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Bankruptcy and Diligence etc. (Scotland) Act 2007


This is the original version (as it was originally enacted).

  1. Introductory Text

  2. Part 1 Bankruptcy

    1. Duration of bankruptcy

      1. 1.Discharge of debtor

    2. Bankruptcy restrictions orders and undertakings

      1. 2.Bankruptcy restrictions orders and undertakings

    3. Effect of bankruptcy restrictions orders and undertakings

      1. 3.Disqualification from being appointed as receiver

      2. 4.Disqualification for nomination, election and holding office as member of local authority

      3. 5.Orders relating to disqualification

    4. The trustee in the sequestration

      1. 6.Amalgamation of offices of interim trustee and permanent trustee

      2. 7.Repeal of trustee’s residence requirement

      3. 8.Duties of trustee

      4. 9.Grounds for resignation or removal of trustee

      5. 10.Termination of interim trustee’s functions

      6. 11.Statutory meeting and election of trustee

      7. 12.Replacement of trustee acting in more than one sequestration

      8. 13.Requirement to hold money in interest bearing account

    5. Debtor applications

      1. 14.Debtor applications

      2. 15.Debtor applications by low income, low asset debtors

    6. Jurisdiction

      1. 16.Sequestration proceedings to be competent only before sheriff

    7. Vesting of estate and dealings of debtor

      1. 17.Vesting of estate and dealings of debtor

    8. Income received by debtor after sequestration

      1. 18.Income received by debtor after sequestration

    9. Debtor’s home and other heritable property

      1. 19.Debtor’s home and other heritable property

    10. Protected trust deeds

      1. 20.Modification of provisions relating to protected trust deeds

    11. Modification of composition procedure

      1. 21.Modification of composition procedure

    12. Status and powers of Accountant in Bankruptcy

      1. 22.Status of Accountant in Bankruptcy as officer of the court

      2. 23.Accountant in Bankruptcy’s power to investigate trustees under protected trust deeds

    13. Offences

      1. 24.Modification of offences under section 67 of the 1985 Act

    14. Miscellaneous and general

      1. 25.Debt limits in sequestrations

      2. 26.Creditor to provide debt advice and information package

      3. 27.Continuation of sequestration proceedings

      4. 28.Abolition of summary administration

      5. 29.Non-vested contingent interest reinvested in debtor

      6. 30.Debtor’s requirement to give account of state of affairs

      7. 31.Restriction of debtor’s right to appeal under sections 49(6) and 53(6) of the 1985 Act

      8. 32.Status of order on petition to convert protected trust deed into sequestration

      9. 33.Power to provide for lay representation in sequestration proceedings

      10. 34.Treatment of student loans on sequestration

      11. 35.Certain regulations under the 1985 Act: procedure

      12. 36.Minor and consequential amendments of the 1985 Act

  3. Part 2 Floating charges

    1. Registration and creation etc.

      1. 37.Register of Floating Charges

      2. 38.Creation of floating charges

      3. 39.Advance notice of floating charges

      4. 40.Ranking of floating charges

      5. 41.Ranking clauses

      6. 42.Assignation of floating charges

      7. 43.Alteration of floating charges

      8. 44.Discharge of floating charges

      9. 45.Effect of floating charges on winding up

      10. 46.Repeals, savings and transitional arrangements

      11. 47.Interpretation

    2. Related further provision

      1. 48.Formalities as to documents

      2. 49.Industrial and provident societies

  4. Part 3 Enforcement

    1. Scottish Civil Enforcement Commission

      1. 50.Scottish Civil Enforcement Commission

      2. 51.Information and annual report

      3. 52.Publication of guidance and other information

      4. 53.Published information not to enable identification

      5. 54.Register of judicial officers

      6. 55.Code of practice

      7. 56.Publication of information relating to informal debt collection

    2. Judicial officers

      1. 57.Judicial officers

      2. 58.Appointment of judicial officer

      3. 59.Annual fee

    3. Abolition of offices of messenger-at-arms and sheriff officer

      1. 60.Abolition of offices of messenger-at-arms and sheriff officer

    4. Regulation of judicial officers

      1. 61.Regulation of judicial officers

      2. 62.Duty to notify Commission of bankruptcy etc.

    5. Judicial officers' professional association

      1. 63.Judicial officers' professional association

      2. 64.Duty of professional association to forward complaints to Commission

      3. 65.Information from professional association

    6. Investigation of judicial officers

      1. 66.Inspection of judicial officer

      2. 67.Investigation of alleged misconduct by judicial officer

      3. 68.Suspension of judicial officer pending outcome of disciplinary or criminal proceedings

      4. 69.Commission’s duty in relation to offences or misconduct by judicial officer

      5. 70.Commission’s power in relation to judicial officer’s bankruptcy etc.

    7. Disciplinary proceedings

      1. 71.Referrals to the disciplinary committee

      2. 72.Disciplinary committee’s powers

      3. 73.Orders under sections 68 and 72: supplementary provision

    8. Appeals

      1. 74.Appeals from decisions under sections 58, 68 and 72

    9. Miscellaneous

      1. 75.Judicial officer’s actions void where officer has interest

      2. 76.Measure of damages payable by judicial officer for negligence or other fault

      3. 77.Effect of code of practice

      4. 78.Electronic publications and communications

  5. Part 4 Land attachment and residual attachment

    1. Chapter 1 Abolition of adjudication for debt

      1. 79.Abolition of adjudication for debt

      2. 80.Renaming of the Register of Inhibitions and Adjudications

    2. Chapter 2 Attachment of land

      1. Land attachment

        1. 81.Land attachment

        2. 82.Attachable land

        3. 83.Notice of land attachment

      2. Consequences of land attachment

        1. 84.Debts secured by land attachment not rendered heritable

        2. 85.Restriction on priority of ranking of certain securities

        3. 86.Lease granted after registration of notice of land attachment

        4. 87.Assignation of title deeds etc.

        5. 88.Acquisition of right to execute land attachment

        6. 89.Effect of debtor’s death before land attachment created

        7. 90.Effect of debtor’s death after land attachment created

        8. 91.Caveat by purchaser under missives

      3. Preparations for sale of attached land

        1. 92.Application for warrant to sell attached land

        2. 93.Notice to local authority of application for warrant for sale

        3. 94.Preliminary hearing on application for warrant to sell

        4. 95.Valuation report

        5. 96.Creditor’s duties prior to full hearing on application for warrant for sale

        6. 97.Full hearing on application for warrant for sale

        7. 98.Application for warrant for sale of sole or main residence

        8. 99.Protection of purchaser under contract where creditor applies for warrant for sale

        9. 100.Protection of purchaser under contract where warrant for sale granted

        10. 101.Provision supplementary to sections 99 and 100

        11. 102.Warrant for sale of attached land owned in common

        12. 103.Intimation of sheriff’s decision at full hearing

        13. 104.Supplementary orders as respects sale

        14. 105.Effect of certain refusals of application for warrant for sale under section 97(5)

        15. 106.Termination of debtor’s right to occupy land

        16. 107.Consequences of giving notice under section 106(1)

      4. The sale

        1. 108.Appointed person

        2. 109.Method of sale

        3. 110.Legal incapacity or disability of debtor not to affect title of purchaser

        4. 111.Title of purchaser not to be affected by certain irregularities

        5. 112.Effect of registration of disposition on securities

        6. 113.Report of sale

        7. 114.Audit of report of sale

        8. 115.Sheriff’s consideration of report

        9. 116.Proceeds of sale

      5. Foreclosure

        1. 117.Foreclosure

        2. 118.Registration of decree of foreclosure

      6. Payments to account and expenses

        1. 119.Ascription

        2. 120.Expenses of land attachment

      7. Termination, discharge etc. of land attachment

        1. 121.Termination by payment etc.

        2. 122.Discharge

        3. 123.Recall and restriction of land attachment

        4. 124.Duration of land attachment

      8. Land attachment subsequent to reduction of deed granted in breach of inhibition

        1. 125.Land attachment subsequent to reduction of deed granted in breach of inhibition

      9. General and miscellaneous

        1. 126.Land attachment as heritable security

        2. 127.Statement on impact of land attachment

        3. 128.Interpretation

    3. Chapter 3 Residual attachment

      1. Residual attachment

        1. 129.Residual attachment

      2. Application for residual attachment order

        1. 130.Application for residual attachment order

        2. 131.Effect of application for residual attachment order

      3. Residual attachment order

        1. 132.Residual attachment order

        2. 133.Schedule of residual attachment

        3. 134.Creation and effect of residual attachment

      4. Satisfaction order

        1. 135.Application for satisfaction order

        2. 136.Satisfaction order

        3. 137.Intimation of court’s decision

        4. 138.Effect of certain refusals of application for satisfaction order

      5. Termination, discharge etc. of residual attachment

        1. 139.Termination by payment etc.

        2. 140.Recall

        3. 141.Duration of residual attachment

        4. 142.Effect of death of debtor

      6. General and miscellaneous

        1. 143.Expenses of residual attachment

        2. 144.Ascription

        3. 145.Interpretation

  6. Part 5 Inhibition

    1. Creation

      1. 146.Certain decrees and documents of debt to authorise inhibition without need for letters of inhibition

      2. 147.Provision of debt advice and information package when executing inhibition

      3. 148.Registration of inhibition

      4. 149.Date on which inhibition takes effect

    2. Effect

      1. 150.Property affected by inhibition

      2. 151.Effect on inhibition to enforce obligation when alternative decree granted

      3. 152.Effect of conversion of limited inhibition on the dependence to inhibition in execution

      4. 153.Property affected by inhibition to enforce obligation to convey heritable property

      5. 154.Inhibition not to confer a preference in ranking

      6. 155.Power of receiver or liquidator in creditors' voluntary winding up to dispose of property affected by inhibition

    3. Termination

      1. 156.Termination of effect of inhibition

      2. 157.Inhibition terminated by payment of full amount owing

      3. 158.Inhibition terminated by compliance with obligation to perform

      4. 159.Termination of inhibition when property acquired by third party

    4. Breach

      1. 160.Breach of inhibition

      2. 161.Prescription of right to reduce transactions in breach of inhibition

      3. 162.Registration of notice of litigiosity and discharge of notice

      4. 163.Reduction of lease granted in breach of inhibition

    5. General and miscellaneous

      1. 164.Power to prescribe forms in the 1868 Act

      2. 165.Expenses of inhibition

      3. 166.Ascription

      4. 167.Keeper’s duty to enter inhibition on title sheet

      5. 168.Inhibition effective against judicial factor

  7. Part 6 Diligence on the dependence

    1. 169.Diligence on the dependence

    2. 170.Prescription of arrestment

    3. 171.Abolition of letters of loosing

    4. 172.Abolition of adjudication in security

  8. Part 7 Interim attachment

    1. 173.Interim attachment

  9. Part 8 Attachment of money

    1. Money attachment

      1. 174.Money attachment

      2. 175.Meaning of “money” and related expressions

      3. 176.When money attachment not competent

    2. Execution of money attachment

      1. 177.Removal of money attached

      2. 178.Presumption of ownership

      3. 179.Schedule of money attachment

      4. 180.Valuation of banking instruments

      5. 181.Order for realisation of money likely to deteriorate in value

      6. 182.Report of money attachment

    3. Release of money attached

      1. 183.Creditor’s application for payment order

      2. 184.Effect of payment order

      3. 185.Release of money where attachment unduly harsh

      4. 186.Invalidity and cessation of money attachment

      5. 187.Termination of money attachment

      6. 188.Redemption of banking instrument

    4. Statement of money attachment

      1. 189.Final statement of money attachment

      2. 190.Audit of final statement under section 189(1)

    5. General and miscellaneous

      1. 191.Money in common ownership

      2. 192.Procedure where money owned in common is disposed of

      3. 193.Unlawful acts after money attachment

      4. 194.Appeals

      5. 195.Recovery from debtor of expenses of money attachment

      6. 196.Liability for expenses of money attachment

      7. 197.Ascription

      8. 198.Interpretation

  10. Part 9 Diligence against earnings

    1. 199.Simultaneous operation of arrestments against earnings where net earnings insufficient

    2. 200.Arrestment of earnings: deductions from holiday pay

    3. 201.Provision of debt advice and information package

    4. 202.Intimation of arrestment schedule

    5. 203.Provision of information

    6. 204.Conjoined arrestment orders: jurisdiction

    7. 205.Arrestment of seamen’s wages

  11. Part 10 Arrestment in execution and action of furthcoming

    1. 206.Arrestment in execution

  12. Part 11 Maills and duties, sequestration for rent and landlord’s hypothec

    1. Abolition of maills and duties

      1. 207.Abolition of maills and duties

    2. Landlord’s hypothec and sequestration for rent

      1. 208.Abolition of sequestration for rent and restriction of landlord’s hypothec

  13. Part 12 Summary warrants, time to pay and charges to pay

    1. 209.Summary warrants, time to pay and charges to pay

    2. 210.Time to pay directions and time to pay orders

  14. Part 13 Amendments of the Debt Arrangement and Attachment (Scotland) Act 2002

    1. 211.Debt payment programmes with debt relief

    2. 212.Further amendments of the Debt Arrangement and Attachment (Scotland) Act 2002

  15. Part 14 Admiralty actions and arrestment of ships

    1. 213.Admiralty actions and the arrestment of ships: modification of enactments

  16. Part 15 Actions for removing from heritable property

    1. 214.Expressions used in this Part

    2. 215.Procedure for execution of removing

    3. 216.Service of charge before removing

    4. 217.When removing not competent

    5. 218.Preservation of property left in premises

    6. 219.Caution for pecuniary claims

  17. Part 16 Disclosure of information

    1. 220.Information disclosure

  18. Part 17 General and miscellaneous

    1. 221.Interpretation

    2. Execution of diligence: electronic standard securities

      1. 222.Registration and execution of electronic standard securities

    3. General

      1. 223.Crown application

      2. 224.Orders and regulations

      3. 225.Ancillary provision

      4. 226.Minor and consequential amendments and repeals

      5. 227.Short title and commencement

    1. SCHEDULE 1

      Minor and consequential amendments of the 1985 Act

      1. 1.The 1985 Act is amended as follows.

      2. 2.In section 1A (supervisory functions of the Accountant in Bankruptcy)—...

      3. 3.(1) Section 2 (appointment and functions of interim trustee) is...

      4. 4.(1) Section 5 (sequestration of the estate of living or...

      5. 5.In section 6(5) (combination of certain petitions for sequestration), for...

      6. 6.In section 7(2)(c) (end of apparent insolvency), for “when” substitute...

      7. 7.In section 9(5) (jurisdiction), after “petition” insert “, the date...

      8. 8.For section 10 (concurrent proceedings for sequestration or analogous remedy)...

      9. 9.In section 11 (creditor’s oath)— (a) in subsection (1), for...

      10. 10.In section 12 (when sequestration is awarded)—

      11. 11.(1) Section 13 (resignation, removal etc. of interim trustee) is...

      12. 12.(1) Section 14 (registration of court order) is amended as...

      13. 13.In section 15 (further provision relating to award of sequestration),...

      14. 14.In section 16 (petition for recall of sequestration)—

      15. 15.In section 17 (recall of sequestration)— (a) in subsection (1)(c),...

      16. 16.(1) Section 18 (interim preservation of estate) is amended as...

      17. 17.(1) Section 19 (statement of assets and liabilities) is amended...

      18. 18.In section 20 (trustee’s duty to send information to Accountant...

      19. 19.The italic cross-heading preceding section 21 becomes “Statutory meeting of...

      20. 20.In section 21A(2) (time limit for giving notice of intention...

      21. 21.In section 21B (report where no statutory meeting called)—

      22. 22.In section 22(3)(a) (trustee’s duty to inform creditors outside Scotland),...

      23. 23.(1) Section 24 (election of permanent trustee) is amended as...

      24. 24.(1) Section 25 (confirmation of permanent trustee) is amended as...

      25. 25.(1) Section 26 (provisions relating to termination of interim trustee’s...

      26. 26.(1) Section 26A (Accountant in Bankruptcy to account for intromissions)...

      27. 27.(1) In section 27 (discharge of interim trustee)—

      28. 28.(1) Section 28 (resignation and death of permanent trustee) is...

      29. 29.(1) Section 29 (removal of permanent trustee and trustee not...

      30. 30.(1) Section 31 (vesting of estate at date of sequestration)...

      31. 31.Section 31A (proceedings under EC regulation: modified definition of “estate”)...

      32. 32.In section 32 (vesting of estate and dealings of debtor...

      33. 33.In section 37(1) (effect of sequestration on diligence), for “court”...

      34. 34.(1) In section 38(1)(a) (taking possession of estate by permanent...

      35. 35.(1) Section 39 (management and realisation of estate) is amended...

      36. 36.In section 40 (power in relation to family home)—

      37. 37.In section 41(1) (protection of occupancy rights of non-entitled spouse)—...

      38. 38.In section 41A(1) (protection of occupancy rights of civil partner)—...

      39. 39.In section 42 (contractual powers of permanent trustee)—

      40. 40.The heading to section 43 becomes “Money received by trustee”....

      41. 41.In section 46(1) (warrant to apprehend)— (a) in paragraph (a),...

      42. 42.In section 48 (submission of claims to permanent trustee)—

      43. 43.In section 51(1)(d) (order of priority in distribution), for “the...

      44. 44.(1) Section 52 (estate to be distributed in respect of...

      45. 45.In section 53 (procedure after end of accounting period)—

      46. 46.After section 53, insert— Modification of procedure under section 53...

      47. 47.In section 55, subsection (3) (references to a fine or...

      48. 48.The italic cross-heading preceding section 57 becomes “Discharge of trustee”....

      49. 49.The heading to section 57 becomes “Discharge of trustee”.

      50. 50.In section 58A(7) (discharge of Accountant in Bankruptcy), after “sequestration”...

      51. 51.In section 59A(1) (petition for conversion into sequestration), for “court”,...

      52. 52.In section 59B(1)(c) (contents of affidavit), for “court”, in both...

      53. 53.In section 59C (power of court)— (a) for “court”, in...

      54. 54.In section 60B(2) (trustee to give notice or provide copies...

      55. 55.In section 61 (extortionate credit transactions), for “court”, in both...

      56. 56.The heading to section 64 becomes “Debtor to co-operate with...

      57. 57.In section 65(1) (arbitration and compromise), for “court” substitute “sheriff”....

      58. 58.The heading to section 69 becomes “Outlays of insolvency practitioner...

      59. 59.In section 70(1)(a) (supplies by utilities), for “the petition was...

      60. 60.(1) Section 73 (interpretation) is amended as follows.

      61. 61.In Schedule 6 (meetings of creditors and commissioners)—

      62. 62.In Part II of Schedule 7 (re-enactment of certain provisions...

    2. SCHEDULE 2

      The Scottish Civil Enforcement Commission

      1. 1.Status

      2. 2.Membership

      3. 3.No person may be appointed as a member of the...

      4. 4.Tenure of office

      5. 5.Subject to paragraphs 6 to 10 below, members are appointed...

      6. 6.A member who is— (a) a Senator of the College...

      7. 7.A member who is— (a) a solicitor or advocate; or...

      8. 8.A member who becomes a member of—

      9. 9.A member may at any time resign by notice in...

      10. 10.The Scottish Ministers may remove a member from office if...

      11. 11.Where— (a) a person makes a complaint to the Commission...

      12. 12.The Commission may revoke or extend a suspension made under...

      13. 13.Filling vacancies

      14. 14.Paragraphs 5 to 13 above apply in relation to a...

      15. 15.Chairperson

      16. 16.Disciplinary Committee

      17. 17.Remuneration

      18. 18.General powers

      19. 19.The power in paragraph 18 above includes, in particular, power...

      20. 20.Where the Commission levies charges under paragraph 19(g) above, it...

      21. 21.Quorum

      22. 22.Structure and procedures

      23. 23.Chief executive officer and other staff

      24. 24.The Commission must appoint, as a member of staff, a...

      25. 25.The Commission may determine the remuneration and conditions of service...

      26. 26.The Commission may— (a) pay, or make arrangements for the...

      27. 27.The reference in paragraph 26 above to pensions, allowances and...

      28. 28.Anything done by virtue of paragraphs 24 to 27 above...

      29. 29.Location of office

      30. 30.Financing by the Scottish Ministers

      31. 31.Any— (a) grant paid in pursuance of paragraph 30(a) above;...

      32. 32.The Scottish Ministers may, from time to time after any...

      33. 33.Accounts and audit

      34. 34.Every statement of accounts prepared by the Commission in accordance...

      35. 35.The financial year of the Commission is—

    3. SCHEDULE 3

      Expenses of money attachment

      1. 1.Expenses chargeable against the debtor

      2. 2.Expenses chargeable against the debtor by virtue of paragraph 1(e)...

      3. 3.Circumstances where no expenses are due to or by either party

      4. 4.If— (a) an application mentioned in paragraph 3(a) above is...

      5. 5.Paragraphs 3 and 4 above do not apply to expenses...

    4. SCHEDULE 4

      Modifications of enactments relating to admiralty actions and the arrestment of ships

      1. 1.Definition of “maritime lien”

      2. 2.In sections 45(5) and 47(3)(b), (4)(b) and (5) of the...

      3. 3.In section 47(2)(r) of the 1956 Act, for “or hypothecation...

      4. 4.The term “admiralty action”

      5. 5.(1) In paragraph 7 of schedule 5 to the Civil...

      6. 6.Arrestment in rem granted by the sheriff

      7. 7.Arrestment on the dependence

      8. 8.Liability for losses and expenses

      9. 9.Factors affecting arrestments

      10. 10.Cargo on board a ship exempt from attachment

      11. 11.Location of a ship when arrestment executed

      12. 12.Demise charters

      13. 13.In section 6(c) of the Sheriff Courts (Scotland) Act 1907...

    5. SCHEDULE 5

      Minor and consequential amendments

      1. 1.The Companies Clauses Consolidation (Scotland) Act 1845 (c. 17)

      2. 2.The Harbours, Docks and Piers Clauses Act 1847 (c. 27)

      3. 3.The Titles to Land Consolidation (Scotland) Act 1868 (c. 101)

      4. 4.The Writs Execution (Scotland) Act 1877 (c. 40)

      5. 5.The Judicial Factors (Scotland) Act 1889 (c. 39)

      6. 6.The Sheriff Courts (Scotland) Extracts Act 1892 (c. 17)

      7. 7.The Execution of Diligence (Scotland) Act 1926 (c. 16)

      8. 8.The Local Government (Scotland) Act 1947 (c. 43)

      9. 9.The Taxes Management Act 1970 (c. 9)

      10. 10.The Sheriff Courts (Scotland) Act 1971 (c. 58)

      11. 11.The Animal Health Act 1981 (c. 22)

      12. 12.The Civil Jurisdiction and Judgments Act 1982 (c. 27)

      13. 13.The Bankruptcy (Scotland) Act 1985 (c. 66)

      14. 14.The Insolvency Act 1986 (c. 45)

      15. 15.The Legal Aid (Scotland) Act 1986 (c. 47)

      16. 16.The Debtors (Scotland) Act 1987 (c. 18)

      17. 17.The Abolition of Domestic Rates etc. (Scotland) Act 1987 (c. 47)

      18. 18.The Child Support Act 1991 (c. 48)

      19. 19.The Social Security Administration Act 1992 (c. 5)

      20. 20.The Local Government Finance Act 1992 (c. 14)

      21. 21.The Tribunals and Inquiries Act 1992 (c. 53)

      22. 22.The Proceeds of Crime (Scotland) Act 1995 (c. 43)

      23. 23.The Criminal Procedure (Scotland) Act 1995 (c. 46)

      24. 24.The Finance Act 1997 (c. 16)

      25. 25.The Ethical Standards in Public Life etc. (Scotland) Act 2000 (asp 7)

      26. 26.The Water Industry (Scotland) Act 2002 (asp 3)

      27. 27.The Scottish Public Services Ombudsman Act 2002 (asp 11)

      28. 28.The Freedom of Information (Scotland) Act 2002 (asp 13)

      29. 29.The Proceeds of Crime Act 2002 (c. 29)

      30. 30.The Debt Arrangement and Attachment (Scotland) Act 2002 (asp 17)

      31. 31.The Public Appointments and Public Bodies etc. (Scotland) Act 2003 (asp 4)

      32. 32.The Finance Act 2003 (c. 14)

      33. 33.The Civil Partnership Act 2004 (c. 33)

    6. SCHEDULE 6

      Repeals and revocation

      1. Part 1 Repeals

      2. Part 2 Revocation

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