Act of Sederunt (Bankruptcy Rules) 1993 No. 921 (S. 128)

Statutory Instruments

1993 No. 921 (S.128)

SHERIFF COURT, SCOTLAND

INSOLVENCY

BANKRUPTCY

Act of Sederunt (Bankruptcy Rules) 1993

Made

26th March 1993

Coming into force

1st April 1993

The Lords of Council and Session, under and by virtue of the powers conferred on them by section 32 of the Sheriff Courts (Scotland) Act 1971(1), sections 1A, 14, 25 of, and paragraph 2(2) of Schedule 2 and paragraph 2 of Schedule 5 to, the Bankruptcy (Scotland) Act 1985(2), and of all other powers enabling them in that behalf, having approved, with modifications, draft rules submitted to them by the Sheriff Court Rules Council in accordance with section 34 of the Sheriff Courts (Scotland) Act 1971, do hereby enact and declare:

Citation, commencement, revocation and interpretation

1.—(1) This Act of Sederunt may be cited as the Act of Sederunt (Bankruptcy Rules) 1993 and shall come into force on 1st April 1993.

(2) This Act of Sederunt shall be inserted in the Books of Sederunt.

(3) Subject to rule 9 below, the Act of Sederunt (Bankruptcy) 1986(3) is revoked.

(4) In this Act of Sederunt, “the 1985 Act” means the Bankruptcy (Scotland) Act 1985.

(5) Any reference in this Act of Sederunt to a numbered form shall be construed as a reference to the form so numbered in Schedule 1 to this Act of Sederunt or a form substantially to the same effect, with such variation as circumstances may require.

Petition for sequestration by the debtor

2.—(1) A petition by the debtor under section 5(2)(a) of the 1985 Act(4) shall be in–

(a) Form 1 where section 5(2A) of the 1985 Act(5) (with concurrence of qualified creditor(s)) applies; or

(b) Form 2 where subsection 5(2B) of the 1985 Act(6) (without concurrence of qualified creditors(s)) applies.

(2) The court, when considering a petition lodged in accordance with paragraph (1) above, shall not require–

(a) intimation to be made to any person, or

(b) the debtor to appear or be represented,

unless it seems necessary to the court to do so.

(3) An undertaking by the interim trustee under section 2(3)(c) of the 1985 Act(7) shall be in Form 3.

Application for certificate for summary administration

3.—(1) An application for the grant of a certificate for the summary administration of the sequestration of the debtor’s estate under the 1985 Act shall be in Form 4.

(2) Where an application for the grant of a certificate for the summary administration of the sequestration of the debtor’s estate has been made to the court before the appointment or confirmation of a permanent trustee, such application shall be considered at the same time as the court appoints or confirms the permanent trustee.

(3) A certificate for the summary administration of the debtor’s estate granted under section 23A of the 1985 Act(8) shall be in Form 5.

Intimation of certificate for summary administration

4.  Where the court grants a certificate for the summary administration of the sequestration of the debtor’s estate, the sheriff clerk shall send a copy of the certificate to the applicant who without delay shall intimate the grant of such certificate to the persons referred to in section 23A(5) of the 1985 Act.

Withdrawal of certificate for summary administration

5.—(1) An application under section 23A(5) of the 1985 Act for the withdrawal of a certificate for the summary administration of the sequestration of the debtor’s estate shall be in Form 6, and shall be intimated, by means of the recorded delivery service, by the applicant to the persons referred to in section 23A(5) of the 1985 Act.

(2) A person receiving intimation under paragraph (1) above who wishes to object to the application must do so by letter to the sheriff clerk within 14 days of date of intimation.

(3) The permanent trustee shall, within 42 days of date of intimation to him of an application under section 23A(5) of the 1985 Act–

(a) lodge in court a report under section 23A(6) of the 1985 Act; and

(b) send a copy of that report to the Accountant in Bankruptcy and the debtor.

(5) The sheriff, on considering the application and any written objections which have been received by the court, may fix a hearing.

(6) The sheriff clerk shall intimate the court’s decision to the applicant, who without delay shall intimate that decision to the persons referred to in section 23A(5) of the 1985 Act.

Intimation of appointment of interim trustee

6.  The sheriff clerk without delay shall intimate the appointment of any interim trustee to the person so appointed, and to the Accountant in Bankruptcy where he is not the interim trustee.

Appeals

7.—(1) An appeal under the following provisions of the 1985 Act shall be made in -accordance with the following provisions of this rule:–

• section 15(3) (order refusing to award sequestration),

• section 29(4) (order of sheriff removing permanent trustee),

• section 54(6) (order deferring discharge of debtor or dismissal of application to defer discharge),

• paragraph 8(3) of Schedule 4 (order approving or refusing to approve offer of composition).

(2) An appeal under a provision mentioned in paragraph (1) above shall be made by note of appeal which shall be written by the appellant on the interlocutor sheet, or other written record containing the interlocutor appealed against, or on a separate sheet lodged with the sheriff clerk; and such note of appeal shall be as nearly as may be in the following terms:–

• “The (designation of appellant) appeals to the Sheriff Principal [orCourt of Session],”.

(3) Such note of appeal shall be signed by the appellant or his solicitor and shall bear the date on which it was signed and the name and address of any firm of solicitors who will be acting for the appellant in the appeal.

(4) Where the 1985 Act does not specify the time within which an appeal shall be made, such appeal shall be made within 14 days of the date of the interlocutor appealed against.

(5) On an appeal to the Sheriff Principal, the sheriff clerk shall, within 4 days of the appeal being made, transmit the process to the Sheriff Principal, and on an appeal to the Court of Session the sheriff clerk shall, within 4 days of the appeal being made, transmit the process to the Deputy Principal Clerk of Session.

(6) Within the period of 4 days referred to in paragraph (5) above the sheriff clerk shall send written notice of the appeal–

(a) in an appeal under section 15(3) of the 1985 Act, to any concurring creditor and the debtor, as the case may be;

(b) in an appeal under section 29(4) of the 1985 Act, to the permanent trustee, the Accountant in Bankruptcy, the commissioners and any person representing not less than one quarter in value of the creditors, as the case may be;

(c) in an appeal under section 54(6) of the 1985 Act, to the applicant creditor, the permanent trustee and the debtor, as the case may be;

(d) in an appeal under paragraph 8(3) of Schedule 4 to the 1985 Act, to the permanent trustee, the debtor and the creditors to whom notice of the hearing fixed by the sheriff was given, as the case may be,

and shall certify on the interlocutor sheet that he has done so.

(7) Failure by the sheriff clerk to give the notice prescribed in paragraph (6) above shall not invalidate the appeal.

Forms and Register of Insolvencies

8.  –

(1) The memorandum to be sent by the permanent trustee to the Keeper of the Register of Inhibitions and Adjudications under section 14(4) of the 1985 Act(9) shall be in Form 7.

(2) The act and warrant to be issued by the sheriff clerk under section 25(2) or paragraph 2(2) of Schedule 2 to the 1985 Act(10) shall be in Form 8.

(3) The notice which the trustee may record in the Register of Inhibitions and Adjudications under paragraph 2(1) of Schedule 5 to the 1985 Act shall be in Form 9.

(4) The notice to recall the notice referred to in paragraph (3) above which is to be recorded by the trustee in the Register of Inhibitions and Adjudications under paragraph 2(2) of Schedule 5 to the 1985 Act shall be in Form 10.

(5) The Register of Insolvencies maintained by the Accountant in Bankruptcy under section 1A(1)(b) of the 1985 Act shall contain the information specified in Schedule 2 to this Act of Sederunt.

Transitional provisions

9.  Notwithstanding rule 1(3) above, nothing in this Act of Sederunt shall have effect as regards any petition or application presented before the coming into force of this Act of Sederunt; and the Act of Sederunt (Bankruptcy) 1986 shall continue to apply to any such petition or application.

J.A.D. Hope

Lord President I.P.D.

Edinburgh

26th March 1993

SCHEDULES

SCHEDULE 1

Rule 1(5) Rule 2(1)(a)

FORM 1 Form of debtor’s petition (with concurrence of qualified creditor(s)) under the Bankruptcy (Scotland) Act 1985

Rule 2(1)(b)

FORM 2 Form of debtor’s petition (without concurrence of qualified creditor(s)) under the Bankruptcy (Scotland) Act 1985

Rule 2(3)

FORM 3 Form of undertaking required by section 2(3)(c) of the Bankruptcy (Scotland) Act 1985

Rule 3(1)

FORM 4 Form of application for a certificate for summary administration under the Bankruptcy

Rule (3)(3)

FORM 5 Form of certificate for summary administration under the Bankruptcy (Scotland) Act 1985

Rule 5(1)

FORM 6 Form of application for withdrawal of certificate for summary administration under the Bankruptcy (Scotland) Act 1985

Rule 8(1)

FORM 7 Form of memorandum by permanent trustee to be recorded in the Register of Inhibitions and Adjudications under section 14(4) of the Bankruptcy (Scotland) Act 1985

Rule 8(2)

FORM 8 Form of act and warrant on confirmation or appointment of trustee under respectively section 25(2) or paragraph 2(2) of Schedule 2 to the Bankruptct (Scotland) Act 1985

Rule 8(3)

FORM 9 Form of notice of inhibition by trustee under trust deed to be recorded in the Register of Inhibitions and Adjudications under paragraph 2(1) of Schedule 5 to the Bankruptcy (Scotland) Act 1985

Rule 8(4)

FORM 10 Form of notice of recall of inhibition to be recorded in the Register of Inhibitions and Adjudications under paragraph 2(2) of Schedule 5 to the Bankruptcy (Scotland) Act 1985

Rule 8(5)

SCHEDULE 2 Information to be contained in the Register of Insolvencies

A.

Sequestrations Name of debtor Debtor’s residence and his principal place of business (if any) at date of sequestration or date of death Date of death in case of deceased debtor Occupation of debtor Name and address of petitioner for sequestration Court by which sequestration awarded Sheriff Court to which sequestration remitted (where applicable) Date of first order Date of award of sequestration Date of recall of sequestration (where applicable) Date certificate for summary administration of sequestration of debtor’s estate granted (where applicable) Date certificate for summary administration of sequestration of debtor’s estate withdrawn (where applicable) Name and address of interim trustee and date of appointment Level of debt when interim trustee’s statement of debtor’s affairs is produced Level of assets when interim trustee’s statement of debtor’s affairs is produced Name and address of permanent trustee and date of confirmation of appointment Date of debtor’s discharge and whether on composition or by operation of law Date of interim trustee’s discharge Date of permanent trustee’s discharge

B.

Protected Trust Deeds for Creditors Name and address of granter of trust deed Name and address of trustee under the deed Date (or dates) of execution of deed Date on which copy deed and certificate of accession were registered Date of registration of statement indicating how the estate was realised and distributed and certificate to the effect that the distribution was in accordance with the trust deed. Date of trustee’s discharge Date of registration of copy of order of court that non acceding creditor is not bound by trustee’s discharge.

Explanatory Note

This note is not part of the Act of Sederunt)

This Act of Sederunt prescribes the form of petition by a debtor for sequestration. It prescribes the form of application for a certificate for summary administration of the seques-tration of a debtor’s estate, and the form of the certificate itself.

Provision is also made for applications for withdrawal of the certificate. It also provides for intimation of the appointment of an interim trustee and prescribes the form of undertaking to be given by an interim trustee.

The Act of Sederunt (Bankruptcy) 1986 has been revoked and re-enacted with minor amendments. It continues to have effect, however, in relation to petitions and applications presented before this Act of Sederunt came into effect.

(1)

1971 c. 58.

(2)

1985 c. 66; section 1A was inserted by section 1 of the Bankruptcy (Scotland) Act 1993 (c. 6) (“the 1993 Act”).

(3)

S.I. 1986/517.

(4)

Section 5(2)(a) was substituted by the 1993 Act, section 3(2).

(5)

Section 5(2A) was inserted by the 1993 Act, section 3(2).

(6)

Section 5(2B) was inserted by the 1993 Act, section 3(2).

(7)

Section 2(3)(c) was substituted by the 1993 Act, section 2.

(8)

Section 23A was inserted by the 1993 Act, section 6(1).

(9)

Section 14(4) was amended by the 1993 Act Schedule 1, paragraph 3.

(10)

Paragraph 2 of Schedule 2 was substituted by the 1993 Act, Schedule 1, paragraph 30(3).