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Scottish Statutory Instruments

2008 No. 119

SHERIFF COURT

Act of Sederunt (Sheriff Court Bankruptcy Rules) 2008

Made

13th March 2008

Coming into force

1st April 2008

The Lords of Council and Session, under and by virtue of the powers conferred on them by section 32 of the Sheriff Courts (Scotland) Act 1971 M1, sections 1A(1)(b),14(4) and 62(2) of, and paragraph 2 of Schedule 5 to, the Bankruptcy (Scotland) Act 1985 M2, and these rules making provision for a purpose mentioned in section 2(2) of the European Communities Act 1972, and it appearing to the Lords of Council and Session that it is expedient for the reference to Council Regulation (E.C.) No. 1346/2000 of 29th May 2000 on insolvency proceedings to be construed as a reference to that instrument as amended from time to time, under and by virtue of the powers conferred by paragraph 1A of Schedule 2 to the European Communities Act 1972 M3 and under and by virtue 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:

Modifications etc. (not altering text)

C1Instrument continued (1.4.2015) by Act of Sederunt (Rules of the Court of Session and Sheriff Court Bankruptcy Rules Amendment) (Bankruptcy and Debt Advice (Scotland) Act 2014) 2015 (S.S.I. 2015/119), paras. 1(2), 4

Marginal Citations

M21985 c. 66. Sections 1A(1)(b) and 14(4) were amended by schedule 6 to the Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3).

M31972 c. 68. Paragraph 1A of Schedule 2 was inserted by section 28 of the Legislative and Regulatory Reform Act 2006 (c. 51).

Citation and commencement

1.—(1) This Act of Sederunt may be cited as the Act of Sederunt (Sheriff Court Bankruptcy Rules) 2008 and shall come into force on 1st April 2008.

(2) This Act of Sederunt shall be inserted in the Books of Sederunt.

Bankruptcy Rules

2.  The Schedule to this Act of Sederunt shall have the effect of providing rules in the sheriff court for the purpose of the Bankruptcy (Scotland) Act 1985.

Revocation and saving

3.—(1) The Act of Sederunt (Sheriff Court Bankruptcy Rules) 1996 M4 is revoked.

(2) Notwithstanding sub-paragraph (1), the Act of Sederunt (Sheriff Court Bankruptcy Rules) 1996 shall continue to apply to sequestrations commenced before the coming into force of this Act of Sederunt.

(3) For the purposes of sub-paragraph (2), a sequestration shall be taken to have commenced when a petition has been presented or an application has been made to the Accountant in Bankruptcy under section 5(2)(a) or 6(3)(a), (4)(a) or (6)(a) of the Bankcruptcy (Scotland) Act 1985.

Marginal Citations

A. C. Hamilton

Lord President

Edinburgh

Paragraph 2

SCHEDULESHERIFF COURT BANKRUPTCY RULES

Citation and interpretation

1.—(1) These Rules may be cited as the Sheriff Court Bankruptcy Rules.

(2) In these Rules–

“Act of 1985” means the Bankruptcy (Scotland) Act 1985 M5;

“AIB sequestration” means the sequestration of a debtor's estate by the Accountant in Bankruptcy following a debtor application made under [F1section 5(2)(a) or (3)(a) or section 6(3)(a), 4(za), 4(a) or 6(a)] of the Act of 1985;

“centre of main interests” has the same meaning as in the Council Regulation;

“Council Regulation” means Council Regulation (E.C.) No. 1346/2000 of 29th May 2000 on insolvency proceedings as it may be amended from time to time M6;

“debtor application” has the same meaning as in section 73 of the Act of 1985 M7;

“enactment” includes an enactment comprised in, or in an instrument made under, an Act of the Scottish Parliament;

“establishment” has the same meaning as in Article 2(h) of the Council Regulation;

“main proceedings” means proceedings opened in accordance with Article 3(1) of the Council Regulation and falling within the definition of insolvency proceedings in Article 2(a) of the Council Regulation and–

(a)

in relation to England and Wales, Scotland and Northern Ireland, set out in Annex A to the Council Regulation under the heading “United Kingdom”; and

(b)

in relation to another member State, set out in Annex A to the Council Regulation under the heading relating to that member State;

“member State” means a member State of the European Community that has adopted the Council Regulation;

“Model Law” means the Model Law on Cross-Border Insolvency as set out in Schedule 1 to the Cross-Border Insolvency Regulations 2006 M8;

“territorial proceedings” means proceedings opened in accordance with Article 3(2) and (4) of the Council Regulation and falling with the definition of insolvency proceedings in Article 2(a) of the Council Regulation and–

(a)

in relation to England and Wales, Scotland and Northern Ireland, set out in Annex A to the Council Regulation under the heading “United Kingdom”; and

(b)

in relation to another member State, set out in Annex A to the Council Regulation under the heading relating to that member State.

(3) Any reference in this Act of Sederunt to a form shall be construed as a reference to the form so numbered in Appendix 1 to these Rules or a form substantially to the same effect, with such variation as circumstances may require.

Textual Amendments

Marginal Citations

M6O.J. L 160, 30/06/2000 P. 0001-0018.

M7Section 73 was amended by paragraph 60 of schedule 1 to the 2007 Act.

Forms of petitions etc

2.—(1) A petition, application, note, report and the like under the Act of 1985 shall be written, typed or printed on A4 size paper of durable quality and shall not be backed.

(2) On receipt of–

(a)a petition for sequestration; or

(b)an application or appeal relating to an AIB sequestration,

the sheriff clerk shall prepare a process folder which shall include an inventory of process.

(3) The petition, application or appeal, as the case may be, and any production or part of process lodged shall be placed by the sheriff clerk in the process folder.

(4) Sub-paragraph (2)(b) shall not apply to a second or subsequent application or appeal relating to an AIB sequestration, and any such application or appeal shall be placed in the process folder of the initial application or appeal relating to that sequestration, as the case may be.

Petitions for sequestration

3.—(1) A petition by a qualified creditor under section 5(2)(b)(i) of the Act of 1985 M9 shall be in Form 1.

(2) A petition–

(i)under [F2section 5(2)(b)(ii)] of the Act of 1985 by a temporary administrator;

(ii)under [F3section 5(2)(b)(iii)] of the Act of 1985 by a member State liquidator appointed in main proceedings; or

(iii)under article 11 of the Model Law by a foreign representative,

shall be in Form 2.

(3) A petition by a trustee acting under a trust deed under section 5(2)(b)(iv) of the Act of 1985 shall be in Form 3.

(4) An undertaking by the trustee under section 2(3)(c) of the Act of 1985 shall be in Form 4.

Textual Amendments

Marginal Citations

M9Section 5(2)(b)(i) was inserted by section 14(3)(a) of the 2007 Act.

Intimation of appointment of trustee

4.  The sheriff clerk shall, without delay, intimate the appointment of any trustee to the person so appointed, and to the Accountant in Bankruptcy where he is not the trustee.

Applications

5.—(1) Except as otherwise provided, an application under the Act of 1985 shall be made in Form 5.

[F4(1A) An application by the Accountant in Bankruptcy for a direction under the following provisions of the Act of 1985 shall be in Form 5C—

(a)section 3(6) (trustee application to the sheriff for directions in relation to any particular matter)

(b)section 3A(3) (application to Accountant in Bankruptcy for a direction);

(c)section 28B(5) (replacement of trustee: application for direction);

(d)section 29(6I) (removal of trustee and trustee not acting: application for direction);

(e)section 42(2E) (contractual powers of trustee: application for direction);

(f)paragraph 3(7) of Schedule 1 (debts depending on contingency: application for direction).

(1B) Where the Accountant in Bankruptcy—

(a)remits an application made under section 17A of the Act of 1985 to the sheriff under section 17F(1); or

(b)before deciding under section 17E(6) whether to grant a recall of an award of sequestration, remits the case to the sheriff,

the remit shall be in Form 5D.]

(2) [F5An application under paragraphs (1) or (1A) or a remit under paragraph (1B)] which relates to a petition for sequestration shall be lodged in the bankruptcy process.

(3) [F6An application under paragraphs (1) or (1A) or a remit under paragraph (1B)] which relates to an AIB sequestration shall contain–

(a)the date of the sequestration;

(b)the name and address of the trustee in the sequestration; and

(c)the name and address of any former or interim trustee.

(4) Where an application referred to in paragraph (3) is made by the debtor or the Accountant in Bankruptcy, there shall be lodged with the application a copy of the debtor application to which it relates.

(5) The sheriff may order intimation of [F7an application under paragraphs (1) or (1A) or a remit under paragraph (1B)] to such person or persons as he deems appropriate.

(6) Where an application is unopposed it shall be granted by the sheriff in chambers without the attendance of parties, unless the sheriff otherwise directs.

(7) Where the sheriff requires to hear a party on an application, the sheriff clerk shall inform that party of the date on which the application will be heard.

(8) The sheriff may order such further procedure in relation to the hearing of [F8an application under paragraphs (1) or (1A) or a remit under paragraph (1B)] as he considers appropriate.

Textual Amendments

[F9Service of sequestration petitions

5A.—(1) This rule applies to citation of a debtor in pursuance of section 12(2) of the Act of 1985.

(2) Citation shall be effected by service on the debtor of Form 5A accompanied by a copy of the petition and warrant of citation.

(3) Subject to the following paragraphs, service occurs if—

(a)where the debtor is a living individual, a sheriff officer accompanied by a witness gives the documents personally to the debtor;

(b)where the debtor is deceased, a sheriff officer accompanied by a witness gives the documents personally to an executor or a person entitled to be appointed as executor to the deceased debtor, save that where such executor or appointee is a body corporate, paragraph (c)(iv) applies.

(c)where the debtor is an entity whose estate may be sequestrated by virtue of section 6(1) of the Act of 1985, a sheriff officer accompanied by a witness—

(i)in the case of a trust in respect of debts incurred by it, gives the documents personally to the individual trustees (if known);

(ii)subject to subparagraph (iii) in the case of a partnership or limited partnership within the meaning of the Limited Partnerships Act 1907, gives the documents personally to the individual partners (if known) and leaves them in the hands of an employee at an established place of business of the entity;

(iii)in the case of a dissolved partnership (including a dissolved partnership within the meaning of the Limited Partnerships Act 1907), gives the documents personally to the individual partners (if known);

(iv)in the case of a body corporate or an unincorporated body, gives the documents personally to a senior official (if known) and leaves them in the hands of an individual at an established place of business of the entity;

and section 3 of the Citation Amendment (Scotland) Act 1882 will not apply.

(4) Service on a debtor or other person to whom citation is required under this rule, in either case furth of Scotland, is to be effected in accordance with rule 5.5 (service on persons furth of Scotland) of the Ordinary Cause Rules in the First Schedule to the Sheriff Courts (Scotland) Act 1907.

(5) A creditor may apply to the sheriff for authority to serve by such other means as the sheriff thinks fit.

(6) An application under paragraph (5) must be made—

(a)by crave in the petition; or

(b)by motion.

(7) A certificate of citation in Form 5B must be lodged with the sheriff clerk and state—

(a)the method of citation; and

(b)where citation is by a sheriff officer—

(i)Form 5B must be signed by the sheriff officer and the witness; and

(ii)where the method of citation was other than personal or postal citation, the full name and designation of any person to whom the citation was delivered.]

Textual Amendments

Application to determine amount for aliment and obligations, etc.

F106.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

Appeals to the sheriff

7.—(1) An appeal to the sheriff under the Act of 1985 shall be made by note of appeal in Form 6.

(2) A note of appeal under paragraph (1) which relates to a petition for sequestration shall be lodged in the bankruptcy process.

(3) A note of appeal under paragraph (1) which relates to an AIB sequestration shall contain–

(a)the date of the sequestration;

(b)the name and address of the trustee in the sequestration; and

(c)the name and address of any former or interim trustee.

(4) There shall be lodged with the note of appeal referred to in paragraph (3) a copy of the debtor application to which it relates.

(5) The sheriff may order intimation of an application under paragraph (1) to such person or persons as he deems appropriate.

(6) The sheriff may order such further procedure in relation to an appeal under paragraph (1) as he considers appropriate.

[F11Appeals to the Court of Session]

8.—[F12(1) An appeal [F13to the Court of Session] under the following provisions of the Act of 1985 shall be made in accordance with the provisions of this rule—

F14(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b)section 15(3) (refusing to award);

(c)section 30(8) (removing commissioner);

F15(d)]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(2) An appeal under a provision mentioned in paragraph (1) above shall be made by note of appeal which shall be written by the appellant–

(a)on the interlocutor sheet,

(b)on any other written record containing the interlocutor appealed against, or

(c)on a separate sheet lodged with the sheriff clerk

in the following terms:– “ The petitioner [or as the case may be] appeals to [F16the Court of Session]. ”.

(3) Such a note of appeal shall–

(a)be signed by the appellant or his solicitor;

(b)bear the date on which it was signed; and

(c)have appended to it the name and address of any firm of solicitors who will be acting for the appellant in the appeal.

(4) Where the Act of 1985 does not specify a period within which an appeal shall be made, such appeal shall be made within 14 days after the date of the interlocutor appealed against.

[F17(5) The sheriff clerk shall, within four days of the note of appeal being marked, transmit the process to the Deputy Principal Clerk of Session.]

[F18(6) Within the period of four days mentioned in paragraph (5), the sheriff clerk shall send written notice of appeal—

(a)in an appeal under section 15(3) of the Act of 1985, to any concurring creditor and the debtor, as the case may be;

(b)in an appeal under section 30(8) of the Act of 1985, to the trustee, the Accountant in Bankruptcy, any commissioner and any creditor;

F19(c)]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(7) The sheriff clerk shall certify on the interlocutor sheet that he has sent the notice required under paragraph (6) above.

(8) Failure by the sheriff clerk to give the notice prescribed in paragraph (6) above shall not invalidate the appeal.

F20(9) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

[F21Appeals to the Sheriff Appeal Court

8A.—(1) This rule applies to an appeal to the Sheriff Appeal Court under the following provisions of the Act of 1985—

(a)section 15(2A) (order transferring sequestration);

(b)section 15(3) (refusing to award);

(c)section 30(8) (removing commissioner);

(d)section 56J(2) (refusal to annul bankruptcy restrictions order or interim bankruptcy restrictions order).

(2) An appeal to the Sheriff Appeal Court is to be made in accordance with Chapter 6 of the Act of Sederunt (Sheriff Appeal Court Rules) 2015.

(3) Within four days of a note of appeal being lodged under rule 6.2(1) (form of appeal) of the Act of Sederunt (Sheriff Appeal Court Rules) 2015, the Clerk of the Sheriff Appeal Court must send written notice of the appeal—

(a)in an appeal under section 15(3) of the Act of 1985, to any concurring creditor and the debtor, as the case may be;

(b)in an appeal under section 30(8) of the Act of 1985, to the trustee, the Accountant in Bankruptcy, any commissioner and any creditor;

(c)in an appeal under section 56J(2) of the Act of 1985, to the Accountant in Bankruptcy and the trustee.

(4) The Clerk of the Sheriff Appeal Court must certify on the interlocutor sheet that notice has been given in accordance with paragraph (3).

(5) Failure by the Clerk of the Sheriff Appeal Court to comply with paragraph (3) or (4) does not affect the validity of an appeal.]

Textual Amendments

Forms and register of insolvencies

9.—(1) The memorandum to be sent by the trustee to the Keeper of the Register of Inhibitions and Adjudications under section 14(4) of the Act of 1985 M10 shall be in Form 7.

(2) The notice which the trustee may record in the Register of Inhibitions and Adjudications under paragraph 2(1) of Schedule 5 to the Act of 1985 shall be in Form 8.

(3) The notice to recall the notice referred to in paragraph (2) which is to be recorded by the trustee in the Register of Inhibitions and Adjudications under paragraph 2(2) of Schedule 5 to the Act of 1985 shall be in Form 9.

(4) The register of insolvencies maintained by the Accountant in Bankruptcy under section 1A(1)(b) of the Act of 1985 M11 shall contain the information specified in Appendix 2 to these Rules.

Marginal Citations

M10Section 14(4) was amended by schedule 6 to the 2007 Act.

M11Section 1A(1)(b) was amended by section 18(5) of and schedule 6 to the 2007 Act.

Reports

10.—(1) The report to be made by the Accountant in Bankruptcy as original trustee under section 24(3A) of the Act of 1985 M12 shall be in Form 10.

(2) The report to be made by the original trustee under section 24(4)(b) of the Act of 1985 M13 shall be in Form 11.

Marginal Citations

M12Section 24(3A) was amended by paragraph 23(4) of schedule 1 to the 2007 Act.

M13Section 24(4) was amended by paragraph 23(5) of schedule 1 to the 2007 Act.

Holding of sederunt book by Accountant in Bankruptcy

11.  The Accountant in Bankruptcy shall hold the sederunt book for a period of at least six months from the date he receives it from the trustee by virtue of section 57(1) of the Act of 1985 and–

(a)shall make it available for public inspection during office hours; and

(b)may allow such extracts to be made of entries in the sederunt book by such persons as he thinks fit.

[F22Statement to be lodged by creditor]

12.—(1) Where a creditor is petitioning for the sequestration of a debtor, the creditor, at the lodging of the petition, shall satisfy himself that at that date [F23the debtor has not given a notice to the Accountant in Bankruptcy in accordance with section 4A(1) of the Act of 1985, and]–

(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 M14.

(2) Having satisfied himself as referred to in paragraph (1), the creditor shall 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 petition unless–

(a)such a statement has been lodged; or

(b)the court is otherwise satisfied that, as of the date of the award of sequestration–

(i)there is no such approved debt payment programme in force; or

(ii)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 12.

Textual Amendments

Marginal Citations

UNCITRAL Model Law on Cross-Border Insolvency

13.—(1) An application under article 12 of the Model Law shall be made by note in the process of the petition to which the application relates.

(2) On receipt of a certified copy interlocutor of a Lord Ordinary ordering proceedings under these rules to be transferred to the Court of Session under paragraph 11 of Schedule 3 to the Cross-Border Insolvency Regulations 2006 M15, the sheriff clerk shall within four days transmit the process to the Deputy Principal Clerk of Session.

Marginal Citations

Vulnerable Witnesses

14.—(1) At any hearing on an application under these Rules the sheriff shall–

(a)ascertain whether there is or is likely to be a vulnerable witness who is to give evidence at or for the purposes of any proof or hearing;

(b)consider any child witness notice or vulnerable witness application that has been lodged where no order has been made under section 12(1) or (6) of the Vulnerable Witnesses (Scotland) Act 2004 (b) M16; and

(c)consider whether any order under section 12(1) of that Act requires to be made.

(2) Except where the sheriff otherwise directs, where a vulnerable witness is to give evidence at or for the purposes of any proof or hearing in an application under these Rules, any application in relation to the vulnerable witness or special measure that may be ordered shall be dealt with in accordance with the rules within Chapter 45 of the Ordinary Cause Rules in the First Schedule to the Sheriff Courts (Scotland) Act 1907 M17.

(3) In this rule, “vulnerable witness” means a witness within the meaning of section 11(1) of the Vulnerable Witnesses (Scotland) Act 2004.

Marginal Citations

M171907 c. 51. Chapter 45 was inserted by S.S.I. 2007/463.

Representation

15.—(1) Where the sheriff is satisfied that–

(a)a debtor in proceedings under section 12 [F24or section 54B(6)] of the Act of 1985 is not represented by an advocate or a solicitor; and

(b)another person is able properly to represent the debtor and is authorised by the debtor to do so,

that person may represent the debtor in those proceedings.

(2) Any party may be represented by a person authorised under any enactment to conduct proceedings in the sheriff court, in accordance with the terms of that enactment.

(3) The persons referred to in paragraphs (1) and (2) may, in representing a party, do everything for the preparation and conduct of the proceedings as may be done by an individual conducting his own action.

Textual Amendments

Expenses

16.  A party who–

(a)is or has been represented by a person mentioned in rule 15(1) or (2); and

(b)would have been found entitled to expenses if he had been represented by a solicitor or an advocate,

may be awarded any outlays or expenses to which a party litigant may be found entitled by virtue of the Litigants in Person (Costs and Expenses) Act 1975 M18 or any enactment under that Act.

Marginal Citations

Schedule, Rule 1(3)

APPENDIX 1

F25FORM 1Form of petition by qualified creditor(s) under section 5(2)(b)(i) of the Bankruptcy (Scotland) Act 1985

Textual Amendments

Rule 3(3)

FORM 2Form of petition by a temporary administrator, a member State liquidator in main proceedings or a foreign representative

FORM 3Form of petition by a trustee under a trust deed in terms of section 5(2)(b)(iv) of the Bankruptcy (Scotland) Act 1985

Rule 3(4)

FORM 4Form of undertaking required by section 2(3)(c) of the Bankruptcy (Scotland) Act 1985

Rule 5(1)

FORM 5Form of application under the Bankruptcy (Scotland) Act 1985

[F26FORM 5A

Textual Amendments

  ]

[F27FORM 5B

Textual Amendments

 ]

[F28FORM 5C

Textual Amendments

 

FORM 5D

 ]

Rule 7(1)

FORM 6Form of note of appeal to sheriff under the Bankruptcy (Scotland) Act 1985

Rule 9(1)

FORM 7Form of memorandum by trustee to be recorded in the Register of Inhibitions and Adjudications under section 14(4) of the Bankruptcy (Scotland) Act 1985

Rule 9(2)

FORM 8Form of notice of inhibition by trustee under trust deed to be recorded in the Register of Inhibitions and Adjudications under paragraph 2(1) of Schedule 5 to the Bankruptcy (Scotland) Act 1985

FORM 9Form of notice of recall of inhibition to be recorded in the Register of Inhibitions and Adjudications under paragraph 2(2) of Schedule 5 to the Bankruptcy (Scotland) Act 1985

Rule 10(1)

FORM 10Form of report by the Accountant in Bankruptcy under section 24(3A) of the Bankruptcy (Scotland) Act 1985

Rule 10(2)

FORM 11Form of report by the original trustee under section 24(4)(b) of the Bankruptcy (Scotland) Act 1985

Rule 12(3)

F29FORM 12

Textual Amendments

  

Schedule, Rule 9(4)

APPENDIX 2Information to be contained in the Register of Insolvencies

Sequestrations

Textual Amendments

Protected trust deeds for creditors

Textual Amendments

Bankruptcy Restrictions Orders, Interim Bankruptcy Restrictions Orders and Bankruptcy Restrictions Undertakings

Textual Amendments

Explanatory Note

(This note is not part of the Act of Sederunt)

This Act of Sederunt restates and amends the rules in the sheriff court in relation to the Bankruptcy (Scotland) Act 1985 as a result of the amendments made to that Act by the Bankruptcy and Diligence etc. (Scotland) Act 2007.