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Bankruptcy and Diligence etc. (Scotland) Act 2007

New section 15F – Hearing on application

475.Section 15F sets out the procedure to be followed at a hearing on an application for warrant for diligence on the dependence. Such a hearing on an application takes place in respect of applications where the creditor either doesn’t apply for a warrant to be granted in advance of a hearing or where the court refuses to make an order granting a warrant without a hearing.

476.Subsection (1) places a duty on the court, at the hearing, to give any person who received intimation of the hearing date (namely the debtor and any person appearing to the court to have an interest) the chance to make representations before the court makes a decision on the application.

477.Under subsections (2) and (3) the court may grant the warrant if it is satisfied as to the same matters which it is obliged to consider under section 15E(2), namely that—

  • the creditor has a prima facie case on the merits of the court action;

  • there would be a real and substantial risk of the debtor frustrating enforcement of a decree found in favour of the creditor by being or becoming insolvent, or putting the debtor’s assets beyond the reach of the creditor, if warrant for diligence on the dependence were not granted; and

  • it is reasonable in all the circumstances, including the effect granting warrant may have on any person having an interest, to grant the warrant.

478.Subsection (4) puts the onus of satisfying the court that it should grant warrant on the creditor.

479.Subsection (5) provides for intimation by the creditor of the court’s decision to the debtor and any other person it thinks has an interest.

480.Subsection (6) provides that, in refusing the warrant, the court may impose such conditions as it thinks fit. Subsection (7) gives examples of particular conditions which the court might impose under subsection (6). So, where the court refuses to grant warrant for diligence on the dependence but is satisfied that, nevertheless, there is a risk of any ultimate decree for payment in favour of the creditor not being met, it can order the defender to consign a sum into court against that eventuality.

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