The Bankruptcy (Scotland) Regulations 2014

Prospective

Scottish Statutory Instruments

2014 No. 225

Insolvency

Bankruptcy

The Bankruptcy (Scotland) Regulations 2014

Made

20th August 2014

Laid before the Scottish Parliament

21st August 2014

Coming into force

1st April 2015

The Scottish Ministers make the following Regulations in exercise of the powers conferred by sections 1A(1)(b) and (5), 2(8), 5(2ZA)(a)(ii), (2D) and (6A), 6(7), 7(1)(d), 11(1), 19(2), 22(2)(a) and (6), 23(1)(a), 32(9A), 40(3B), 43A(2), 43B(1), 45(3)(a), 49(3), 51(7)(a), 54(2), 54A(2), 54C(2), 54D(2)(a) and (c), 54E(2) and (5), 69, 71C, 72(1A) and 73(1) of and paragraphs 5(1) and 6 of Schedule 3 to the Bankruptcy (Scotland) Act 1985(1) and all other powers enabling them to do so.

Prospective

Citation and commencement S

1.  These Regulations may be cited as the Bankruptcy (Scotland) Regulations 2014 and come into force on 1st April 2015.

Commencement Information

I1 Reg. 1 in force at 1.4.2015, see reg. 1

Interpretation S

2.—(1) In these Regulations, “the 1985 Act” means the Bankruptcy (Scotland) Act 1985.

(2) Any reference in these Regulations to anything done in writing or produced in written form includes a reference to an electronic communication, as defined in the Electronic Communications Act 2000(2), which has been recorded and is consequently capable of being reproduced.

Commencement Information

I2 Reg. 2 in force at 1.4.2015, see reg. 1

Forms S

Forms S

3.—(1) The forms set out in Schedule 1 to these Regulations are the forms referred to in regulations 5, 12 to 16, 19, 22 and 24, failing which they are prescribed for the purposes of the provisions of the 1985 Act referred to in the form.

(2) A form may differ from the form set out in Schedule 1 if it is of substantially the same effect or contains such variation as the circumstances may require.

(3) Any signature required as shown on a form set out in Schedule 1 must be provided either by—

(a) a manuscript signature; or

(b) an image of a manuscript signature sent electronically.

Commencement Information

I3 Reg. 3 in force at 1.4.2015, see reg. 1

Register of Insolvencies S

Register of Insolvencies S

4.—(1) The register of insolvencies maintained by the Accountant in Bankruptcy under section 1A(1)(b) of the 1985 Act(3) is to be in the form specified in Schedule 2 to these Regulations.

(2) Information need not be included in the register of insolvencies where the Accountant in Bankruptcy is of the opinion that inclusion of the information would be likely to put any person at risk of violence or otherwise jeopardise the safety or welfare of any person.

Commencement Information

I4 Reg. 4 in force at 1.4.2015, see reg. 1

Sequestration Process S

Debtor applications S

5.—(1) A debtor application to the Accountant in Bankruptcy—

(a) in the case of an application by a living debtor, or by the executor (or a person entitled to be appointed executor) on the estate of a deceased debtor, must be in Form 14;

(b) in the case of an application by an entity referred to in section 6(1) of the 1985 Act, must be in Form 15 accompanied by a statement of assets and liabilities in Form 16.

(2) Where in a debtor application the debtor nominates an insolvency practitioner to act as the trustee in the sequestration and the insolvency practitioner agrees to act, the application must be accompanied by the insolvency practitioner’s written undertaking to act as the trustee in Form 17.

(3) The Accountant in Bankruptcy or Depute Accountant in Bankruptcy must daily sign a Schedule in Form 18 listing those debtors whose estates have been sequestrated that day, and must enter the Schedule into the register of insolvencies.

(4) The Accountant in Bankruptcy must notify in writing debtors in respect of whom an award of sequestration has been made without delay after the award of sequestration.

(5) Where the Accountant in Bankruptcy refuses to award sequestration, the Accountant in Bankruptcy or Depute Accountant in Bankruptcy must complete and sign a Form 19 in respect of the debtor and without delay send a copy to the applicant, or applicants, in the debtor application.

(6) Where the Accountant in Bankruptcy awards sequestration the certified notice of the determination to be sent by the Accountant in Bankruptcy to the Keeper of the Registers of Scotland for recording in terms of section 14(1A) of the 1985 Act(4) must be in Form 20 and the certification is to be by the Accountant in Bankruptcy, Depute Accountant in Bankruptcy or any other person authorised by the Accountant in Bankruptcy to certify the notice of the determination on behalf of the Accountant in Bankruptcy.

(7) A certified notice containing an electronic signature, in a form to be agreed between the Accountant in Bankruptcy and the Keeper of Registers of Scotland, of a determination referred to in paragraph (6) may be sent by the Accountant in Bankruptcy to the Keeper of the Registers of Scotland electronically(5).

Commencement Information

I5 Reg. 5 in force at 1.4.2015, see reg. 1

Sequestration where debtor has few assets (“Minimal Asset Process”): prescribed payments S

6.—(1) The payments specified in paragraph (2) are prescribed for the purposes of section 5(2ZA)(a)(ii) of the 1985 Act(6) (criteria for sequestration where debtor has few assets).

(2) Where the debtor has no other income (than from any of these payments) at the date of making his or her debtor application—

(a) universal credit under Part 1 of the Welfare Reform Act 2012(7);

(b) another income-related benefit (as defined in section 191 of the Social Security Administration Act 1992(8));

(c) an income-based jobseeker’s allowance, as defined by section 1(4) of the Jobseekers Act 1995(9);

(d) state pension credit under the State Pension Credit Act 2002(10);

(e) child tax credit under the Tax Credits Act 2002(11); or

(f) an income-related allowance under Part 1 of the Welfare Reform Act 2007(12) (employment and support).

Commencement Information

I6 Reg. 6 in force at 1.4.2015, see reg. 1

Debt advice and information package S

7.—(1) Subject to paragraph (2) the time prescribed for the purposes of section 5(2D) of the 1985 Act(13) is not less than 14 days before the presentation of the petition and not more than 12 weeks before the presentation of the petition.

(2) The requirement to provide the debtor with a debt advice and information package in section 5(2D) of the 1985 Act does not apply where it is averred that the address of the debtor is not known(14).

Commencement Information

I7 Reg. 7 in force at 1.4.2015, see reg. 1

Application of the 1985 Act to limited partnerships S

8.—(1) The application of the 1985 Act to the sequestration of the estate of a limited partnership is subject to the modifications specified in this regulation.

(2) Any reference in the 1985 Act or in legislation made under that Act (unless the context suggests otherwise) to a partnership (other than in section 6(1)) or to a firm shall be construed as including a reference to a limited partnership.

(3) In the application of section 9 of the 1985 Act(15) to limited partnerships—

(a) the Accountant in Bankruptcy has jurisdiction if a limited partnership is registered in Scotland and has a place of business in Scotland; and

(b) the sheriff has jurisdiction if a limited partnership is registered in Scotland and has a place of business within the sheriff’s sheriffdom.

(4) Without prejudice to the provisions of sections 14(1), 15(5) and 17(8) of the 1985 Act(16), the sheriff clerk must send a copy of every court order mentioned in those sections to the Registrar of Limited Partnerships in Scotland.

(5) In the case of a debtor application by a limited partnership, the Accountant in Bankruptcy must send a copy of the determination to the Registrar of Limited Partnerships in Scotland(17).

Commencement Information

I8 Reg. 8 in force at 1.4.2015, see reg. 1

Apparent Insolvency/Creditor Debt Threshold S

9.  The sum prescribed for the purposes of section 7(1)(d) of the 1985 Act(18) is £1500(19).

Commencement Information

I9 Reg. 9 in force at 1.4.2015, see reg. 1

Claims in foreign currency S

10.  A creditor may state the amount of that creditor’s claim in a foreign currency for the purposes of section 22(6), or that section as applied by section 48(7), of the 1985 Act(20),—

(a) where the claim is constituted by decree or other order made by a court ordering the debtor to pay to the creditor a sum expressed in a foreign currency; or

(b) where the claim is not so constituted, it arises from a contract or bill of exchange in terms of which payment is or may be required to be made by the debtor to the creditor in a foreign currency(21).

Commencement Information

I10 Reg. 10 in force at 1.4.2015, see reg. 1

Conversion of foreign currency claims S

11.  For the purposes of sections 23(1)(a) and 49(3) of the 1985 Act(22), the manner of conversion into Sterling of the amount of a claim stated in foreign currency is to be at the rate of exchange for that currency at the mean of the buying and selling spot rates prevailing at the close of business on the date of sequestration in the London market as published in any national newspaper(23).

Commencement Information

I11 Reg. 11 in force at 1.4.2015, see reg. 1

Trustee resignation application S

12.  An application under section 28(1) of the 1985 Act(24) by a trustee for authority to resign must be in Form 21(25).

Commencement Information

I12 Reg. 12 in force at 1.4.2015, see reg. 1

Abandonment of heritable property by trustee S

13.—(1) Where a trustee (other than the Accountant in Bankruptcy) has abandoned to the debtor any heritable property, notice of abandonment for the purposes of section 32(9A) of the 1985 Act(26) must be in Form 22.

(2) Where a trustee, being the Accountant in Bankruptcy, abandons any heritable property in the circumstances referred to in paragraph (1), notice of abandonment must be in Form 23.

(3) The certified copy of that notice of abandonment sent under section 32(9B)(27) of the 1985 Act may be sent electronically by the Accountant in Bankruptcy to the Keeper of the Registers of Scotland containing an electronic signature in a form to be agreed between the Accountant in Bankruptcy and the Keeper of Registers of Scotland.

(4) The Accountant in Bankruptcy, Depute Accountant in Bankruptcy or any other person authorised by the Accountant in Bankruptcy must certify that copy on behalf of the Accountant in Bankruptcy(28).

Commencement Information

I13 Reg. 13 in force at 1.4.2015, see reg. 1

Debtor contribution orders S

14.—(1) A debtor contribution order under section 32A(1)(a) of the 1985 Act(29) must be in Form 24.

(2) A debtor contribution order under section 32A(1)(b) of the 1985 Act must be in Form 25.

Commencement Information

I14 Reg. 14 in force at 1.4.2015, see reg. 1

Notice by trustee of proceedings to obtain authority in relation to debtor’s family home S

15.  A notice by a trustee, or by a trustee acting under a trust deed, for the purposes of section 40(3A) of the 1985 Act(30) must be in Form 26(31).

Commencement Information

I15 Reg. 15 in force at 1.4.2015, see reg. 1

Debtor’s requirement to give account of state of affairs S

16.  A debtor’s account of that debtor’s current state of affairs for the purposes of section 43A(2) of the 1985 Act(32) must be in Form 27(33).

Commencement Information

I16 Reg. 16 in force at 1.4.2015, see reg. 1

Financial education S

17.  The course of financial education prescribed for the purposes of section 43B(1) of the 1985 Act(34) is—

(a) the Scottish Financial Education Module learning materials divided into sections and published under that title by Money Advice Scotland(35); or

(b) all of the sections of that Module except for any section where the debtor’s circumstances indicate the debtor does not require financial education on the topic of that section, in relation to any of the following topics—

(i) budgeting and financial planning;

(ii) saving;

(iii) borrowing;

(iv) insurance;

(v) tax;

(vi) financial life stages (financial considerations in relation to renting or buying a home, having a baby and loss of employment);

(vii) welfare benefits.

Commencement Information

I17 Reg. 17 in force at 1.4.2015, see reg. 1

Interest on claims in sequestration S

18.  The prescribed rate of interest for the purposes of section 51(7)(a) of the 1985 Act (interest on preferred debts and ordinary debts between the date of sequestration and the date of payment of the debt) is 8 per cent per annum(36).

Commencement Information

I18 Reg. 18 in force at 1.4.2015, see reg. 1

Certificate of deferral S

19.  A certificate deferring indefinitely the discharge of the debtor under section 54D(4)(b) or (6)(b)(37) must be in Form 28.

Commencement Information

I19 Reg. 19 in force at 1.4.2015, see reg. 1

Premium of bond of caution S

20.  Any premium (or a proportionate part of any premium) of any bond of caution or other security required to be given by an insolvency practitioner in respect of the practitioner’s actings as interim trustee or trustee in any sequestration in which the practitioner is elected or appointed may be taken into account as part of that practitioner’s outlays in that sequestration(38).

Commencement Information

I20 Reg. 20 in force at 1.4.2015, see reg. 1

Preference for remuneration of employees, etc. S

21.  The prescribed amount for the purposes of paragraphs 5(1) and 6 of Schedule 3 to the 1985 Act (the maximum amount which can be claimed as a preferred debt by an employee by way of remuneration or by a person under the Reserve Forces (Safeguard of Employment) Act 1985(39)) is £800(40).

Commencement Information

I21 Reg. 21 in force at 1.4.2015, see reg. 1

Moratorium on diligence S

Moratorium on diligence: notice of intention to apply S

22.—(1) A notice given by a person for the purposes of section 4A(1) of the 1985 Act(41) (notice of intention to apply: debtor application etc.) must be in Form 29.

(2) A notice given by a person for the purposes of section 4B(1) of the 1985 Act(42) (notice of intention to apply: sequestration of estate under section 6) must be in Form 30.

Commencement Information

I22 Reg. 22 in force at 1.4.2015, see reg. 1

Revocations and sequestration before 1st April 2015 S

Revocations S

23.  The following provisions are revoked, subject to regulation 24—

(a) regulations 3 to 7 and 9 to 22 of, and the Schedule to, the Bankruptcy (Scotland) Regulations 2008(43);

(b) the Bankruptcy (Scotland) Amendment Regulations 2008(44); and

(c) regulation 3 of, and Schedules 1 and 2 to, the Bankruptcy (Scotland) Amendment Regulations 2010(45).

Commencement Information

I23 Reg. 23 in force at 1.4.2015, see reg. 1

Sequestration before 1st April 2015 S

24.—(1) Except as mentioned in paragraph (2)—

(a) these Regulations have no effect as regards any sequestration in respect of which—

(i) the petition is presented before 1st April 2015; or

(ii) a debtor application was made before that date; and

(b) the Regulations revoked by regulation 23, as in force immediately before 1st April 2015, continue to apply and have effect in relation to any such sequestration.

(2) Paragraph (1) does not apply to—

(a) Form 6(46);

(b) regulation 4 of, and Schedule 2 to, these Regulations.

(3) Notwithstanding paragraph (2)(b), no requirement for the register of insolvencies to contain particulars is to require the particulars of any event which occurred before 1st April 2015 to be contained in the register.

Commencement Information

I24 Reg. 24 in force at 1.4.2015, see reg. 1

FERGUS EWING

Authorised to sign by the Scottish Ministers

St Andrew’s House,

Edinburgh

20th August 2014

Prospective

Regulation 3

SCHEDULE 1 S FORMS

LIST OF FORMS TO BE USED S

Form	Purpose	Relevant provision of the Regulations
1	Statement of Undertakings	Regulation 3
2	Statutory Demand for Payment of Debt	Regulation 3
3	Oath By Creditor	Regulation 3
4	Statement of Assets and Liabilities Petition by creditor or trustee under a trust deed	Regulation 3
5	Statement of Claim by Creditor	Regulation 3
6	Notice by Trustee: Public Examination of the Debtor or a Relevant Person	Regulation 3
7	Debtor Certificate of Discharge (where The Accountant in Bankruptcy is not the trustee)	Regulation 3
8	Debtor Certificate of Discharge (where The Accountant in Bankruptcy is not the trustee)	Regulation 3
9	Debtor Certificate of Discharge (debtor to whom section 5(2ZA) applies)	Regulation 3
10	Deferral Notice	Regulation 3
11	Application for Deferral	Regulation 3
12	Trustee Application for Authority to Resign Office: debtor not traced	Regulation 3
13	Notice granting Trustee Authority to Resign Office	Regulation 3
14	Debtor Application	Regulation 5
15	Debtor Application (Trust, Partnership etc.)	Regulation 5
16	Statement of Assets and Liabilities (Trusts, Partnerships etc.)	Regulation 5
17	Form of Undertaking to act as Trustee in Sequestration on the Application of a Debtor	Regulation 5
18	Form of Schedule of Award of Sequestration on Application by Debtor or Executor	Regulation 5
19	Form of Refusal of Award of Sequestration	Regulation 5
20	Notice of Award of Sequestration to the Keeper of the Registers of Scotland	Regulation 5
21	Trustee Application for Authority to Resign Office as Trustee in Sequestration	Regulation 12
22	Notice of Abandonment of Heritable Property by Trustee in Sequestration where the Accountant in Bankruptcy is not the Trustee	Regulation 13
23	Notice of Abandonment of Heritable Property where the Accountant in Bankruptcy is the Trustee	Regulation 13
24	Debtor Contribution Order (Debtor Application)	Regulation 14
25	Debtor Contribution Order (Petition for Sequestration)	Regulation 14
26	Notice by Trustee of Proceedings to Obtain Authority in Relation to Debtor’s Family Home	Regulation 15
27	Debtor’s Account of Current State of Affairs	Regulation 16
28	Certificate of Deferral of Discharge	Regulation 19
29	Moratorium – Notice of Intention to Apply	Regulation 22
30	Moratorium – Notice of Intention to Apply (Trust, Partnership, etc.)	Regulation 22

Regulation 4

SCHEDULE 2 S REGISTER OF INSOLVENCIES

Commencement Information

I25 Sch. 2 in force at 1.4.2015, see reg. 1

• A. Moratorium

  • Notice of intention to apply – moratorium on diligence(47) (where applicable)

• B. Sequestrations

  • Name of debtor

  • Debtor’s date of birth (where known)

  • Debtor’s residence and any former residence within the past 5 years and principal place of business (if any) at date of sequestration or date of death

  • Date of death in case of deceased debtor

  • Occupation of debtor

  • Whether sequestration awarded by sheriff or by Accountant in Bankruptcy

  • Date of any order converting protected trust deed to sequestration

  • Whether sequestration under paragraph 1 of Schedule A1 to the 1985 Act (the Minimal Asset Process (“MAP”))

  • Name and address of petitioner for sequestration (where applicable)

  • Court by which sequestration awarded (where applicable)

  • Date of presentation of petition (where applicable)

  • Date of first order (where applicable)

  • Date of award of sequestration

  • Particulars of petition for recall of sequestration(48) (where applicable)

  • Date of recall of sequestration (where applicable)

  • Name and address of trustee and date of appointment

  • Level of debt when trustee’s statement of debtor’s affairs is produced

  • Level of assets when trustee’s statement of debtor’s affairs is produced

  • Name and address of trustee (or replacement trustee) and date of confirmation of appointment

  • Particulars of notice of public examination of debtor or relevant person(49) (where applicable)

  • If the MAP ceases to apply

  • Issue of certificate deferring debtor’s discharge indefinitely(50) (where applicable)

  • Particulars of any application for removal of trustee(51) and any order removing trustee or declaring office vacant

  • Date of debtor’s discharge and whether on composition or by operation of law

  • Date of trustee’s discharge(52) and of any decision to grant or refuse certificate of discharge

  • Period of any MAP bankruptcy credit restriction following discharge(53)

• C. Protected trust deeds for creditors

  • Name and address of granter of trust deed

  • Granter’s date of birth (where known)

  • Address of the centre of main interests and all establishments, within the meaning of the Council Regulation (EC) No 1346/2000, of the granter of the trust deed, unless the granter of the trust deed is an undertaking as described in Article 1(2) of the said Council Regulation

  • Whether the protected trust deed is considered to be main or territorial proceedings within the meaning of the said Council Regulation

  • The location and nature of any other insolvency proceedings

  • Name and address of trustee under deed

  • Date (or dates) of execution of deed

  • Date on which copy deed and certificate of accession was registered

  • Date of registration of statement indicating how the estate was realised and distributed and certificate to the effect that the distribution was in accordance with the trust deed

  • Date of trustee’s discharge

  • Date of registration of copy of order of court that non-acceding creditor is not bound by trustee’s discharge

• D. Bankruptcy Restrictions Orders, Interim Bankruptcy Restrictions Orders and Bankruptcy Restrictions Undertakings

  • Name of debtor

  • Debtor’s date of birth (where known)

  • Date of sequestration

  • Date of making of bankruptcy restrictions order or interim bankruptcy restrictions order

  • Date of acceptance of bankruptcy restrictions undertaking

  • Date of order varying bankruptcy restrictions order or bankruptcy restrictions undertaking (where applicable)

  • Date of annulment of bankruptcy restrictions order or bankruptcy restrictions undertaking (where applicable)

  • Date of discharge of bankruptcy restrictions undertaking (where applicable)

  • Date bankruptcy restrictions order, interim bankruptcy restrictions order or bankruptcy restrictions undertaking ceased to have effect

• E. Winding up and receivership of business associations

  • Company number

  • Company name

  • Type of proceedings

  • Name of office holder(s)

  • Date of appointment of office holder(s)

  • Date of winding-up order (for compulsory liquidations)

  • Court by which company wound up

Prospective

EXPLANATORY NOTE

(This note is not part of the Regulations)

These Regulations re-enact, with modifications, the Bankruptcy (Scotland) Regulations 2008 (S.S.I. 2008/82) except for regulation 8 of those Regulations. They make provision following amendments to the Bankruptcy (Scotland) Act 1985 (“the 1985 Act”) by the Bankruptcy and Debt Advice (Scotland) Act 2014 (“the 2014 Act”).

Subject to regulation 24 (sequestration before 1st April 2015), these Regulations come into force on 1st April 2015.

Regulation 3 and Schedule 1 provide for the main forms to be used in relation to sequestration.

Regulation 4 makes provision about the register of insolvencies which it is the function of the Accountant in Bankruptcy to maintain (section 1A(1)(b) of the 1985 Act refers).

Regulation 5 makes provision in relation to debtor applications (an application made by a debtor to the Accountant in Bankruptcy for an award of sequestration under the 1985 Act).

Regulation 6 provides for “prescribed payments” of social security benefits as part for the criteria for eligibility for the Minimal Asset Process (“MAP”) where the debtor has few assets under section 5(2ZA) of the 1985 Act.

Regulation 7 makes provision in relation to the requirement in section 5(2D) of the 1985 Act for a debtor to be provided with a debt advice and information package prior to presentation of a petition for sequestration by a qualified creditor or qualified creditors of the debtor.

Regulation 8 makes modifications of the 1985 Act in its application to limited partnerships.

Regulation 9 prescribes £1,500 as the amount of debt a creditor must be owed to establish ‘apparent insolvency’ by an expired statutory demand for payment of debt in terms of section 7(1)(d) of the 1985 Act.

Regulation 10 prescribes the circumstances in which a creditor may state the amount of the creditor’s claim in foreign currency for voting purposes at a statutory meeting and submission of claims to a trustee under sections 22 and 48 of the 1985 Act respectively.

Regulation 11 prescribes the manner in which the trustee is required to convert a creditor’s claim made in foreign currency for the purposes of proceedings at a statutory meeting and the adjudication of creditors’ claims under sections 23 and 49 of the 1985 Act respectively.

Regulation 12 provides for the form of application to be completed by the trustee where the trustee seeks authority to resign office under section 28 of the 1985 Act.

Regulation 13 provides for the form of notice to be given to the debtor under section 32(9A) of the 1985 Act where the trustee has abandoned to the debtor any heritable property included in the debtor’s sequestrated estate.

Regulation 14 makes provision for form of debtor contribution orders under section 32A(1)(a) and (b) of the 1985 Act, added by the 2014 Act to replace income payment orders under section 32(2) of the 1985 Act.

Regulation 15 provides for the form of notice to be given to the local authority by the trustee or a trustee under a trust deed before proceedings are commenced for authority to sell or dispose of any right or interest in the debtor’s family home under section 40 of the 1985 Act.

Regulation 16 provides for the form of a debtor’s current state of affairs to be given under section 43A of the 1985 Act.

Regulation 17 provides for the courses of financial education which a debtor may be required to undertake by the trustee under section 43B(1) of the 1985 Act.

Regulation 18 prescribes 8% per annum as the rate of interest to be paid on the preferred debts and the ordinary debts between the date of sequestration and the date of payment of the debt for the purposes of section 51 of the 1985 Act (order of priority in distribution of the debtor’s estate).

Regulation 19 provides for the form of certificate under section 54D(4)(b) or (6)(b) deferring indefinitely the discharge of the debtor.

Regulation 20 provides that the premium of any bond of caution or other security given by an insolvency practitioner in relation to acting as interim trustee or trustee may be taken into account as part of the insolvency practitioner’s outlays in the sequestration.

Regulation 21 restates the prescription of £800 as the maximum amount which may be claimed as a preferred debt by an employee by way of remuneration or by a person under the Reserve Forces (Safeguard of Employment) Act 1985 (paragraphs 5 and 6 of Schedule 3 to the 1985 Act refer). In restating the law on reserved matters by virtue of paragraph 7 of Schedule 4 to the Scotland Act 1998 (c.46) the law as restated remains reserved law.

Regulation 22 provides for forms of notice to be given by a person for the purposes of sections 4A and 4B of the 1985 Act to trigger the moratorium on diligence having effect under sections 4C and 4D of the 1985 Act.

Regulation 23 revokes the relevant parts of S.S.I. 2008/82 and amending instruments, subject to regulation 24. These Regulations do not except as provided for in regulation 24 apply to sequestrations where the creditor petition for sequestration was presented before 1st April 2015 or the debtor application for sequestration was received by the Accountant in Bankruptcy before that date.

A Business and Regulatory Impact Assessment has been prepared for these Regulations. Copies can be obtained from the Accountant in Bankruptcy’s website: http://www.aib.gov.uk.

(1)

1985 c.66. Sections 1, 1A, 1B, 1C and 1D were substituted for section 1 by the Bankruptcy (Scotland) Act 1993 (c.6) (“the 1993 Act”), section 1. Section 1A(1)(b) was amended by the Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3) (“the 2007 Act”), schedule 6, the Bankruptcy and Debt Advice (Scotland) Act 2014 (asp 11) (“the 2014 Act”), section 22 and schedule 3, paragraph 3 and by S.I. 1999/1820. Section 1A(5) was inserted by the 2014 Act, section 22. Section 2(8) was inserted by the 2014 Act, section 9. Section 5(2ZA) was inserted by the 2014 Act, section 5. Section 5(2D) was inserted by the 2007 Act, section 26. Section 5(6A) was substituted by the 2007 Act, schedule 1, paragraph 4 and is applied for the purposes of section 6 by section 6(8) which was amended by the 2007 Act, section 14 and the 2014 Act, schedule 3, paragraph 6. Section 7(1) was amended by the Criminal Justice (Scotland) Act 1987 (c.41), section 45, the Criminal Justice Act 1988 (c.33), Schedule 15, paragraph 108, the Drug Trafficking Act 1994 (c.37), Schedule 1, paragraph 10 and Schedule 3, the Proceeds of Crime Act 2002 (c.29), Schedule 11, paragraph 15, the 2007 Act, schedule 6, the 2014 Act, schedule 3, paragraph 7 and by S.I. 2003/2109 and S.S.I. 2011/141. Section 11(1) was amended by the 2007 Act, schedule 1, paragraph 9. Section 19 was substituted by the 1993 Act, Schedule 1, paragraph 7 and section 19(2) was amended by the 2007 Act, schedule 1, paragraph 17 and schedule 6. Section 22(2) was amended by the 2007 Act, schedule 6. Section 22(2)(a) is applied, with modifications, for the purposes of section 48 by section 48(3) which was amended by the 2007 Act, schedule 6. Section 22(6) is applied, with modifications, for the purposes of section 48 by section 48(7) which was amended by the 2007 Act, schedule 6 and the 2014 Act, schedule 3, paragraph 24. Section 23(1) was amended by the 2007 Act, schedule 6. Section 32(9A) was inserted by the 2007 Act, section 19. Section 40(3B) was inserted by the Home Owner and Debtor Protection (Scotland) Act 2010 (asp 6) (“the 2010 Act”), section 11. Section 43A was inserted by the 2007 Act, section 30 and was amended by the 2014 Act, schedule 3, paragraph 22. Section 43B was inserted by the 2014 Act, section 2. Section 45(3) was amended by the 2007 Act, schedule 6 and the 2014 Act, section 24. Section 49(3) was amended by the 2007 Act, schedule 6. Sections 54 and 54A were substituted for section 54 by the 2014 Act, section 17. Section 54C was inserted by the 2014 Act, section 7. Sections 54D and 54E were inserted by the 2014 Act, section 19. Section 69 was amended by the 2007 Act, schedule 1, paragraph 58 and schedule 6. Section 71C was inserted by the 2014 Act, section 36. Section 72(1A) was inserted by the 2014 Act, schedule 3, paragraph 34(a). The definition of “statement of assets and liabilities” was inserted into section 73(1) by the 1993 Act, Schedule 1, paragraph 29. Section 73(1) contains a definition of “prescribed” relevant to the exercise of the statutory powers under which these Regulations are made. The functions of the Secretary of State so far as exercisable within devolved competence were transferred to the Scottish Ministers by section 53 of the Scotland Act 1998 (c.46).

(2)

2000 c.7. Section 15 of the Electronic Communication Act 2000 contains a definition of “electronic communication”.

(3)

Sections 1, 1A, 1B, 1C and 1D were substituted for section 1 by the 1993 Act, section 1. Section 1A(1)(b) was amended by the 2007 Act, schedule 6, the 2014 Act, section 22 and schedule 3, paragraph 3 and by S.I. 1999/1820.

(4)

Section 14(1A) was inserted by the 2007 Act, schedule 1, paragraph 12.

(5)

This regulation re-enacts, with modifications, regulation 14 of the Bankruptcy (Scotland) Regulations 2008 (S.S.I. 2008/82) (“the 2008 Regulations”) as amended by S.S.I. 2010/367.

(6)

Section 5(2ZA) was inserted by the 2014 Act, section 5.

(7)

2012 c.5.

(8)

1992 c.5. This definition, and the relevant provisions are repealed by Part 1 of Schedule 14 to the Welfare Reform Act 2012 (c.5) subject to saving and transitional provisions.

(9)

1995 c.18, repealed by Part 1 of Schedule 14 to the Welfare Reform Act 2012 (c.5), subject to saving and transitional provisions.

(10)

2002 c.16.

(11)

2002 c.21.

(12)

2007 c.5.

(13)

Section 5(2D) was inserted by the 2007 Act, section 26.

(14)

This regulation re-enacts regulation 12 of the 2008 Regulations.

(15)

Section 9 was amended by the 2007 Act, section 14, section 16 and schedule 1, paragraph 7, the 2014 Act, schedule 3, paragraph 8 and by S.I. 2003/2109.

(16)

Section 14(1) was amended by the 2007 Act, schedule 1, paragraph 12, the 2014 Act, schedule 3, paragraph 11 and by S.S.I. 2004/468, S.S.I. 2011/141 and S.S.I. 2013/225. Section 15(5) was amended by the 2007 Act, section 16 and by S.S.I. 2011/141. Section 17(8) was amended by the 2007 Act, section 16 and schedule 6 and the 2014 Act, section 26, schedule 3, paragraph 14 and schedule 4.

(17)

This regulation re-enacts regulation 9 of the 2008 Regulations.

(18)

Section 7(1) was amended by the Criminal Justice (Scotland) Act 1987 (c.41), section 45, the Criminal Justice Act 1988 (c.33), Schedule 15, paragraph 108, the Drug Trafficking Act 1994 (c.37), Schedule 1, paragraph 10 and Schedule 3, the Proceeds of Crime Act 2002 (c.29), Schedule 11, paragraph 15, the 2007 Act, schedule 6, the 2014 Act, schedule 3, paragraph 7 and by S.I. 2003/2109 and S.S.I. 2011/141.

(19)

This regulation re-enacts regulation 13 of the 2008 Regulations.

(20)

Section 48(7) was amended by the 2007 Act, schedule 6 and the 2014 Act, schedule 3, paragraph 24.

(21)

This regulation re-enacts regulation 4 of the 2008 Regulations.

(22)

Section 23(1) and section 49(3) were amended by the 2007 Act, schedule 6.

(23)

This regulation re-enacts regulation 5 of the 2008 Regulations.

(24)

Section 28(1) was amended by the 1993 Act, Schedule 1, paragraph 17 and the 2007 Act, section 9 and schedule 1, paragraph 28.

(25)

This regulation re-enacts regulation 17 of the 2008 Regulations.

(26)

Section 32(9A) was inserted by the 2007 Act, section 19.

(27)

Section 32(9B) was inserted by the 2014 Act, section 19.

(28)

This regulation re-enacts regulation 19 of the 2008 Regulations.

(29)

Section 32A was inserted by the 2014 Act, section 4.

(30)

Section 40(3A) was inserted by the 2010 Act, section 11 and the 2014 Act, section 49.

(31)

This regulation re-enacts regulation 19A of the 2008 Regulations. Regulation 19A of the 2008 Regulations was inserted by S.S.I. 2010/367.

(32)

Section 43A was inserted by the 2007 Act, section 30 and was amended by the 2014 Act, Schedule 3, paragraph 22.

(33)

This regulation re-enacts regulation 20 of the 2008 Regulations.

(34)

Section 43B was inserted by the 2014 Act, section 2.

(35)

Money Advice Scotland is a company registered in Scotland with registered number SC137717, registered charity in Scotland registration number SC005663. The Scottish Financial Education Module is available at http://www.moneyadvicescotland.org.uk/.

(36)

This regulation re-enacts regulation 6 of the 2008 Regulations.

(37)

Section 54D was inserted by the 2014 Act, section 19.

(38)

This regulation re-enacts regulation 7 of the 2008 Regulations.

(39)

1985 c.17.

(40)

This regulation re-enacts regulation 10 of the 2008 Regulations.

(41)

Section 4A was inserted by the 2014 Act, section 8.

(42)

Section 4B was inserted by the 2014 Act, section 8.

(43)

S.S.I. 2008/82 as amended by S.S.I. 2008/334 and S.S.I. 2010/367.

(44)

S.S.I. 2008/334.

(45)

S.S.I. 2010/367.

(46)

Form 6 (Notice by Trustee: Public Examination of the Debtor or a Relevant person) is the form prescribed for the purpose of section 45(3)(a) of the 1985 Act. Section 45 of the 1985 Act was amended by the 2007 Act, schedule 6 and the 2014 Act, section 24(2).

(47)

As provided for in section 4A(1) or 4B(1) of the 1985 Act.

(48)

As provided for in section 16(3) of the 1985 Act.

(49)

As provided for in section 45(3A) of the 1985 Act.

(50)

As provided for in section 54D (7) of the 1985 Act.

(51)

As provided for in section 29(2)(b) of the 1985 Act.

(52)

As required by section 57(6) of the 1985 Act.

(53)

Under section 55A or 55B of the 1985 Act.