2004 No. 534
SHERIFF COURT

Act of Sederunt (Sheriff Court Bankruptcy Rules) 1996 Amendment 2004

Made
Coming into force
The Lords of Council and Session, under and by virtue of the powers conferred by section 32 of the Sheriff Courts (Scotland) Act 19711, and of all other powers enabling them in that behalf, having approved draft rules submitted to them by the Sheriff Court Rules Council in accordance with section 34 of the said Act of 1971, do hereby enact and declare:

Citation and commencement1.

(1)

This Act of Sederunt may be cited as the Act of Sederunt (Sheriff Court Bankruptcy Rules) 1996 Amendment 2004 and shall come into force on 4th December 2004.

(2)

This Act of Sederunt shall be inserted in the Books of Sederunt.

Amendment of the Act of Sederunt (Sheriff Court Bankruptcy Rules) 19962.

The Act of Sederunt (Sheriff Court Bankruptcy Rules) 19962 (hereinafter referred to as “the Principal Rules”) shall be amended in accordance with Articles 3 to 9 of this Act of Sederunt.

Duty of creditor and court to be satisfied that no approved debt payment programme is in force3.

The Principal Rules shall be amended by inserting after rule 16–

“Duty of creditor and court to be satisfied that no approved debt payment programme within the meaning of section 2 of the Debt Arrangement and Attachment (Scotland) Act 2002 is in force or if in force the creditor is entitled to petition17.

(1)

Where a creditor is petitioning for the sequestration of a debtor, the creditor, at the lodging of the petition and immediately prior to the hearing to determine whether an award of sequestration is to be made in relation to the petition for sequestration, shall satisfy himself that at that date (a) the debtor is not subject to an approved debt payment programme, or (b) if there is an approved debt payment programme in force, the creditor is entitled to the remedy sought because the debt being founded on is not one covered by section 4(5) of the Debt Arrangement and Attachment (Scotland) Act 2002.

(2)

Having satisfied himself at the times referred to in paragraph (1), the creditor shall at those times lodge a statement in the court to the effect that he has so satisfied himself; and the sheriff may not award sequestration in respect of such a petition unless such a statement has been lodged, or the court is otherwise satisfied that there is as of the date of the award of sequestration no such approved debt payment programme in force or there is a debt payment programme in force but the creditor is entitled to the remedy sought because the debt being founded on is not one covered by section 4(5) of the Debt Arrangement and Attachment (Scotland) Act 2002.

(3)

The statement referred to in paragraph (2) shall be in Form 19.

Duty of concurring creditor and court to be satisfied that no approved debt payment programme within the meaning of section 2 of the Debt Arrangement and Attachment (Scotland) Act 2002 is in force or if in force the creditor is entitled to concur in the petition18.

(1)

Where a creditor is concurring in a petition for the sequestration of a debtor, the creditor, when concurring shall satisfy himself that at that date (a) the debtor is not subject to an approved debt payment programme, or (b) if there is an approved debt payment programme in force, the concurring creditor is entitled to concur in the remedy sought because the debt being founded on is not one covered by section 4(5) of the Debt Arrangement and Attachment (Scotland) Act 2002.

(2)

Having satisfied himself as referred to in paragraph (1), the concurring creditor shall make a statement for lodging in the court to the effect that he has so satisfied himself; and the sheriff may not award sequestration in respect of such a petition unless such a statement has been lodged, or the court is otherwise satisfied that there is as of the date of the award of sequestration no such approved debt payment programme in force or there is a debt payment programme in force but the creditor is entitled to concur in the remedy sought because the debt being founded on is not one covered by section 4(5) of the Debt Arrangement and Attachment (Scotland) Act 2002.

(3)

The statement referred to in paragraph (2) shall be in Form 20.”.

Amendment of Form 14.

(1)

Form 1 contained in Appendix 1 of the Schedule to the Principal Rules shall be amended by insertion at the end of paragraph 1 of the form:

“1A.

I certify that:

*a)

I have my centre of main interests or an establishment in the United Kingdom as defined in the EC Regulation on insolvency proceedings3;

*b)

I have my centre of main interests or an establishment as defined above in a Member state other than the United Kingdom;

*c)

I have neither my centre of main interests nor an establishment in the United Kingdom nor in a Member state other than the United Kingdom.”

(2)

Form 1 contained in Appendix 1 of the Schedule to the Principal Rules shall be amended by insertion at the end of paragraph 3 of the form:–
  • “Attached is a statement by each of the qualified creditors who concurs in this petition stating that the debtor of the debt in relation to which he or she is giving concurrence is not the subject of an approved debt payment programme within the meaning of section 2 of the Debt Arrangement and Attachment (Scotland) Act 20024 or the debtor to which the petition relates is in an approved debt payment programme but the debt in relation to which he or she is giving concurrence is not of a class covered by section 4(5)(b) of that Act.”.

(3)

Form 1 contained in Appendix 1 to the Schedule to the Principal Rules shall be amended by insertion after paragraph 6 of that form:

“6A.

*(a)

I am subject to an approved debt payment programme; or

*(b)

I am not subject to an approved debt payment programme.

*(c)

I have made application for approval of a debt payment programme; or

*(d)

I have not made application for approval of a debt payment programme.”

Amendment of Form 25.

(1)

Form 2 contained in Appendix 1 of the Schedule to the Principal Rules shall be amended by insertion at the end of paragraph 1 of the form:

“1A.

I certify that:

*a)

I have my centre of main interests or an establishment in the United Kingdom as defined in the EC Regulation on insolvency proceedings;

*b)

I have my centre of main interests or an establishment as defined above in a Member state other than the United Kingdom;

*c)

I have neither my centre of main interests nor an establishment in the United Kingdom nor in a Member state other than the United Kingdom.”.

(2)

Form 2 contained in Appendix 1 of the Schedule to the Principal Rules shall be amended by insertion after paragraph 6 of that form:–

“6A.

*(a)

I am subject to an approved debt payment programme; or

*(b)

I am not subject to an approved debt payment programme.

*(c)

I have made application for approval of a debt payment programme; or

*(d)

I have not made application for approval of a debt payment programme.”

(3)

Form 2 contained in Appendix 1 of the Schedule to the Principal Rules shall be amended by substituting in paragraph 2 of the Note to the form “attachment (or an attempt to attach)” for “poinding”.

(4)

Form 2 contained in Appendix 1 of the Schedule to the Principal Rules shall be amended by insertion after paragraph 7 on page 2 of that form:

“8.

You are apparently insolvent in terms of section 7(1) (c)(vii) of the Bankruptcy (Scotland) Act 19855 because a) you were party to an approved debt payment programme under the Debt Arrangement and Attachment (Scotland) Act 2002 which has been revoked; and b) a debt being paid under the programme is constituted by decree or document of debt as defined in section 10 (attachment) of that Act.”.

Amendment of Form 36.

(1)

Form 3 contained in Appendix 1 of the Schedule to the Principal Rules shall be amended by insertion at the end of paragraph 1 of the Statement of Facts of that form:

“1A.

As far as is within the knowledge of the petitioner:

*a)

the debtor has his centre of main interests or an establishment in the United Kingdom as defined in the EC Regulation on insolvency proceedings6;

*b)

the debtor has his centre of main interests or an establishment as defined above in a Member state other than the United Kingdom;

*c)

the debtor has neither his centre of main interests nor an establishment in the United Kingdom nor in a Member state other than the United Kingdom.”.

(2)

Form 3 contained in Appendix 1 of the Schedule to the Principal Rules shall be amended by insertion at the end of paragraph 2 of that form:–
  • “Attached is a statement by each of the petitioning creditors stating that the debtor of the debt in relation to which the petitioning creditor is petitioning is not the subject of an approved debt payment programme within the meaning of section 2 of the Debt Arrangement and Attachment (Scotland) Act 20027 or the debtor to which the petition relates is in an approved debt payment programme but the debt in relation to which he is petitioning is not of a class covered by section 4(5)(b) of that Act.”.

Amendment of Form 47.

Form 4 contained in Appendix 1 of the Schedule to the Principal Rules shall be amended by insertion at the end of paragraph 1 of the Statement of Facts of that form:

“1A.

As far as is within the knowledge of the petitioner:

*a)

the debtor has his centre of main interests or an establishment in the United Kingdom as defined in the EC Regulation on insolvency proceedings;

*b)

the debtor has his centre of main interests or an establishment as defined above in a member State other than the United Kingdom;

*c)

the debtor has neither his centre of main interests nor an establishment in the United Kingdom nor in a Member state other than the United Kingdom.”.

Form 198.

After Form 18 in the Appendix to the Schedule to the Principal Rules shall be inserted:

“Form 19

Form of statement to be lodged by creditor in petitioning for sequestration.

*The petitioner states that at the date of lodging of this petition the petitioner has checked with the DAS Register that the debtor of whom sequestration is craved is not subject to an approved debt payment programme or there is a debt payment programme in force but the petitioner is entitled to the remedy sought because the debt being founded on is not one covered by section 4(5) of the Debt Arrangement and Attachment (Scotland) Act 2002.

*The petitioner states that immediately before the calling of this petition the petitioner has checked with the DAS Register that the debtor of whom sequestration is craved is not subject to an approved debt payment programme or there is a debt payment programme in force but the petitioner is entitled to the remedy sought because the debt being founded on is not one covered by section 4(5) of the Debt Arrangement and Attachment (Scotland) Act 2002.

*Delete as appropriate.”.

Form 209.

After Form 19 in the Appendix to the Schedule to the Principal Rules shall be inserted:

“Form 20

Form of statement to be lodged by concurring creditor with petition for sequestration.

The concurring creditor states that at the date of concurring in this petition the concurring creditor has checked with the DAS Register that the debtor of whom sequestration is craved is not subject to an approved debt payment programme or there is a debt payment programme in force but the concurring creditor is entitled to concur in the remedy sought because the debt being founded on is not one covered by section 4(5) of the Debt Arrangement and Attachment (Scotland) Act 2002.”.

CULLEN OF WHITEKIRK
Lord President I.P.D.

Edinburgh

(This Note does not form part of the Act of Sederunt)

This Act of Sederunt amends the Act of Sederunt (Sheriff Court Bankruptcy Rules) 1996 (“the Principal Rules”) in order to regulate the procedure in sequestration to take into account the Debt Arrangement Scheme (Scotland) Regulations 2004 (S.S.I. 2004/468) (as amended by the Debt Arrangement Scheme (Scotland) Amendment Regulations 2004 (S.S.I. 2004/470)) which come into force on 30th November 2004. In terms of section 4(3) of the Debt Arrangement and Attachment (Scotland) Act 2002, a creditor is not able to found on or concur in the founding on a debt covered by a debt payment programme as defined in section 2 of that Act. Neither may the creditor found on or concur in the founding on such a debt if he has been given notice in the prescribed form of the approval of a debt payment programme.

Article 3 of the Act of Sederunt inserts new Rules 17 and 18 into the Principal Rules to require respectively a petitioning creditor and a concurring creditor to check with the DAS Register before a petition is lodged that the relevant debt is not covered by section 4(5) of the Debt Arrangement and Attachment (Scotland) Act 2002 and hence not able to be founded on and to make a statement in prescribed Forms 19 or 20 to the effect that the position has been checked. In terms of Rule 17 a petitioning creditor must also check that the position is still the same immediately prior to the calling of the petition and lodge a statement in court to that effect. Articles 4, 5, 6 and 7 also amend the forms (Forms 1, 2, 3 and 4 in Appendix 1 to the Schedule to the Principal Rules) used in sequestration proceedings as they relate to a debtor petitioner with and without concurrence, and a creditor petitioner.

Articles 4, 5, 6 and 7 also amend the forms (Forms 1, 2, 3 and 4 in Appendix 1 to the Schedule to the Principal Rules) used in sequestration proceedings to require the debtor, petitioning or concurring creditor to declare the status the sequestration will have in terms of the EC Regulation on insolvency proceedings. That regulation provides for the reciprocal enforcement of insolvency decrees across the European Community. It is only relevant if the debtor is a trader. If his centre of main interests is not in the EC, then the Regulation does not apply. If it is in the EC, the regulation requires the main insolvency proceedings to be opened in the jurisdiction where he has his centre of main interests.