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Bankruptcy and Diligence etc. (Scotland) Act 2007

New section 9Q – Recovery of expenses of interim attachment

574.Section 9Q(1) provides that, subject to subsection (4), any expenses chargeable against the debtor which are incurred by the creditor in carrying out an interim attachment can be recovered only by attachment of the debtor’s assets—

  • in execution of a decree granted by virtue of—

    • the conclusion for payment in the action on the dependence of which the warrant for interim attachment was granted; or

    • another conclusion in the creditor’s favour in that action (such as decree for delivery); or

  • where the court finds for the debtor, in execution of a decree granted under this subsection for the purposes of recovering the appropriate expenses.

575.Subsection (2) provides that any expenses which cease to be recoverable under subsection (1) will no longer be chargeable against the debtor.

576.Subsections (3) and (4) provide that expenses remain chargeable against the debtor under subsection (4) where—

  • an interim attachment is recalled on the making of a time to pay direction, an interim order or a time to pay order under the 1987 Act;

  • the interim attachment was in effect immediately before the date of sequestration of the debtor’s estate under the 1985 Act or the appointment of an administrator under Part 2 of the Insolvency Act 1986;

  • the interim attachment was in effect against property of the debtor immediately before a floating charge attaches all or part of that property;

  • the interim attachment was in effect immediately before the commencement of the winding up, under the 1986 Act, of the debtor; or

  • the interim attachment becomes unenforceable because the creditor enters into a composition contract or accedes to a trust deed for creditors or by virtue of the subsistence of a protected trust deed for creditors.

577.Subsection (4) also has the effect that, where the debtor’s obligation to pay the expenses is not discharged under the proceedings and processes referred to in subsection (3), those expenses are recoverable in pursuance of subsection (1).

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