(introduced by section 2(6))
1(1)Where section 2(2) applies in relation to a debtor, this Act applies subject to the modifications mentioned in sub-paragraphs (2) to (6).
(2)Section 42 applies as if for subsection (1) there were substituted—
“(1)This section applies where AiB receives by virtue of section 8(3)(a) the statement of assets and liabilities in relation to a debtor to whom section 2(2) applies.
(1A)As soon as practicable, AiB must prepare a statement of the debtor’s affairs, so far as within the knowledge of AiB, stating that, because 2(2) applies in relation to the debtor, no claims may be submitted by creditors under section 46 or 122.
(1B)AiB must send a copy of the statement prepared under subsection (1A) to every known creditor of the debtor.”.
(3)Section 50(1) applies as if paragraphs (e) and (f) were omitted.
(4)Section 116 applies as if for subsection (2) there were substituted—
“(2)AiB may at any time before the discharge of the debtor require the debtor to give an account in writing, in such form as may be prescribed, of the debtor’s current state of affairs.”.
(5)Section 151 applies as if—
(a)subsections (2) to (6) and (9)(a) were omitted, and
(b)for subsection (7) there were substituted—
“(7)The debtor or any creditor may, within 14 days beginning with the day on which the debtor is discharged under section 140(1), appeal to the sheriff against the discharge of AiB in respect of AiB’s actings as trustee.”.
(6)Sections 44, 46, 48, 49, 60, 63 to 65, 122, 131 and 210(3) do not apply.
2(1)This paragraph applies where paragraph 1 applies in relation to a debtor.
(2)If AiB considers that the circumstances mentioned in any of sub-paragraphs (3) to (6) apply in relation to the debtor, AiB must consider whether paragraph 1 should cease to have effect in relation to the debtor.
(3)The circumstances are that—
(a)AiB becomes aware the debtor application submitted under section 2 contains an error, and
(b)the nature of the error is such that the debtor was not at the time of application a debtor to whom section 2(2) applies.
(4)The circumstances are that—
(a)AiB becomes aware that the debtor application submitted under section 2 deliberately misrepresents, or fails to state, a fact that was the case at the time of application, and
(b)the nature of the misrepresentation or the omission of the fact is such that the debtor was not at that time a debtor to whom section 2(2) applies.
(5)The circumstances are that, at any time after the date on which the debtor application is made—
(a)the total value of the debtor’s assets (leaving out of account any liabilities and any assets that, under section 88(1), would not vest in a trustee) exceeds £5,000 or such other sum as may be prescribed, or
(b)AiB assesses the debtor, under the common financial tool, as being able to make a contribution.
(6)The circumstances are that, at any time after the date of sequestration—
(a)AiB is not satisfied that the debtor has co-operated with the trustee, and
(b)AiB considers that if paragraph 1 were to cease to have effect it would be—
(i)of financial benefit to the estate of the debtor, and
(ii)in the interests of the creditors.
(7)The Scottish Ministers may by regulations modify this paragraph—
(a)by modifying the circumstances in which paragraph 1 ceases to have effect,
(b)in consequence of any modification made under sub-paragraph (7)(a).
3(1)If AiB considers under paragraph 2(2) that paragraph 1 should cease to have effect in relation to a debtor, AiB must notify the debtor of that fact and of the matters mentioned in sub-paragraph (2).
(2)The matters are—
(a)the circumstances mentioned in paragraph 2 which AiB considers apply in relation to the debtor, and
(b)that the debtor may make representations to AiB within 14 days beginning with the giving of notification under sub-paragraph (1).
(3)On the expiry of the 14 days mentioned in sub-paragraph (2)(b) and after having taken into account any representations made by the debtor under that sub-paragraph, AIB must decide whether paragraph 1 should cease to have effect in relation to the debtor.
(4)If AiB decides that paragraph 1 should cease to have effect in relation to the debtor, AiB must, as soon as practicable after reaching that decision, give notice in writing to the debtor—
(a)of the decision, and
(b)of the effect of the decision.
4(1)This paragraph applies where AiB gives notice to a debtor under paragraph 3(4).
(2)The debtor may appeal to the sheriff against the decision.
(3)Any such appeal must be lodged within 14 days after the day on which the notice is given.
(4)If the sheriff grants the appeal, paragraph 1 continues to have effect in relation to the debtor.
(5)If the sheriff refuses the appeal, or if it is abandoned or withdrawn, paragraph 1 ceases to have effect in relation to the debtor.
5(1)Where paragraph 1 ceases to have effect in relation to a debtor, this Act applies subject to sub-paragraphs (2) to (4).
(2)The debtor must send to the trustee a statement of assets and liabilities—
(a)where no appeal is taken under paragraph 4, within 7 days beginning with the expiry of the period during which an appeal may be made under that paragraph, or
(b)where an appeal is refused or, as the case may be, abandoned or withdrawn, within 7 days beginning with—
(i)the day on which notice is given of the outcome of the appeal, or
(ii)as the case may be, its abandonment or withdrawal.
(3)Section 44 applies as if, in subsection (3)(a), for the words “sequestration is awarded” there were substituted “paragraph 1 of schedule 1 ceases to have effect in relation to the debtor”.
(4)Section 116 applies as if for subsection (2) there were substituted—
“(2)The trustee in the sequestration must require the debtor to give an account in writing, in such form as may be prescribed, of the debtor’s current state of affairs—
(a)within 60 days beginning with the day on which paragraph 1 of schedule 1 ceases to have effect in relation to the debtor,
(b)on the expiry of 6 months beginning with the day on which the account is given under paragraph (a), and
(c)on the expiry of each subsequent 6 months.”.
(introduced by sections 7(4), 46(9) and 125(4))
1(1)Subject to the provisions of this schedule, the amount in respect of which a creditor is entitled to claim is the accumulated sum of principal and any interest which is due on the debt as at the date of sequestration.
(2)If a debt does not depend on a contingency but would not be payable but for the sequestration until after the date of the sequestration, the amount of the claim must be calculated as if the debt were payable on that date but subject to the deduction of interest at the rate specified in section 129(10) from that date until the date for payment of the debt.
(3)In calculating the amount of a creditor’s claim, the creditor must deduct any discount (other than any discount for payment in cash) which is allowable by contract or course of dealing between the creditor and the debtor or by the usage of trade.
2(1)A person entitled to aliment, however arising, from a living debtor as at the date of sequestration, or from a deceased debtor immediately before the debtor’s death, is not entitled to include in the amount of the person’s claim—
(a)any unpaid aliment for any period before the date of sequestration unless the amount of the aliment has been quantified by court decree or by any legally binding obligation which is supported by evidence in writing, and—
(i)in the case of spouses (or, where the aliment is payable to a divorced person in respect of a child, former spouses), or
(ii)in the case of civil partners (or, where the aliment is payable to a former civil partner in respect of a child after dissolution of a civil partnership, former civil partners),
they were living apart during that period, or
(b)any aliment for a period after the date of sequestration.
(2)Sub-paragraph (1) applies to a periodical allowance payable on divorce or on dissolution of a civil partnership—
(a)by virtue of a court order, or
(b)under any legally binding obligation which is supported by evidence in writing,
as it applies to aliment and as if, for sub-paragraphs (i) and (ii) of sub-paragraph (1)(a) and the word “they” which immediately follows sub-paragraph (ii), there were substituted “the payer and payee”.
3(1)The amount which a creditor is entitled to claim does not include a debt in so far as its existence or amount depend on a contingency.
(2)But sub-paragraph (1) is subject to sub-paragraph (3).
(3)On an application by the creditor—
(a)to the trustee in the sequestration, or
(b)if there is no trustee, to AiB,
the trustee, or AiB, must put a value on the debt in so far as it is contingent.
(4)The amount in respect of which the creditor is then entitled to claim is that value but no more.
(5)And where the contingent debt is an annuity, a cautioner may not then be sued for more than that value.
(6)An interested person may apply to AiB for a review of a valuation under sub-paragraph (3) by the trustee.
(7)Any application under sub-paragraph (6) must be made within 14 days beginning with the day of the valuation.
(8)If an application under sub-paragraph (6) is made, AiB must—
(a)take into account any representations made by an interested person within 21 days beginning with the day on which the application is made, and
(b)confirm or vary the valuation within 28 days beginning with that day.
(9)An interested person may appeal to the sheriff against a decision by AiB under sub-paragraph (8)(b) within 14 days beginning with the day of the decision.
(10)AiB may refer a case to the sheriff for a direction before making a decision under sub-paragraph (8)(b).
(11)An appeal to the sheriff under sub-paragraph (9) may not be made in relation to a matter on which AiB has applied for a direction under sub-paragraph (10).
4(1)A secured creditor, in calculating the amount of the secured creditor’s claim, must deduct the value of any security as estimated by the secured creditor.
(2)But if the secured creditor surrenders, or undertakes in writing to surrender, a security for the benefit of the debtor’s estate, the secured creditor is not required to make a deduction of the value of that security.
(3)The trustee in the sequestration may, at any time after the expiry of 12 weeks after the date of sequestration, require the secured creditor, at the expense of the debtor’s estate, to discharge the security or convey or assign it to the trustee on payment to the creditor of the value specified by the creditor.
(4)The amount in respect of which the creditor is then entitled to claim is any balance of the creditor’s debt remaining after receipt of the payment.
(5)A creditor whose security has been realised, in calculating the amount of the creditor’s claim, must deduct the amount (less the expenses of realisation) which the creditor has received, or is entitled to receive, from the realisation.
5(1)Where a creditor claims, in respect of a debt of a partnership, against the estate of one of its partners, the creditor must estimate the value of—
(a)the debt to the creditor from the firm’s estate where that estate has not been sequestrated, or
(b)the creditor’s claim against that estate where it has been sequestrated,
and deduct that value from the creditor’s claim against the partner’s estate.
(2)The amount in respect of which the creditor is entitled to claim on the partner’s estate is the balance remaining after that deduction is made.
(introduced by section 129(2) and (3))
1Any sum which is owed by the debtor and is a sum to which schedule 4 of the Pension Schemes Act 1993 (contributions to occupational pension scheme and state scheme premiums) applies.
2(1)So much of any amount which—
(a)is owed by the debtor to a person who is or has been an employee of the debtor, and
(b)is payable by way of remuneration in respect of the whole or any part of the 4 months which immediately precedes the relevant date,
as does not exceed the prescribed amount.
(2)An amount owed by way of accrued holiday remuneration, in respect of any period of employment before the relevant date, to a person whose employment by the debtor has been terminated (whether before, on or after that date).
(3)So much of any amount owed in respect of money advanced for the purpose as has been applied for the payment of a debt which, if it had not been paid, would have been a debt falling within sub-paragraph (1) or (2).
3So much of any amount which—
(a)is ordered, whether before or after the relevant date, to be paid by the debtor under the Reserve Forces (Safeguard of Employment) Act 1985, and
(b)is so ordered in respect of a default made by the debtor before that date in the discharge of the debtor’s obligations under that Act,
as does not exceed such amount as may be prescribed.
4Any sums due at the relevant date from the debtor in respect of—
(a)the levies on the production of coal and steel referred to in Articles 49 and 50 of the Treaty establishing the European Coal and Steel Community, or
(b)any surcharge for delay provided for in Article 50(3) of that Treaty and Article 6 of Decision 3/52 of the High Authority of that Community.
5Any debt owed by the debtor to the scheme manager of the Financial Services Compensation Scheme under section 215(2A) of the Financial Services and Markets Act 2000.
6So much of any amount owed at the relevant date by the debtor in respect of an eligible deposit as does not exceed the compensation that would be payable in respect of the deposit under the Financial Services Compensation Scheme to the person or persons to whom the amount is owed.
7So much of any amount owed at the relevant date by the debtor to one or more eligible persons in respect of an eligible deposit as exceeds any compensation that would be payable in respect of the deposit under the Financial Services Compensation Scheme to that person or those persons.
8An amount owed at the relevant date by the debtor to one or more eligible persons in respect of a deposit which—
(a)was made through a non-EEA branch of a credit institution authorised by the competent authority of an EEA state, and
(b)would have been an eligible deposit if it had been made through an EEA branch of that credit institution.
9In Part 1, “the relevant date” means—
(a)in relation to a debtor other than a deceased debtor, the date of sequestration, and
(b)in relation to a deceased debtor, the date of death.
10(1)For the purposes of paragraph 2, a sum is payable by the debtor to a person by way of remuneration in respect of any period if—
(a)it is paid as wages or salary (whether payable for time or for piece work or earned wholly or partly by way of commission) in respect of services rendered to the debtor in that period, or
(b)it is an amount falling within sub-paragraph (2) and is payable by the debtor in respect of that period.
(2)An amount falls within this sub-paragraph if it is—
(a)a guarantee payment under section 28(1) to (3) of the Employment Rights Act 1996 (entitlement to payment for workless day),
(b)a payment for time off under section 53(1) (looking for new employment or making arrangements for training for future employment) or 56(1) (antenatal care) of that Act,
(c)remuneration on suspension on medical grounds under section 64 of that Act,
(d)a payment for time off under section 169(1) of the Trade Union and Labour Relations (Consolidation) Act 1992 (trade union duties), or
(e)remuneration under a protective award made by an employment tribunal under section 189 of that Act (redundancy dismissal with compensation).
(3)For the purposes of paragraph 2(2), holiday remuneration is deemed, in the case of a person (“P”) whose employment has been terminated by or in consequence of the award of sequestration of P’s employer’s estate, to have accrued to P in respect of a period of employment if, by virtue of P’s contract of employment or of any enactment, that remuneration would have accrued in respect of that period if P’s employment had continued until P became entitled to be allowed the holiday.
(4)In sub-paragraph (3), “enactment” includes an order made or direction given under an enactment.
(5)Without prejudice to the preceding provisions of this paragraph—
(a)any remuneration payable by the debtor to a person in respect of a period—
(i)of holiday, or
(ii)of absence from work through sickness or other good cause,
is deemed to be wages, or as the case may be salary, in respect of services rendered to the debtor in that period, and
(b)references in this paragraph to remuneration in respect of a period of holiday include references to any sums which, if they had been paid, would have been treated for the purposes of the enactments relating to social services as earnings in respect of that period.
11In paragraphs 2 and 3, “prescribed” means prescribed by regulations made by the Secretary of State.
12In paragraph 5, “the scheme manager” has the meaning given in section 212(1) of the Financial Services and Markets Act 2000.
13(1)In paragraphs 6 to 8, “eligible deposit” means a deposit in respect of which the person, or any of the persons, to whom it is owed would be eligible for compensation under the Financial Services Compensation Scheme.
(2)For the purposes of those paragraphs and of this paragraph, a “deposit” means rights of the kind described in paragraph 22 of schedule 2 of the Financial Services and Markets Act 2000 (deposits).
(3)In paragraphs 7 and 8, “eligible person” means—
(a)an individual, or
(b)a micro-enterprise, a small enterprise or a medium-sized enterprise, each of those terms having the meaning given in Article 2.1(107) of the Directive 2014/59/EU of 15th May 2014 establishing a framework for the recovery and resolution of credit institutions and investment firms.
(4)In paragraph 8—
(a)“credit institution” has the meaning given in Article 4.1(1) of the capital requirements regulation,
(b)“EEA branch” means a branch, as defined in Article 4.1(17) of the capital requirements regulation, which is established in an EEA state, and
(c)“non-EEA branch” means a branch, as so defined, which is established in a country which is not an EEA state.
(5)In sub-paragraph (4)(a) and (b), “the capital requirements regulation” means Regulation (EU) No. 575/2013 of the European Parliament and of the Council of 26 June 2013 on prudential requirements for credit institutions and investment firms and amending regulation (EU) NO. 648/2012.
14Regulations under paragraph 2 or 3 may contain such transitional provisions as may appear to the Secretary of State necessary or expedient.
(introduced by section 162)
1Whether or not—
(a)provision is made in the trust deed for auditing the accounts of the trustee in the sequestration and for determining the method of fixing the trustee’s remuneration, or
(b)the trustee and the creditors have agreed on such auditing and the method of fixing that remuneration,
the debtor, the trustee or any creditor may, at any time before the final distribution of the debtor’s estate among the creditors, have the trustee’s accounts audited by, and the trustee’s remuneration fixed by, AiB.
2AiB may, at any time, audit the trustee’s accounts and fix the trustee’s remuneration.
3(1)The trustee, from time to time after the trust deed is delivered to the trustee, may cause a notice in such form as is prescribed by act of sederunt to be recorded in the Register of Inhibitions.
(2)Such recording has the same effect as the recording in that register of letters of inhibition against the debtor.
(3)The trustee, after—
(a)the debtor’s estate has been distributed finally among the debtor’s creditors, or
(b)the trust deed has otherwise ceased to be operative,
must cause a notice in such form as is so prescribed to be recorded in that register recalling the notice recorded under sub-paragraph (1).
4The submission to the trustee, acting under a trust deed, of a claim by a creditor bars the effect of any enactment or rule of law relating to limitation of actions.
5(1)Unless the trust deed otherwise provides, schedule 2 applies in relation to a trust deed as it applies to a sequestration but subject to the following modifications.
(2)In paragraphs 1, 2 and 4, for the word “sequestration”, wherever it occurs, there is substituted “granting of the trust deed”.
(3)In paragraph 3(3), for paragraphs (a) and (b) and the words “the trustee or sheriff” which immediately follow paragraph (b) there is substituted “the trustee”.
(introduced by section 210(3))
1A copy of the debtor application made under section 2(1)(a).
2A copy of the petition presented under section 2(1)(b).
3Where the trustee is AiB, a copy of the statement of assets and liabilities sent to AiB in accordance with section 8(3)(a).
4A copy of the award of sequestration under section 22(1) or (5).
5A copy of the warrant to cite the debtor granted under section 22(3).
6Where the trustee is not AiB—
(a)the audited accounts sent to the trustee by AiB in accordance with section 56(5)(d), and
(b)the determination fixing the amount of the outlays and remuneration payable to the interim trustee sent to the trustee by AiB in accordance with that section.
7Where the trustee is AiB—
(a)the accounts audited by AiB in accordance with section 56(5)(a), and
(b)the determination, issued in accordance with section 56(5)(b), fixing the amount of the outlays and remuneration payable to the interim trustee.
8Where AiB is appointed interim trustee and the sheriff awards sequestration in accordance with section 58(1)(a)—
(a)the accounts of AiB’s intromissions (if any) with the debtor’s estate, and
(b)the determination of AiB’s fees and outlays calculated in accordance with regulations under section 205.
9A copy of—
(a)an order—
(i)recalling or refusing to recall an award of sequestration by the sheriff under section 30, and
(ii)sent to the trustee under subsection (9)(b)(ii) of that section, or
(b)a grant of (or a refusal to grant), under section 34(1), 35(6) or 37, recall of an award of sequestration.
10A copy of an order under section 114(3)(b) or 115(3)(b) sent to the trustee under section 30(9)(b).
11Where the trustee is a replacement trustee appointed under section 60—
(a)a copy of the audited accounts, and determination, sent under section 63(5)(c)(ii),
(b)on that appointment, such information as is appropriate to provide a record of the sequestration process before that appointment (except that no entry is to be made in relation to any written comments made by the original trustee under section 42(3)(c)), and
(c)an entry recording a certificate of discharge issued to the original trustee under section 65.
12Where the trustee is not AiB, a copy of a statement of assets and liabilities sent to the trustee under section 41(1) or (2).
13A copy of a notice given under section 44(3).
14Where the trustee is not AiB, a copy of a report made under section 45(1).
15Where the trustee is a replacement trustee appointed under section 60 and AiB was the original trustee, on that appointment, such information as is appropriate to provide a record of the sequestration process before that appointment.
16A copy of an initial proposal for the debtor’s contribution provided by the trustee under section 90(1)(b).
17A copy of a debtor contribution order applying to the debtor.
18A copy of a decree issued under section 98 affecting the sequestrated estate.
19A copy of a decree of recall issued following an application under section 100(2).
20A copy of a decree under section 99 affecting the sequestrated estate.
21The inventory and valuation of the estate, made up and maintained in accordance with section 108(1)(b).
22A copy of an account given by the debtor under section 116(2).
23The debtor’s deposition at an examination subscribed under section 121(6).
24A copy of the record of an examination sent to AiB under section 121(7).
25An appropriate entry in relation to the production of any document to the trustee in accordance with section 125(2), stating the date when it was produced to the trustee.
26Where the trustee accepts or rejects a claim under section 126, the decision on the claim, specifying—
(a)the amount of the claim accepted by the trustee,
(b)the category of debt, and the value of any security, as decided by the trustee, and
(c)if the claim is rejected, the reason.
27A copy of a decision of AiB under subsection (4)(b) of section 127 and of the sheriff under subsection (5) of that section.
28An agreement or determination in respect of the accounting period under section 130(3)(b)(i) or (ii).
29Where the trustee is not AiB, the audited accounts, the scheme of division and the final determination in relation to the trustee’s outlays and remuneration as mentioned in section 136.
30A copy of the certificate of discharge given to the debtor under section 137(2), 138(2) or 143(5).
31A copy of the certificate deferring discharge where the debtor cannot be traced issued under section 141(4)(b) or (6)(b).
32Where AiB has acted as trustee, after making the final division of the debtor’s estate—
(a)AiB’s final accounts of AiB’s intromissions (if any) with the debtor’s estate,
(b)the scheme of division (if any), and
(c)a determination of AiB’s fees and outlays calculated in accordance with regulations under section 205.
33Where AiB has acted as trustee and is discharged from all liability as mentioned in section 151(10), an appropriate entry in relation to such discharge.
34A decision of the court under section 211 and of AiB under section 212.
35A copy of a decree arbitral or, as the case may be, an appropriate entry recording the compromise referred to in section 216(1)(b).
36The minutes of the meeting referred to in paragraphs 8 to 10 of schedule 6.
37A copy of the minutes of a meeting sent to AiB in accordance with paragraph 25 of that schedule.
38Where a meeting of commissioners is called in accordance with paragraph 26 of that schedule—
(a)a record of the deliberations of the commissioners at the meeting,
(b)where the trustee is not clerk in accordance with paragraph 30 of that schedule, a record of the deliberations of the commissioners transmitted by the commissioner acting as clerk (such commissioner to authenticate the insertion when made), and
(c)in relation to any matter agreed without a meeting, the minute recording that agreement signed in accordance with paragraph 32(b) of that schedule.
39A copy of any decision (including any determination, direction, award, acceptance, rejection, adjudication, requirement, declaration, order or valuation) relating to the sequestration which is—
(a)issued by AiB, and
(b)not otherwise mentioned in this schedule.
40A copy of any decree, interlocutory decree, direction or order relating to the sequestration which is—
(a)granted by the court, and
(b)not otherwise mentioned in this schedule.
(introduced by section 217)
1The trustee in the sequestration must call a meeting of creditors if required to do so—
(a)by order of the sheriff,
(b)by 1/10 in number or ⅓ in value of the creditors,
(c)by a commissioner, or
(d)by AiB.
2Any such meeting must be held not later than 28 days after—
(a)the issuing of the order under paragraph 1(a), or
(b)the receipt by the trustee of the requirement under paragraph 1(b), (c) or (d).
3The trustee, or a commissioner who has given notice to the trustee, may at any time call a meeting of creditors.
4The trustee, calling a meeting under paragraph 1 or 3, or a commissioner, calling a meeting under paragraph 3, is no fewer than 7 days before the date fixed for the meeting to notify—
(a)every creditor known to the trustee or, as the case may be, to the commissioner, and
(b)AiB,
of the date, time and place fixed for the holding of the meeting and of the meeting’s purpose.
5Where—
(a)a requirement has been made under paragraph 1, but
(b)no meeting has been called by the trustee,
AiB may, of AiB’s own accord or on the application of any creditor, call a meeting of creditors.
6AiB, calling a meeting under paragraph 5, is no fewer than 7 days before the date fixed for the meeting to take reasonable steps to notify the creditors of the date, time and place fixed for the holding of the meeting and of the meeting’s purpose.
7It is not necessary to notify under paragraph 4 or 6 any creditor whose accepted claim is less than £50 or such sum as may be prescribed, unless the creditor has in writing requested such notification.
8At the commencement of a meeting the trustee is to be the person chairing the meeting and as such is, after carrying out the trustee’s duties under section 126(1)—
(a)to invite the creditors to elect one of their number to chair the meeting in the trustee’s place, and
(b)to preside over the election.
9If no person is elected in pursuance of paragraph 8, the trustee must chair the meeting throughout.
10The trustee is to arrange for a record to be made of the proceedings at the meeting.
11The trustee, a creditor or any other person having an interest may, within 14 days after the date of a meeting called under paragraph 4 or 6, appeal to the sheriff against a resolution of the creditors at the meeting.
12No proceedings at a meeting are invalidated by reason only that a notice or other document relating to the calling of the meeting, being a notice required to be sent or given under a provision of this Act, has not been received by, or come to the attention of, any creditor before the meeting.
13Every meeting must be held in such place (whether or not in the sheriffdom) as is, in the opinion of the person calling the meeting, the most convenient for the majority of the creditors.
14A creditor may authorise in writing a person to represent the creditor at a meeting.
15A creditor must lodge with the trustee, before the commencement of the meeting, any authorisation given under paragraph 14.
16Any reference in paragraph 8, or in the following provisions of this Part, to a creditor includes a reference to a person authorised under paragraph 14 by a creditor.
17The quorum at any meeting is one creditor.
18Any question at a meeting is to be determined by a majority in value of the creditors who vote on that question.
19At any meeting the person chairing it may allow or disallow any objection by a creditor, other than (if the person chairing the meeting is not the trustee) an objection relating to a creditor’s claim.
20A person aggrieved by the determination of the person chairing the meeting in respect of an objection may appeal to the sheriff against the determination.
21If the person chairing the meeting is in doubt as to whether to allow or disallow an objection, the meeting must proceed as if no objection had been made, except that for the purposes of appeal the objection is to be deemed to have been disallowed.
22If no creditor has appeared at a meeting by half an hour after the time appointed for its commencement, the person chairing the meeting may adjourn it to such other day as that person may appoint, being a day no fewer than 7, nor more than 21, days after that on which the meeting is adjourned.
23The person chairing the meeting may, with the consent of a majority in value of the creditors who vote on a resolution to adjourn a meeting, adjourn the meeting.
24Any adjourned meeting must be held at the same time and place as the original meeting, unless in the resolution another time or place is specified.
25The minutes of every meeting must be signed by the person who chaired the meeting and within 14 days after the meeting must be sent to AiB.
26The trustee—
(a)may call a meeting of commissioners at any time, and
(b)must call such a meeting—
(i)on being required to do so by order of the sheriff, or
(ii)on being requested to do so by AiB or by any commissioner.
27If the trustee fails to call a meeting of commissioners within 14 days after being required or requested to do so under paragraph 26, a commissioner may call a meeting of commissioners.
28The trustee must give the commissioners at least 7 days’ notice of a meeting called by the trustee unless the commissioners decide that they do not require such notice.
29The trustee is to act as clerk at a meeting of commissioners.
30If the commissioners are considering the performance of the functions of the trustee under any provision of this Act, the trustee must withdraw from the meeting if requested to do so by the commissioners and in such a case a commissioner must—
(a)act as clerk, and
(b)transmit a record of the deliberations of the commissioners to the trustee.
31The quorum at a meeting of commissioners is one commissioner and the commissioners may act by a majority of the commissioners present at the meeting.
32Any matter may be agreed by the commissioners without a meeting if such agreement—
(a)is unanimous, and
(b)is subsequently recorded in a minute signed by the commissioners.
(introduced by section 233)
1(1)Subject to sub-paragraph (2), all arrestments and attachments which have been executed within 60 days prior to the constitution of the apparent insolvency of the debtor, or within 4 months after its constitution, rank pari passu as if they had all been executed on the same date.
(2)Any such arrestment which is executed on the dependence of an action must be followed up without undue delay.
(3)A creditor judicially producing, in a process relative to the subject of such arrestment or attachment, liquid grounds of debt or decree of payment within the 60 days or 4 months referred to in sub-paragraph (1) is entitled to rank as if the creditor had executed an arrestment or an attachment.
(4)If, in the meantime—
(a)the first or any subsequent arrester obtains a decree of furthcoming and recovers payment, that arrester, or
(b)an attaching creditor carries through an auction or receives payment in respect of an attached article upon its redemption, that attaching creditor,
is accountable for the sum recovered to those who, by virtue of this Act, may eventually be found to have a ranking pari passu on the sum; and is liable in an action at their instance for payment to them proportionately, after allowing out of the fund the expense of such recovery.
(5)Arrestments executed for attaching the same effects of the debtor after the 4 months subsequent to the constitution of the debtor’s apparent insolvency do not compete with those within the 60 days or 4 months referred to in sub-paragraph (1) but may rank with each other on any reversion of the fund attached in accordance with any enactment or rule of law relating to such ranking.
(6)Any reference in sub-paragraphs (1) to (5) to a debtor is to be construed as including a reference to an entity whose apparent insolvency may, by virtue of subsection (6) of section 16 of this Act, be constituted under subsection (1) of that section.
(7)This paragraph applies in respect of arrestments and attachments executed whether before or after the coming into force of this Act.
(8)Nothing in this paragraph applies to an earnings arrestment, a current maintenance arrestment or a conjoined arrestment order.
2Any—
(a)conveyance, assignation, instrument, discharge, writing or deed relating solely to the estate of a debtor which has been or may be sequestrated, under either this or any former Act, being estate which after the execution of the document in question is and remains the property of the debtor, for the benefit of the debtor’s creditors, or of the trustee in the sequestration,
(b)discharge to the debtor,
(c)deed, assignation, instrument, or writing for reinvesting the debtor in the estate,
(d)article of roup or sale, or submission,
(e)other instrument or writing whatsoever relating solely to the estate of the debtor, and
(f)other deed or writing forming part of the proceedings ordered under such sequestration,
is exempt from all stamp duties or other Government duty.
(introduced by section 234(1))
1In section 11A(2) of the Judicial Factors (Scotland) Act 1889 (application for judicial factor on estate of person deceased), for the words “73(2) of the Bankruptcy (Scotland) Act 1985, section 51” there is substituted “228(5) of the Bankruptcy (Scotland) Act 2016, section 129”.
2In section 34 of the Sheriff Courts (Scotland) Act 1907 (removings), for the words “1856” there is substituted “1985 or 2016”.
3In section 44(4)(c) (limitation of effect of entries in the Register of Inhibitions)—
(a)after the words “1985”, where they first occur, there is inserted “or the Bankruptcy (Scotland) Act 2016”, and
(b)in paragraph (b)—
(i)after the words “1985” there is inserted “or (1)(a) of section 26 of the Bankruptcy (Scotland) Act 2016”, and
(ii)for the words “that section” there is substituted “the said section 14 or (4) of the said section 26”.
4In section 47G of the Administration of Justice Act 1956 (ranking of arresting creditor of demise charterer in sequestration or winding up of owner), for subsection (3) there is substituted—
“(3)Subsections (6) to (8) of section 24 of the Bankruptcy (Scotland) Act 2016 (further provision as regards the effect of sequestration on diligence) and, in so far as applying and modifying those subsections, section 185(1)(a) and (2) of the Insolvency Act 1986 (application of sequestration provisions relating to diligence on winding up) shall apply to such an arrestment as they apply to any other arrestment.”.
5In section 19(3) of the Conveyancing and Feudal Reform (Scotland) Act 1970 (calling up of standard security), for the words “1913” there is substituted “2016”.
6(1)The Prescription and Limitation (Scotland) Act 1973 is amended as follows.
(2)In section 9(1) (definition of “relevant claim” for purposes of sections 6, 7 and 8 of the Act)—
(a)in paragraph (b), for the words “22 or 48 of the Bankruptcy (Scotland) Act 1985” there is substituted “46 or 122 of the Bankruptcy (Scotland) Act 2016”, and
(b)in paragraph (c), for the words “5(2)(c) of the Bankruptcy (Scotland) Act 1985” there is substituted “228(1) of the Bankruptcy (Scotland) Act 2016”.
(3)In section 22A(3) (10 years’ prescription of obligations), in paragraph (b) of the definition of “relevant claim”, for the words “22 or 48 of the Bankruptcy (Scotland) Act 1985” there is substituted “46 or 122 of the Bankruptcy (Scotland) Act 2016”.
7In section 31 of the Local Government (Scotland) Act 1973 (disqualification for nomination, election and holding office as member of local authority)—
(a)in subsection (2)(b), for the words “1985” there is substituted “2016”, and
(b)in subsection (3B)(a), for the words “56A of the Bankruptcy (Scotland) Act 1985” there is substituted “155 of the Bankruptcy (Scotland) Act 2016”.
8In section 73B(12) of the Education (Scotland) Act 1980 (regulations relating to student loans), for the words “54, 54A or 54C of the Bankruptcy (Scotland) Act 1985 or on an order being made under paragraph 11 of Schedule 4 to that Act” there is substituted “137, 138 or 140 of the Bankruptcy (Scotland) Act 2016”.
9(1)The Family Law (Scotland) Act 1985 is amended as follows.
(2)In section 14(5)(b) (incidental orders), for the words “41 of the Bankruptcy (Scotland) Act 1985” there is substituted “114 of the Bankruptcy (Scotland) Act 2016”.
(3)In section 16(3)(b) (agreements on financial provision), for the words “10(5) of the Bankruptcy (Scotland) Act 1985” there is substituted “17(7) of the Bankruptcy (Scotland) Act 2016”.
10In Part 2 of schedule 2 of the Legal Aid (Scotland) Act 1986 (civil legal aid: excepted proceedings), in paragraph 3(d), for the words “5(2)(a) of the Bankruptcy (Scotland) Act 1985” there is substituted “2(1)(a) of the Bankruptcy (Scotland) Act 2016”.
11(1)The Debtors (Scotland) Act 1987 is amended as follows.
(2)In section 9(10)(b) (effect of time to pay order on diligence), for the words “7 of the Bankruptcy (Scotland) Act 1985” there is substituted “16 of the Bankruptcy (Scotland) Act 2016”.
(3)In section 13(2) (saving of creditor’s rights and remedies), for the words “24 of Schedule 7 to the Bankruptcy (Scotland) Act 1985” there is substituted “1 of schedule 7 of the Bankruptcy (Scotland) Act 2016”.
(4)In section 66 (recall and variation of conjoined arrestment order)—
(a)in subsection (2)(e), for the words “13 of the Bankruptcy (Scotland) Act 1985 or the permanent” there is substituted “55 of the Bankruptcy (Scotland) Act 2016 or the”, and
(b)in subsection (7), the words “the permanent” are omitted.
(5)In section 67 (equalisation of diligences not to apply), for the words “24 of Schedule 7 to the Bankruptcy (Scotland) Act 1985” there is substituted “1 of schedule 7 of the Bankruptcy (Scotland) Act 2016”.
(6)In section 72(5) (effect of sequestration on diligence against earnings), for the words “12(4) of the Bankruptcy (Scotland) Act 1985” there is substituted “22(7) of the Bankruptcy (Scotland) Act 2016”.
(7)In section 93(4) (recovery from debtor of expenses of certain diligences)—
(a)in paragraph (b), for the words “1985” there is substituted “2016”, and
(b)in paragraph (f), for the words “Schedule 5 to the Bankruptcy (Scotland) Act 1985” there is substituted “schedule 4 of the Bankruptcy (Scotland) Act 2016”.
12(1)The Agricultural Holdings (Scotland) Act 1991 is amended as follows.
(2)In section 21(6) (notice to quit and notice of intention to quit), after the words “under the” there is inserted “Bankruptcy (Scotland) Act 2016, the”.
(3)In section 22(2)(f) (restrictions on operation of notices to quit), for the words “7 of the Bankruptcy (Scotland) Act 1985” there is substituted “16 of the Bankruptcy (Scotland) Act 2016”.
(4)In section 41(3)(b) (direction by Land Court that holding be treated as market garden), for the words “7 of the Bankruptcy (Scotland) Act 1985” there is substituted “16 of the Bankruptcy (Scotland) Act 2016”.
(5)In section 85(1) (interpretation), in the definition of—
(a)“landlord”, for the words from “, tutor” to the end there is substituted “or tutor of a landlord or the trustee or interim trustee in the sequestration of a landlord’s estate;”, and
(b)“tenant”, for the words from “, curator” to the end there is substituted “or curator bonis of a tenant or the trustee or interim trustee in the sequestration of a tenant’s estate;”.
13In paragraph 10 of schedule 2 of the Crofters (Scotland) Act 1993 (the statutory conditions), for the words “1985” there is substituted “2016”.
14In paragraph 2(1)(j) of schedule 1 of the Proceeds of Crime (Scotland) Act 1995 (administrators), for the words “74 of the Bankruptcy (Scotland) Act 1985” there is substituted “229 of the Bankruptcy (Scotland) Act 2016”.
15In paragraph 4 of schedule 1 of the Education (Scotland) Act 1996 (the Scottish Qualifications Authority), in sub-paragraph (2)(b), for the words “1985” there is substituted “2016”.
16In section 87(4) of the Adults with Incapacity (Scotland) Act 2000 (interpretation), for the words “5 to the Bankruptcy (Scotland) Act 1985 (c.66)” there is substituted “4 of the Bankruptcy (Scotland) Act 2016”.
17(1)Schedule 6 of the International Criminal Court (Scotland) Act 2001 (freezing orders in respect of property liable to forfeiture) is amended as follows.
(2)In paragraph 8 (sequestration)—
(a)in sub-paragraph (1)(a), for the words “12(4) of the 1985” there is substituted “22(7) of the 2016”,
(b)in sub-paragraph (2), for the words “22 of that Act or the permanent trustee in accordance with section 48” there is substituted “46 of that Act or the trustee in the sequestration in accordance with section 122”,
(c)in sub-paragraph (2)(a), for the words “31(8) of the 1985” there is substituted “79(1) of the 2016”,
(d)in sub-paragraph (2)(b), for the words “32A” there is substituted “90”,
(e)in sub-paragraph (2)(c), for the words “31(10) or 32(6) of that Act vests in the permanent trustee” there is substituted “79(4) or 86(5) of that Act vests in the trustee in the sequestration”,
(f)in sub-paragraph (3), for the words “1985” there is substituted “2016”,
(g)in sub-paragraph (4), for the words “2(5) of the 1985” there is substituted “54(1) of the 2016”, and
(h)sub-paragraph (5) is omitted.
(3)In paragraph 12 (interpretation)—
(a)the definition of “the 1985 Act” is omitted, and
(b)after the definition of “the 1986 Act” there is inserted—
““the 2016 Act” means the Bankruptcy (Scotland) Act 2016;”.
18(1)The Debt Arrangement and Attachment (Scotland) Act 2002 is amended as follows.
(2)In section 9Q(3) (recovery of expenses of interim attachment)—
(a)in paragraph (b), for the words “1985 (c.66)” there is substituted “2016”, and
(b)in paragraph (f), for the words “5 to the 1985” there is substituted “4 of the 2016”.
(3)In section 31(1) (disposal of proceeds of auction), for the words “37 (effect of sequestration on diligence) of the Bankruptcy (Scotland) Act 1985 (c.66)” there is substituted “24 (further provision as regards the effect of sequestration on diligence) of the Bankruptcy (Scotland) Act 2016”.
(4)In section 40(3) (recovery from debtor of expenses of attachment)—
(a)in paragraph (b), for the words “1985 (c.66)” there is substituted “2016”, and
(b)in paragraph (f), for the words “5 to the Bankruptcy (Scotland) Act 1985 (c.66)” there is substituted “4 of the Bankruptcy (Scotland) Act 2016”.
19In section 93 of the Agricultural Holdings (Scotland) Act 2003 (interpretation), in the definition of—
(a)“landlord”—
(i)after the word “guardian” there is inserted “or”, and
(ii)for the words from “or permanent” to the end there is substituted “of a landlord or the trustee or interim trustee in the sequestration, under the Bankruptcy (Scotland) Act 2016, of a landlord’s estate;”.
(b)“tenant”—
(i)after the word “guardian” there is inserted “or”, and
(ii)for the words from “or permanent” to the end there is substituted “of a tenant or the trustee or interim trustee in the sequestration, under the Bankruptcy (Scotland) Act 2016, of a tenant’s estate;”.
20In schedule 1A of the Fire (Scotland) Act 2005 (the Scottish Fire and Rescue Service), in paragraph 5(2)(c), after the words “(c.66)” there is inserted “, the Bankruptcy (Scotland) Act 2016”.
21In schedule 2B of the Further and Higher Education (Scotland) Act 2005 (regional boards)—
(a)in paragraph 6(2)(c), after the words “1985” there is inserted “, the Bankruptcy (Scotland) Act 2016”, and
(b)in paragraph 6(2)(d), for the words “under either of those Acts” there is substituted “by virtue of paragraph 7 of schedule 4A of that Act of 1986”.
22In section 70(3)(b) of the Charities and Trustee Investment (Scotland) Act 2005 (disqualification: supplementary)—
(a)in sub-paragraph (i), for the words “54, 54A, 54C or 75(4) of the Bankruptcy (Scotland) Act 1985 (c.66)” there is substituted “137, 138 or 140 of the Bankruptcy (Scotland) Act 2016”, and
(b)sub-paragraph (ii) is omitted.
23In section 28(8) of the Licensing (Scotland) Act 2005 (period of effect of premises licence), for the words “1985 (c.66)” there is substituted “2016”.
24(1)The Bankruptcy and Diligence etc. (Scotland) Act 2007 is amended as follows.
(2)After section 127 there is inserted—
(1)The Bankruptcy (Scotland) Act 2016 is amended as follows.
(2)After section 23 there is inserted—
(1)No land attachment of the heritable property of a debtor, created within the 6 months before the date of sequestration (whether or not subsisting at that date), is effectual to create a preference for the creditor.
(2)A creditor who creates a land attachment within the 6 months mentioned in subsection (1) is entitled to payment, out of the attached land or out of the proceeds of sale of it, of the expenses incurred—
(a)in obtaining the extract of the decree, or other document, containing the warrant for land attachment, and
(b)in serving the charge for payment, registering the notice of land attachment, serving a copy of that notice, and registering certificate of service of that copy.
(3)A notice of land attachment—
(a)registered on or after the date of sequestration against land forming part of the debtor’s heritable estate (including any estate vesting under section 86(5) in the trustee in the sequestration) is of no effect,
(b)registered before that date and in relation to which, by that date, no land attachment is created is of no effect.
(4)It is not competent for a creditor to insist in a land attachment—
(a)created over the debtor’s heritable estate before the beginning of the 6 months mentioned in subsection (1), and
(b)which subsists on the date of sequestration.
(5)But subsection (4) is subject to subsections (6) to (9).
(6)Where, in execution of a warrant for sale, a contract to sell the land has been concluded—
(a)the trustee must concur in and ratify the deed implementing that contract, and
(b)the appointed person must account for and pay to the trustee in the sequestration any balance of the proceeds of sale (being the balance which would, but for the sequestration, be due to the debtor) after disbursing those proceeds in accordance with section 116 of the Bankruptcy and Diligence etc. (Scotland) Act 2007 (disbursement of proceeds of sale of attached land).
(7)Subsection (6) does not apply where the deed implementing the contract is not registered within 28 days beginning with the day on which—
(a)the certified copy of the order of the sheriff granting warrant is recorded, under subsection (1)(a) of section 26, in the Register of Inhibitions, or
(b)the certified copy of the determination of AiB awarding sequestration is recorded, under subsection (2) of that section, in that register.
(8)Where a decree of foreclosure has been granted but an extract of it has not been registered, the creditor may proceed to complete title to the land by registering that extract provided that the creditor does so before the expiry of the days mentioned in subsection (7).
(9)The Scottish Ministers may, as they think fit, prescribe a period in substitution for the days mentioned in subsection (7); and a different period may be prescribed for the purposes of subsection (8) than is prescribed for the purposes of subsection (7).
(10)Expressions used in this section which also occur in Chapter 2 of Part 4 of the Bankruptcy and Diligence etc. (Scotland) Act 2007 have the same meanings in this section as they have in that Chapter.”.
(3)In section 25 (effect of sequestration on diligence: estate of deceased debtor)—
(a)in subsection (1), for the words “Section 24 applies” there is substituted “Sections 23A(1) and (2) and 24 apply” and
(b)in subsection (3), the words “to raise or insist in an adjudication against the estate of a debtor (including any estate vesting under section 86(5) or” are omitted.”.
(3)In section 195(4) (recovery from debtor of expenses of money attachment)—
(a)in paragraph (a), for the words “1985 Act” there is substituted “Bankruptcy (Scotland) Act 2016”, and
(b)in paragraph (e), for the words “the 1985 Act” there is substituted “that Act of 2016”.
25In section 73(2)(b) of the Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (disqualification where sequestration or bankruptcy), for the words “1985 (c.66)” there is substituted “2016”.
26(1)The Legal Services (Scotland) Act 2010 is amended as follows.
(2)In section 58(3)(a) (conditions for disqualification)—
(a)the words “or undertaking” are omitted, and
(b)after the words “1985,” there is inserted “the Bankruptcy (Scotland) Act 2016,”.
(3)In section 64(3)(b) (factors as to fitness)—
(a)the words “or undertaking” are omitted, and
(b)after the words “1985,” there is inserted “the Bankruptcy (Scotland) Act 2016,”.
27(1)The Housing (Scotland) Act 2010 is amended as follows.
(2)In section 60(3) (power to remove officers), for the words “has the meaning given by the Bankruptcy (Scotland) Act 1985 (c.66)” there is substituted “is to be construed in accordance with section 16 of the Bankruptcy (Scotland) Act 2016”.
(3)In section 165 (interpretation), in paragraph (c)(i) of the definition of “undischarged bankrupt”, after the words “1985 (c.66)” there is inserted “, the Bankruptcy (Scotland) Act 2016”.
28In section 58(1) of the Food (Scotland) Act 2015 (general interpretation), in the definition of “undischarged bankrupt”—
(a)in paragraph (c), after the words “1985” there is inserted “, the Bankruptcy (Scotland) Act 2016”, and
(b)in paragraph (d), for the words “either of those Acts” there is substituted “that Act of 1985 or that Act of 1986”.
(introduced by section 234(2))
| Enactment | Extent of repeal |
|---|---|
| Courts of Law Fees (Scotland) Act 1895 | Section 4. |
| Bankruptcy (Scotland) Act 1985 | The whole Act. |
| Debtors (Scotland) Act 1987 | In schedule 6, paragraphs 27 and 28. |
| Bankruptcy (Scotland) Act 1993 | The whole Act. |
| Criminal Procedure (Consequential Provisions) (Scotland) Act 1995 | In schedule 3, paragraph 15(4). |
| In schedule 4, paragraph 58. | |
| Housing (Scotland) Act 2001 | In schedule 10, paragraph 10. |
| Water Industry (Scotland) Act 2002 | In schedule 7, paragraph 16. |
| Debt Arrangement and Attachment (Scotland) Act 2002 | In schedule 3, paragraph 15. |
| Bankruptcy and Diligence etc. (Scotland) Act 2007 | Sections 1 and 2. |
| Sections 5 to 32. | |
| Sections 35 and 36. | |
| Schedule 1. | |
| In schedule 5, paragraph 13. | |
| Home Owner and Debtor Protection (Scotland) Act 2010 | Part 2. |
| Bankruptcy and Debt Advice (Scotland) Act 2014 | The whole Act. |
| Enactment | Extent of revocation |
|---|---|
| Debt Arrangement Scheme (Scotland) Regulations 2004 (S.S.I. 2004/468) | In schedule 3, paragraphs 1 and 2. |
| Bankruptcy (Scotland) Act 1985 (Low Income, Low Asset Debtors etc.) Regulations 2008 (S.S.I. 2008/81) | Regulation 4. |
| Bankruptcy (Scotland) Regulations 2008 (S.S.I. 2008/82) | Regulation 8. |
| Debt Arrangement Scheme (Scotland) Regulations 2011 (S.S.I. 2011/141) | In schedule 2, paragraphs 1 and 2. |
| Protected Trust Deeds (Scotland) Regulations 2013 (S.S.I. 2013 No. 318) | The whole instrument. |
| Common Financial Tool etc. (Scotland) Regulations 2014 (S.S.I. 2014/290 | Regulations 6 to 10. |
| Common Financial Tool etc. (Scotland) Amendment Regulations (S.S.I. 2015/149) | In regulation 4, paragraphs (5) to (7). |