The Bankruptcy (Scotland) Amendment Regulations 2010

Scottish Statutory Instruments

2010 No. 367

Bankruptcy

Debt

The Bankruptcy (Scotland) Amendment Regulations 2010

Made

21st October 2010

Laid before the Scottish Parliament

22nd October 2010

Coming into force

15th November 2010

The Scottish Ministers make the following Regulations in exercise of the powers conferred by sections 5(4C)(a) and (b), 15(6), 19(2), 40(3B) and 73(1) of the Bankruptcy (Scotland) Act 1985(1), section 11(1)(b) of the Debt Arrangement and Attachment (Scotland) Act 2002(2) and all other powers enabling them to do so.

Citation and commencement

1.  These Regulations may be cited as the Bankruptcy (Scotland) Amendment Regulations 2010 and come into force on 15th November 2010.

Interpretation

2.  In these Regulations “the 2008 Regulations” means the Bankruptcy (Scotland) Regulations 2008(3).

Amendment of the Bankruptcy (Scotland) Regulations 2008

3.—(1) The 2008 Regulations are amended as follows.

(2) For regulation 2 (interpretation) substitute—

“Interpretation

(1) In these Regulations—

“the 1985 Act” means the Bankruptcy (Scotland) Act 1985; and

“the 1985 Regulations” means the Bankruptcy (Scotland) Regulations 1985(4).

(2) Any reference in these Regulations to anything done in writing or produced in written form includes a reference to an electronic communication, as defined in the Electronic Communications Act 2000(5), which has been recorded and is consequently capable of being reproduced.”.

(3) Omit regulations 11 (notice of sequestration in Edinburgh Gazette by trustee) and 15 (debtor application/low income, low assets).

(4) In regulation 14 (debtor applications)—

(a) in paragraph (1)(a) omit “without concurrence of a qualified creditor or creditors”;

(b) omit paragraph (1)(b);

(c) in paragraph (1)(c) after “11” insert “accompanied by a statement of assets and liabilities in the form of Form 25.”;

(d) omit from “; and shall be accompanied” to the end of paragraph (1);

(e) in paragraph (3)—

(i) insert after sub-paragraph (a)—

“(aa) further information is required to substantiate any fact;”;

(ii) for “(a), (b) or (c)” substitute “(a), (aa), (b) or (c)”;

(f) in paragraph (4) insert after sub-paragraph (a)—

“(aa) the Accountant in Bankruptcy is not satisfied that the debtor has provided sufficient information in response to any requirement imposed under paragraph (3);”.

(5) Insert after regulation 19 (abandonment of heritable property by trustee)—

“Notice by trustee of proceedings to obtain authority in relation to debtor’s family home

19A.   A notice by a trustee, or by a trustee acting under a trust deed, for the purposes of section 40(3A) of the 1985 Act shall be in the form of Form 24.”.

(6) In the Schedule—

(a) for Form 3 (statement of assets and liabilities – petition by creditor or trustee under a trust deed) substitute the form set out in Schedule 1 to these Regulations;

(b) for Form 9 (debtor application) substitute the form set out in Schedule 2 to these Regulations;

(c) omit Form 10 (debtor application with concurrence);

(d) omit Form 12 (statement of assets and liabilities for debtor application);

(e) for Form 15 (refusal of award of sequestration) substitute the form set out in Schedule 3 to these Regulations;

(f) omit Form 17 (statutory declaration of low income and low assets); and

(g) after Form 23 insert Forms 24 (notice of proceedings to obtain the authority of a sheriff to sell or dispose of any right or interest in a debtor’s family home) and 25 (statement of assets and liabilities) as set out in Schedules 4 and 5 to these Regulations.

Prescribed amount for the purposes of section 11(1)(b) of the Debt Arrangement and Attachment (Scotland) Act 2002.

4.  For the purposes of section 11(1)(b) of the Debt Arrangement and Attachment (Scotland) Act 2002 (articles exempt from attachment) the prescribed value of a vehicle is £3,000.

Saving provisions

5.  Notwithstanding the revocation of regulations 11 and 15(3) of the 2008 Regulations, those provisions shall continue to have effect in respect of sequestrations awarded prior to 15th November 2010.

6.  Notwithstanding the revocation of regulation 14(1)(b) of the 2008 Regulations, that provision shall continue to have effect in respect of applications under section 5(2A) of the Bankruptcy (Scotland) Act 1985 received by the Accountant in Bankruptcy prior to 15th December 2010.

7.  Notwithstanding the revocation of regulations 15(1) and 15(2) of the 2008 Regulations, those provisions shall continue to have effect in respect of any application such as referred to in regulation 15(1) made prior to 15th November 2010.

KENNY MACASKILL

A member of the Scottish Executive

St Andrew’s House,

Edinburgh

21st October 2010

Regulation 3(6)(a)

SCHEDULE 1

Regulation 3(6)(b)

SCHEDULE 2

Regulation 3(6)(e)

SCHEDULE 3

Regulation 3(6)(g)

SCHEDULE 4

Regulation 3(6)(g)

SCHEDULE 5

EXPLANATORY NOTE

(This note is not part of the Regulations)

These Regulations make amendments to the Bankruptcy (Scotland) Regulations 2008 (“the 2008 Regulations”) that are consequential on amendments to the Bankruptcy (Scotland) Act 1985 (“the 1985 Act”) made by Part 2 of the Home Owner and Debtor Protection (Scotland) Act 2010. The Regulations also amend the procedure to be followed, and the forms required, in debtor applications under the 1985 Act, and vary the value of vehicles that are exempt from attachment under the Debt Arrangement and Attachment (Scotland) Act 2002 (and hence not part of the assets covered by a sequestration or a protected trust deed).

Section 9 of the Home Owner and Debtor Protection (Scotland) Act 2010 amends the debtor application provisions in the 1985 Act by removing the concurrence of a qualifying creditor as one of the routes into sequestration, and introducing a new route of a certificate for sequestration signed by an authorised person. Consequent upon these changes, regulations 3(4)(a) to (d) make necessary amendments to regulation 14 of the 2008 Regulations and regulation 3(6) makes changes to the forms required in debtor applications and the form of statement of assets and liabilities required under section 19(2) of the 1985 Act.

Section 11 of the Home Owner and Debtor Protection (Scotland) Act 2010 amends section 40 of the 1985 Act by requiring a trustee to give notice to the Local Authority before applying to the court for certain orders in relation to the debtor’s family home. Regulations 3(5) and (6)(g) amend the 2008 Regulations so as to prescribe the form to be used when giving such notice.

Section 12 of the Home Owner and Debtor Protection (Scotland) Act 2010 abolishes the requirement for certain notices to appear in the Edinburgh Gazette. Regulation 3(3) makes amendments to the 2008 Regulations consequent on the abolition of these requirements.

Regulations 3(4)(e) and (f) amend the procedure to be followed in relation to debtor applications so as to allow the Accountant in Bankruptcy to require a debtor to provide further information when required to substantiate any fact.

Regulation 4 prescribes £3,000 as the upper limit on the value of a vehicle that may be exempt from attachment for the purposes of section 11(1)(b) of the Debt Arrangement and Attachment (Scotland) Act 2002.

Regulations 5, 6 and 7 contain savings provisions in relation to the revoked provisions of the 2008 Regulations.

(1)

1985 c.66: Section 5(4C) was inserted by the Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3) (“the 2007 Act”), section 14(3)(b). Section 15(6) was amended by the Bankruptcy (Scotland) Act 1993 (c.6), Schedule 1, paragraph 4 and by the 2007 Act, schedule 6, Part 1. Section 19(2) was amended by the 2007 Act, schedule 1, paragraph 17 and schedule 6, Part 1. Section 40(3B) was inserted by the Home Owner and Debtor Protection (Scotland) Act 2010 (asp 6), section 11(c). Section 73(1) contains definitions of “prescribed” and “statement of assets and liabilities”. The functions of the Secretary of State were transferred to the Scottish Ministers, insofar as they are within devolved competence, by section 53 of the Scotland Act 1998 (c.46).

(2)

2002 asp 17.

(3)

S.S.I. 2008/82 as amended by S.S.I. 2008/334.

(4)

S.I. 1985/1925 as amended by S.I. 1986/1914, 1993/439 and 2003/2109.

(5)

2000 c.7. Section 15 of the Electronic Communication Act 2000 contains a definition of “electronic communication”.