2014 No. 225
The Bankruptcy (Scotland) Regulations 2014
Made
Laid before the Scottish Parliament
Coming into force
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 19851 and all other powers enabling them to do so.
Citation and commencement1
These Regulations may be cited as the Bankruptcy (Scotland) Regulations 2014 and come into force on 1st April 2015.
Interpretation2
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 20002, which has been recorded and is consequently capable of being reproduced.
Forms
Forms3
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.
Register of Insolvencies
Register of Insolvencies4
1
The register of insolvencies maintained by the Accountant in Bankruptcy under section 1A(1)(b) of the 1985 Act3 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.
Sequestration Process
Debtor applications5
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 Act4 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 electronically5.
Sequestration where debtor has few assets (“Minimal Asset Process”): prescribed payments6
1
The payments specified in paragraph (2) are prescribed for the purposes of section 5(2ZA)(a)(ii) of the 1985 Act6 (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 20127;
b
another income-related benefit (as defined in section 191 of the Social Security Administration Act 19928);
c
an income-based jobseeker’s allowance, as defined by section 1(4) of the Jobseekers Act 19959;
d
state pension credit under the State Pension Credit Act 200210;
e
child tax credit under the Tax Credits Act 200211; or
f
an income-related allowance under Part 1 of the Welfare Reform Act 200712 (employment and support).
Debt advice and information package7
1
Subject to paragraph (2) the time prescribed for the purposes of section 5(2D) of the 1985 Act13 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 known14.
Application of the 1985 Act to limited partnerships8
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 Act15 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 Act16, 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 Scotland17.
Apparent Insolvency/Creditor Debt Threshold9
Claims in foreign currency10
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 Act20,—
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 currency21.
Conversion of foreign currency claims11
For the purposes of sections 23(1)(a) and 49(3) of the 1985 Act22, 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 newspaper23.
Trustee resignation application12
Abandonment of heritable property by trustee13
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 Act26 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 Bankruptcy28.
Debtor contribution orders14
1
A debtor contribution order under section 32A(1)(a) of the 1985 Act29 must be in Form 24.
2
A debtor contribution order under section 32A(1)(b) of the 1985 Act must be in Form 25.
Notice by trustee of proceedings to obtain authority in relation to debtor’s family home15
Debtor’s requirement to give account of state of affairs16
Financial education17
The course of financial education prescribed for the purposes of section 43B(1) of the 1985 Act34 is—
a
the Scottish Financial Education Module learning materials divided into sections and published under that title by Money Advice Scotland35; 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.
Interest on claims in sequestration18
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 annum36.
Certificate of deferral19
A certificate deferring indefinitely the discharge of the debtor under section 54D(4)(b) or (6)(b)37 must be in Form 28.
Premium of bond of caution20
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 sequestration38.
Preference for remuneration of employees, etc.21
Moratorium on diligence: notice of intention to apply22
1
A notice given by a person for the purposes of section 4A(1) of the 1985 Act41 (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 Act42 (notice of intention to apply: sequestration of estate under section 6) must be in Form 30.
Revocations23
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 200843;
b
the Bankruptcy (Scotland) Amendment Regulations 200844; and
c
regulation 3 of, and Schedules 1 and 2 to, the Bankruptcy (Scotland) Amendment Regulations 201045.
Sequestration before 1st April 201524
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.
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.
SCHEDULE 1FORMS
LIST OF FORMS TO BE USED
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 |
SCHEDULE 2REGISTER OF INSOLVENCIES
A. Moratorium
Notice of intention to apply – moratorium on diligence47 (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 sequestration48 (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 person49 (where applicable)
If the MAP ceases to apply
Issue of certificate deferring debtor’s discharge indefinitely50 (where applicable)
Particulars of any application for removal of trustee51 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 discharge52 and of any decision to grant or refuse certificate of discharge
Period of any MAP bankruptcy credit restriction following discharge53
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
(This note is not part of the Regulations)