. 2(f)
F402Word in s. 36A repealed (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 226, 227(3), Sch. 6 Pt. 1 (with s. 223); S.S.I. 2008/115, art. 3(2)(3), Sch. 2 (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
Modifications etc. (not altering text)
C34S. 36A applied (with modifications) (4.4.2006) by The Cross-Border Insolvency Regulations 2006 (S.I. 2006/1030), reg. 2(1), Sch. 1 Article 23 paras. 1-3 (subject to paras. 6, 9)
(1)Without prejudice to the generality of section 36A(2) an order under section 36A may include provision—
(a)requiring the person responsible for the arrangement to pay an amount to the F404. . . trustee,
(b)adjusting the liabilities of the arrangement in respect of the debtor,
(c)adjusting any liabilities of the arrangement in respect of any other person that derive, directly or indirectly, from rights of the debtor under the arrangement,
(d)for the recovery by the person responsible for the arrangement (whether by deduction from any amount which that person is ordered to pay or otherwise) of costs incurred by that person in complying in the debtor’s case with any requirement under section 36C(1) or in giving effect to the order.
(2)In subsection (1), references to adjusting the liabilities of the arrangement in respect of a person include (in particular) reducing the amount of any benefit or future benefit to which that person is entitled under the arrangement.
(3)In subsection (1)(c), the reference to liabilities of the arrangement does not include liabilities in respect of a person which result from giving effect to an order or provision falling within section 28(1) of the Welfare Reform and Pensions Act 1999 (pension sharing orders and agreements).
(4)The maximum amount which the person responsible for an arrangement may be required to pay by an order under section 36A is the lesser of—
(a)the amount of the excessive contributions, and
(b)the value of the debtor’s rights under the arrangement (if the arrangement is an approved pension arrangement) or of his excluded rights under the arrangement (if the arrangement is an unapproved pension arrangement).
(5)An order under section 36A which requires the person responsible for an arrangement to pay an amount (“the restoration amount”) to the F404. . . trustee must provide for the liabilities of the arrangement to be correspondingly reduced.
(6)For the purposes of subsection (5), liabilities are correspondingly reduced if the difference between—
(a)the amount of the liabilities immediately before the reduction, and
(b)the amount of the liabilities immediately after the reduction,
is equal to the restoration amount.
(7)An order under section 36A in respect of an arrangement—
(a)shall be binding on the person responsible for the arrangement; and
(b)overrides provisions of the arrangement to the extent that they conflict with the provisions of the order.
Textual Amendments
F403Ss. 36A-36C substituted (11.11.1999 for certain purposes and 6.4.2002 in so far as not already in force) by 1999 c. 30, s. 16; S.I. 2002/153, art. 2(f)
F404Words in s. 36B repealed (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 226, 227(3), Sch. 6 Pt. 1 (with s. 223); S.S.I. 2008/115, art. 3(2)(3), Sch. 2 (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
Modifications etc. (not altering text)
C35S. 36B applied (with modifications) (4.4.2006) by The Cross-Border Insolvency Regulations 2006 (S.I. 2006/1030), reg. 2(1), Sch. 1 Article 23 paras. 1-3 (subject to paras. 6, 9)
(1)The person responsible for—
(a)an approved pension arrangement under which a debtor has rights,
(b)an unapproved pension arrangement under which a debtor has excluded rights, or
(c)a pension arrangement under which a debtor has at any time had rights,
shall, on the F406. . . trustee making a written request, provide the F406. . . trustee with such information about the arrangement and rights as the F406. . . trustee may reasonably require for, or in connection with, the making of applications under section 36A.
(2)Nothing in—
(a)any provision of section 159 of the M12Pensions Schemes Act 1993 or section 91 of the M13Pensions Act 1995 (which prevent assignation and the making of orders that restrain a person from receiving anything which he is prevented from assigning),
(b)any provision of any enactment (whether passed or made before or after the passing of the Welfare Reform and Pensions Act 1999) corresponding to any of the provisions mentioned in paragraph (a), or
(c)any provision of the arrangement in question corresponding to any of those provisions,
applies to a court exercising its powers under section 36A.
(3)Where any sum is required by an order under section 36A to be paid to the F406. . . trustee, that sum shall be comprised in the debtor’s estate.
(4)Regulations may, for the purposes of the recovery provisions, make provision about the calculation and verification of—
(a)any such value as is mentioned in section 36B(4)(b);
(b)any such amounts as are mentioned in section 36B(6)(a) and (b).
(5)The power conferred by subsection (4) includes power to provide for calculation or verification—
(a)in such manner as may, in the particular case, be approved by a prescribed person; or
[F407(b)in accordance with guidance from time to time prepared by a prescribed person.]
(6)References in the recovery provisions to the person responsible for a pension arrangement are to—
(a)the trustees, managers or provider of the arrangement, or
(b)the person having functions in relation to the arrangement corresponding to those of a trustee, manager or provider.
(7)In this section and sections 36A and 36B—
“the recovery provisions” means this section and sections 36A and 36B;
“regulations” means regulations made by the Secretary of State.
(8)Regulations under the recovery provisions may contain such incidental, supplemental and transitional provisions as appear to the Secretary of State necessary or expedient.
Textual Amendments
F405Ss. 36A-36C substituted (11.11.1999 for certain purposes and 6.4.2002 in so far as not already in force) by 1999 c. 30, ss. 16, 89; S.I. 2002/153, art. 2(f)
F406Words in s. 36C repealed (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 226, 227(3), Sch. 6 Pt. 1 (with s. 223); S.S.I. 2008/115, art. 3(2)(3), Sch. 2 (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F407S. 36C(5)(b) substituted (1.11.2007) by Pensions Act 2007 (c. 22), ss. 17, 30(2)(c), Sch. 5 para. 1; S.I. 2007/3063, art. 2(a)(b)
Modifications etc. (not altering text)
C36S. 36C applied (with modifications) (4.4.2006) by The Cross-Border Insolvency Regulations 2006 (S.I. 2006/1030), reg. 2(1), Sch. 1 Article 23 paras. 1-3 (subject to paras. 6, 9)
Marginal Citations
(1)For the purposes of section 34 of this Act, a pension-sharing transaction shall be taken—
(a)to be a transaction, entered into by the transferor with the transferee, by which the appropriate amount is transferred by the transferor to the transferee; and
(b)to be capable of being an alienation challengeable under that section only so far as it is a transfer of so much of the appropriate amount as is recoverable.
(2)For the purposes of section 35 of this Act, a pension-sharing transaction shall be taken—
(a)to be a pension sharing order made by the court under section 8(2) of the Family Law (Scotland) Act 1985; and
(b)to be an order capable of being recalled under that section only so far as it is a payment or transfer of so much of the appropriate amount as is recoverable.
(3)For the purposes of section 36 of this Act, a pension-sharing transaction shall be taken—
(a)to be something (namely a transfer of the appropriate amount to the transferee) done by the transferor; and
(b)to be capable of being an unfair preference given to the transferee only so far as it is a transfer of so much of the appropriate amount as is recoverable.
(4)Where—
(a)an alienation is challenged under section 34;
(b)an application is made under section 35 for the recall of an order made in divorce proceedings; or
(c)a transaction is challenged under section 36,
if any question arises as to whether, or the extent to which, the appropriate amount in the case of a pension-sharing transaction is recoverable, the question shall be determined in accordance with subsections (5) to (9).
(5)The court shall first determine the extent (if any) to which the transferor’s rights under the shared arrangement at the time of the transaction appear to have been (whether directly or indirectly) the fruits of contributions (“personal contributions”)—
(a)which the transferor has at any time made on his own behalf, or
(b)which have at any time been made on the transferor’s behalf,
to the shared arrangement or any other pension arrangement.
(6)Where it appears that those rights were to any extent the fruits of personal contributions, the court shall then determine the extent (if any) to which those rights appear to have been the fruits of personal contributions whose making has unfairly prejudiced the transferor’s creditors (“the unfair contributions”).
(7)If it appears to the court that the extent to which those rights were the fruits of the unfair contributions is such that the transfer of the appropriate amount could have been made out of rights under the shared arrangement which were not the fruits of the unfair contributions, then the appropriate amount is not recoverable.
(8)If it appears to the court that the transfer could not have been wholly so made, then the appropriate amount is recoverable to the extent to which it appears to the court that the transfer could not have been so made.
(9)In making the determination mentioned in subsection (6) the court shall consider in particular—
(a)whether any of the personal contributions were made for the purpose of putting assets beyond the reach of the transferor’s creditors or any of them; and
(b)whether the total amount of any personal contributions represented, at the time the pension sharing arrangement was made, by rights under pension arrangements is an amount which is excessive in view of the transferor’s circumstances when those contributions were made.
(10)In this section and sections 36E and 36F—
“appropriate amount”, in relation to a pension-sharing transaction, means the appropriate amount in relation to that transaction for the purposes of section 29(1) of the Welfare Reform and Pensions Act 1999 (creation of pension credits and debits);
“pension-sharing transaction” means an order or provision falling within section 28(1) of the Welfare Reform and Pensions Act 1999 (orders and agreements which activate pension-sharing);
“”, in relation to a pension-sharing transaction, means the pension arrangement to which the transaction relates;
“transferee”, in relation to a pension-sharing transaction, means the person for whose benefit the transaction is made;
“transferor”, in relation to a pension-sharing transaction, means the person to whose rights the transaction relates.]
Textual Amendments
F408S. 36D inserted (26.3.2002 for certain purposes and otherwise 6.4.2002) by 1999 c. 30, ss. 84(1), 89(1), Sch. 12 Pt. II para. 69; S.I 2002/818 {art. 3(b)}
(1)In this section and section 36F of this Act, “recovery order” means—
(a)a decree granted under section 34(4) of this Act;
(b)an order made under section 35(2) of this Act;
(c)a decree granted under section 36(5) of this Act,
in any proceedings to which section 36D of this Act applies.
(2)Without prejudice to the generality of section 34(4), 35(2) or 36(5) a recovery order may include provision—
(a)requiring the person responsible for a pension arrangement in which the transferee has acquired rights derived directly or indirectly from the pension-sharing transaction to pay an amount to the F410. . . trustee,
(b)adjusting the liabilities of the pension arrangement in respect of the transferee,
(c)adjusting any liabilities of the pension arrangement in respect of any other person that derive, directly or indirectly, from rights of the transferee under the arrangement,
(d)for the recovery by the person responsible for the pension arrangement (whether by deduction from any amount which that person is ordered to pay or otherwise) of costs incurred by that person in complying in the debtor’s case with any requirement under section 36F(1) or in giving effect to the order.
(3)In subsection (2), references to adjusting the liabilities of a pension arrangement in respect of a person include (in particular) reducing the amount of any benefit or future benefit to which that person is entitled under the arrangement.
(4)The maximum amount which the person responsible for an arrangement may be required to pay by a recovery order is the smallest of—
(a)so much of the appropriate amount as, in accordance with section 36D of this Act, is recoverable,
(b)so much (if any) of the amount of the unfair contributions (within the meaning given by section 36D(6)) as is not recoverable by way of an order under section 36A of this Act containing provision such as is mentioned in section 36B(1)(a), and
(c)the value of the debtor’s rights under the arrangement acquired by the transferee as a consequence of the transfer of the appropriate amount.
(5)A recovery order which requires the person responsible for an arrangement to pay an amount (“the restoration amount”) to the F410. . . trustee must provide for the liabilities of the arrangement to be correspondingly reduced.
(6)For the purposes of subsection (5), liabilities are correspondingly reduced if the difference between—
(a)the amount of the liabilities immediately before the reduction, and
(b)the amount of the liabilities immediately after the reduction,
is equal to the restoration amount.
(7)A recovery order in respect of an arrangement—
(a)shall be binding on the person responsible for the arrangement, and
(b)overrides provisions of the arrangement to the extent that they conflict with the provisions of the order.]
Textual Amendments
F409S. 36E inserted (26.3.2002 for certain purposes and otherwise 6.4.2002) by 1999 c. 30, ss. 84(1), 89(1), Sch. 12 Pt. II para. 69; S.I 2002/818, {art. 3(b)}
F410Words in s. 36E repealed (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 226, 227(3), Sch. 6 Pt. 1 (with s. 223); S.S.I. 2008/115, art. 3(2)(3), Sch. 2 (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
(1)The person responsible for a pension arrangement under which the transferee has, at any time, acquired rights by virtue of the transfer of the appropriate amount shall, on the F412. . . trustee making a written request, provide the trustee with such information about the arrangement and the rights under it of the transferor and transferee as the F412. . . trustee may reasonably require for, or in connection with, the making of an application for a recovery order.
(2)Nothing in—
(a)any provision of section 159 of the M14Pension Schemes Act 1993 or section 91 of the M15Pensions Act 1995 (which prevent assignation and the making of orders which restrain a person from receiving anything which he is prevented from assigning),
(b)any provision of any enactment (whether passed or made before or after the passing of the Welfare Reform and Pensions Act 1999) corresponding to any of the provisions mentioned in paragraph (a), or
(c)any provision of the arrangement in question corresponding to any of those provisions,
applies to a court exercising its power to make a recovery order.
(3)Regulations may, for the purposes of the recovery provisions, make provision about the calculation and verification of—
(a)any such value as is mentioned in section 36E(4)(c);
(b)any such amounts as are mentioned in section 36E(6)(a) and (b).
(4)The power conferred by subsection (3) includes power to provide for calculation or verification—
(a)in such manner as may, in the particular case, be approved by a prescribed person; or
[F413(b)in accordance with guidance from time to time prepared by a prescribed person.]
(5)References in the recovery provisions to the person responsible for a pension arrangement are to—
(a)the trustees, managers or provider of the arrangement, or
(b)the person having functions in relation to the arrangement corresponding to those of a trustee, manager or provider.
(6)In this section—
“prescribed” means prescribed by regulations;
“the recovery provisions” means this section and sections 34, 35, 36 and 36E of this Act;
“regulations” means regulations made by the Secretary of State.
(7)Regulations under the recovery provisions may—
(a)make different provision for different cases;
(b)contain such incidental, supplemental and transitional provisions as appear to the Secretary of State necessary or expedient.
(8)Regulations under the recovery provisions shall be made by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.]
Textual Amendments
F411S. 36F inserted (26.3.2002 for certain purposes and otherwise 6.4.2002) by 1999 c. 30, ss. 84(1), 89(1), Sch. 12 Pt. II para. 69; S.I 2002/818 {art. 3(b)}
F412Words in s. 36F repealed (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 226, 227(3), Sch. 6 Pt. 1 (with s. 223); S.S.I. 2008/115, art. 3(2)(3), Sch. 2 (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F413S. 36F(4)(b) substituted (1.11.2007) by Pensions Act 2007 (c. 22), ss. 17, 30(2)(c), Sch. 5 para. 2; S.I. 2007/3063, art. 2(a)(b)
Marginal Citations
(1)The order of the [F414sheriff or, as the case may be, the determination of the debtor application by the Accountant in Bankruptcy] awarding sequestration shall as from the date of sequestration have the effect, in relation to diligence done (whether before or after the date of sequestration) in respect of any part of the debtor’s estate, of—
(a)a decree of adjudication of the heritable estate of the debtor for payment of his debts which has been duly recorded in the register of inhibitions and adjudications on that date; and
(b)an arrestment in execution and decree of furthcoming, an arrestment in execution and warrant of sale, and [F415an attachment],
in favour of the creditors according to their respective entitlements.
(2)[F416Where an] inhibition on the estate of the debtor F417. . . takes effect within the period of 60 days before the date of sequestration F418. . . any relevant right of challenge shall, at the date of sequestration, vest in the F419. . . trustee as shall any right of the inhibitor to receive payment for the discharge of the inhibition:
Provided that this subsection shall neither entitle the trustee to receive any payment made to the inhibitor before the date of sequestration nor affect the validity of anything done before that date in consideration of such payment.
(3)In subsection (2) above, “any relevant right of challenge” means any right to challenge a deed voluntarily granted by the debtor if it is a right which vested in the inhibitor by virtue of the inhibition.
(4)No arrestment [F420, money attachment, interim attachment] or [F421attachment] of the estate of the debtor (including any estate vesting in the F422. . . trustee under section 32(6) of this Act) executed—
(a)within the period of 60 days before the date of sequestration and whether or not subsisting at that date; or
(b)on or after the date of sequestration,
shall be effectual to create a preference for the arrester or [F423attacher] ; and the estate so arrested or [F424attached][F425, or any funds released under section 73J(2) of the Debtors (Scotland) Act 1987 (c. 18) (automatic release of funds)] , or the proceeds of sale thereof, shall be handed over to the F426. . . trustee.
(5)An arrester or [F423attacher] whose arrestment [F427, money attachment, interim attachment] or [F421attachment] is executed within the said period of 60 days shall be entitled to payment, out of the arrested or [F424attached] estate or out of the proceeds of the sale thereof, of the expenses incurred—
(a)in obtaining
[F428(i)warrant for interim attachment; or
(ii)] the extract of the decree or other document on which the arrestment [F429, money attachment] or [F421attachment] proceeded;
(b)in executing the arrestment [F430, money attachment, interim attachment] or [F421attachment] ; and
(c)in taking any further action in respect of the diligence.
[F431(5A)Nothing in subsection (4) or (5) above shall apply to an earnings arrestment, a current maintenance arrestment [F432, a conjoined arrestment order or a deduction from earnings order under the Child Support Act 1991].]
(6)No poinding of the ground in respect of the estate of the debtor (including any estate vesting in the F433. . . trustee under section 32(6) of this Act) executed within the period of 60 days before the date of sequestration or on or after that date shall be effectual in a question with the F433. . . trustee, except for the interest on the debt of a secured creditor, being interest for the current half-yearly term and arrears of interest for one year immediately before the commencement of that term.
(7)The foregoing provisions of this section shall apply to the estate of a deceased debtor which—
(a)has been sequestrated; or
(b)was absolutely insolvent at the date of death and in respect of which a judicial factor has been appointed under section 11A of the M16Judicial Factors (Scotland) Act 1889,
within 12 months after his death, but as if for any reference to the date of sequestration and the debtor there were substituted respectively a reference to the date of the deceased’s death and to the deceased debtor.
(8)It shall be incompetent on or after the date of sequestration for any creditor to raise or insist in an adjudication against the estate of a debtor (including any estate vesting in the permanent trustee under section 32(6) of this Act) or to be confirmed as executor-creditor on the estate.
[F434(8A)A notice of land attachment registered—
(a)on or after the date of sequestration against land forming part of the heritable estate of the debtor (including any estate vesting in the trustee by virtue of section 32(6) of this Act); or
(b)before that date in relation to which, by that date, no land attachment is created,
shall be of no effect.
(8B)Subject to subsections (8C) to (8F) below, it shall not be competent for a creditor to insist in a land attachment—
(a)created over heritable estate of the debtor before the beginning of the period of six months mentioned in subsection (5B) above; and
(b)which subsists on the date of sequestration.
(8C)Where, in execution of a warrant for sale, a contract to sell the land has been concluded—
(a)the trustee shall concur in and ratify the deed implementing that contract; and
(b)the appointed person shall account for and pay to the trustee any balance of the proceeds of sale which would, but for the sequestration, be due to the debtor after disbursing those proceeds in accordance with section 116 of the Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3) (disbursement of proceeds of sale of attached land).
(8D)Subsection (8C) above shall not apply where the deed implementing the contract is not registered before the expiry of the period of 28 days beginning with the day on which—
(a)the certified copy of the order of the sheriff granting warrant is recorded under subsection (1)(a) of section 14 of this Act; or
(b)the certified copy of the determination of the Accountant in Bankruptcy awarding sequestration is recorded under subsection (1A) of that section,
in the register of inhibitions.
(8E)Where a decree of foreclosure has been granted but an extract of it has not registered, the creditor may proceed to complete title to the land by so registering that extract provided that the extract is registered before the expiry of the period mentioned in subsection (8D) above.
(8F)The Scottish Ministers may—
(a)prescribe such other period for the period mentioned in subsection (8D) above; and
(b)prescribe different periods for the purposes of that subsection and subsection (8E) above,
as they think fit.]
(9)Where—
(a)a deceased debtor’s estate is sequestrated; or
(b)a judicial factor is appointed under section 11A of the M17Judicial Factors (Scotland) Act 1889 to administer his estate (in a case where the estate is absolutely insolvent),
within 12 months after the debtor’s death, no confirmation as executor-creditor on that estate at any time after the debtor’s death shall be effectual in a question with the F435. . . trustee or the judicial factor; but the executor-creditor shall be entitled out of that estate, or out of the proceeds of sale thereof, to the expenses incurred by him in obtaining the confirmation.
[F436(10)Expressions used in subsections (5B), (5C) and (8A) to (8F) above which are also used in Chapter 2 of Part 4 of the Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3) have the same meanings in those subsections as they have in that Chapter.]
Textual Amendments
F414Words in s. 37(1) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 33 (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F415Words in s. 37(1)(b) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 226, 227(3), Sch. 5 para. 13(3)(a) (with s. 223); S.S.I. 2008/115, art. 3(2)(3) Sch. 1 (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F416Word in s. 37(2) substituted (22.4.2009) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 226(1), 227(3), Sch. 5 para. 13(3)(b) (with s. 223); S.S.I. 2009/67, art. 3(2)(3), Sch. 1
F417Word in s. 37(2) repealed (22.4.2009) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 226, 227(3), Sch. 6 Pt. 1 (with s. 223); S.S.I. 2009/67, art. 3(2)(3), Sch. 2
F418Words in s. 37(2) repealed (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 226, 227(3), Sch. 6 Pt. 1 (with s. 223); S.S.I. 2008/115, art. 3(1)(h)(2)(3), Sch. 2 (with arts. 4-6, 10) (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5)
F419Word in s. 37(2) repealed (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 226, 227(3), Sch. 6 Pt. 1 (with s. 223); S.S.I. 2008/115, art. 3(1)(h)(2)(3), Sch. 2 (with arts. 4-6, 10) (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5)
F420Words in s. 37(4) inserted (1.4.2008 for specified purposes and 23.11.2009 otherwise) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 226, 227(3), Sch. 5 para. 13(3)(c)(i) (with s. 223); S.S.I. 2008/115, art. 3(2)(3), Sch. 1 (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5)); S.S.I. 2009/369, art. 3, Sch. 1 (with transitional provisions in art. 4)
F421Words in s. 37(4)(5) substituted (30.12.2002) by Debt Arrangement and Attachment (Scotland) Act 2002 (asp. 17), s. 61, Sch. 3 Pt. 1 para. 15(4)(a)
F422Word in s. 37(4) repealed (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 226, 227(3), Sch. 6 Pt. 1 (with s. 223); S.S.I. 2008/115, art. 3(1)(h)(2)(3), Sch. 2 (with arts. 4-6, 10) (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5)
F423Words in s. 37(4)(5) substituted (30.12.2002) by Debt Arrangement and Attachment (Scotland) Act 2002 (asp. 17), s. 61, Sch. 3 Pt. 1 para. 15(4)(b)
F424Words in s. 37(4)(5) substituted (30.12.2002) by Debt Arrangement and Attachment (Scotland) Act 2002 (asp. 17), s. 61, Sch. 3 Pt. 1 para. 15(4)(c)
F425Words in s. 37(4) inserted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 226, 227(3), Sch. 5 para. 13(3)(c)(ii) (with s. 223); S.S.I. 2008/115, art. 3(2)(3), Sch. 1 (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F426Word in s. 37(4) repealed (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 226, 227(3), Sch. 6 Pt. 1 (with s. 223); S.S.I. 2008/115, art. 3(1)(h)(2)(3), Sch. 2 (with arts. 4-6, 10) (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5)
F427Words in s. 37(5) inserted (1.4.2008 for specified purposes and 23.11.2009 otherwise) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 226, 227(3), Sch. 5 para. 13(3)(d)(i) (with s. 223); S.S.I. 2008/115, art. 3(2)(3), Sch. 1 (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5)); S.S.I. 2009/369, art. 3, Sch. 1 (with transitional provisions in art. 4)
F428Words in s. 37(5)(a) inserted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 226, 227(3), Sch. 5 para. 13(3)(d)(ii) (with s. 223); S.S.I. 2008/115, art. 3(1)(h)(2)(3), Sch. 1 (with arts. 4-6, 10) (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5)
F429Words in s. 37(5) inserted (23.11.2009) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 226, 227(3), Sch. 5 para. 13(3)(d)(iii) (with s. 223); S.S.I. 2009/369, art. 3(2)(3), Sch. 1
F430Words in s. 37(5)(b) inserted (1.4.2008 for specified purposes and 23.11.2009 otherwise) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 226, 227(3), Sch. 5 para. 13(3)(d)(iv) (with s. 223); S.S.I. 2008/115, art. 3(2)(3), Sch. 1 (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5)); S.S.I. 2009/369, art. 3, Sch. 1 (with transitional provisions in art. 4)
F431S. 37(5A) inserted by Debtors (Scotland) Act 1987 (c. 18, SIF 45:2), s. 108(1)(2), Sch. 6 para. 27, Sch. 7 paras. 5, 9(1)
F432Words in s. 37(5A) substituted (4.4.1993) by Child Support Act 1991 (c. 48, SIF 20), s. 58(13), Sch. 5 para. 6(3) (with s. 9(2)); S.I. 1992/2644, art.2.
F433Words in s. 37(6) repealed (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 226, 227(3), Sch. 6 Pt. 1 (with s. 223); S.S.I. 2008/115, art. 3(1)(h)(2)(3), Sch. 2 (with arts. 4-6, 10) (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5)
F434S. 37(8A)-(8F) inserted (1.4.2008 for certain purposes, otherwise prosp.) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 226, 227(3), Sch. 5 para. 13(3)(f) (with s. 223); S.S.I. 2008/115, art. 3(2)(3), Sch. 1 (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F435Word in s. 37(9) repealed (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 226, 227(3), Sch. 6 Pt. 1 (with s. 223); S.S.I. 2008/115, art. 3(1)(h)(2)(3), Sch. 2 (with arts. 4-6, 10) (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5)
F436S. 37(10) inserted (1.4.2008 for certain purposes, otherwise prosp.) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 226, 227(3), Sch. 5 para. 13(3)(g) (with s. 223); S.S.I. 2008/115, art. 3(2)(3), Sch. 1 (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
Modifications etc. (not altering text)
C37S. 37(1)–(5)(6) applied with modifications by Insolvency Act 1986 (c. 45, SIF 66), ss. 185(1)(a), 443
C38S. 37(4) applied (1.7.2010) by 1956 c. 46, s. 47G(3) (as inserted by the Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 213, 227(3), Sch. 4 para. 12 (with s. 223)); S.S.I. 2010/249, art. 2 (with art. 3)
C39S. 37(5) applied (1.7.2010) by 1956 c. 46, s. 47G(3) (as inserted by the Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 213, 227(3), Sch. 4 para. 12 (with s. 223)); S.S.I. 2010/249, art. 2 (with art. 3)
Marginal Citations
Textual Amendments
F437Cross-heading preceding s. 38 substituted (1.4.2008) by virtue of Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 34(3) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
(1)The F439. . . trustee shall—
(a)as soon as may be after his [F440appointment], for the purpose of recovering the debtor’s estate under section 3(1)(a) of this Act, and subject to section 40 of this Act, take possession of the debtor’s whole estate so far as vesting in the F439. . . trustee under sections 31 and 32 of this Act and any document in the debtor’s possession or control relating to his assets or his business or financial affairs;
(b)make up and maintain an inventory and valuation of the estate which he shall record in the sederunt book; and
(c)forthwith thereafter send a copy of any such inventory and valuation to the Accountant in Bankruptcy.
(2)The F439. . . trustee shall be entitled to have access to all documents relating to the assets or the business or financial affairs of the debtor sent by or on behalf of the debtor to a third party and in that third party’s hands and to make copies of any such documents.
(3)If any person obstructs a F439. . . trustee who is exercising, or attempting to exercise, a power conferred by subsection (2) above, the sheriff, on the application of the F439. . . trustee, may order that person to cease so to obstruct the F439. . . trustee.
(4)The F439. . . trustee may require delivery to him of any title deed or other document of the debtor, notwithstanding that a right of lien is claimed over the title deed or document; but this subsection is without prejudice to any preference of the holder of the lien.
Textual Amendments
F438S. 38 heading substituted (1.4.2008) by virtue of Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 34(2) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F439Words in s. 38 repealed (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 226, 227(3), Sch. 6 Pt. 1 (with s. 223); S.S.I. 2008/115, art. 3(2)(3), Sch. 2 (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F440Word in s. 38(1)(a) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 34(1) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
Modifications etc. (not altering text)
C40Ss. 38, 39(4)(7) applied with modifications by S.I. 1986/1915, Rule 4.22.(1)
(1)As soon as may be after his [F441appointment], the F442. . . trustee shall consult F443. . . with the Accountant in Bankruptcy concerning the exercise of his functions under section 3(1)(a) of this Act; and, subject to [F444subsections (1A), (6) and (9)] below, the F442. . . trustee shall comply with any general or specific directions given to him, as the case may be—
(a)by the creditors;
(b)on the application under this subsection of the commissioners, by the [F445sheriff] ; or
(c)F446. . . by the Accountant in Bankruptcy,
as to the exercise by him of such functions.
[F447(1A)Subsection (1) above does not apply in any case where the Accountant in Bankruptcy is the trustee.]
(2)The F448. . . trustee may F448. . . do any of the following things F448. . . —
(a)carry on [F449or close down] any business of the debtor;
(b)bring, defend or continue any legal proceedings relating to the estate of the debtor;
(c)create a security over any part of the estate;
(d)where any right, option or other power forms part of the debtor’s estate, make payments or incur liabilities with a view to obtaining, for the benefit of the creditors, any property which is the subject of the right, option or power.
[F450(e)borrow money in so far as it is necessary for the trustee to do so to safeguard the debtor's estate;
(f)effect or maintain insurance policies in respect of the business or property of the debtor.]
(3)Any sale of the debtor’s estate by the F451. . . trustee may be by either public sale or private bargain.
(4)The following rules shall apply to the sale of any part of the debtor’s heritable estate over which a heritable security is held by a creditor or creditors if the rights of the secured creditor or creditors are preferable to those of the F451. . . trustee—
(a)the F451. . . trustee may sell that part only with the concurrence of every such creditor unless he obtains a sufficiently high price to discharge every such security;
(b)subject to paragraph (c) below, the following acts shall be precluded—
(i)the taking of steps by a creditor to enforce his security over that part after the F451. . . trustee has intimated to the creditor that he intends to sell it;
(ii)the commencement by the F451. . . trustee of the procedure for the sale of that part after a creditor has intimated to the F451. . . trustee that he intends to commence the procedure for its sale;
(c)where the F451. . . trustee or a creditor has given intimation under paragraph (b) above, but has unduly delayed in proceeding with the sale, then, if authorised by the [F452sheriff] in the case of intimation under—
(i)sub-paragraph (i) of that paragraph, any creditor to whom intimation has been given may enforce his security; or
(ii)sub-paragraph (ii) of that paragraph, the F451. . . trustee may sell that part.
(5)The function of the F451. . . trustee under section 3(1)(a) of this Act to realise the debtor’s estate shall include the function of selling, with or without recourse against the estate, debts owing to the estate.
(6)The F451. . . trustee may sell any perishable goods without complying with any directions given to him under subsection (1)(a) or (c) above if the F451. . . trustee considers that compliance with such directions would adversely affect the sale.
(7)The validity of the title of any purchaser shall not be challengeable on the ground that there has been a failure to comply with a requirement of this section.
(8)It shall be incompetent for the F451. . . trustee or an associate of his or for any commissioner, to purchase any of the debtor’s estate in pursuance of this section.
[F453(9)The trustee—
(a)shall comply with the requirements of subsection (4) of this section; and
(b)may do anything permitted by this section,
only in so far as, in his view, it would be of financial benefit to the estate of the debtor and in the interests of the creditors to do so.]
Textual Amendments
F441Words in s. 39(1) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 35(2)(a) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F442Words in s. 39(1) repealed (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 226, 227(3), Sch. 6 Pt. 1 (with s. 223); S.S.I. 2008/115, art. 3(2)(3), Sch. 2 (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F443Words in s. 39(1) repealed (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 226, 227(3), Sch. 6 Pt. 1 (with s. 223); S.S.I. 2008/115, art. 3(2)(3), Sch. 2 (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F444Words in s. 39(1) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 35(2)(b) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F445Word in s. 39(1)(b) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 35(2)(c) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F446Words in s. 39(1)(c) repealed (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 226, 227(3), Sch. 6 Pt. 1 (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F447S. 39(1A) inserted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 35(3) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F448Words in s. 39(2) repealed (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 226, 227(3), Sch. 6 Pt. 1 (with s. 223); S.S.I. 2008/115, art. 3(2)(3), Sch. 2 (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F449Words in s. 39(2)(a) inserted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 35(4)(a) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F450S. 39(2)(e)(f) inserted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 35(4)(b) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F451Words in s. 39(3)-(6)(8) repealed (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 226, 227(3), Sch. 6 Pt. 1 (with s. 223); S.S.I. 2008/115, art. 3(2)(3), Sch. 2 (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F452Word in s. 39(4)(c) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 35(5) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F453S. 39(9) inserted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 8(2), 227(3) (with s. 223); S.S.I. 2008/115, art. 3(1)(a) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
Modifications etc. (not altering text)
C41S. 39(3)(4)(7)(8) applied with modifications by Insolvency Act 1986 (c. 45, SIF 66), ss. 185(1)(b), 443
C42Ss. 38, 39(4)(7) applied with modifications by S.I. 1986/1915, Rule 4.22.(1)
(1)This section applies where a debtor's sequestrated estate includes any right or interest in the debtor's family home.
(2)At the end of the period of 3 years beginning with the date of sequestration the right or interest mentioned in subsection (1) above shall—
(a)cease to form part of the debtor's sequestrated estate; and
(b)be reinvested in the debtor (without disposition, conveyance, assignation or other transfer).
(3)Subsection (2) above shall not apply if, during the period mentioned in that subsection—
(a)the trustee disposes of or otherwise realises the right or interest mentioned in subsection (1) above;
(b)the trustee concludes missives for sale of the right or interest;
(c)the trustee sends a memorandum to the keeper of the register of inhibitions under section 14(4) of this Act;
(d)the trustee registers in the Land Register of Scotland or, as the case may be, records in the Register of Sasines a notice of title in relation to the right or interest mentioned in subsection (1) above;
(e)the trustee commences proceedings—
(i)to obtain the authority of the sheriff under section 40(1)(b) of this Act to sell or dispose of the right or interest;
(ii)in an action for division and sale of the family home; or
(iii)in an action for the purpose of obtaining vacant possession of the family home;
(f)the trustee and the debtor enter into an agreement such as is mentioned in subsection (5) below;
[F455(g)the trustee has commenced an action under section 34 of this Act in respect of any right or interest mentioned in sub-section (1) above or the trustee has not known about the facts giving rise to a right of action under section 34 of this Act, provided the trustee commences such an action reasonably soon after the trustee becomes aware of such right.]
(4)The Scottish Ministers may, by regulations, modify paragraphs (a) to (f) of subsection (3) above so as to—
(a)add or remove a matter; or
(b)vary any such matter,
referred to in that subsection.
(5)The agreement referred to in subsection (3)(f) above is an agreement that the debtor shall incur a specified liability to his estate (with or without interest from the date of the agreement) in consideration of which the right or interest mentioned in subsection (1) above shall—
(a)cease to form part of the debtor's sequestrated estate; and
(b)be reinvested in the debtor (without disposition, conveyance, assignation or other transfer).
(6)If the debtor does not inform the trustee or the Accountant in Bankruptcy of his right or interest in the family home before the end of the period of 3 months beginning with the date of sequestration, the period of 3 years mentioned in subsection (2) above—
(a)shall not begin with the date of sequestration; but
(b)shall begin with the date on which the trustee or the Accountant in Bankruptcy becomes aware of the debtor's right or interest.
(7)The sheriff may, on the application of the trustee, substitute for the period of 3 years mentioned in subsection (2) above a longer period—
(a)in prescribed circumstances; and
(b)in such other circumstances as the sheriff thinks appropriate.
(8)The Scottish Ministers may, by regulations—
(a)make provision for this section to have effect with the substitution, in such circumstances as the regulations may prescribe, of a shorter period for the period of 3 years mentioned in subsection (2) above;
(b)prescribe circumstances in which this section does not apply;
(c)prescribe circumstances in which a sheriff may disapply this section;
(d)make provision requiring the trustee to give notice that this section applies or does not apply;
(e)make provision about compensation;
(f)make such provision as they consider necessary or expedient in consequence of regulations made under paragraphs (a) to (e) above.
(9)In this section, “family home” has the same meaning as in section 40 of this Act.]
Textual Amendments
F454S. 39A inserted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 19(2), 227(3) (with s. 223); S.S.I. 2008/115, art. 3(1)(a) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
(1)Before the F457. . . trustee sells or disposes of any right or interest in the debtor’s family home he shall—
(a)obtain the relevant consent; or
(b)where he is unable to do so, obtain the authority of the [F458sheriff] in accordance with subsection (2) below.
(2)Where the F457. . . trustee requires to obtain the authority of the [F459sheriff] in terms of subsection (1)(b) above, the [F459sheriff] , after having regard to all the circumstances of the case, including—
(a)the needs and financial resources of the debtor’s spouse or former spouse;
[F460(aa)the needs and financial resources of the debtor’s civil partner or former civil partner;]
(b)the needs and financial resources of any child of the family;
(c)the interests of the creditors;
(d)the length of the period during which (whether before or after the relevant date) the family home was used as a residence by any of the persons referred to in [F461paragraphs (a) to (b)] above,
may refuse to grant the application or may postpone the granting of the application for such period (not exceeding twelve months) as [F462he] may consider reasonable in the circumstances or may grant the application subject to such conditions as [F462he] may prescribe.
(3)Subsection (2) above shall apply—
(a)to an action for division and sale of the debtor’s family home; or
(b)to an action for the purpose of obtaining vacant possession of the debtor’s family home,
brought by the F457. . . trustee as it applies to an application under subsection (1)(b) above and, for the purposes of this subsection, any reference in the said subsection (2) to that granting of the application shall be construed as a reference to the granting of decree in the action.
(4)In this section—
(a)“family home” means any property in which, at the relevant date, the debtor had (whether alone or in common with any other person) a right or interest, being property which was occupied at that date as a residence by the debtor and his spouse [F463or civil partner] or by the debtor’s spouse [F464or civil partner] or former spouse [F464or civil partner] (in any case with or without a child of the family) or by the debtor with a child of the family;
(b)“child of the family” includes any child or grandchild of either the debtor or his spouse [F465or civil partner] or former spouse [F465or civil partner], and any person who has been brought up or accepted by either the debtor or his spouse [F466or civil partner] or former spouse [F466or civil partner] as if he or she were a child of the debtor, spouse [F466or civil partner] or former spouse [F466or civil partner] whatever the age of such a child, grandchild or person may be;
(c)“relevant consent” means in relation to the sale or disposal of any right or interest in a family home—
(i)in a case where the family home is occupied by the debtor’s spouse [F467or civil partner] or former spouse [F467or civil partner] , the consent of the spouse [F467or civil partner] , or, as the case may be, the former spouse [F467or civil partner] , whether or not the family home is also occupied by the debtor;
(ii)where sub-paragraph (i) above does not apply, in a case where the family home is occupied by the debtor with a child of the family, the consent of the debtor; and
(d)“relevant date” means the day immediately preceding the date of sequestration.
Textual Amendments
F456S. 40 heading substituted (1.4.2008) by virtue of Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 36(c) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F457Words in s. 40 repealed (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 226, 227(3), Sch. 6 Pt. 1 (with s. 223); S.S.I. 2008/115, art. 3(2)(3), Sch. 2 (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F458Word in s. 40(1) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 36(a) (with s. 223); S.S.I. 2008/115, art. 3(1)(a) (with arts. 4-6, 10) (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5)
F459Words in s. 40(2) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 36(b)(i) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F460S. 40(2)(aa) inserted (5.12.2005) by Civil Partnership Act 2004 (c. 33), ss. 261(2), 263, Sch. 28 para. 36(1)(2); S.S.I. 2005/604 {art. 2(c)}
F461Words in s. 40(2)(d) substituted (5.12.2005) by Civil Partnership Act 2004 (c. 33), ss. 261(2), 263, Sch. 28 para. 36(1)(3); S.S.I. 2005/604 {art. 2(c)}
F462Words in s. 40(2) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 36(b)(ii) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10) (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5); S.S.I. 2008/115, art. 3(1)(a)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F463Words in s. 40(4)(a) inserted (5.12.2005) by Civil Partnership Act 2004 (c. 33), ss. 261(2), 263, Sch. 28 para. 36(1)(4)(a); S.S.I. 2005/604, art. 2(c)
F464Words in s. 40(4)(a) inserted (5.12.2005) by Civil Partnership Act 2004 (c. 33), ss. 261(2), 263, Sch. 28 para. 36(1)(4)(a); S.S.I. 2005/604, art. 2(c)
F465Words in s. 40(4)(b) inserted (5.12.2005) by Civil Partnership Act 2004 (c. 33), ss. 261(2), 263, Sch. 28 para. 36(1)(4)(b); S.S.I. 2005/604, art. 2(c)
F466Words in s. 40(4)(b) inserted (5.12.2005) by Civil Partnership Act 2004 (c. 33), ss. 261(2), 263, Sch. 28 para. 36(1)(4)(b); S.S.I. 2005/604, art. 2(c)
F467Words in s. 40(4)(c)(i) inserted (5.12.2005) by Civil Partnership Act 2004 (c. 33), ss. 261(2), 263, Sch. 28 para. 36(1)(4)(c); S.S.I. 2005/604 {art. 2(c)}
(1)If a debtor’s sequestrated estate includes a matrimonial home of which the debtor, immediately before the date [F468the order is made appointing] the F469. . . trustee (or, if more than one [F470trustee is appointed] in the sequestration, of the first [F471order making such an appointment]) was an entitled spouse and the other spouse is a non-entitled spouse—
(a)the F469. . . trustee shall, where he—
(i)is aware that the entitled spouse is married to the non-entitled spouse; and
(ii)knows where the non-entitled spouse is residing,
inform the non-entitled spouse, within the period of 14 days beginning with that date, of the fact that sequestration of the entitled spouse’s estate has been awarded, of the right of petition which exists under section 16 of this Act and of the effect of paragraph (b) below; and
(b)the [F472sheriff] , on the petition under section 16 of this Act of the non-entitled spouse presented either within the period of 40 days beginning with that date or within the period of 10 weeks beginning with the date [F473of the award] of sequestration may—
(i)under section 17 of this Act recall the sequestration; or
(ii)make such order as [F474he] thinks appropriate to protect the occupancy rights of the non-entitled spouse;
if [F474he] is satisfied that the purpose of the petition for sequestration [F475or, as the case may be, the debtor application] was wholly or mainly to defeat the occupancy rights of the non-entitled spouse.
(2)In subsection (1) above—
“entitled spouse” and “non-entitled spouse” have the same meanings as in section 6 of the M18Matrimonial Homes (Family Protection) (Scotland) Act 1981;
“matrimonial home” has the meaning assigned by section 22 of that Act as amended by the M19Law Reform (Miscellaneous Provisions) (Scotland) Act 1985; and
“occupancy rights” has the meaning assigned by section 1(4) of the said Act of 1981.
Textual Amendments
F468Words in s. 41(1) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 37(a) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F469Words in s. 41 repealed (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 226, 227(3), Sch. 6 Pt. 1 (with s. 223); S.S.I. 2008/115, art. 3(2)(3), Sch. 2 (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F470Words in s. 41(1) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 37(b) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F471Words in s. 41(1) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 37(c) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F472Words in s. 41(1)(b) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 37(d)(i) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F473Words in s. 41(1)(b) inserted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 37(d)(ii) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F474Words in s. 41(1)(b) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 37(d)(iii) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F475Words in s. 41(1)(b) inserted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 37(d)(iv) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
Marginal Citations
(1)If a debtor’s sequestrated estate includes a family home of which the debtor, immediately before the date [F477the order is made appointing] the F478. . . trustee (or, if more than one [F479trustee is appointed] in the sequestration, of the first [F480order making such an appointment]) was an entitled partner and the other partner in the civil partnership is a non-entitled partner—
(a)the F478. . . trustee shall, where he—
(i)is aware that the entitled partner is in civil partnership with the non-entitled partner; and
(ii)knows where the non-entitled partner is residing,
inform the non-entitled partner, within the period of 14 days beginning with that date, of the fact that sequestration of the entitled partner’s estate has been awarded, of the right of petition which exists under section 16 of this Act and of the effect of paragraph (b) below; and
(b)the [F481sheriff] , on the petition under section 16 of this Act of the non-entitled partner presented either within the period of 40 days beginning with that date or within the period of 10 weeks beginning with the date [F482of the award] of sequestration may—
(i)under section 17 of this Act recall the sequestration; or
(ii)make such order as [F483he] thinks appropriate to protect the occupancy rights of the non-entitled partner,
if [F483he] is satisfied that the purpose of the petition for sequestration [F484or, as the case may be, the debtor application] was wholly or mainly to defeat the occupancy rights of the non-entitled partner.
(2)In subsection (1) above—
“entitled partner” and “non-entitled partner” have the same meanings as in section 101 of the Civil Partnership Act 2004;
“family home” has the meaning assigned by section 135 of the 2004 Act; and
“occupancy rights” means the rights conferred by subsection (1) of that section 101.]
Textual Amendments
F476S. 41A inserted (5.12.2005) by Civil Partnership Act 2004 (c. 33), ss. 261(2), 263, Sch. 28 para. 37; S.S.I. 2005/604 {art. 2(c)}
F477Words in s. 41A(1) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 38(a) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F478Words in s. 41A repealed (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 226, 227(3), Sch. 6 Pt. 1 (with s. 223); S.S.I. 2008/115, art. 3(2)(3), Sch. 2 (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F479Words in s. 41A(1) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 38(b) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F480Words in s. 41A(1) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 38(c) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F481Words in s. 41A(b) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 38(d)(i) (with s. 223)
F482Words in s. 41A(1)(b) inserted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 38(d)(ii) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F483Words in s. 41A(1)(b) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 38(d)(iii) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F484Words in s. 41A(1)(b) inserted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 38(d)(iv) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
(1)Subject to subsections (2) and (3) below, the F486. . . trustee may adopt any contract entered into by the debtor before the date of sequestration where he considers that its adoption would be beneficial to the administration of the debtor’s estate, except where the adoption is precluded by the express or implied terms of the contract, or may refuse to adopt any such contract.
(2)The F486. . . trustee shall, within 28 days from the receipt by him of a request in writing from any party to a contract entered into by the debtor or within such longer period of that receipt as the [F487sheriff] on application by the F486. . . trustee may allow, adopt or refuse to adopt the contract.
(3)If the F486. . . trustee does not reply in writing to the request under subsection (2) above within the said period of 28 days or longer period, as the case may be, he shall be deemed to have refused to adopt the contract.
(4)The F486. . . trustee may enter into any contract where he considers that this would be beneficial for the administration of the debtor’s estate.
Textual Amendments
F485S. 42 heading substituted (1.4.2008) by virtue of Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 39(b) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F486Words in s. 42 repealed (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 226, 227(3), Sch. 6 Pt. 1 (with s. 223); S.S.I. 2008/115, art. 3(2)(3), Sch. 2 (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F487Word in s. 42(2) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 39(a) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
Modifications etc. (not altering text)
C43S. 42 excluded (25.4.1991) by Companies Act 1989 (c. 40, SIF 27), ss. 154, 155, 164(2); S.I. 1991/878, art. 2,Sch.
(1)Subject to [F489subsections (1A) and (2)] below, all money received by the F490. . . trustee in the exercise of his functions shall be deposited by him in the name of the debtor’s estate in an [F491interest-bearing account in an] appropriate bank or institution.
[F492(1A)In any case where the Accountant in Bankruptcy is the trustee, subject to subsection (2) below, all money received by the Accountant in Bankruptcy in the exercise of his functions as trustee shall be deposited by him in an interest bearing account in the name of the debtor's estate or in the name of the Scottish Ministers in an appropriate bank or institution.]
(2)The F490. . . trustee may at any time retain in his hands a sum not exceeding £200 or such other sum as may be prescribed.
Textual Amendments
F488S. 43 heading substituted (1.4.2008) by virtue of Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 40 (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F489Words in s. 43(1) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 13(a)(i), 227(3) (with s. 223); S.S.I. 2008/115, art. 3(1)(a) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F490Words in s. 43 repealed (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 226, 227(3), Sch. 6 Pt. 1 (with s. 223); S.S.I. 2008/115, art. 3(2)(3), Sch. 2 (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F491Words in s. 43(1) inserted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 13(a)(ii), 227(3) (with s. 223); S.S.I. 2008/115, art. 3(1)(a) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F492S. 43(1A) inserted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 13(b), 227(3) (with s. 223); S.S.I. 2008/115, art. 3(1)(a) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
(1)This section applies to a debtor who—
(a)has not been discharged under this Act; or
(b)is subject to—
(i)an order made by the sheriff under subsection (2) of section 32 of this Act; or
(ii)an agreement entered into under subsection (4B) of that section.
(2)The trustee shall, at the end of—
(a)the period of 6 months beginning with the date of sequestration; and
(b)each subsequent period of 6 months,
require the debtor to give an account in writing, in such form as may be prescribed, of his current state of affairs.]
Textual Amendments
F493S. 43A inserted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 30, 227(3) (with s. 223); S.S.I. 2008/115, art. 3(1)(a) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
(1)The F494. . . trustee may request—
(a)the debtor to appear before him and to give information relating to his assets, his dealings with them or his conduct in relation to his business or financial affairs; or
(b)the debtor’s spouse [F495or civil partner] or any other person who the F494. . . trustee believes can give such information (in this Act such spouse [F496, civil partner] or other person being referred to as a “relevant person”), to give that information,
and, if he considers it necessary, the F494. . . trustee may apply to the sheriff for an order to be made under subsection (2) below.
(2)Subject to section 46(2) of this Act, on application to him under subsection (1) above the sheriff may make an order requiring the debtor or a relevant person to attend for private examination before him on a date (being not earlier than 8 days nor later than 16 days after the date of the order) and at a time specified in the order.
(3)A person who fails without reasonable excuse to comply with an order made under subsection (2) above shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale or to imprisonment for a term not exceeding 3 months or to both.
(4)Where the debtor is an entity whose estate may be sequestrated by virtue of section 6(1) of this Act, the references in this section and in sections 45 to 47 of this Act to the debtor shall be construed, unless the context otherwise requires, as references to a person representing the entity.
Textual Amendments
F494Words in s. 44 repealed (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 226, 227(3), Sch. 6 Pt. 1 (with s. 223); S.S.I. 2008/115, art. 3(2)(3), Sch. 2 (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F495Words in s. 44(1)(b) inserted (5.12.2005) by Civil Partnership Act 2004 (c. 33), ss. 261(2), 263, Sch. 28 para. 38(a); S.S.I. 2005/604 {art. 2(c)}
F496Words in s. 44(1)(b) inserted (5.12.2005) by Civil Partnership Act 2004 (c. 33), ss. 261(2), 263, Sch. 28 para. 38(b); S.S.I. 2005/604 {art. 2(c)}
Modifications etc. (not altering text)
C44S. 44(2)(3) applied (with modifications) (14.11.2011) by The Investment Bank Special Administration (Scotland) Rules 2011 (S. I. 2011/2262), rule 127
(1)Not less than 8 weeks before the end of the first accounting period, the F497. . . trustee—
(a)may; or
(b)if requested to do so by the Accountant in Bankruptcy or the commissioners (if any) or one quarter in value of the creditors, shall,
apply to the sheriff for an order for the public examination before the sheriff of the debtor or of a relevant person relating to the debtor’s assets, his dealings with them or his conduct in relation to his business or financial affairs:
Provided that, on cause shown, such application may be made by the F497. . . trustee at any time.
(2)Subject to section 46(2) of this Act, the sheriff, on an application under subsection (1) above, shall make an order requiring the debtor or relevant person to attend for examination before him in open court on a date (being not earlier than 8 days nor later than 16 days after the date of the order) and at a time specified in the order.
(3)On the sheriff making an order under subsection (2) above, the F497. . . trustee shall—
(a)publish in the Edinburgh Gazette a notice in such form and containing such particulars as may be prescribed; and
(b)send a copy of the said notice—
(i)to every creditor known to the F497. . . trustee; and
(ii)where the order is in respect of a relevant person, to the debtor, and
inform the creditor and, where applicable, the debtor that he may participate in the examination.
(4)A person who fails without reasonable excuse to comply with an order made under subsection (2) above shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale or to imprisonment for a term not exceeding 3 months or to both.
Textual Amendments
F497Words in s. 45 repealed (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 226, 227(3), Sch. 6 Pt. 1 (with s. 223); S.S.I. 2008/115, art. 3(2)(3), Sch. 2 (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
(1)If the debtor or relevant person is residing—
(a)in Scotland, the sheriff may, on the application of the F498. . . trustee, grant a warrant which may be executed by a messenger-at-arms or sheriff officer anywhere in Scotland [F499to apprehend]; or
(b)in any other part of the United Kingdom, F498. . . the sheriff may, on the application of the F498. . . trustee, [F500grant a warrant for the arrest of]
F501. . . the debtor or relevant person and [F502to] have him taken to the place of the examination:
Provided that a warrant under [F503this subsection shall not be granted] unless the [F504sheriff] is satisfied that it is necessary to do so to secure the attendance of the debtor or relevant person at the examination.
(2)If the debtor or a relevant person is for any good reason prevented from attending for examination, the sheriff may, without prejudice to subsection (3) below, grant a commission to take his examination (the commissioner being in this section and section 47 below referred to as an “examining commissioner”).
(3)The sheriff or the examining commissioner may at any time adjourn the examination to such day as the sheriff or the examining commissioner may fix.
(4)The sheriff or the examining commissioner may order the debtor or a relevant person to produce for inspection any document in his custody or control relating to the debtor’s assets, his dealings with them or his conduct in relation to his business or financial affairs, and to deliver the document or a copy thereof to the F498. . . trustee for further examination by him.
Textual Amendments
F498Words in s. 46(1)(a)(b)(4) repealed (S.) (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 226, 227(3), Sch. 6 Pt. 1 (with s. 223); S.S.I. 2008/115, art. 3(2)(3), Sch. 2 (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F499Words in s. 46(1)(a) added (1.4.1993, subject to savings in arts. 4, 5 of S.I. 1993/438) by 1993 c. 6, s. 11(3), Sch. 1 para. 20(2)(a) (with s. 12(6)); S.I. 1993/438, art.3
F500Words in s. 46(1)(b) substituted (1.4.1993, subject to savings in arts. 4, 5 of S.I. 1993/438) by 1993 c. 6, s. 11(3), Sch. 1 para. 20(2)(b) (with s. 12(6)); S.I. 1993/438, art.3
F501Words in s. 46(1) repealed (1.4.1993, subject to savings in arts. 4, 5 of S.I. 1993/438) by 1993 c. 6, s. 11(3), Sch. 1 para. 20(2)(c)(i), Sch.2 (with s. 12(6)); S.I. 1993/438, art.3
F502Word "to" in s. 46(1) inserted (1.4.1993, subject to savings in arts. 4, 5 of S.I. 1993/438) by 1993 c. 6, s. 11(3), Sch. 1 para. 20(2)(c)(ii) (with s. 12(6)); S.I. 1993/438, art.3
F503Words in the proviso to s. 46(1) substituted (1.4.1993, subject to savings in arts. 4, 5 of S.I. 1993/438) by 1993 c. 6, s. 11(3), Sch. 1 para. 20(3) (with s. 12(6)); S.I. 1993/438, art.3
F504S. 46(1) proviso: word substituted (S.) (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 41(b) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
(1)The examination, whether before the sheriff or an examining commissioner, shall be taken on oath.
(2)At the examination—
(a)the F505. . . trustee or a solicitor or counsel acting on his behalf and, in the case of public examination, any creditor may question the debtor or a relevant person; and
(b)the debtor may question a relevant person,
as to any matter relating to the debtor’s assets, his dealings with them or his conduct in relation to his business or financial affairs.
(3)The debtor or a relevant person shall be required to answer any question relating to the debtor’s assets, his dealings with them or his conduct in relation to his business or financial affairs and shall not be excused from answering any such question on the ground that the answer may incriminate or tend to incriminate him or on the ground of confidentiality:
Provided that—
(a)a statement made by the debtor or a relevant person in answer to such a question shall not be admissible in evidence in any subsequent criminal proceedings against the person making the statement, except where the proceedings are in respect of a charge of perjury relating to the statement;
(b)a person subject to examination shall not be required to disclose any information which he has received from a person who is not called for examination if the information is confidential between them.
(4)[F506The rules relating to the recording of evidence in ordinary causes specified in the First Schedule to the Sheriff Courts (Scotland) Act 1907] shall apply in relation to the recording of evidence at the examination before the sheriff or the examining commissioner.
(5)The debtor’s deposition at the examination shall be subscribed by himself and by the sheriff (or, as the case may be, the examining commissioner) and shall be inserted in the sederunt book.
(6)The F505. . . trustee shall insert a copy of the record of the examination in the sederunt book and send a copy of the record to the Accountant in Bankruptcy.
(7)A relevant person shall be entitled to fees or allowances in respect of his attendance at the examination as if he were a witness in an ordinary civil cause in the sheriff court:
Provided that, if the sheriff thinks that it is appropriate in all the circumstances, he may disallow or restrict the entitlement to such fees or allowances.
Textual Amendments
F505Words in s. 47 repealed (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 226, 227(3), Sch. 6 Pt. 1 (with s. 223); S.S.I. 2008/115, art. 3(2)(3), Sch. 2 (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F506Words substituted by S.I. 1986/517, art. 5
Modifications etc. (not altering text)
C45S. 47(1) applied (with modifications) (14.11.2011) by The Investment Bank Special Administration (Scotland) Rules 2011 (S. I. 2011/2262), rule {127}
(1)Subject to subsection (2) below and subsections (8) and (9) of section 52 of this Act, a creditor in order to obtain an adjudication as to his entitlement—
(a)to vote at a meeting of creditors other than the statutory meeting; or
(b)(so far as funds are available), to a dividend out of the debtor’s estate in respect of any accounting period,
shall submit a claim in accordance with this section to the F508. . . trustee respectively—
(i)at or before the meeting; or
(ii)not later than 8 weeks before the end of the accounting period.
(2)A claim submitted by a creditor—
(a)under section 22 of this Act and accepted in whole or in part by the F509. . . trustee for the purpose of voting at the statutory meeting; or
(b)under this section [F510which has not been rejected in whole],
shall be deemed to have been re-submitted for the purpose of obtaining an adjudication as to his entitlement both to vote at any subsequent meeting and (so far as funds are available) to a dividend in respect of an accounting period, or, as the case may be, any subsequent accounting period.
(3)Subsections (2) and (3) of section 22 of this Act shall apply for the purposes of this section but as if in the proviso to subsection (2) [F511 after the word “trustee” there were inserted the words “] with the consent of the commissioners, if any”F512. . . .
(4)A creditor who has submitted a claim under this section (or under section 22 of this Act, a statement of claim which has been deemed re-submitted as mentioned in subsection (2) above) may at any time submit a further claim under this section specifying a different amount for his claim:
Provided that a secured creditor shall not be entitled to produce a further claim specifying a different value for the security at any time after the F513. . . trustee requires the creditor to discharge, or convey or assign, the security under paragraph 5(2) of Schedule 1 to this Act.
(5)The F514. . . trustee, for the purpose of satisfying himself as to the validity or amount of a claim submitted by a creditor under this section, may require—
(a)the creditor to produce further evidence; or
(b)any other person who he believes can produce relevant evidence, to produce such evidence,
and, if the creditor or other person refuses or delays to do so, theF514. . . trustee may apply to the sheriff for an order requiring the creditor or other person to attend for his private examination before the sheriff.
(6)Sections 44(2) and (3) and 47(1) of this Act shall apply, subject to any necessary modifications, to the examination of the creditor or other person as they apply to the examination of a relevant person; and references in this subsection and subsection (5) above to a creditor in a case where the creditor is an entity mentioned in section 6(1) of this Act shall be construed, unless the context otherwise requires, as references to a person representing the entity.
(7)Subsections (5) to (10) of section 22 of this Act shall apply for the purposes of this section but as if—
(a)F515. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(b)in subsection (7) for the words F516. . . “keep a record of it” there were substituted F516. . . the words F516. . . “make an insertion relating thereto in the sederunt book”.
(8)At any private examination under subsection (5) above, a solicitor or counsel may act on behalf of the F517. . . trustee or he may appear himself.
Textual Amendments
F507S. 48 heading substituted (1.4.2008) by virtue of the Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 42(c) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F508Word in s. 48(1) repealed (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 226, 227(3), Sch. 6 Pt. 1 (with s. 223); S.S.I. 2008/115, art. 3(2)(3), Sch. 2 (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F509Word in s. 48(2)(a) repealed (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 226, 227(3), Sch. 6 Pt. 1 (with s. 223); S.S.I. 2008/115, art. 3(2)(3), Sch. 2 (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F510Words in s. 48(2)(b) substituted (31.3.2007) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 42(a) (with savings in s. 223); S.S.I. 2007/82, art. 4(d)
F511Words in s. 48(3) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 42(b) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F512Words in s. 48(3) repealed (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 226, 227(3), Sch. 6 Pt. 1 (with s. 223); S.S.I. 2008/115, art. 3(2)(3), Sch. 2 (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F513Word in s. 48(4) repealed (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 226, 227(3), Sch. 6 Pt. 1 (with s. 223); S.S.I. 2008/115, art. 3(2)(3), Sch. 2 (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F514Word in s. 48(5) repealed (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 226, 227(3), Sch. 6 Pt. 1 (with s. 223); S.S.I. 2008/115, art. 3(2)(3), Sch. 2 (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F515S. 48(7)(a) repealed (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 226, 227(3), Sch. 6 Pt. 1 (with s. 223); S.S.I. 2008/115, art. 3(2)(3), Sch. 2 (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F516Words in s. 48(7)(b) repealed (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 226, 227(3), Sch. 6 Pt. 1 (with s. 223); S.S.I. 2008/115, art. 3(2)(3), Sch. 2 (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F517Word in s. 48(8) repealed (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 226, 227(3), Sch. 6 Pt. 1 (with s. 223); S.S.I. 2008/115, art. 3(2)(3), Sch. 2 (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
Modifications etc. (not altering text)
C46S. 48 restricted (S.) (31.3.1996) by 1995 c. 20, s. 110(1), Sch. 4 para. 1(2); S.I. 1996/517, art. 3(2) (which 1995 c. 20 was repealed (1.4.1996) by 1995 c. 40, ss. 6, 7(2), Sch. 3 para. 16(3), Sch. 5 (with Sch. 3 paras. 1, 3))
S. 48 restricted (S.) (17.12.2001) by 2001 asp 13, s. 20, Sch. 6 para. 8(2) (with s. 29); S.S.I. 2001/456, art. 2
C47S. 48(5)(6)(8) applied (with modifications) by S.I. 1986/1915, Rules 4.16(1)(b), 7.9(4) and by Rule 2.41(2) (as substituted (15.9.2003) by The Insolvency (Scotland) Amendment Rules 2003 (S.I. 2003/2111), Rule 3, Sch. 1 Pt. 1)
C48S. 48(5)(6)(8) applied (with modifications) (14.11.2011) by The Investment Bank Special Administration (Scotland) Rules 2011 (S. I. 2011/2262), rule 127
(1)At the commencement of every meeting of creditors (other than the statutory meeting), the F518. . . trustee shall, for the purposes of section 50 of this Act so far as it relates to voting at that meeting, accept or reject the claim of each creditor.
(2)Where funds are available for payment of a dividend out of the debtor’s estate in respect of an accounting period, the F518. . . trustee for the purpose of determining who is entitled to such a dividend shall, not later than 4 weeks before the end of the period, accept or reject every claim submitted or deemed to have been re-submitted to him under this Act; and shall at the same time make a decision on any matter requiring to be specified under paragraph (a) or (b) of subsection (5) below.
[F519(2A)On accepting or rejecting, under subsection (2) above, every claim submitted or deemed to have been re-submitted, the trustee shall, as soon as is reasonably practicable, send a list of every claim so accepted or rejected (including the amount of each claim and whether he has accepted or rejected it) to—
(a)the debtor; and
(b)every creditor known to the trustee.]
(3)If the amount of a claim is stated in foreign currency the F518. . . trustee in adjudicating on the claim under subsection (1) or (2) above shall convert the amount into sterling, in such manner as may be prescribed, at the rate of exchange prevailing at the close of business on the date of sequestration.
(4)Where the F518. . . trustee rejects a claim, he shall forthwith notify the creditor giving reasons for the rejection.
(5)Where the F518. . . trustee accepts or rejects a claim, he shall record in the sederunt book his decision on the claim specifying—
(a)the amount of the claim accepted by him,
(b)the category of debt, and the value of any security, as decided by him, and
(c)if he is rejecting the claim, his reasons therefor.
(6)The debtor [F520(subject to subsection (6A) below)] or any creditor may, if dissatisfied with the acceptance or rejection of any claim (or, in relation to such acceptance or rejection, with a decision in respect of any matter requiring to be specified under subsection (5)(a) or (b) above), appeal therefrom to the sheriff—
(a)if the acceptance or rejection is under subsection (1) above, within 2 weeks of that acceptance or rejection;
(b)if the acceptance or rejection is under subsection (2) above, not later than 2 weeks before the end of the accounting period,
and the F518. . . trustee shall record the sheriff’s decision in the sederunt book.
[F521(6A)A debtor may appeal under subsection (6) above if, and only if, he satisfies the sheriff that he has, or is likely to have, a pecuniary interest in the outcome of the appeal.]
(7)Any reference in this section to the acceptance or rejection of a claim shall be construed as a reference to the acceptance or rejection of the claim in whole or in part.
Textual Amendments
F518Words in s. 49 repealed (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 226, 227(3), Sch. 6 Pt. 1 (with s. 223); S.S.I. 2008/115, art. 3(2)(3), Sch. 2 (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F519S. 49(2A) inserted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 8(3), 227(3) (with s. 223); S.S.I. 2008/115, art. 3(1)(a) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F520Words in s. 49(6) inserted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 31(1)(a), 227(3) (with s. 223); S.S.I. 2008/115, art. 3(1)(a) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F521S. 49(6A) inserted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 31(1)(b), 227(3) (with s. 223); S.S.I. 2008/115, art. 3(1)(a) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
Modifications etc. (not altering text)
C49S. 49 applied (with modifications) by S.I. 1986/1915, Rules 4.16(1)(c) (as amended by S.I. 2003/3226, reg. 15) , 7.9(4) and by Rule 2.41(2) (as substituted (15.9.2003) by S.I. 2003/2111, Rule 3, Sch. 1 Pt. 1)
C50S. 49 applied (with modifications) (14.11.2011) by The Investment Bank Special Administration (Scotland) Rules 2011 (S. I. 2011/2262), rule 127
[F522(1)]A creditor who has had his claim accepted in whole or in part by the F523. . . trustee or on appeal under subsection (6) of section 49 of this Act shall be entitled—
(a)subject to sections 29(1)(a) and 30(1) and (4)(b) of this Act, in a case where the acceptance is under (or on appeal arising from) subsection (1) of the said section 49, to vote on any matter at the meeting of creditors for the purpose of voting at which the claim is accepted; and
(b)in a case where the acceptance is under (or on appeal arising from) subsection (2) of the said section 49, to payment out of the debtor’s estate of a dividend in respect of the accounting period for the purposes of which the claim is accepted; but such entitlement to payment shall arise only in so far as that estate has funds available to make that payment, having regard to section 51 of this Act.
[F524(2)No vote shall be cast by virtue of a debt more than once on any resolution put to a meeting of creditors.
(3)Where a creditor–
(a)is entitled to vote under this section;
(b)has lodged his claim in one or more sets of other proceedings; and
(c)votes (either in person or by proxy) on a resolution put to the meeting,
only the creditor’s vote shall be counted.
(4)Where–
(a)a creditor has lodged his claim in more than one set of other proceedings; and
(b)more than one member State liquidator seeks to vote by virtue of that claim,
the entitlement to vote by virtue of that claim is exercisable by the member State liquidator in main proceedings, whether or not the creditor has lodged his claim in the main proceedings.
(5)For the purposes of subsections (3) and (4) above, “other proceedings” means main proceedings, secondary proceedings or territorial proceedings in a member State other than the United Kingdom.]
Textual Amendments
F522S. 50 renumbered (8.9.2003) as s. 50(1) by The Insolvency (Scotland) Regulations 2003 (S.I. 2003/2109), reg. 13(a)
F523Word in s. 50 repealed (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 226, 227(3), Sch. 6 Pt. 1 (with s. 223); S.S.I. 2008/115, art. 3(2)(3), Sch. 2 (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F524S. 50(2)-(5) inserted (8.9.2003) by The Insolvency (Scotland) Regulations 2003 (S.I. 2003/2109), reg. 13(b)
Modifications etc. (not altering text)
C51S. 50 applied with modifications by S.I. 1986/1915, Rules 4.16(1)(d), 7.9(4) and by Rule 2.41(2) (as substituted (15.9.2003) by S.I. 2003/2111, Rule 3, Sch. 1 Pt. 1)
C52S. 50(1) applied (with modifications) (14.11.2011) by The Investment Bank Special Administration (Scotland) Rules 2011 (S. I. 2011/2262), rule 127
(1)The funds of the debtor’s estate shall be distributed by the F525. . . trustee to meet the following debts in the order in which they are mentioned—
(a)the outlays and remuneration of the interim trustee in the administration of the debtor’s estate;
(b)the outlays and remuneration of the F525. . . trustee in the administration of the debtor’s estate;
(c)where the debtor is a deceased debtor, deathbed and funeral expenses reasonably incurred and expenses reasonably incurred in administering the deceased’s estate;
(d)the expenses reasonably incurred by a creditor who is a petitioner, or concurs in [F526a debtor application], for sequestration;
(e)preferred debts (excluding any interest which has accrued thereon to the date of sequestration);
(f)ordinary debts, that is to say a debt which is neither a secured debt nor a debt mentioned in any other paragraph of this subsection;
(g)interest at the rate specified in subsection (7) below on—
(i)the preferred debts;
(ii)the ordinary debts,
between the date of sequestration and the date of payment of the debt;
(h)any postponed debt.
(2)In this Act “preferred debt” means a debt listed in Part I of Schedule 3 to this Act; and Part II of that Schedule shall have effect for the interpretation of the said Part I.
(3)In this Act “postponed debt” means—
(a)a loan made to the debtor, in consideration of a share of the profits in his business, which is postponed under section 3 of the M20Partnership Act 1890 to the claims of other creditors;
(b)a loan made to the debtor by the debtor’s spouse [F527or civil partner] ;
(c)a creditor’s right to anything vesting in the F525. . . trustee by virtue of a successful challenge under section 34 of this Act or to the proceeds of sale of such a thing.
(4)Any debt falling within any of paragraphs (c) to (h) of subsection (1) above shall have the same priority as any other debt falling within the same paragraph and, where the funds of the estate are inadequate to enable the debts mentioned in the paragraph to be paid in full, they shall abate in equal proportions.
(5)Any surplus remaining, after all the debts mentioned in this section have been paid in full, shall be made over to the debtor or to his successors or assignees; and in this subsection “surplus” includes any kind of estate but does not include any unclaimed dividend.
[F528(5A)Subsection (5) above is subject to Article 35 of the EC Regulation (surplus in secondary proceedings to be transferred to main proceedings).]
(6)Nothing in this section shall affect—
(a)the right of a secured creditor which is preferable to the rights of the F525. . . trustee; or
(b)any preference of the holder of a lien over a title deed or other document which has been delivered to the F525. . . trustee in accordance with a requirement under section 38(4) of this Act.
(7)The rate of interest referred to in paragraph (g) of subsection (1) above shall be whichever is the greater of—
(a)the prescribed rate at the date of sequestration; and
(b)the rate applicable to that debt apart from the sequestration.
Textual Amendments
F525Words in s. 51 repealed (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 226, 227(3), Sch. 6 Pt. 1 (with s. 223); S.S.I. 2008/115, art. 3(2)(3), Sch. 2 (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F526Words in s. 51(1)(d) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 43 (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F527Words in s. 51(3)(b) inserted (5.12.2005) by Civil Partnership Act 2004 (c. 33), ss. 261(2), 263, Sch. 28 para. 39; S.S.I. 2005/604 {art. 2(c)}
F528S. 51(5A) inserted (8.9.2003) by The Insolvency (Scotland) Regulations 2003 (S.I. 2003/2109), reg. 14
Modifications etc. (not altering text)
C53S. 51 applied (11.12.1999) by S.I. 1999/2979, reg. 14(5)(b)
C54S. 51(1)(d)-(h) excluded (10.8.2005) by The Insurers (Reorganisation and Winding up) Regulations 2004 (S.I. 2004/353), reg. 20 (as amended by The Insurers (Reorganisation and Winding up) (Lloyd's) Regulations 2005 (S.I. 2005/1998), reg. 40(1)-(5))
Marginal Citations
F529[(1)The F530. . . trustee shall make up accounts of his intromissions with the debtor’s estate in respect of each accounting period.
(2)In this Act “accounting period” shall be construed as follows—
(a)[F531subject to subsection (2ZA) below,] the first accounting period shall be the period of [F53212] months beginning with the date [F533on which sequestration is awarded]; and
(b)any subsequent accounting period shall be the period of [F53212] months beginning with the end of the last accounting period; except that—
(i)in a case where the Accountant in Bankruptcy is not the F530. . . trustee, the F530. . . trustee and the commissioners or, if there are no commissioners, the Accountant in Bankruptcy agree; or
(ii)in a case where the Accountant in Bankruptcy is the F530. . . trustee, he determines,
that the accounting period shall be such other period beginning with the end of the last accounting period as may be agreed or, as the case may be determined, it shall be that other period.
[F534(2ZA)Where the trustee was appointed under section 2(5) of this Act as interim trustee in the sequestration, the first accounting period shall be the period beginning with the date of his appointment as interim trustee and ending on the date 12 months after the date on which sequestration is awarded.]
(2A)An agreement or determination under subsection (2)(b)(i) or (ii) above—
(a)may be made in respect of one or more than one accounting period;
(b)may be made before the beginning of the accounting period in relation to which it has effect and, in any event, shall not have effect unless made before the day on which such accounting period would, but for the agreement or determination, have ended;
(c)may provide for different accounting periods to be of different durations,
and shall be recorded in the sederunt book by the F530. . . trustee.]
(3)Subject to the following provisions of this section, the F530. . . trustee shall, if the funds of the debtor’s estate are sufficient and after making allowance for future contingencies, pay under section 53(7) of this Act a dividend out of the estate to the creditors in respect of each accounting period.
(4)The F530. . . trustee may pay—
(a)the debts mentioned in subsection (1)(a) to (d) of section 51 of this Act, other than his own remuneration, at any time;
(b)the preferred debts at any time but only with the consent of the commissioners or, if there are no commissioners, of the Accountant in Bankruptcy.
(5)If the F530. . . trustee—
(a)is not ready to pay a dividend in respect of an accounting period; or
(b)considers it would be inappropriate to pay such a dividend because the expense of doing so would be disproportionate to the amount of the dividend,
he may, with the consent of the commissioners, or if there are no commissioners of the Accountant in Bankruptcy, postpone such payment to a date not later than the time for payment of a dividend in respect of the next accounting period.
F535(6). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(7)Where an appeal is taken under section 49(6)(b) of this Act against the acceptance or rejection of a creditor’s claim, the F530. . . trustee shall, at the time of payment of dividends and until the appeal is determined, set aside an amount which would be sufficient, if the determination in the appeal were to provide for the claim being accepted in full, to pay a dividend in respect of that claim.
(8)Where a creditor—
(a)has failed to produce evidence in support of his claim earlier than 8 weeks before the end of an accounting period on being required by the F530. . . trustee to do so under section 48(5) of this Act; and
(b)has given a reason for such failure which is acceptable to the F530. . . trustee,
the F530. . . trustee shall set aside, for such time as is reasonable to enable him to produce that evidence or any other evidence that will enable the F530. . . trustee to be satisfied under the said section 48(5), an amount which would be sufficient, if the claim were accepted in full, to pay a dividend in respect of that claim.
(9)Where a creditor submits a claim to the F530. . . trustee later than 8 weeks before the end of an accounting period but more than 8 weeks before the end of a subsequent accounting period in respect of which, after making allowance for contingencies, funds are available for the payment of a dividend, the F530. . . trustee shall, if he accepts the claim in whole or in part, pay to the creditor—
(a)the same dividend or dividends as has or have already been paid to creditors of the same class in respect of any accounting period or periods; and
(b)whatever dividend may be payable to him in respect of the said subsequent accounting period:
Provided that paragraph (a) above shall be without prejudice to any dividend which has already been paid.
[F536(10)In the declaration of and payment of a dividend, no payments shall be made more than once by virtue of the same debt.
(11)Any dividend paid in respect of a claim should be paid to the creditor.]
Textual Amendments
F529S. 52(1)(2)(2A) substituted for s. 52(1)(2) (1.4.1993, subject to savings in arts. 4,5 of S.I. 1993/438) by 1993 c. 6, s. 11(3), Sch. 1 para.21 (with s. 12(6)); S.I. 1993/438, art.3
F530Words in s. 52 repealed (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 226, 227(3), Sch. 6 Pt. 1 (with s. 223); S.S.I. 2008/115, art. 3(2)(3), Sch. 2 (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F531Words in s. 52(2)(a) inserted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 44(2)(b)(i) (with s. 223); S.S.I. 2008/115, art. 3(1)(a)(i) (with arts. 4-6, 10) (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5)
F532Words in s. 52(2) substituted (1.4.2008 for specified purposes, otherwise prosp.) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 44(2)(a) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F533Words in s. 52(2)(a) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 44(2)(b)(ii) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F534S. 52(2ZA) inserted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 44(3) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F535S. 52(6) repealed (1.4.1993, subject to savings in arts. 4,5 of S.I. 1993/438) by 1993 c. 6, s. 11(4), Sch.2 (with s. 12(6)); S.I. 1993/438, art.3
F536S. 52(10)(11) inserted (8.9.2003) by The Insolvency (Scotland) Regulations 2003 (S.I. 2003/2109), reg. 15
Modifications etc. (not altering text)
C55S. 52 applied with modifications by S.I. 1986/1915, Rule 4.68 and by Rule 2.41(2) (as substituted (15.9.2003) by S.I. 2003/2111, rule 3, {Sch. 1Pt. 1})
C56S. 52 applied (with modifications) (14.11.2011) by The Investment Bank Special Administration (Scotland) Rules 2011 (S. I. 2011/2262), rules 127(2), 132
(1)Within 2 weeks after the end of an accounting period, the F537. . . trustee shall in respect of that period submit to the commissioners or, if there are no commissioners, to the Accountant in Bankruptcy—
(a)his accounts of his intromissions with the debtor’s estate for audit and, where funds are available after making allowance for contingencies, a scheme of division of the divisible funds; and
(b)a claim for the outlays reasonably incurred by him and for his remuneration;
and, where the said documents are submitted to the commissioners, he shall send a copy of them to the Accountant in Bankruptcy.
[F538(2)Subject to subsection (2A) below, all accounts in respect of legal services incurred by the F537. . . trustee shall, before payment thereof by him, be submitted for taxation to the auditor of the court before which the sequestration is pending.
(2A)Where—
(a)any such account has been agreed between the F537. . . trustee and the person entitled to payment in respect of that account (in this subsection referred to as “the payee”);
(b)the F537. . . trustee is not an associate of the payee; and
(c)the commissioners [F539or, if there are no commissioners, the Accountant in Bankruptcy, have determined that the account need not] be submitted for taxation,
the F537. . . trustee may pay such account without submitting it for taxation.]
(3)Within 6 weeks after the end of an accounting period—
(a)the commissioners or, as the case may be, the Accountant in Bankruptcy F540. . .—
(i)[F541may] audit the accounts; and
(ii)[F541shall] issue a determination fixing the amount of the outlays and the remuneration payable to the F537. . . trustee; and
(b)the F537. . . trustee shall make the audited accounts, scheme of division and the said determination available for inspection by the debtor and the creditors.
(4)The basis for fixing the amount of the remuneration payable to the F537. . . trustee may be a commission calculated by reference to the value of the debtor’s estate which has been realised by the F537. . . trustee, but there shall in any event be taken into account—
(a)the work which, having regard to that value, was reasonably undertaken by him; and
(b)the extent of his responsibilities in administering the debtor’s estate.
(5)If fixing the amount of such remuneration in respect of [F542any] accounting period, the commissioners or, as the case may be, the Accountant in Bankruptcy may take into account any adjustment which the commissioners or the Accountant in Bankruptcy may wish to make in the amount of the remuneration fixed in respect of any earlier accounting period.
(6)Not later than 8 weeks after the end of an accounting period, the F537. . . trustee, the debtor [F543(subject to subsection (6A) below)] or any creditor may appeal against a determination issued under subsection (3)(a)(ii) above—
(a)where it is a determination of the commissioners, to the Accountant in Bankruptcy; and
(b)where it is a determination of the Accountant in Bankruptcy, to the sheriff;
and the determination of the Accountant in Bankruptcy under paragraph (a) above shall be appealable to the sheriff [F544; and the decision of the sheriff on such an appeal shall be final.]
[F545(6A)A debtor may appeal under subsection (6) above if, and only if, he satisfies the Accountant in Bankruptcy or, as the case may be, the sheriff that he has, or is likely to have, a pecuniary interest in the outcome of the appeal.]
[F546(6B)Before—
(a)a debtor; or
(b)a creditor,
appeals under subsection (6) above, he must give notice to the trustee of his intention to appeal.]
(7)On the expiry of the period within which an appeal may be taken under subsection (6) above or, if an appeal is so taken, on the final determination of the last such appeal, the F537. . . trustee shall pay to the creditors their dividends in accordance with the scheme of division.
(8)Any dividend—
(a)allocated to a creditor which is not cashed or uplifted; or
(b)dependent on a claim in respect of which an amount has been set aside under subsection (7) or (8) of section 52 of this Act,
shall be deposited by the F537. . . trustee in an appropriate bank or institution.
(9)If a creditor’s claim is revalued, the F537. . . trustee may—
(a)in paying any dividend to that creditor, make such adjustment to it as he considers necessary to take account of that revaluation; or
(b)require the creditor to repay to him the whole or part of a dividend already paid to him.
(10)The F537. . . trustee shall insert in the sederunt book the audited accounts, the scheme of division and the final determination in relation to the F537. . . trustee’s outlays and remuneration.
Textual Amendments
F537Words in s. 53 repealed (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 226, 227(3), Sch. 6 Pt. 1 (with s. 223); S.S.I. 2008/115, art. 3(2)(3), Sch. 2 (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F538S. 53(2)(2A) substituted for s. 53(2) (1.4.1993, subject to savings in arts. 4,5 of S.I. 1993/438) by 1993 c. 6, s. 11(3), Sch. 1 para. 22(2) (with s. 12(6)); S.I. 1993/438, art.3
F539Words in s. 53(2A)(c) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 45(a) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F540Word "shall" in s. 53(3)(a) repealed (1.4.1993, subject to savings in arts. 4,5 of S.I. 1993/438) by 1993 c. 6, s. 11(4), Sch.2 (with s. 12(6)); S.I. 1993/438, art.3
F541Words in s. 53(a)(i)(ii) inserted (1.4.1993, subject to savings in arts. 4,5 of S.I. 1993/438) by 1993 c. 6, s. 11(3), Sch. 1 para. 22(3) (with s. 12(6)); S.I. 1993/438, art.3
F542Words in s. 53(5) substituted (1.4.1993, subject to savings in arts. 4, 5 of S.I. 1993/438) by 1993 c. 6, s. 11(3), Sch. 1 para. 22(4) (with s. 12(6)); S.I. 1993/438, art.3
F543Words in s. 53(6) inserted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 31(2)(a), 227(3) (with s. 223); S.S.I. 2008/115, art. 3(1)(a) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F544Words at the end of s. 53(6) added (18.2.1993) by 1993 c. 6, s. 11(3), Sch. 1 para. 22(5)
F545S. 53(6A) inserted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 31(2)(a), 227(3) (with s. 223); S.S.I. 2008/115, art. 3(1)(a) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F546S. 53(6B) inserted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 45(b) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
Modifications etc. (not altering text)
C57S. 53 applied with modifications by S.I. 1986/1915, Rule 4.32.(1), 68 and by Rule 2.41(2)-(4) (as substituted (15.9.2003) by S.I. 2003/2111, Rule 3, Sch. 1 Pt. 1)
S. 53 modified (18.2.1993) by 1993 c. 6, s. 9(1)(2)
(1)In any case where the Accountant in Bankruptcy is the trustee, section 53 of this Act shall have effect subject to the following modifications.
(2)For subsections (1) to (7) of that section, there shall be substituted—
“(1)At the end of each accounting period, the Accountant in Bankruptcy shall prepare accounts of his intromissions with the debtor's estate and he shall make a determination of his fees and outlays calculated in accordance with regulations made under section 69A of this Act.
(2)Such accounts and determination shall be available for inspection by the debtor and the creditors not later than 6 weeks after the end of the accounting period to which they relate.
(3)In making a determination as mentioned in subsection (1) above, the Accountant in Bankruptcy may take into account any adjustment which he may wish to make in the amount of his remuneration fixed in respect of any earlier accounting period.
(4)Not later than 8 weeks after the end of an accounting period, the debtor (subject to subsection (5) below) or any creditor may appeal to the sheriff against the determination of the Accountant in Bankruptcy; and the decision of the sheriff on such an appeal shall be final.
(5)A debtor may appeal under subsection (4) above if, and only if, he satisfies the sheriff that he has, or is likely to have, a pecuniary interest in the outcome of the appeal.
(6)Before—
(a)a debtor; or
(b)any creditor,
appeals under subsection (4) above, he must give notice to the Accountant in Bankruptcy of his intention to appeal.
(7)On the expiry of the period within which an appeal may be made under subsection (4) above, the Accountant in Bankruptcy shall pay to the creditors their dividends in accordance with the scheme of division.”.
(3)In subsection (10) for the words “the audited” there shall be substituted the word “ his ”.]
Textual Amendments
F547S. 53A inserted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 46 (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
(1)Subject to the following provisions of this section, the debtor shall be discharged on the expiry of [F5491 year] from the date of sequestration.
(2)Every debtor who has been discharged under or by virtue of this section or section 75(4) of this Act may apply to the Accountant in Bankruptcy for a certificate that he has been so discharged; and the Accountant in Bankruptcy, if satisfied of such discharge, shall grant a certificate of discharge in the prescribed form.
(3)The F550. . . trustee or any creditor may, not later than F551. . . 9 months after the date of sequestration, apply to the sheriff for a deferment of the debtor’s discharge by virtue of subsection (1) above.
(4)On an application being made to him under subsection (3) above, the sheriff shall order—
(a)the applicant to serve the application on the debtor and (if he is not himself the applicant and is not discharged) the F550. . . trustee; and
(b)the debtor to lodge in court a declaration—
(i)that he has made a full and fair surrender of his estate and a full disclosure of all claims which he is entitled to make against other persons; and
(ii)that he has delivered to the F552. . . F550. . . trustee every document under his control relating to his estate or his business or financial affairs;
and, if the debtor fails to lodge such a declaration in court within 14 days of being required to do so, the sheriff shall defer his discharge without a hearing for a period not exceeding 2 years.
(5)If the debtor lodges the declaration in court within the said period of 14 days, the sheriff shall—
(a)fix a date for a hearing not earlier than 28 days after the date of the lodging of the declaration; and
(b)order the applicant to notify the debtor and the F550. . . trustee or (if he has been discharged) the Accountant in Bankruptcy of the date of the hearing;
and the F550. . . trustee or (if he has been discharged) the Accountant in Bankruptcy shall, not later than 7 days before the date fixed under paragraph (a) above, lodge in court a report upon the debtor’s assets and liabilities, his financial and business affairs and his conduct in relation thereto and upon the sequestration and his conduct in the course of it.
(6)After considering at the hearing any representations made by the applicant, the debtor or any creditor, the sheriff shall make an order either deferring the discharge for such period not exceeding 2 years as he thinks appropriate or dismissing the application:
Provided that the applicant or the debtor may appeal against an order under this subsection within 14 days after it is made.
(7)Where the discharge is deferred under subsection (4) or (6) above, the clerk of the court shall send—
(a)a certified copy of the order of the sheriff deferring discharge to the keeper of the register of inhibitions and adjudications for recording in that register; and
(b)a copy of such order to—
(i)the Accountant in Bankruptcy; and
(ii)the F550. . . trustee (if not discharged) for insertion in the sederunt book.
(8)A debtor whose discharge has been deferred under subsection (4) or (6) above may, at any time thereafter and provided that he lodges in court a declaration as to the matters mentioned in sub-paragraphs (i) and (ii) of paragraph (b) of the said subsection (4), petition the sheriff for his discharge; and subsections (5) to (7) above shall, with any necessary modifications, apply in relation to the proceedings which shall follow the lodging of a declaration under this subsection as they apply in relation to the proceedings which follow the timeous lodging of a declaration under the said paragraph (b).
(9)The F550. . . trustee or any creditor may, not later than 3 months before the end of a period of deferment, apply to the sheriff for a further deferment of the discharge; and subsections (4) to (8) above and this subsection shall apply in relation to that further deferment.
Textual Amendments
F548S. 54 heading substituted (1.4.2008) by virtue of Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 1(4), 227(3) (with s. 223); S.S.I. 2008/115, art. 3(1)(a) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F549Words in s. 54(1) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 1(2), 227(3) (with s. 223); S.S.I. 2008/115, art. 3(1)(a) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F550Words in s. 54 repealed (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 226, 227(3), Sch. 6 Pt. 1 (with s. 223); S.S.I. 2008/115, art. 3(2)(3), Sch. 2 (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F551Words in s. 54(3) repealed (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 1(3), 227(3) (with s. 223); S.S.I. 2008/115, art. 3(1)(a) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F552Words in s. 54(4)(b)(ii) repealed (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 226, 227(3), Sch. 6 Pt. 1 (with s. 223); S.S.I. 2008/115, art. 3(2)(3), Sch. 2 (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
Modifications etc. (not altering text)
(1)Subject to [F553subsections (2) and (3)] below, on the debtor’s discharge under section 54 of this Act, the debtor shall be discharged within the United Kingdom of all debts and obligations contracted by him, or for which he was liable, at the date of sequestration.
(2)The debtor shall not be discharged by virtue of subsection (1) above from—
(a)any liability to pay a fine or other penalty due to the Crown;
[F554(aa)any liability to pay a fine imposed in a district court;
(ab)any liability under a compensation order within the meaning of section 249 of the Criminal Procedure (Scotland) Act 1995;]
(b)any liability to forfeiture of a sum of money deposited in court under section 1(3) of the M21Bail etc. (Scotland) Act 1980;
(c)any liability incurred by reason of fraud or breach of trust;
(d)any obligation to pay aliment or any sum of an alimentary nature under any enactment or rule of law or any periodical allowance payable on divorce by virtue of a court order or under an obligation, not being
[F555(i)] aliment or a periodical allowance which could be included in the amount of a creditor’s claim under paragraph 2 of Schedule 1 to this Act; [F556or
(ii)child support maintenance within the meaning of the Child Support Act 1991 which was unpaid in respect of any period before the date of sequestration of—
(aa)any person by whom it was due to be paid; or
(bb)any employer by whom it was, or was due to be, deducted under section 31(5) of that Act.]
(e)the obligation imposed on him by section 64 of this Act.
[F557(3)The discharge of the debtor under the said section 54 shall not affect any right of a secured creditor—
(a)for a debt in respect of which the debtor has been discharged to enforce his security for payment of the debt and any interest due and payable on the debt until the debt is paid in full; or
(b)for an obligation in respect of which the debtor has been discharged to enforce his security in respect of the obligation.]
[F558F559(4)In subsection (2)(a) above the reference to a fine or other penalty due to the Crown includes a reference to a confiscation order made under Part 2, 3 or 4 of the Proceeds of Crime Act 2002.]
Textual Amendments
F553Words in s. 55(1) substituted (retrospectively) by 1993 c. 6, s. 11(3), Sch. 1 para. 23(2)(4)
F554S. 55(2)(aa)(ab) inserted (S.) (1.4.1996) by 1995 c. 40, ss. 5, 7(2), Sch. 4 para. 58(4)
F555Word "(i)" inserted (4.4.1993) by Child Support Act 1991 (c. 48, SIF 20), s. 58(13), Sch. 5 para. 6(4)(a) (with s. 9(2)); S.I. 1992/2644, art. 2.
F556Word "or" and s. 55(2)(d)(ii) inserted (4.4.1993) by Child Support Act 1991 (c. 48, SIF 20), s. 58(13), Sch. 5 para. 6(4)(b) (with s. 9(2)); S.I. 1992/2644, art. 2.
F557S. 55(3) inserted (retrospectively) by 1993 c. 6, s. 11(3), Sch. 1 para. 23(3)(4)
F558S. 55(4) inserted (24.3.2003) by Proceeds of Crime Act 2002 (c. 29), ss. 456, 458(1)(3), Sch. 11 para. 15(5); S.I. 2003/333, art. 2(1), Sch. (subject to transitional provisions in arts. 3-14) (as amended by S.I. 2003/531); S.S.I. 2003/210, art. 2(1)(b), Sch. (subject to transitional provisions in arts. 3-7)
F559S. 55(4): by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 47 (with s. 223), it is provided (1.4.2008) that, in s. 55, subsection (3) (references to a fine or penalty to include a confiscation order), as inserted by paragraph 15(5) of Schedule 11 to the Proceeds of Crime Act 2002 (c. 29), is renumbered as subsection (2A); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
Modifications etc. (not altering text)
C59S. 55(2) amended (E.W.S.) by Drug Trafficking Offences Act 1986 (c. 32, SIF 39:1), s. 39(6)
C60S. 55(2) amended by Criminal Justice (Scotland) Act 1987 (c. 41, SIF 39:1), ss. 45(5)(c), 47(4)(a)
C61S. 55(2) amended by Criminal Justice Act 1988 (c. 33, SIF 39:1), ss. 123, 170, Sch. 8 para. 16, Sch. 15 para. 109
C62S. 55(2) extended (3.2.1995) by 1994 c. 37, ss. 65(4), 69(2)
S. 55(2) extended (S.) (1.4.1996) by 1995 c. 43, ss. 47(3), 50(2)
C63S. 55(2) excluded (S.) (31.3.1996) by 1995 c. 20, ss. 113(7); S.I. 1996/517, art. 3(2)
Marginal Citations
Schedule 4 to this Act shall have effect in relation to an offer of composition by or on behalf of the debtor to the F560. . . trustee in respect of his debts and his discharge and the discharge of the F560. . . trustee where the offer is approved.
Textual Amendments
F560Words in s. 56 repealed (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 226, 227(3), Sch. 6 Pt. 1 (with s. 223); S.S.I. 2008/115, art. 3(2)(3), Sch. 2 (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
Textual Amendments
F561Ss. 56A-56K and preceding cross-heading inserted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 2(1), 227(3) (with s. 223); S.S.I. 2008/115, art. 3(1)(a) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
(1)Where sequestration of a living debtor's estate is awarded, an order (known as a “bankruptcy restrictions order”) in respect of the debtor may be made by the sheriff.
(2)An order may be made only on the application of the Accountant in Bankruptcy.
(1)The sheriff shall grant an application for a bankruptcy restrictions order if he thinks it appropriate having regard to the conduct of the debtor (whether before or after the date of sequestration).
(2)The sheriff shall, in particular, take into account any of the following kinds of behaviour on the part of the debtor—
(a)failing to keep records which account for a loss of property by the debtor, or by a business carried on by him, where the loss occurred in the period beginning 2 years before the date of presentation of the petition for sequestration or, as the case may be, the date the debtor application was made and ending with the date of the application for a bankruptcy restrictions order;
(b)failing to produce records of that kind on demand by—
(i)the Accountant in Bankruptcy;
(ii)the interim trustee; or
(iii)the trustee;
(c)making a gratuitous alienation or any other alienation for no consideration or for no adequate consideration which a creditor has, under any rule of law, right to challenge;
(d)creating an unfair preference or any other preference which a creditor has, under any rule of law, right to challenge;
(e)making an excessive pension contribution;
(f)failing to supply goods or services which were wholly or partly paid for which gave rise to a claim submitted by a creditor under section 22 or 48 of this Act;
(g)trading at a time before the date of sequestration when the debtor knew or ought to have known that he was to be unable to meet his debts;
(h)incurring, before the date of sequestration, a debt which the debtor had no reasonable expectation of being able to pay;
(j)failing to account satisfactorily to—
(i)the sheriff;
(ii)the Accountant in Bankruptcy;
(iii)the interim trustee; or
(iv)the trustee,
for a loss of property or for an insufficiency of property to meet his debts;
(k)carrying on any gambling, speculation or extravagance which may have materially contributed to or increased the extent of his debts or which took place between the date of presentation of the petition for sequestration or, as the case may be, the date the debtor application was made and the date on which sequestration is awarded;
(l)neglect of business affairs of a kind which may have materially contributed to or increased the extent of his debts;
(m)fraud or breach of trust;
(n)failing to co-operate with—
(i)the Accountant in Bankruptcy;
(ii)the interim trustee; or
(iii)the trustee.
(3)The sheriff shall also, in particular, consider whether the debtor—
(a)has previously been sequestrated; and
(b)remained undischarged from that sequestration at any time during the period of 5 years ending with the date of the sequestration to which the application relates.
(4)For the purposes of subsection (2) above—
“excessive pension contribution” shall be construed in accordance with section 36A of this Act; and
“gratuitous alienation” means an alienation challengeable under section 34(1) of this Act.
(1)Where the sheriff thinks it appropriate, the sheriff may specify in the bankruptcy restrictions order that subsection (9) of section 67 of this Act shall apply to the debtor during the period he is subject to the order as if he were a debtor within the meaning of subsection (10)(a) of that section.
(2)For the purposes of subsection (1) above, section 67(10) of this Act shall have effect as if, for paragraph (c) of that subsection, there were substituted—
“(c)the relevant information about the status of the debtor is the information that—
(i)he is subject to a bankruptcy restrictions order; or
(ii)where his estate has been sequestrated and he has not been discharged, that fact.”.
(1)An application for a bankruptcy restrictions order must be made, subject to subsection (2) below, within the period beginning with the date of sequestration and ending with the date on which the debtor's discharge becomes effective.
(2)An application may be made after the end of the period referred to in subsection (1) above only with the permission of the sheriff.
(1)A bankruptcy restrictions order—
(a)shall come into force when it is made; and
(b)shall cease to have effect at the end of the date specified in the order.
(2)The date specified in a bankruptcy restrictions order under subsection (1)(b) above must not be—
(a)before the end of the period of 2 years beginning with the date on which the order is made; or
(b)after the end of the period of 15 years beginning with that date.
(3)On an application by the debtor the sheriff may—
(a)annul a bankruptcy restrictions order; or
(b)vary such an order, including providing for such an order to cease to have effect at the end of a date earlier than the date specified in the order under subsection (1)(b) above.
(1)This section applies at any time between—
(a)the making of an application for a bankruptcy restrictions order; and
(b)the determination of the application.
(2)The sheriff may make an interim bankruptcy restrictions order if he thinks that—
(a)there are prima facie grounds to suggest that the application for the bankruptcy restrictions order will be successful; and
(b)it is in the public interest to make an interim order.
(3)An interim order may be made only on the application of the Accountant in Bankruptcy.
(4)An interim order—
(a)shall have the same effect as a bankruptcy restrictions order; and
(b)shall come into force when it is made.
(5)An interim order shall cease to have effect—
(a)on the determination of the application for the bankruptcy restrictions order;
(b)on the acceptance of a bankruptcy restrictions undertaking made by the debtor; or
(c)if the sheriff discharges the interim order on the application of the Accountant in Bankruptcy or of the debtor.
(6)Where a bankruptcy restrictions order is made in respect of a debtor who is subject to an interim order, section 56E(2) of this Act shall have effect in relation to the bankruptcy restrictions order as if the reference to the date on which the order is made were a reference to the date on which the interim order was made.
(1)A living debtor who is not subject to a bankruptcy restrictions order may offer an undertaking (known as a “bankruptcy restrictions undertaking”) to the Accountant in Bankruptcy.
(2)In determining whether to accept a bankruptcy restrictions undertaking, the Accountant in Bankruptcy shall have regard to the matters specified in section 56B(2) and (3) of this Act.
(3)A bankruptcy restrictions undertaking—
(a)shall take effect on being accepted by the Accountant in Bankruptcy; and
(b)shall cease to have effect at the end of the date specified in the undertaking.
(4)The date specified under subsection (3)(b) above must not be—
(a)before the end of the period of 2 years beginning with the date on which the undertaking is accepted; or
(b)after the end of the period of 15 years beginning with that date.
(5)On an application by the debtor the sheriff may—
(a)annul a bankruptcy restrictions undertaking; or
(b)vary such an undertaking, including providing for a bankruptcy restrictions undertaking to cease to have effect at the end of a date earlier than the date specified in the undertaking under subsection (3)(b) above.
(1)A debtor may, with the agreement of the Accountant in Bankruptcy, specify in a bankruptcy restrictions undertaking that subsection (9) of section 67 of this Act shall apply to the debtor during the period the undertaking has effect as if he were a debtor within the meaning of subsection (10)(a) of that section.
(2)For the purposes of subsection (1) above, section 67(10) of this Act shall have effect as if, for paragraph (c) of that subsection, there were substituted—
“(c)the relevant information about the status of the debtor is the information that—
(i)he is subject to a bankruptcy restrictions undertaking; or
(ii)where his estate has been sequestrated and he has not been discharged, that fact.”.
(1)Where an award of sequestration of a debtor's estate is recalled under section 17(1) of this Act—
(a)the sheriff may annul any bankruptcy restrictions order, interim bankruptcy restrictions order or bankruptcy restrictions undertaking which is in force in respect of the debtor;
(b)no new bankruptcy restrictions order or interim order may be made in respect of the debtor; and
(c)no new bankruptcy restrictions undertaking by the debtor may be accepted.
(2)Where the sheriff refuses to annul a bankruptcy restrictions order, interim bankruptcy restrictions order or bankruptcy restrictions undertaking under subsection (1)(a) above the debtor may, no later than 28 days after the date on which the award of sequestration is recalled, appeal to the sheriff principal against such a refusal.
(3)The decision of the sheriff principal on an appeal under subsection (2) above is final.
(1)This section applies where a certificate of discharge is granted under paragraph 11(1) of Schedule 4 to this Act discharging a debtor.
(2)Subject to sections 56E(3)(a), 56F(5)(c) and 56G(5)(a) of this Act, the debtor shall remain subject to any bankruptcy restrictions order, interim bankruptcy restrictions order or bankruptcy restrictions undertaking which is in force in respect of him.
(3)The sheriff may make a bankruptcy restrictions order in relation to the debtor on an application made before the discharge.
(4)The Accountant in Bankruptcy may accept a bankruptcy restrictions undertaking offered before the discharge.
(5)No application for a bankruptcy restrictions order or interim order may be made in respect of the debtor.]
Textual Amendments
F562Cross-heading preceding s. 57 substituted (1.4.2008) by virtue of Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 48 (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
(1)After the F564. . . trustee has made a final division of the debtor’s estate and has inserted his final audited accounts in the sederunt book, he—
(a)shall deposit any unclaimed dividends and any unapplied balances in an appropriate bank or institution;
(b)shall thereafter send to the Accountant in Bankruptcy the sederunt book, a copy of the audited accounts and a receipt for the deposit of the unclaimed dividends and unapplied balances; and
(c)may at the same time as sending the said documents apply to the Accountant in Bankruptcy for a certificate of discharge.
(2)The F564. . . trustee shall send notice of an application under subsection (1)(c) above to the debtor and to all the creditors known to the F564. . . trustee and shall inform the debtor and such creditors—
(a)that they may make written representations relating to the application to the Accountant in Bankruptcy within a period of 14 days after such notification;
(b)that the sederunt book is available for inspection at the office of the Accountant in Bankruptcy and contains the audited accounts of, and scheme of division in, the sequestration; and
(c)of the effect mentioned in subsection (5) below.
(3)On the expiry of the period mentioned in subsection (2)(a) above, the Accountant in Bankruptcy, after examining the documents sent to him and considering any representations duly made to him, shall—
(a)grant or refuse to grant the certificate of discharge; and
(b)notify (in addition to the F564. . . trustee) the debtor and all creditors who have made such representations accordingly.
(4)The F564. . . trustee, the debtor or any creditor who has made representations under subsection (2)(a) above, may within 14 days after the issuing of the determination under subsection (3) above, appeal therefrom to the sheriff and if the sheriff determines that a certificate of discharge which has been refused should be granted he shall order the Accountant in Bankruptcy to grant it; and the sheriff clerk shall send a copy of the decree of the sheriff to the Accountant in Bankruptcy.
[F565(4A)The decision of the sheriff on an appeal under subsection (4) above shall be final.]
(5)The grant of a certificate of discharge under this section by the Accountant in Bankruptcy shall have the effect of discharging the F564. . . trustee from all liability (other than any liability arising from fraud) to the creditors or to the debtor in respect of any act or omission of the F564. . . trustee in exercising the functions conferred on him by this Act including, where he was also the interim trustee, the functions conferred on him as interim trustee.
(6)Where a certificate of discharge is granted under this section, the Accountant in Bankruptcy shall make an appropriate entry in the register of insolvencies and in the sederunt book.
(7)Where the F564. . . trustee has died, resigned office or been removed from office, the provisions of this section shall, subject to any necessary modifications, apply in relation to that F564. . . trustee or, if he has died, to his executor as they apply to a F564. . . trustee who has made a final division of the debtor’s estate in accordance with the foregoing provisions of this Act.
[F565(8)This section does not apply in any case where the Accountant in Bankruptcy is the F564. . . trustee.]
Textual Amendments
F563S. 57 heading substituted (1.4.2008) by virtue of Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 49 (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F564Words in s. 57 repealed (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 226, 227(3), Sch. 6 Pt. 1 (with s. 223); S.S.I. 2008/115, art. 3(2)(3), Sch. 2 (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F565S. 57(4A) inserted (1.4.1993, subject to savings in arts. 4, 5 of S.I. 1993/438) by 1993 c. 6, s. 11(3), Sch. 1 para. 24(2) (with s. 12(6)); S.I. 1993/438, art.3
S. 57(8) inserted (1.4.1993, subject to savings in arts. 4, 5 of S.I. 1993/438) by 1993 c. 6, s. 11(3), Sch. 1 para. 24(3) (with s. 12(6)); S.I. 1993/438, art.3
(1)Any person, producing evidence of his right, may apply to the Accountant in Bankruptcy to receive a dividend deposited under section 57(1)(a) [F566or 58A(3)] of this Act, if the application is made not later than 7 years after the date of such deposit.
(2)If the Accountant in Bankruptcy is satisfied of the applicant’s right to the dividend, he shall authorise the appropriate bank or institution to pay to the applicant the amount of that dividend and of any interest which has accrued thereon.
(3)The Accountant in Bankruptcy shall, at the expiry of 7 years from the date of deposit of any unclaimed dividend or unapplied balance under section 57(1)(a) [F566or 58A(3)] of this Act, hand over the deposit receipt or other voucher relating to such dividend or balance to the Secretary of State, who shall thereupon be entitled to payment of the amount due, principal and interest, from the bank or institution in which the deposit was made.
Textual Amendments
F566Words in s. 58(1)(3) inserted (1.4.1993, subject to savings in arts. 4, 5 of S.I. 1993/438) by 1993 c. 6, s. 11(3), Sch. 1 para.25 (with s. 12(6)); S.I. 1993/438, art.3
Modifications etc. (not altering text)
C64S. 58 applied with modifications by S.I. 1986/1915, Rule 4.68 and by Rule 2.41(2) (as substituted (15.9.2003) by S.I. 2003/2111, Rule 3, {Sch. 1Pt. 1})
C65S. 58 applied with modifications by Insolvency Act 1986 (c. 45, SIF 66), ss. 193(3), 443
C66S. 58 extended with modifications by Companies Act 1985 (c. 6, SIF 27), s. 430(14) (as substituted by Financial Services Act 1986 (c. 60, SIF 69), s. 172, Sch. 12)
C67S. 58 applied (6.4.2007) by Companies Act 2006 (c. 46), ss. 982(8), 1300; S.I. 2007/1093, art. 2(1)(b) (with saving in art. 11(1))
C68S. 58 applied (with modifications) (20.5.2006) by The Takeovers Directive (Interim Implementation) Regulations 2006 (S.I. 2006/1183), reg. 30, Sch. 2 para. 3(15)
C69S. 58 applied (with modifications) (14.11.2011) by The Investment Bank Special Administration (Scotland) Rules 2011 (S. I. 2011/2262), rules 127(2), 132
(1)This section applies where the Accountant in Bankruptcy has acted as the F568. . . trustee in any sequestration.
(2)After the Accountant in Bankruptcy has made a final division of the debtor’s estate, he shall insert in the sederunt book—
(a)his final accounts of his intromissions (if any) with the debtor’s estate;
(b)the scheme of division (if any); and
(c)a determination of his fees and outlays calculated in accordance with regulations made under section 69A of this Act.
(3)The Accountant in Bankruptcy shall deposit any unclaimed dividends and any unapplied balances in an appropriate bank or institution.
(4)The Accountant in Bankruptcy shall send to the debtor and to all creditors known to him—
(a)a copy of the determination mentioned in subsection (2)(c) above; and
(b)a notice in writing stating—
(i)that the Accountant in Bankruptcy has commenced the procedure under this Act leading to discharge in respect of his actings as F568. . . trustee;
(ii)that the sederunt book relating to the sequestration is available for inspection at such address as the Accountant in Bankruptcy may determine;
(iii)that an appeal may be made to the sheriff under subsection (5) below; and
(iv)the effect of subsection (7) below.
(5)The debtor and any creditor may appeal to the sheriff against—
(a)the determination of the Accountant in Bankruptcy mentioned in subsection (2)(c) above;
(b)the discharge of the Accountant in Bankruptcy in respect of his actings as F568. . . trustee; or
(c)both such determination and discharge.
(6)An appeal under subsection (5) above shall be made not more than 14 days after the issue of the notice mentioned in subsection (4)(b) above; and the decision of the sheriff on such an appeal shall be final.
(7)Where—
(a)the requirements of this section have been complied with; and
(b)no appeal to the sheriff is made under subsection (5) above or such an appeal is made but is refused as regards the discharge of the Accountant in Bankruptcy,
the Accountant in Bankruptcy shall be discharged from all liability (other than any liability arising from fraud) to the creditors or to the debtor in respect of any act or omission of the Accountant in Bankruptcy in exercising the functions of F568. . . trustee in the sequestration [F569including, where the Accountant in Bankruptcy was the interim trustee, the functions of the interim trustee] .
(8)Where the Accountant in Bankruptcy is discharged from all liability as mentioned in subsection (7) above, he shall make an entry in the sederunt book recording such discharge.
(9)F570. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .]
Textual Amendments
F567S. 58A inserted (1.4.1993, subject to savings in arts. 4, 5 of S.I. 1993/438) by 1993 c. 6, s. 11(3), Sch. 1 para.26 (with s. 12(6)); S.I. 1993/438, art.3
F568Words in s. 58A repealed (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 226, 227(3), Sch. 6 Pt. 1 (with s. 223); S.S.I. 2008/115, art. 3(2)(3), Sch. 2 (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F569Words in s. 58A(7) inserted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 50 (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F570S. 58A(9) repealed (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 226, 227(3), Sch. 6 Pt. 1 (with s. 223); S.S.I. 2008/115, art. 3(2)(3), Sch. 2 (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
Schedule 5 to this Act shall have effect in relation to trust deeds executed after the commencement of this section.
(1)Where a member State liquidator proposes to petition the [F572sheriff] for the conversion under Article 37 of the EC Regulation (conversion of earlier proceedings) of a protected trust deed into sequestration, an affidavit complying with section 59B of this Act must be prepared and sworn, and lodged in court in support of the petition.
(2)The petition and the affidavit required under subsection (1) above shall be served upon–
(a)the debtor;
(b)the trustee;
(c)such other person as may be prescribed.
Textual Amendments
F571Ss. 59A-59C inserted (8.9.2003) by The Insolvency (Scotland) Regulations 2003 (S.I. 2003/2109), reg. 16
F572Word in s. 59A(1) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 51 (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
(1)The affidavit shall–
(a)state that main proceedings have been opened in relation to the debtor in a member State other than the United Kingdom;
(b)state that the member State liquidator believes that the conversion of the trust deed into a sequestration would prove to be in the interests of the creditors in the main proceedings;
(c)contain such other information the member State liquidator considers will be of assistance to the [F573sheriff]–
(i)in deciding whether to make an order under section 59C; and
(ii)if the [F573sheriff] were to do so, in considering the need for any consequential provision that would be necessary or desirable; and
(d)contain any other matters as may be prescribed.
(2)An affidavit under this section shall be sworn by, or on behalf of, the member State liquidator.
Textual Amendments
F571Ss. 59A-59C inserted (8.9.2003) by The Insolvency (Scotland) Regulations 2003 (S.I. 2003/2109), reg. 16
F573Words in s. 59B(1)(c) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 52 (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
(1)On hearing the petition for conversion of a trust deed into a sequestration the [F575sheriff] may make such order as [F576he] thinks fit.
(2)If the [F575sheriff] makes an order for conversion into sequestration the order may contain all such consequential provisions as the [F575sheriff] deems necessary or desirable.
[F577(2A)The provisions of this Act shall apply to an order made by the sheriff under subsection (1) above as if it was a determination by the Accountant in Bankruptcy of a debtor application under section 12(1) of this Act and in relation to which the member State liquidator was a concurring creditor.]
(3)Where the [F575sheriff] makes an order for conversion into sequestration under sub-section (1) above, any expenses properly incurred as expenses of the administration of the trust deed in question shall be a first charge on the debtor’s estate.]
Textual Amendments
F571Ss. 59A-59C inserted (8.9.2003) by The Insolvency (Scotland) Regulations 2003 (S.I. 2003/2109), reg. 16
F574S. 59C heading substituted (1.4.2008) by virtue of Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 53(c) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F575Words in s. 59C substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 53(a) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F576Word in s. 59C(1) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 53(b) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F577S. 59C(2A) inserted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 32, 227(3) (with s. 223); S.S.I. 2008/115, art. 3(1)(a) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
(1)Where a creditor has an obligant (in this section referred to as the “co-obligant”) bound to him along with the debtor for the whole or part of the debt, the co-obligant shall not be freed or discharged from his liability for the debt by reason of the discharge of the debtor or by virtue of the creditor’s voting or drawing a dividend or assenting to, or not opposing—
(a)the discharge of the debtor; or
(b)any composition.
(2)Where—
(a)a creditor has had a claim accepted in whole or in part; and
(b)a co-obligant holds a security over any part of the debtor’s estate,
the co-obligant shall account to the F578. . . trustee so as to put the estate in the same position as if the co-obligant had paid the debt to the creditor and thereafter had had his claim accepted in whole or in part in the sequestration after deduction of the value of the security.
(3)Without prejudice to any right under any rule of law of a co-obligant who has paid the debt, the co-obligant may require and obtain at his own expense from the creditor an assignation of the debt on payment of the amount thereof, and thereafter may in respect of that debt submit a claim, and vote and draw a dividend, if otherwise legally entitled to do so.
(4)In this section a “co-obligant” includes a cautioner.
Textual Amendments
F578Word in s. 60(2) repealed (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 226, 227(3), Sch. 6 Pt. 1 (with s. 223); S.S.I. 2008/115, art. 3(2)(3), Sch. 2 (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
Modifications etc. (not altering text)
C70S. 60 applied with modifications by S.I. 1986/1915, Rules 4.16(1)(e), 7.9(4) and by Rule 2.41(2) (as substituted (15.9.2003) by S.I. 2003/2111, Rule 3, Sch. 1 Pt. 1)
C71S. 60 applied (with modifications) (14.11.2011) by The Investment Bank Special Administration (Scotland) Rules 2011 (S. I. 2011/2262), rule 127
For the purposes of this Act, and without prejudice to the generality of the right to participate referred to in paragraph 3 of Article 32 of the EC Regulation (exercise of creditors' rights) a member State liquidator appointed in relation to the debtor is deemed to be a creditor in the sum due to creditors in proceedings in relation to which he holds office.
Textual Amendments
F579Ss. 60A, 60B inserted (8.9.2003) by The Insolvency (Scotland) Regulations 2003 (S.I. 2003/2109), reg. 17
(1)This section applies where a member State liquidator has been appointed in relation to the debtor.
(2)Where an interim [F580trustee or a] trustee is obliged to give notice to, or provide a copy of a document (including an order of court) to, the [F581sheriff] or the Accountant in Bankruptcy, the trustee shall give notice or provide copies, as appropriate, to the member State liquidator.
(3)Subsection (2) above is without prejudice to the generality of the obligations imposed by Article 31 of the EC Regulation (duty to co-operate and communicate information).]
Textual Amendments
F579Ss. 60A, 60B inserted (8.9.2003) by The Insolvency (Scotland) Regulations 2003 (S.I. 2003/2109), reg. 17
F580Words in s. 60B(2) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para 54(a) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F581Word in s. 60B(2) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 54(b) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
(1)This section applies where the debtor is or has been a party to a transaction for, or involving, the provision to him of credit and his estate is sequestered.
(2)The [F582sheriff] may, on the application of the F583. . . trustee, make an order with respect to the transaction if the transaction is or was extortionate and was not entered into more than three years before the date of sequestration.
(3)For the purposes of this section a transaction is extortionate if, having regard to the risk accepted by the person providing the credit—
(a)the terms of it are or were such as to require grossly exorbitant payments to be made (whether unconditionally or in certain contingencies) in respect of the provision of the credit; or
(b)it otherwise grossly contravened ordinary principles of fair dealing; and it shall be presumed, unless the contrary is proved, that a transaction with respect to which an application is made under this section is, or as the case may be was, extortionate.
(4)An order under this section with respect to any transaction may contain such one or more of the following as the [F582sheriff] thinks fit—
(a)provision setting aside the whole or part of any obligation created by the transaction;
(b)provision otherwise varying the terms of the transaction or varying the terms on which any security for the purposes of the transaction is held;
(c)provision requiring any person who is a party to the transaction to pay to the F583. . . trustee any sums paid to that person, by virtue of the transaction, by the debtor;
(d)provision requiring any person to surrender to the F583. . . trustee any property held by him as security for the purposes of the transaction;
(e)provision directing accounts to be taken between any persons.
(5)Any sums or property required to be paid or surrendered to the F583. . . trustee in accordance with an order under this section shall vest in the F583. . . trustee.
(6)F584. . . The powers conferred by this section shall be exercisable in relation to any transaction concurrently with any powers exercisable under this Act in relation to that transaction as a gratuitous alienation or unfair preference.
(7)In this section “credit” has the same meaning as in the said Act of 1974.
Textual Amendments
F582Words in s. 61 substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 55 (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F583Words in s. 61 repealed (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 226, 227(3), Sch. 6 Pt. 1 (with s. 223); S.S.I. 2008/115, art. 3(2)(3), Sch. 2 (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F584Words in s. 61(6) repealed (6.4.2007) by Consumer Credit Act 2006 (c. 14), ss. 70, 71, Sch. 4 (with Sch. 3 para. 15(5)); S.I. 2007/123, art. 3(2), Sch. 2 (as amended by S.I. 2007/387, art. 2(3)(e)(iii))
Modifications etc. (not altering text)
C72S. 61 applied (with modifications) (4.4.2006) by The Cross-Border Insolvency Regulations 2006 (S.I. 2006/1030), reg. 2(1), Sch. 1 Article 23 paras. 1-3 (subject to paras. 6, 9)
(1)Subject to subsection (2) below, whoever by virtue of this Act for the time being holds the sederunt book shall make it available for inspection at all reasonable hours by any interested person.
(2)As regards any case in which the person on whom a duty is imposed by subsection (1) above is the Accountant in Bankruptcy, the Court of Session may by act of sederunt—
(a)limit the period for which the duty is so imposed; and
(b)prescribe conditions in accordance with which the duty shall be carried out.
(3)Any entry in the sederunt book shall be sufficient evidence of the facts stated therein, except where it is founded on by the F585. . . trustee in his own interest.
(4)Notwithstanding any provision of this Act, the F585. . . trustee shall not be bound to insert in the sederunt book any document of a confidential nature.
(5)The F585. . . trustee shall not be bound to exhibit to any person other than a commissioner or the Accountant in Bankruptcy any document in his possession of a confidential nature.
(6)An extract from the register of insolvencies bearing to be signed by the Accountant in Bankruptcy shall be sufficient evidence of the facts stated therein.
Textual Amendments
F585Words in s. 62 repealed (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 226, 227(3), Sch. 6 Pt. 1 (with s. 223); S.S.I. 2008/115, art. 3(2)(3), Sch. 2 (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
(1)The sheriff may, on the application of any person having an interest—
(a)if there has been a failure to comply with any requirement of this Act or any regulations made under it, make an order waiving any such failure and, so far as practicable, restoring any person prejudiced by the failure to the position he would have been in but for the failure;
(b)if for any reason anything required or authorised to be done in, or in connection with, the sequestration process cannot be done, make such order as may be necessary to enable that thing to be done.
(2)The sheriff, in an order under subsection (1) above, may impose such conditions, including conditions as to expenses, as he thinks fit and may—
(a)authorise or dispense with the performance of any act in the sequestration process;
(b)appoint as F586. . . trustee on the debtor’s estate a person who would be eligible to be elected under section 24 of this Act, whether or not in place of an existing trustee;
(c)extend or waive any time limit specified in or under this Act.
(3)An application under subsection (1) above—
(a)may at any time be remitted by the sheriff to the Court of Session, of his own accord or on an application by any person having an interest;
(b)shall be so remitted, if the Court of Session so directs on an application by any such person,
if the sheriff or the Court of Session, as the case may be, considers that the remit is desirable because of the importance or complexity of the matters raised by the application.
(4)The F586. . . trustee shall record in the sederunt book the decision of the sheriff or the Court of Session under this section.
Textual Amendments
F586Words in s. 63 repealed (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 226, 227(3), Sch. 6 Pt. 1 (with s. 223); S.S.I. 2008/115, art. 3(2)(3), Sch. 2 (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
Modifications etc. (not altering text)
C73S. 63 applied with modifications by S.I. 1986/1915, Rule 7.32.
(1)The debtor shall take every practicable step, and in particular shall execute any document, which may be necessary to enable the F588. . . trustee to perform the functions conferred on him by this Act.
(2)If the sheriff, on the application of the F588. . . trustee, is satisfied that the debtor has failed—
(a)to execute any document in compliance with subsection (1) above, he may authorise the sheriff clerk to do so; and the execution of a document by the sheriff clerk under this paragraph shall have the like force and effect in all respects as if the document had been executed by the debtor;
(b)to comply in any other respect with subsection (1) above, he may order the debtor to do so.
(3)If the debtor fails to comply with an order of the sheriff under subsection (2) above, he shall be guilty of an offence.
(4)In this section “debtor” includes a debtor discharged under this Act.
(5)A person convicted of an offence under subsection (3) above shall be liable—
(a)on summary conviction, to a fine not exceeding the statutory maximum or—
(i)to imprisonment for a term not exceeding 3 months; or
(ii)if he has previously been convicted of an offence inferring dishonest appropriation of property or an attempt at such appropriation, to imprisonment for a term not exceeding 6 months,
or (in the case of either sub-paragraph) to both such fine and such imprisonment; or
(b)on conviction on indictment to a fine or to imprisonment for a term not exceeding 2 years or to both.
Textual Amendments
F587S. 64 heading substituted (1.4.2008) by virtue of the Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 56 (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F588Words in s. 64 repealed (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 226, 227(3), Sch. 6 Pt. 1 (with s. 223); S.S.I. 2008/115, art. 3(2)(3), Sch. 2 (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
(1)The F589. . . trustee may (but if there are commissioners only with the consent of the commissioners, the creditors or the [F590sheriff])—
(a)refer to arbitration any claim or question of whatever nature which may arise in the course of the sequestration; or
(b)make a compromise with regard to any claim of whatever nature made against or on behalf of the sequestrated estate;
and the decree arbitral or compromise shall be binding on the creditors and the debtor.
(2)Where any claim or question is referred to arbitration under this section, the Accountant in Bankruptcy may vary any time limit in respect of which any procedure under this Act has to be carried out.
(3)The F589. . . trustee shall insert a copy of the decree arbitral, or record the compromise, in the sederunt book.
Textual Amendments
F589Words in s. 65 repealed (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 226, 227(3), Sch. 6 Pt. 1 (with s. 223); S.S.I. 2008/115, art. 3(2)(3), Sch. 2 (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F590Word in s. 65(1) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 57 (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
Part I of Schedule 6 to this Act shall have effect in relation to meetings of creditors other than the statutory meeting; Part II of that Schedule shall have effect in relation to all meetings of creditors under this Act; and Part III of that Schedule shall have effect in relation to meetings of commissioners.
(1)A debtor who during the relevant period makes a false statement in relation to his assets or his business or financial affairs to any creditor or to any person concerned in the administration of his estate shall be guilty of an offence, unless he shows that he neither knew nor had reason to believe that his statement was false.
(2)A debtor, or other person acting in his interest whether with or without his authority, who during the relevant period destroys, damages, conceals [F591, disposes of] or removes from Scotland any part of the debtor’s estate or any document relating to his assets or his business or financial affairs shall be guilty of an offence, unless the debtor or other person shows that he did not do so with intent to prejudice the creditors.
(3)A debtor who is absent from Scotland and who after the date of sequestration of his estate fails, when required by the court, to come to Scotland for any purpose connected with the administration of his estate, shall be guilty of an offence.
(4)A debtor, or other person acting in his interest whether with or without his authority, who during the relevant period falsifies any document relating to the debtor’s assets or his business or financial affairs, shall be guilty of an offence, unless the debtor or other person shows that he had no intention to mislead the F592. . . trustee, a commissioner or any creditor.
(5)If a debtor whose estate is sequestrated—
(a)knows that a person has falsified any document relating to the debtor’s assets or his business or financial affairs; and
(b)fails, within one month of the date of acquiring such knowledge, to report his knowledge to the F593. . . trustee,
he shall be guilty of an offence.
(6)A person who is absolutely insolvent and who during the relevant period transfers anything to another person for an inadequate consideration or grants any unfair preference to any of his creditors shall be guilty of an offence, unless the transferor or grantor shows that he did not do so with intent to prejudice the creditors.
(7)A debtor who is engaged in trade or business shall be guilty of an offence if at any time in the period of one year ending with the date of sequestration of his estate, he pledges or disposes of, otherwise than in the ordinary course of his trade or business, any property which he has obtained on credit and has not paid for unless he shows that he did not intend to prejudice his creditors.
(8)F594. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(9)If a debtor, either alone or jointly with another person, obtains credit
[F595(a)to the extent of £500 (or such other sum as may be prescribed) or more; or
(b)of any amount, where, at the time of obtaining credit, the debtor has debts amounting to £1,000 (or such other sum as may be prescribed) or more,]
without giving the person from whom he obtained it the relevant information about his status he shall be guilty of an offence.
[F596(9A)For the purposes of calculating an amount of—
(a)credit mentioned in subsection (9) above; or
(b)debts mentioned in paragraph (b) of that subsection,
no account shall be taken of any credit obtained or, as the case may be, any liability for charges in respect of—
(i)any of the supplies mentioned in section 70(4) of this Act; and
(ii)any council tax within the meaning of section 99(1) of the Local Government Finance Act 1992 (c. 14).]
(10)For the purposes of subsection (9) above—
(a)“debtor” means—
(i)a debtor whose estate has been sequestrated; F597. . .
(ii)a person who has been adjudged bankrupt in England and Wales or Northern Ireland[F598; or
(iii)a person subject to a bankruptcy restrictions order, or a bankruptcy restrictions undertaking, made in England or Wales,]
and who, in [F599the case mentioned in sub-paragraph (i) or (ii) above], has not been discharged;
(b)the reference to the debtor obtaining credit includes a reference to a case where goods are hired to him under a hire-purchase agreement or agreed to be sold to him under a conditional sale agreement; and
[F600(c)the relevant information about the status of the debtor is the information that—
(i)his estate has been sequestrated and that he has not been discharged;
(ii)he is an undischarged bankrupt in England and Wales or Northern Ireland; or
(iii)he is subject to a bankruptcy restrictions order, or a bankruptcy restrictions undertaking, made in England or Wales,
as the case may be.]
(11)In this section—
(a)“the relevant period” means the period commencing one year immediately before the date of sequestration of the debtor’s estate and ending with his discharge;
(b)references to intent to prejudice creditors shall include references to intent to prejudice an individual creditor.
[F601(11A)A person shall be guilty of an offence under subsection (1), (2), (4), (5), (6) or (7) above if that person does or, as the case may be, fails to do, in any place in England and Wales or Northern Ireland, anything which would, if done or, as the case may be, not done in Scotland, be an offence under the subsection in question.]
(12)A person convicted of any offence under this section shall be liable—
(a)on summary conviction, to a fine not exceeding the statutory maximum or—
(i)to imprisonment for a term not exceeding 3 months; or
(ii)if he has previously been convicted of an offence inferring dishonest appropriation of property or an attempt at such appropriation, to imprisonment for a term not exceeding 6 months,
or (in the case of either sub-paragraph) to both such fine and such imprisonment; or
(b)on conviction on indictment to a fine or—
(i)in the case of an offence under subsection (1), (2), (4) or (7) above to imprisonment for a term not exceeding 5 years,
(ii)in any other case to imprisonment for a term not exceeding 2 years.
or (in the case of either sub-paragraph) to both such fine and such imprisonment.
Textual Amendments
F591Words in s. 67(2) inserted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss 24(2), 227(3) (with s. 223); S.S.I. 2008/115, art. 3(1)(a) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F592Word in s. 67(4) repealed (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 226, 227(3), Sch. 6 Pt. 1 (with s. 223); S.S.I. 2008/115, art. 3(2)(3), Sch. 2 (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F593Words in s. 67(5)(b) repealed (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 226, 227(3), Sch. 6 Pt. 1 (with s. 223); S.S.I. 2008/115, art. 3(2)(3), Sch. 2 (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F594S. 67(8) repealed (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss 24(3), 227(3) (with s. 223); S.S.I. 2008/115, art. 3(1)(a) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F595S. 67(9)(a)(b) substituted (1.4.2008) for words in s. 67(9) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss 24(4), 227(3) (with s. 223); S.S.I. 2008/115, art. 3(1)(a) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F596S. 67(9A) inserted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss 24(5), 227(3) (with s. 223); S.S.I. 2008/115, art. 3(1)(a) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F597Word following s. 67(10)(a)(i) repealed (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss 24(6)(a), 227(3) (with s. 223); S.S.I. 2008/115, art. 3(1)(a) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F598S. 67(10)(a)(iii) and word inserted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss 24(6)(b), 227(3) (with s. 223); S.S.I. 2008/115, art. 3(1)(a) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F599Words in s. 67(10)(a) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss 24(6)(c), 227(3) (with s. 223); S.S.I. 2008/115, art. 3(1)(a) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F600S. 67(10)(c) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss 24(7), 227(3) (with s. 223); S.S.I. 2008/115, art. 3(1)(a) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F601S. 67(11A) inserted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss 24(8), 227(3) (with s. 223); S.S.I. 2008/115, art. 3(1)(a) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
(1)[F602Subject to subsection (1A) below,]summary proceedings for an offence under this Act may be commenced at any time within the period of [F60312] months after the date on which evidence sufficient in the opinion of the Lord Advocate to justify the proceedings comes to his knowledge.
[F602(1A)No such proceedings shall be commenced by virtue of this section more than three years after the commission of the offence.]
(2)Subsection (3) of [F604section 136 of the Criminal Procedure (Scotland) Act 1995] (date of commencement of summary proceedings) shall have effect for the purposes of subsection (1) above as it has effect for the purposes of that section.
(3)For the purposes of subsection (1) above, a certificate of the Lord Advocate as to the date on which the evidence in question came to his knowledge is conclusive evidence of the date on which it did so.
Textual Amendments
F602Words at the beginning of s. 68(1) inserted (1.4.1993, subject to savings in arts. 4, 5 of S.I. 1993/438) by 1993 c. 6, s. 11(3), Sch. 1 para. 27(2)(a) (with s. 12(6)); S.I. 1993/438, art. 3
S. 68(1A) inserted (1.4.1993, subject to savings in arts. 4, 5 of S.I. 1993/438) by 1993 c. 6, s. 11(3), Sch. 1 para. 27(3) (with s. 12(6)); S.I. 1993/438, art. 3
F603Words in s. 68(1) substituted (1.4.1993, subject to savings in arts. 4, 5 of S.I. 1993/438) by 1993 c. 6, s. 11(3), Sch. 1 para. 27(2)(b) (with s. 12(6)); S.I. 1993/438, art. 3
F604Words in s. 68(2) substituted (1.4.1996) by 1995 c. 40, ss. 5, 7(2), Sch. 4 para. 58(5)
The Secretary of State may, by regulations, provide for the premium (or a proportionate part thereof) of any bond of caution or other security required, for the time being, to be given by an insolvency practitioner to be taken into account as part of the outlays of the insolvency practitioner in his actings as an interim trustee or F606. . . trustee.
Textual Amendments
F605S. 69 heading substituted (1.4.2008) by virtue of Bankruptcy and Diligence etc. (Scotland) Act 2007. ss. 36, 227(3), {Sch. 1 para. 58} (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F606Word in s. 69 repealed (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 226, 227(3), Sch. 6 Pt. 1 (with s. 223); S.S.I. 2008/115, art. 3(2)(3), Sch. 2 (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
The Secretary of State may prescribe—
(a)the fees and outlays to be payable to the Accountant in Bankruptcy in respect of the exercise of any of his functions under this Act; [F608or the Insolvency Act 1986]]
(b)the time and manner in which such fees and outlays are to be paid; and
(c)the circumstances, if any, in which the Accountant in Bankruptcy may allow exemption from payment or the remission or modification of payment of any fees or outlays payable or paid to him.
Textual Amendments
F608Words in s. 69A(a) inserted (1.7.1999) by S.I. 1999/1820, art. 4, Sch. 2 Pt. I para. 82(3) (with art. 5)
(1)This section applies where on any day (“the relevant day”)—
(a)sequestration is awarded in a case where [F609a debtor application was made],
(b)a warrant is granted under section 12(2) of this Act in a case where the petition was presented by a creditor or a trustee acting under a trust deed; or
(c)the debtor grants a trust deed,
and in this section “the office holder” means the interim trustee, the F610. . . trustee or the trustee acting under a trust deed, as the case may be.
(2)If a request falling within subsection (3) below is made for the giving after the relevant day of any of the supplies mentioned in subsection (4) below, the supplier—
(a)may make it a condition of the giving of the supply that the office holder personally guarantees the payment of any charges in respect of the supply; and
(b)shall not make it a condition of the giving of the supply, or do anything which has the effect of making it a condition of the giving of the supply, that any outstanding charges in respect of a supply given to the debtor before the relevant day are paid.
(3)A request falls within this subsection if it is made—
(a)by or with the concurrence of the office holder; and
(b)for the purposes of any business which is or has been carried on by or on behalf of the debtor.
(4)The supplies referred to in subsection (2) above are—
(a)a supply of gas by [F611a [F612gas supplier] within the meaning of Part I of the Gas Act 1986];
(b)a supply of electricity by [F613a [F614electricity supplier] within the meaning of Part I of the Electricity Act 1989];
(c)a supply of water by [F615Scottish Water];
[F616(d)a supply of communications services by a provider of a public electronic communications service.]
[F617(5)In subsection (4), “communications services” do not include electronic communications services to the extent that they are used to broadcast or otherwise transmit programme services (within the meaning of the Communications Act 2003).]
Textual Amendments
F609Words in s. 70(1)(a) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 59 (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F610Word in s. 70 repealed (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss 226, 227(3), Sch. 6 Pt. 1 (with s. 223); S.S.I. 2008/115, art. 3(2)(3), Sch. 2 (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F611Words substituted by Gas Act 1986 (c. 44, SIF 44:2), ss. 3, 67(1)(3), Sch. 7 para. 32, Sch. 8 para. 33
F612Words in s. 70(4)(a) substituted (1.3.1996) by 1995 c. 45, s. 16(1), Sch. 4 para. 13; S.I. 1996/218, art. 2
F613Words substituted by Electricity Act 1989 (c. 29, SIF 44:1), s. 112(1)(3), Sch. 16 para. 32, Sch. 17 paras. 33, 35(1)
F614Words in s. 70(4)(b) substituted (1.10.2001) by 2000 c. 27, s. 108, Sch. 6 Pt. III para. 46; S.I. 2001/3266, art. 2, Sch. (subject to transitional provisions in arts. 3-20)
F615Words in s. 70(4)(c) substituted (1.4.2002) by Water Industry (Scotland) Act 2002 (asp. 3), s. 71, Sch. 7 para. 16; S.I. 2002/118, art. 2(3)
F616S. 70(4)(d) substituted (25.7.2003 for specified purposes and 29.12.2003 for further specified purposes) by Communications Act 2003 (c. 21), ss. 406, 411(2)(3), Sch. 17 para. 78(2); S.I. 2003/1900, arts. 2(1), 3(1), Sch. 1, (with transitional provisions in arts. 3-6 (as amended by S.I. 2003/3142, art. 1(3))); S.I. 2003/3142, art. 3(2), (with art. 11)
F617S. 70(5) substituted (25.7.2003 for specified purposes and 29.12.2003 for further specified purposes) by Communications Act 2003 (c. 21), ss. 406, 411(2)(3), Sch. 17 para. 78(2); S.I. 2003/1900, arts. 2(1), 3(1), Sch. 1, (with transitional provisions in arts. 3-6 (as amended by S.I. 2003/3142, art. 1(3))); S.I. 2003/3142, art. 3(2), (with art. 11)
The keeper of the Edinburgh Gazette shall, on each day of its publication, send a free copy of it to—
(a)the Accountant in Bankruptcy; and
(b)the petition department of the Court of Session.
The Accountant in Bankruptcy shall, on receiving any notice under section 109(1) of the Insolvency Act 1986 in relation to a community interest company, forward a copy of that notice to the Regulator of Community Interest Companies.]
Textual Amendments
F618S. 71A inserted (S.) (1.7.2005) by Companies (Audit, Investigations and Community Enterprise) Act 2004 (c. 27), ss. 59(2), 65, 66; S.I. 2004/3322 {art. 2(3)}, Sch. 3
(1)The Scottish Ministers may make an order under this section in relation to a disqualification provision.
(2)A “disqualification provision” is a provision made by or under any enactment which disqualifies (whether permanently or temporarily and whether absolutely or conditionally) a relevant debtor or a class of relevant debtors from—
(a)being elected or appointed to an office or position;
(b)holding an office or position; or
(c)becoming or remaining a member of a body or group.
(3)In subsection (2) above, the reference to a provision which disqualifies a person conditionally includes a reference to a provision which enables him to be dismissed.
(4)An order under subsection (1) above may repeal or revoke the disqualification provision.
(5)An order under subsection (1) above may amend, or modify the effect of, the disqualification provision—
(a)so as to reduce the class of relevant debtors to whom the disqualification provision applies;
(b)so as to extend the disqualification provision to some or all individuals who are subject to a bankruptcy restrictions order;
(c)so that the disqualification provision applies only to some or all individuals who are subject to a bankruptcy restrictions order;
(d)so as to make the application of the disqualification provision wholly or partly subject to the discretion of a specified person, body or group.
(6)An order by virtue of subsection (5)(d) above may provide for a discretion to be subject to—
(a)the approval of a specified person or body;
(b)appeal to a specified person, body, court or tribunal.
(7)The Scottish Ministers may be specified for the purposes of subsection (5)(d) or (6)(a) or (b) above.
(8)In this section—
“bankruptcy restrictions order” includes—
a bankruptcy restrictions undertaking;
a bankruptcy restrictions order made under paragraph 1 of Schedule 4A to the Insolvency Act 1986 (c. 45); and
a bankruptcy restrictions undertaking entered into under paragraph 7 of that Schedule;
“relevant debtor” means a debtor—
whose estate has been sequestrated;
who has granted (or on whose behalf there has been granted) a trust deed;
who has been adjudged bankrupt by a court in England and Wales or in Northern Ireland; or
who, in England and Wales or in Northern Ireland, has made an agreement with his creditors for a composition in satisfaction of his debts or a scheme of arrangement of his affairs or for some other kind of settlement or arrangement.
(9)An order under this section—
(a)may make provision generally or for a specified purpose only;
(b)may make different provision for different purposes; and
(c)may make transitional, consequential or incidental provision.
(10)An order under this section—
(a)shall be made by statutory instrument; and
(b)shall not be made unless a draft has been laid before and approved by a resolution of the Scottish Parliament.]
Textual Amendments
F619S. 71B inserted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 5, 227(3) (with s. 223); S.S.I. 2008/115, art. 3(1)(a) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
[F620(1)][F621Subject to subsection (2) below,] any power to make regulations under this Act shall be exercisable by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament; and the regulations may make different provision for different cases or classes of case.
[F622(2)No regulations such as are mentioned in subsection (3) below may be made unless a draft of the statutory instrument containing the regulations has been laid before, and approved by a resolution of, the Scottish Parliament.
(3)The regulations are—
(a)regulations made under—
(i)subsection (2B)(a) and (4) of section 5;
(ii)section 5A; and
(iii)section 39A(4),
of this Act; and
(b)the first regulations under paragraph 5 of Schedule 5 to this Act made after the commencement of section 20 of the Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3).]
Textual Amendments
F620S. 72 renumbered (19.2.2008) as s. 72(1) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 35(a), 227(3) (with s. 223); S.S.I. 2008/45, art. 2
F621Words in s. 72(1) inserted (19.2.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 35(b), 227(3) (with s. 223); ); S.S.I. 2008/45, art. 2
F622S. 72(2)(3) inserted (19.2.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 35(c), 227(3) (with s. 223); ); S.S.I. 2008/45, art. 2 (with art. 3)
Modifications etc. (not altering text)
C74S. 72 modified (18.2.1993) by 1993 c. 6, s. 9(1)(2)(5)
Any power in any provision of this Act to make regulations may, insofar as that provision relates to a matter to which the EC Regulation applies, be exercised for the purpose of making provision in consequence of the EC Regulation.]
Textual Amendments
F623S. 72ZA inserted (8.9.2003) by The Insolvency (Scotland) Regulations 2003 (S.I. 2003/2109), reg. 18
For any reference in this Act to—
(a)a period of time;
(b)an amount of money; or
(c)a fraction,
there shall be substituted a reference to such other period or, as the case may be, amount or fraction as may be prescribed.]
Textual Amendments
F623S. 72ZA inserted (8.9.2003) by The Insolvency (Scotland) Regulations 2003 (S.I. 2003/2109), reg. 18
F624S. 72A inserted (1.4.1993, subject to savings in arts. 4, 5 of S.I. 1993/438) by 1993 c. 6, s. 11(3), Sch. 1 para.28 (with s. 12(6)); S.I. 1993/438, art.3
(1) In this Act, unless the context otherwise requires—
“Accountant in Bankruptcy” shall be construed in accordance with section 1 of this Act;
“accounting period” shall be construed in accordance with section [F62552(2)] of this Act;
“apparent insolvency” and “apparently insolvent” shall be construed in accordance with section 7 of this Act;
[F626“appropriate bank or institution” means—
the Bank of England,
a person who has permission under Part 4 of the Financial Services and Markets Act 2000 to accept deposits,
an EEA firm of the kind mentioned in paragraph 5(b) of Schedule 3 to that Act which has permission under paragraph 15 of that Schedule (as a result of qualifying for authorisation under paragraph 12 of that Schedule) to accept deposits, or
a person who is exempt from the general prohibition in respect of accepting deposits as a result of an exemption order made under section 38(1) of that Act,
and the expressions in this definition must be read with section 22 of the Financial Services and Markets Act 2000, any relevant order under that section and Schedule 2 to that Act;
“act and warrant” means an act and warrant issued under section 25(2) of, or paragraph 2(2) of Schedule 2 to, this Act;
“associate” shall be construed in accordance with section 74 of this Act;
[F627“bankruptcy restrictions order” has the meaning given by section 56A(1) of this Act;
“ “bankruptcy restrictions undertaking” has the meaning given by section 56G(1) of this Act;]
“business” means the carrying on of any activity, whether for profit or not;
[F628“centre of main interests” has the same meaning as in the EC Regulation;]
“commissioner”, except in the expression “examining commissioner”, shall be construed in accordance with section 30(1) of this Act;
“court” means Court of Session or sheriff;
[F629“creditor” includes a member State liquidator deemed to be a creditor under section 60A of this Act;]
“date of sequestration” has the meaning assigned by section 12(4) of this Act;
“debtor” includes, without prejudice to the expression’s generality, an entity whose estate may be sequestrated by virtue of section 6 of this Act, a deceased debtor or his executor or a person entitled to be appointed as executor to a deceased debtor;
[F630“debtor application” means an application for sequestration made to the Accountant in Bankruptcy under sections 5(2)(a) or 6(3)(a), (4)(a) or (6)(a) of this Act;]
[F631“the EC Regulation” means Council Regulation (EC) No. 1346/2000 of 29th May 2000 on insolvency proceedings M22;]
[F632“enactment” includes an Act of the Scottish Parliament and any enactment comprised in subordinate legislation under such an Act;]
[F633“establishment” has the meaning given by Article 2(h) of the EC Regulation;]
“examination” means a public examination under section 45 of this Act or a private examination under section 44 of this Act;
“examining commissioner” shall be construed in accordance with section 46(2) of this Act;
“interim trustee” shall be construed in accordance with section [F6342(5)] of this Act;
“” F635. . .
[F636“main proceedings” means proceedings opened in accordance with Article 3(1) of the EC Regulation and falling within the definition of insolvency proceedings in Article 2(a) of the EC Regulation and–
in relation to England and Wales and Scotland, set out in Annex A to the EC Regulation under the heading “United Kingdom”; and
in relation to another member State, set out in Annex A to the EC Regulation under the heading relating to that member State;]
[F637“member State liquidator” means a person falling within the definition of liquidator in Article 2(b) of the EC Regulation appointed in proceedings to which it applies in a member State other than the United Kingdom;]
“ordinary debt” shall be construed in accordance with section 51(1)(f) of this Act;
[F638“original trustee” shall be construed in accordance with section 24(1)(a) of this Act;]
F639. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
“postponed debt” has the meaning assigned by section 51(3) of this Act;
“preferred debt” has the meaning assigned by section 51(2) of this Act;
“prescribed” means prescribed by regulations made by the Secretary of State;
[F640“protected trust deed” means a trust deed which has been granted protected status in accordance with regulations made under paragraph 5 of Schedule 5 to this Act;]
“qualified creditor” and “qualified creditors” shall be construed in accordance with section 5(4) of this Act;
“qualified to act as an insolvency practitioner” means being, in accordance with section 2 of the M23Insolvency Act 1985 (qualifications of insolvency practitioners), so qualified:
Provided that, until the coming into force of that section the expression shall instead mean satisfying such requirements (which, without prejudice to the generality of this definition, may include requirements as to the finding of caution) as may be prescribed for the purposes of this Act;
“register of insolvencies” has the meaning assigned by section [F6411A(1)(b)] of this Act;
“relevant person” has the meaning assigned by section 44(1)(b) of this Act;
[F642“replacement trustee” shall be construed in accordance with section 24(1)(b) of this Act;]
[F643“secondary proceedings” means proceedings opened in accordance with Articles 3(2) and 3(3) of the EC Regulation and falling within the definition of winding-up proceedings in Article 2(c) of the EC Regulation, and–
in relation to England and Wales and Scotland, set out in Annex B to the EC Regulation under the heading “United Kingdom”; and
in relation to another member State, set out in Annex B to the EC Regulation under the heading relating to that member State;]
“secured creditor” means a creditor who holds a security for his debt over any part of the debtor’s estate;
“security” means any security, heritable or moveable, or any right of lien, retention or preference;
“sederunt book” means the sederunt book maintained under section 3(1)(e) of this Act;
F644. . .
[F645“sequestration proceedings” includes a debtor application and analogous expressions shall be construed accordingly;]
[F646“statement of assets and liabilities” means a document (including a copy of a document) in such form as may be prescribed containing—
a list of the debtor’s assets and liabilities;
a list of his income and expenditure; and
such other information as may be prescribed;]
“statutory meeting” has the meaning assigned by section [F647section 20A] of this Act;
F644. . .
[F648“temporary administrator” means a temporary administrator referred to by Article 38 of the EC Regulation; and]
[F649“territorial proceedings” means proceedings opened in accordance with Articles 3(2) and 3(4) of the EC Regulation and falling within the definition of insolvency proceedings in Article 2(a) of the EC Regulation, and–
in relation to England and Wales and Scotland, set out in Annex A to the EC Regulation under the heading “United Kingdom”; and
in relation to another member State, set out in Annex A to the EC Regulation under the heading relating to that member State.]
[F650“trust deed” has the meaning assigned by section 5(4A) of this Act;]
[F651“trustee” means trustee in the sequestration;
“trustee vote” shall be construed in accordance with section 24(1) of this Act;]
“unfair preference” means a preference created as is mentioned in subsection (1) of section 36 of this Act by a transaction to which subsection (4) of that section applies.
(2)Any reference in this Act to a debtor being absolutely insolvent shall be construed as a reference to his liabilities being greater than his assets, and any reference to a debtor’s estate being absolutely insolvent shall be construed accordingly.
(3)Any reference in this Act to value of the creditors is, in relation to any matter, a reference to the value of their claims as accepted for the purposes of that matter.
(4)Any reference in this Act to “the creditors” in the context of their giving consent or doing any other thing shall, unless the context otherwise requires, be construed as a reference to the majority in value of such creditors as vote in that context at a meeting of creditors.
(5)Any reference in this Act to any of the following acts by a creditor barring the effect of any enactment or rule of law relating to the limitation of actions in any part of the United Kingdom, namely—
(a)the presentation of a petition for sequestration;
(b)the concurrence in [F652a debtor application] ; and
(c)the submission of a claim,
shall be construed as a reference to that act having the same effect, for the purposes of any such enactment or rule of law, as an effective acknowledgment of the creditor’s claim; and any reference in this Act to any such enactment shall not include a reference to an enactment which implements or gives effect to any international agreement or obligation.
[F653(6)Any reference in this Act, howsoever expressed, to the time when a petition for sequestration is presented shall be construed as a reference to the time when the petition is received by the [F654sheriff clerk].]
[F655(6A)Any reference in this Act, howsoever expressed, to the time when a debtor application is made shall be construed as a reference to the time when the application is received by the Accountant in Bankruptcy.]]
Textual Amendments
F625Words in definition of accounting period in s. 73(1) substituted (1.4.1993, subject to savings in arts. 4, 5 of S.I. 1993/438) by 1993 c. 6, s. 11(3), Sch. 1 para. 29(2) (with s. 12(6)); S.I. 1993/438, art. 3
F626S. 73(1): definition of appropriate bank or institution
substituted (1.12.2001) by S.I. 2001/3649, art. 225
F627S. 73(1): definitions of "bankruptcy restrictions order" and "bankruptcy restrictions undertaking" inserted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 60(2)(a) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F628Definition of "centre of main interests" in s. 73(1) inserted (8.9.2003) by The Insolvency (Scotland) Regulations 2003 (S.I. 2003/2109), reg. 19
F629Definition of "creditor" in s. 73(1) inserted (8.9.2003) by The Insolvency (Scotland) Regulations 2003 (S.I. 2003/2109), reg. 19
F630S. 73(1): definition of "debtor application" inserted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 60(2)(b) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F631Definition of "the EC Regulation" in s. 73(1) inserted (8.9.2003) by The Insolvency (Scotland) Regulations 2003 (S.I. 2003/2109), reg. 19
F632S. 73(1): definition of "enactment" inserted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 60(2)(c) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F633Definition of "establishment" in s. 73(1) inserted (8.9.2003) by The Insolvency (Scotland) Regulations 2003 (S.I. 2003/2109), reg. 19
F634S. 73(1): Words in definition of "interim trustee" substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 60(2)(d) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F635Definition of list of interim trustees in s. 73(1) repealed (1.4.1993, subject to savings in arts. 4, 5 of S.I. 1993/438) by 1993 c. 6, s. 11(4), Sch. 2 (with s. 12(6)); S.I. 1993/438, art. 3
F636Definition of "main proceedings" in s. 73(1) inserted (8.9.2003) by The Insolvency (Scotland) Regulations 2003 (S.I. 2003/2109), reg. 19
F637Definition of "member state liquidator" in s. 73(1) inserted (8.9.2003) by The Insolvency (Scotland) Regulations 2003 (S.I. 2003/2109), reg. 19
F638S. 73(1): definition of "original trustee" inserted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 60(2)(e) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F639S. 73(1): definition of "permanent trustee" repealed (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 226, 227(3), Sch. 6 Pt. 1 (with s. 223); S.S.I. 2008/115, art. 3(2)(3), Sch. 2 (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F640S. 73(1): definition of "protected trust deed" substituted (19.2.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 20(2), 227(3) (with s. 223); S.S.I. 2008/45, art. 2 (with art. 3)
F641Words in definition of “register of insolvencies” in s. 73(1) substituted (1.4.1993, subject to savings in arts. 4, 5 of S.I. 1993/438) by 1993 c. 6, s. 11(3), Sch. 1 para. 29(3) (with s. 12(6)); S.I. 1993/438, art. 3
F642S. 73(1): definition of "replacement trustee" inserted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 60(2)(f) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F643Definition of "secondary proceedings" in s. 73(1) inserted (8.9.2003) by The Insolvency (Scotland) Regulations 2003 (S.I. 2003/2109), reg. 19
F644Definitions of standard scale and statutory maximum
in s. 73(1) repealed (5.11.1993) by 1993 c. 50, s. 1(1), Sch. 1 Pt. XIV Group 2
F645S. 73(1): definition of "sequestration proceedings" inserted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 60(2)(g) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F646Definition of statement of assets and liabilities in s. 73(1) inserted (1.4.1993, subject to savings in arts. 4, 5 of S.I. 1993/438) by 1993 c. 6, s. 11(3), Sch. 1 para. 29(5) (with s. 12(6)); S.I. 1993/438, art. 3
F647Words in definition of statutory meeting in s. 73(1) substituted (1.4.1993, subject to savings in arts. 4, 5 of S.I. 1993/438) by 1993 c. 6, s. 11(3), Sch. 1 para. 29(4) (with s. 12(6)); S.I. 1993/438, art. 3
F648Definition of "temporary administrator" in s. 73(1) inserted (8.9.2003) by The Insolvency (Scotland) Regulations 2003 (S.I. 2003/2109), reg. 19
F649Definition of "territorial proceedings" in s. 73(1) inserted (8.9.2003) by The Insolvency (Scotland) Regulations 2003 (S.I. 2003/2109), reg. 19
F650Definition of “trust deed” in s. 73(1) substituted (1.4.1993, subject to savings in arts. 4, 5 of S.I. 1993/438) by 1993 c. 6, s. 11(3), Sch. 1 para. 29(6) (with s. 12(6)); S.I. 1993/438, art. 3
F651S. 73(1): definitions of "trustee" and "trustee vote" inserted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 60(2)(h) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F652Words in s. 73(5)(b) substituted (S.) (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 60(3) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F653S. 73(6) added (1.4.1993, subject to savings in arts. 4, 5 of S.I. 1993/438) by 1993 c. 6, s. 11(3), Sch. 1 para. 29(7) (with s. 12(6)); S.I. 1993/438, art. 3
F654Words in s. 73(6) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 60(4) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F655S. 73(6A) inserted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 60(5) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
Modifications etc. (not altering text)
C75S. 73(1) modified (25.4.1991) by Companies Act 1989 (c. 40, SIF 27), s. 182(4), Sch. 22 para. 6(3); S.I. 1991/878, art. 2. Sch.
C76S. 73(1) amended (1.1.1993) by S.I. 1992/3218, reg. 82(1), Sch. 10 Pt. I para. 18.
Marginal Citations
M22Council Regulation (EC) 1346/2000, O.J. No. L 160, 30.06.00, p.1.
(1)Subject to subsection (7) below, for the purposes of this Act any question whether a person is an associate of another person shall be determined in accordance with the following provisions of this section (any reference, whether in those provisions or in regulations under the said subsection (7), to a person being an associate of another person being taken to be a reference to their being associates of each other).
(2)A person is an associate of an individual if that person is the individual’s [F656husband, wife or civil partner] , or is a relative, or the [F656husband, wife or civil partner] of a relative, of the individual or of the individual’s [F656husband, wife or civil partner] .
(3)A person is an associate of any person with whom he is in partnership, [F657and of any person who is an associate of any person with whom he is in partnership;] and a firm is an associate of any person who is a member of the firm.
(4)For the purposes of this section a person is a relative of an individual if he is that individual’s brother, sister, uncle, aunt, nephew, niece, lineal ancestor or lineal descendant treating—
(a)any relationship of the half blood as a relationship of the whole blood and the stepchild or adopted child of any person as his child; and
(b)an illegitimate child as the legitimate child of his mother and reputed father,
and references in this section to a [F658husband, wife or civil partner] include a former [F658husband, wife or civil partner] and a reputed [F658husband, wife or civil partner] .
(5)A person is an associate of any person whom he employs or by whom he is employed; and for the purposes of this subsection any director or other officer of a company shall be treated as employed by that company.
[F659(5A)A company is an associate of another company–
(a)if the same person has control of both, or a person has control of one and persons who are his associates, or he and persons who are his associates, have control of the other; or
(b)if a group of two or more persons has control of each company, and the groups either consist of the same persons or could be regarded as consisting of the same persons by treating (in one or more cases) a member of either group as replaced by a person of whom he is an associate.
(5B)A company is an associate of another person if that person has control of it or if that person and persons who are his associates together have control of it.
(5C)For the purposes of this section a person shall be taken to have control of a company if–
(a)the directors of the company or of another company which has control of it (or any of them) are accustomed to act in accordance with his directions or instructions; or
(b)he is entitled to exercise, or control the exercise of, one third or more of the voting power at any general meeting of the company or of another company which has control of it,
and where two or more persons together satisfy either of the above conditions, they shall be taken to have control of the company.]
(6)[F660In subsections (5), (5A), (5B), and (5C) above,] “company” includes any body corporate (whether incorporated in Great Britain or elsewhere).
(7)The Secretary of State may by regulations—
(a)amend the foregoing provisions of this section so as to provide further categories of persons who, for the purposes of this Act, are to be associates of other persons; and
(b)provide that any or all of subsections (2) to (6) above (or any subsection added by virtue of paragraph (a) above) shall cease to apply, whether in whole or in part, or shall apply subject to such modifications as he may specify in the regulations;
and he may in the regulations make such incidental or transitional provision as he considers appropriate.
Textual Amendments
F656Words in s. 74(2) substituted (5.12.2005) by Civil Partnership Act 2004 (c. 33), ss. 261(2), 263, Sch. 28 para. 40; S.S.I. 2005/604, art. 2(c)
F657Words in s. 74(3) substituted (1.4.2008) by Bankruptcy (Scotland) Regulations 2008 (S.S.I. 2008/82), reg. 8(2)
F658Words in s. 74(4) substituted (5.12.2005) by Civil Partnership Act 2004 (c. 33), ss. 261(2), 263, Sch. 28 para. 40; S.S.I. 2005/604, art. 2(c)
F659S. 74(5A)-(5C) inserted (1.4.2008) by Bankruptcy (Scotland) Regulations 2008 (S.S.I. 2008/82), reg. 8(3)
F660Words in s. 74(6) substituted (1.4.2008) by virtue of Bankruptcy (Scotland) Regulations 2008 (S.S.I. 2008/82), reg. 8(4)
Modifications etc. (not altering text)
C77S. 74 applied by Social Security Pensions Act 1975 (c. 60, SIF 113:1), s. 57C(4) (as inserted by Social Security Act 1990 (c. 27, SIF 113:1), s. 14, Sch. 4 Pt. I para. 1)
C78S. 74 applied (1.4.1996) by 1995 c. 43, ss. 34, 50(2), Sch. 1 para. 2(1)(j)
S. 74 applied (with modifications) (6.4.1997) by S.I. 1996/3127, art. 3(2)
S. 74 applied (6.4.1997) by 1995 c. 26, s. 123(2) (with s. 121(5)); S.I. 1997/664, art. 2(3), Sch. Pt. II
S.74 applied (1.10.2000) by S.I. 2000/1403, art. 1(5)
C79S. 74 applied by Social Security Pensions Act 1975 (c. 60, SIF 113:1), s. 57A(4) (as inserted by Social Security Act 1990 (c. 27, SIF 113:1), s. 14, Sch. 4 Pt. I para. 3)
S. 74 applied (7.2.1994) by 1993 c. 48, ss. 112(4), 119(4) S.I. 1994/86, art. 2 (with s. 6(8))
S. 74 applied (6.4.2005) by Pensions Act 2004 (c. 35), {ss. 38(10(c)}, 322 (with s. 313); S.I. 2005/275, art. 2(7), Sch. Pt. 7
S. 74 applied (6.4.2005) by Pensions Act 2004 (c. 35), ss. 51(3)(c), 322 (with s. 313); S.I. 2005/275, art. 2(7), Sch. Pt. 7
S. 74 applied (6.4.2005) by Pensions Act 2004 (c. 35), ss. 53(6)(c), 322 (with s. 313); S.I. 2005/275, art. 2(7), Sch. Pt. 7
S. 74 power to apply (with modifications) conferred (10.2.2005) by Pensions Act 2004 (c. 35), ss. 57(2)(c), 322 (with s. 313); S.I. 2005/275, art. 2(3)(a), Sch. Pt. 3
C80S. 74 modified (30.12.2005) by The Occupational Pension Schemes (Investment) Regulations 2005 (S.I. 2005/3378), reg. 10(2)
(1)Subject to subsection (3) below—
(a)the enactments mentioned in Part I of Schedule 7 to this Act shall have effect subject to the amendments respectively specified in that Schedule, being amendments consequential on the provisions of this Act;
(b)Part II of that Schedule, which re-enacts certain provisions of the M24Bankruptcy (Scotland) Act 1913 repealed by this Act, shall have effect.
(2)The enactments set out in columns 1 and 2 of Schedule 8 to this Act are, subject to subsection (3) below, hereby repealed to the extent specified in the third column of that Schedule.
(3)Subject to subsections (4) and (5) below, nothing in this Act shall affect any of the enactments repealed or amended by this Act in their operation in relation to a sequestration as regards which the award was made before the coming into force of this section.
(4)Where a debtor’s estate has been sequestrated before the coming into force of this section but he has not been discharged, the debtor shall be discharged on the expiry of—
(a)2 years after such coming into force; or
(b)3 years after the date of sequestration,
whichever expires later:
Provided that, not later than 3 months before the date on which the debtor is due to be discharged under this subsection, the trustee in the sequestration or any creditor may apply to the sheriff for a deferment of that discharge; and subsections (4) to (8) of section 54 of this Act shall apply in relation to that application by the trustee as they apply in relation to an application under subsection (3) of that sectionF661. . . .
(5)Section 63 of this Act shall apply in a case where before the coming into force of this section sequestration of a debtor’s estate has been awarded under the Bankruptcy (Scotland) Act 1913 but the debtor has not yet been discharged, subject to the following modifications—
(a)in subsections (1)(a) and (2)(c) for the words “this Act” there shall be substituted the words “the Bankruptcy (Scotland) Act 1913”;
(b)F662. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(c)in subsection (2)(b) for the words “24 of this Act” there shall be substituted the words “64 of the Bankruptcy (Scotland) Act 1913”.
(6)The apparent insolvency of a debtor may be constituted for the purposes of this Act notwithstanding that the circumstance founded upon to constitute the apparent insolvency occurred on a date before the coming into force of section 7 of this Act; and, for those purposes, the apparent insolvency shall be deemed to have been constituted on that date:
Provided that apparent insolvency shall be constituted by virtue of this subsection only on grounds which would have constituted notour bankruptcy under the M25Bankruptcy (Scotland) Act 1913.
(7)Where a debtor whose estate is sequestrated after the commencement of this subsection is liable, by virtue of a transaction entered into before that date, to pay royalties or a share of the profits to any person in respect of any copyright or interest in copyright comprised in the sequestrated estate, section 102 of the Bankruptcy (Scotland) Act 1913 (trustee’s powers in relation to copyright) shall apply in relation to the F663. . . trustee as it applied before its repeal in relation to a trustee in bankruptcy under the said Act of 1913.
(8)Where sequestration of a debtor’s estate is awarded under this Act a person shall not be guilty of an offence under any provision of this Act in respect of anything done before the date of commencement of that provision but, notwithstanding the repeal by this Act of the Bankruptcy (Scotland) Act 1913, he shall be guilty of an offence under that Act in respect of anything done before that date which would have been an offence under that Act if the award of sequestration had been made under that Act.
(9)Unless the context otherwise requires, any reference in any enactment or document to notour bankruptcy, or to a person being notour bankruptcy, shall be construed as a reference to apparent insolvency, or to a person being apparently insolvent, within the meaning of section 7 of this Act.
(10)Unless the context otherwise requires, any reference in any enactment or document to a person’s estate being sequestrated under the Bankruptcy (Scotland) Act 1913 shall be construed as, or as including, a reference to its being sequestrated under this Act; and analogous references shall be construed accordingly.
(11)Unless the context otherwise requires, any reference in any enactment or document to a trustee in sequestration or to a trustee in bankruptcy shall be construed as a reference to a F664. . . trustee, within the meaning of this Act; and analogous expressions shall be construed accordingly.
(12)Unless the context otherwise requires, any reference in any enactment or document—
(a)to a “gratuitous alienation” shall be construed as including a reference to an alienation challengeable under section 34(1) of this Act or under section 615A(1) of the M26Companies Act 1985;
(b)to a “fraudulent preference” or to an “unfair preference” shall be construed as including a reference to—
(i)an unfair preference within the meaning of this Act;
(ii)a preference created as is mentioned in subsection (1) of section 36 of this Act (as applied by section 615B of the said Act of 1985), by a transaction to which subsection (4) of the said section 36 (as so applied) applies.
Textual Amendments
F661Words in s. 75(4) repealed (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 226, 227(3), Sch. 6 Pt. 1 (with s. 223); S.S.I. 2008/115, art. 3(2)(3), Sch. 2 (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F662S. 75(5)(b) repealed (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 226, 227(3), Sch. 6 Pt. 1 (with s. 223); S.S.I. 2008/115, art. 3(2)(3), Sch. 2 (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F663Word in s. 75(7) repealed (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 226, 227(3), Sch. 6 Pt. 1 (with s. 223); S.S.I. 2008/115, art. 3(2)(3), Sch. 2 (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F664Words in s. 75(11) repealed (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 226, 227(3), Sch. 6 Pt. 1 (with s. 223); S.S.I. 2008/115, art. 3(2)(3), Sch. 2 (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
Marginal Citations
(1)Any—
(a)payments received by the Secretary of State under section 58(3) of this Act; or
(b)amounts handed over to him in accordance with section 53 of this Act by virtue of the insertion provided for in paragraph 9 of Schedule 2 to this Act,
shall be paid by him into the Consolidated Fund.
(2)There shall be paid out of moneys provided by Parliament—
(a)any amount of outlays and remuneration payable in accordance with section 53 of this Act by virtue of the insertion mentioned in subsection (1)(b) above;
(b)any administrative expenses incurred by the Secretary of State under this Act; and
(c)any increase attributable to this Act in the sums so payable under any other Act.
The application of this Act to the Crown is to the Crown as creditor only.
(1)This Act may be cited as the Bankruptcy (Scotland) Act 1985.
(2)This Act, except this section, shall come into force on such day as the Secretary of State may by order made by statutory instrument appoint; and different days may be so appointed for different purposes and for different provisions.
(3)An order under subsection (2) above may contain such transitional provisions and savings as appear to the Secretary of State necessary or expedient in connection with the provisions brought into force (whether wholly or partly) by the order.
(4)Without prejudice to section 75(3) to (5) of this Act, this Act applies to sequestrations as regards which the petition—
(a)is presented on or after the date of coming into force of section 5 of this Act; or
(b)was presented before, but in respect of which no award of sequestration has been made by, that date.
(5)This Act, except the provisions mentioned in subsection (6) below, extends to Scotland only.
(6)The provisions referred to in subsection (5) above are sections 8(5), 22(8) (including that subsection as applied by section 48(7)), 46, 55 and 73(5), paragraph 16(b) of Schedule 4 and paragraph 3 of Schedule 5.
Subordinate Legislation Made
P1S. 78(2): power of appointment conferred by s. 78(2) fully exercised: S.I. 1985/1924, 1986/78, 1913: whole Act in force on or before 29.12.1986
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This timeline shows the different points in time where a change occurred. The dates will coincide with the earliest date on which the change (e.g an insertion, a repeal or a substitution) that was applied came into force. The first date in the timeline will usually be the earliest date when the provision came into force. In some cases the first date is 01/02/1991 (or for Northern Ireland legislation 01/01/2006). This date is our basedate. No versions before this date are available. For further information see the Editorial Practice Guide and Glossary under Help.
Defnyddiwch y ddewislen hon i agor dogfennau hanfodol sy’n cyd-fynd â’r ddeddfwriaeth a gwybodaeth am yr eitem hon o ddeddfwriaeth. Gan ddibynnu ar yr eitem o ddeddfwriaeth sy’n cael ei gweld gall hyn gynnwys:
liciwch ‘Gweld Mwy’ neu ddewis ‘Rhagor o Adnoddau’ am wybodaeth ychwanegol gan gynnwys