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Bankruptcy and Diligence etc. (Scotland) Act 2007

New section 15E – Grant of warrant without a hearing

468.Subsections (1) and (2) of section 15E give the court power to grant a warrant for diligence on the dependence before an initial hearing of the application provided it is satisfied 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 in advance of such a hearing; 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.

469.Subsection (3) puts the onus of satisfying the court of the case for granting warrant in advance of a hearing on the creditor.

470.Subsection (4) requires the court, on granting warrant for diligence on the dependence without a hearing on the application to fix a date for a hearing under section 15K (recall of diligence on the dependence) and to require the creditor to intimate that date to the debtor and any other interested party.

471.Where a hearing has been fixed under subsection (4)(a), subsection (5) applies section 15K as if the debtor or a person having an interest had applied to the court for an order under that section.

472.In applying section 15K, this means that at the hearing the court must consider the validity of the warrant and any diligence on the dependence executed under it. The effect of section 15K(10) is to place the onus on the creditor to satisfy the court that a recall or restriction order should not be made.

473.Where the court is satisfied the warrant is invalid, it is under a duty to make an order recalling the warrant or any diligence on the dependence which has been executed under it (the court can also make an ancillary order) (section 15K(5)).

474.Subsection (6) provides that, where the court decides that a warrant should not be granted without a hearing and the creditor insists on pursuing the application, the court is obliged to fix a date for a hearing on the application under section 15F and to require the creditor to so notify the debtor and any other interested party.

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