Bankruptcy and Diligence (Scotland) Act 2024

Prospective

16 Service of documents and employers’ etc. duty of disclosure S

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

(2) In section 70 (execution and intimation of copies)—

(a) for subsection (3), substitute—

“(3) An earnings arrestment schedule or a current maintenance arrestment schedule must be served on an employer either—

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

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

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

(b) by being transmitted to the employer electronically.

(3A) But, despite subsection (3), if it is impossible or impracticable for the documents to be served on the employer in either of the ways described in that subsection, service of the documents may instead be effected by any other competent mode of service.

(3B) For the purpose of subsection (3)(a), the proper address of the employer is—

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

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

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

(3C) Where a document is served as mentioned in subsection (3)(a) on an address in the United Kingdom it is to be taken to have been received 48 hours after it is sent unless the contrary is shown.

(3D) For the purpose of subsection (3)(b)—

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

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

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

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

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

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

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

(b) for subsection (5), substitute—

“(5) Section 12(1) of the Debt Arrangement and Attachment (Scotland) Act 2002 applies to the service of an earnings arrestment schedule, a current maintenance arrestment schedule or a conjoined arrestment order as it applies to the execution of an attachment except where such service is by post or transmitted electronically.”.

(3) In section 70A (employer’s duty to provide information)—

(a) in subsection (1)—

(i) for “Where an employer” substitute “This section applies where a person”,

(ii) the words from “the employer shall” to the end of the subsection are repealed,

(b) for subsection (2) substitute—

“(1A) If—

(a) the debtor is not employed by the person who received the schedule or order, or

(b) the debtor is employed by that person but, because of the net earnings of the debtor, the sum to be deducted on any pay-day under this Part of this Act is, or is expected to be, nil,

the person must, within 21 days of the order or schedule being served, send to the relevant person the information mentioned in paragraph (a) or (b) (as appropriate) in (or as nearly as may be in) such form as may be prescribed.

(2) Otherwise, the employer must send to the relevant person the information mentioned in subsection (3) at each of the following times—

(a) as soon as is reasonably practicable following the order or schedule being served, and

(b) subsequently, provided the debt has not been extinguished, on or as soon as is reasonably practicable after the dates mentioned in subsection (4),

in (or as nearly as may be in) such form as may be prescribed.”,

(c) in subsection (3)—

(i) in the opening words, for “(1)” substitute “(2)”,

(ii) in paragraph (b)(i), for “(1)” substitute “(2)(a)”,

(iii) in paragraph (b)(ii), for “(2)” substitute “(2)(b)”,

(d) in subsection (4), for “(2)” substitute “(2)(b)”,

(e) in subsection (5)—

(i) in the opening words, for “subsections (1) and (2)” substitute “subsection (2)”,

(ii) in the opening words, for the words from “give notice” to “the sheriff clerk” substitute “send to the relevant person notice—”,

(iii) after paragraph (b), insert— “in (or as nearly as may be in) such form as may be prescribed.

(f) after subsection (5), insert—

“(5A) But subsection (5) does not apply where a notice has been given to the relevant person under subsection (1A)(b).”,

(g) in subsection (6), for “subsection (1) or (2)” substitute “subsection (2)”,

(h) after subsection (6), insert—

“(7) In this section—

(a) “relevant person” means—

(i) the creditor, or

(ii) in the case of a conjoined arrestment order, the sheriff clerk,

(b) “prescribed” means prescribed by regulations made by the Scottish Ministers.”,

(i) the heading of the section becomes “Employers etc.: duty to provide information”.

(4) In section 70B (failure to give notice under section 70A(5))—

(a) before subsection (1), insert—

“(A1) Where a person fails without reasonable excuse to send the information required under section 70A(1A) or (2) of this Act, the sheriff may, on the application of any creditor, make an order requiring the person who received the schedule or order—

(a) to send the information to the creditor, and

(b) to pay to the creditor—

(i) the sum due to the creditor by the debtor, or

(ii) the sum of £500,

whichever is the lesser.”,

(b) in subsection (1)(b), for the words from “an amount” to the end of that paragraph substitute “—

(i) the sum due to the creditor by the debtor, or

(ii) the sum of £500,

whichever is the lesser.”,

(c) in subsection (2), in the opening words, for “subsection (1)(b)” substitute “subsection (A1)(b) or (1)(b)”,

(d) in subsection (3)—

(i) for “An employer” substitute “A person”,

(ii) for “subsection (1)” substitute “subsection (A1)(b) or (1)(b)”,

(e) after subsection (3), insert—

“(4) The Scottish Ministers may by regulations modify subsection (A1)(b)(ii) or (1)(b)(ii) so as to vary the sums mentioned there.”,

(f) the heading of the section becomes “Failure to give notice under section 70A”.

Commencement Information

I1 S. 16 not in force at Royal Assent, see s. 22(2)