Search Legislation

The Bankruptcy (Applications and Decisions) (Scotland) Regulations 2014

 Help about what version

What Version

  • Latest available (Revised)
  • Original (As made)

Status:

This is the original version (as it was originally made). This item of legislation is currently only available in its original format.

PART 1Introductory

Citation and commencement

1.—(1) These Regulations may be cited as the Bankruptcy (Applications and Decisions) (Scotland) Regulations 2014.

(2) They come into force on 1st April 2015.

Interpretation

2.—(1) In these Regulations—

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

“the Accountant” means the Accountant in Bankruptcy; and

“review application” has the meaning given by regulation 20(1).

(2) Any reference in these Regulations—

(a)to a form is to be construed as a reference to the form so numbered in the Schedule or a form substantially to the same effect, with such variation as circumstances may require;

(b)to a time when an application is made is to be construed as a reference to the time when the application is received by the Accountant.

PART 2Applications: general

Applications

3.—(1) Any application to the Accountant under the Act for which a Form is prescribed by these Regulations (including a review application) may be made—

(a)by personal delivery;

(b)by being sent to the address of the Accountant at 1 Pennyburn Road, Kilwinning, Ayrshire, KA13 6SA—

(i)by a registered post service (as defined in section 125(1) of the Postal Services Act 2000(1)); or

(ii)by a postal service which provides for the delivery of the document to be recorded;

(c)by email or using the computer system provided by the Accountant for that purpose; or

(d)by such other means as the Accountant may agree to.

(2) Such an application must specify the name and address of the applicant, and (where relevant) the details of the applicant’s representative.

Application form: first instance applications to the Accountant in Bankruptcy

4.—(1) An application to the Accountant under the following provisions of the Act must be made in writing in Form 1 (application to Accountant in Bankruptcy: general)—

(a)section 17A(1) (recall of sequestration: where the only ground is that the debtor has paid or is able to pay debts in full))(2);

(b)section 25(3)(a) (objection to election of replacement trustee)(3);

(c)section 28A(7)(a) (trustee replacement in more than one sequestration)(4);

(d)section 29(1A)(a) (removal of trustee)(5);

(e)section 29(6A)(a) (declaration of office of trustee as vacant)(6);

(f)section 42(2A)(b) (contractual powers of trustee)(7);

(g)section 56E(3) (annulment or variation of bankruptcy restrictions order)(8);

(h)section 63A(2)(a) (power of Accountant in bankruptcy to cure defects in procedure)(9); and

(i)paragraph 3(2)(b) of Schedule 1 (valuing contingent debts)(10).

(2) Form 1 must also be used (where the Accountant is the applicant or trustee) for—

(a)representations under section 28A(10) of the Act (trustee replacement in more than one sequestration); and

(b)representations under section 63A(5) of the Act (curing defect in procedure).

Application procedure: first instance applications to the Accountant in Bankruptcy

5.—(1) This regulation applies to any application (except a review application) under the Act for which a Form is prescribed by these Regulations.

(2) A copy of such an application must, before the application is made, be sent by the applicant—

(a)to any person specified in the Act as a person—

(i)to be notified of the application;

(ii)able to make representations in relation to the application; or

(iii)able to review or appeal the decision on that application; and

(b)to any other interested person.

(3) Under paragraph (2), the application must be sent to the proper address of the person—

(a)by a registered post service (as defined in section 125(1) of the Postal Services Act 2000); or

(b)by a postal service which provides for the delivery of the document to be recorded.

(4) An applicant required to send an application under paragraph (2), or ordered to serve an application by the Accountant under the Act or paragraph (6), must inform the recipient in writing that the person has the right to make representations to the Accountant in relation to the application before the expiry of any period provided for in the Act or paragraph (10).

(5) The applicant must, if requested to do so by the Accountant, provide the Accountant with evidence of delivery of that application to the persons to whom it has been delivered.

(6) The Accountant may require the application to be sent by the applicant to such persons as the Accountant deems appropriate.

(7) Where an application is incomplete it may be rejected by the Accountant.

(8) Where an application is unopposed it must be granted without the attendance of parties, unless the Accountant directs otherwise.

(9) Any representations made under the Act by any person in relation to an application must be made in writing by any means by which an application may be made (see regulation 3(1)).

(10) Where no time limit for such representations is specified in the Act or these Regulations, the representations must be made before the expiry of the period of 14 days beginning with the day on which the application was made.

(11) Paragraphs (2) to (4) and (9) do not apply to the extent that equivalent provision is made in the Act or these Regulations, or service is ordered by the Accountant under a provision of the Act.

(12) In paragraph (3) the “proper address” of a person means—

(a)in the case of a body corporate, the address of the registered or principal office of the body;

(b)in the case of a partnership, the address of the principal office of the partnership;

(c)in any other case, the last known address of the person.

Inquiries

6.—(1) This regulation applies where in relation to any application (including a review application) required to be on a form under these Regulations or any representation under the Act the Accountant considers that—

(a)further information is required in relation to the application or representation; or

(b)further evidence is required to substantiate any fact relevant to the application or representation.

(2) The Accountant may before any date set out in the Act for the decision of the Accountant specify by notice in writing—

(a)any further information which is to be provided; and

(b)any further evidence which is to be provided,

within 21 days from the date of sending that notice or such shorter period as may be specified in the notice.

(3) Where a notice is given under paragraph (2)—

(a)any time limit set out in the Act for the decision of the Accountant is extended by the period specified in the notice; and

(b)if the information or evidence specified is provided to the Accountant, the period allowed for the decision of the Accountant after the date on which it is provided is the greater of—

(i)the unexpired days before the original time limit would have elapsed (ignoring its extension) after the date on which that notice was given; or

(ii)a period of 7 days.

(4) The Accountant may refuse to consider an application if, after the expiry of the period specified under paragraph (2), the Accountant considers that the applicant has provided insufficient information or evidence specified under that paragraph.

(5) Where the Accountant has set any time limit for the giving of written evidence under these Regulations, the Accountant must not consider any written evidence which is not given in accordance with those time limits unless satisfied that there is good reason to do so.

Further evidence

7.—(1) The Accountant may, if satisfied there is a good reason to do so following written representations, or evidence or information in response to inquiries, in respect of an application for which a form is required under these Regulations (other than a review application) require in writing any person making an application or representations—

(a)to attend a hearing, at such time and place as the Accountant may specify, for the purposes of giving evidence;

(b)to give the Accountant, by such day as the Accountant may specify, such documents or information as the Accountant may reasonably require.

(2) Paragraph (1) does not authorise the Accountant to require any person to answer any question or to disclose anything which the person would be entitled to refuse to answer or disclose on grounds of confidentiality in civil proceedings in the Court of Session.

(3) The Accountant may determine such further procedure in relation to the hearing as the Accountant considers appropriate.

(4) Where a person is required to attend or give documents or information under paragraph (1)—

(a)any time limit set out in the Act for the decision of the Accountant is extended until the date of the hearing or the day specified, as the case may be; and

(b)following the date of the hearing or the day specified, as the case may be, the period allowed for the decision of the Accountant is the greater of——

(i)the unexpired days before that time limit would have elapsed (ignoring its extension) after the date on which the person was required by the Accountant to attend the hearing or give documents or information under paragraph (1); or

(ii)a period of 7 days.

PART 3Specific applications

Application for direction by trustee

8.—(1) An application to the Accountant under section 3A(2) of the Act (application for direction)(11) must be made in writing in Form 2.

(2) Where an application is made under that subsection, the Accountant must before the expiry of the period of 28 days beginning with the day on which the application is made—

(a)give a direction; or

(b)refer the matter to the sheriff under section 3A(3) of the Act.

Recall of sequestration by Accountant in Bankruptcy

9.—(1) Where the statement of the debtor’s affairs is not submitted in accordance with section 17B(3)(a) of the Act (recall where the only ground is that the debtor has paid or is able to pay debts in full)(12), the application is not to be considered by the Accountant until it is submitted.

(2) Where paragraph (1) applies the Accountant may make inquiries under regulation 6.

(3) The Accountant must send to the persons listed in section 17A(2) of the Act a copy of the Accountant’s decision under section 17D(1) or 17E(6) of the Act.

(4) The Accountant must send with any notification under section 17E(2) of the Act (recall where the only ground is that debtor has paid or is able to pay the debtor’s debts in full: Accountant acting as trustee)(13)—

(a)a statement of the debtor’s affairs; and

(b)a copy of the application for recall,

and advise the recipients of the period for making representations under section 17E(5)(a) of the Act.

(5) Where the Accountant gives notification under section 17E(2) of the Act, the Accountant must also notify any other interested person, informing the recipient that the person has the right to make representations to the Accountant in relation to the application before the expiry of the period of 21 days beginning with the day on which the notice is given.

(6) Where recall is under consideration (including on a review application), and sequestration is recalled by the Accountant, the Accountant must at that time consider whether to annul under section 56J(4) of the Act(14) any bankruptcy restrictions order (or interim order) in effect in relation to the debtor.

(7) Where an original review decision is amended or revoked on review, the Accountant must send a certified copy of the revised decision to the Keeper of the Register of Inhibitions for recording in that register.

Appointment of replacement trustee

10.—(1) A report to the Accountant under section 25(2)(a) of the Act(15) of a statutory meeting appointing a replacement trustee must be made in writing in Form 4.

(2) If the Accountant declares an elected person to be trustee under section 25(5) of the Act, the Accountant must send a copy of the decision to the original trustee and the replacement trustee.

(3) Where the Accountant gives an opportunity to make representations under section 25A(2) of the Act (on receiving an objection), the Accountant must—

(a)notify the original and replacement trustees, the objector and any other interested person; and

(b)advise those persons that written submissions under section 25A(2) must be made before the expiry of the period of 14 days beginning with the date on which the notification was given.

(4) The Accountant must notify the original and replacement trustees, the objector and any other interested person of any declaration or order under section 25A(3) of the Act.

Replacement trustee acting in more than one sequestration

11.  A determination or appointment under section 28A of the Act(16) (replacement trustee acting in more than one sequestration) must be made by the Accountant before the expiry of the period of 14 days following the expiry of the period under section 28A(10) of the Act.

Removal of trustee and trustee not acting

12.—(1) An order under section 29(1)(b) of the Act (removal of trustee from office by the Accountant in Bankruptcy)(17) must be made in writing in Form 5.

(2) Where the trustee has the opportunity to make representations under section 29(2)(c) of the Act(18), the Accountant must allow the period of 21 days beginning with the date on which the copy application was sent under section 29(2)(a) of the Act for those representations.

(3) The Accountant must before the expiry of the period of 14 days beginning after the expiry of that period of 21 days—

(a)decide whether to remove or refuse to remove the trustee (or make any other order) under section 29(1)(b) or (3)(19) of the Act; or

(b)refer the matter to the sheriff under section 29(6I)(a) of the Act(20).

(4) Before making any declaration or order under section 29(6) of the Act(21), the Accountant must give the trustee an opportunity to make representations.

(5) In the case of an application under section 29(6A)(a) of the Act, the Accountant must before the expiry of the period of 14 days beginning after the expiry of the period for representations under regulation 5(10)—

(a)decide whether to make any declaration (or any other order) under section 29(6); or

(b)refer the matter to the sheriff under section 29(6I)(a) of the Act.

(6) The Accountant must notify the trustee, the debtor, commissioners or any creditor of any order or decision under section 29(1)(b), (3) or (6) of the Act.

(7) Where a review application is made under section 29, the Accountant must notify any commissioners required to call a meeting under section 29(5) or (6C) of the Act(22).

(8) The requirement to hold that meeting under section 29(5) or (6D)(23) within 28 days—

(a)is extended until the date of the review decision (or any appeal from that decision); and

(b)on that decision (or any appeal from that decision) the period allowed for holding the meeting is the greater of—

(i)the unexpired days before the period specified in section 29(5) or (6D) of the Act would have elapsed (ignoring its extension) after the date on which the review application was made; or

(ii)the period of 28 days.

(9) Where a review decision is made under section 29 of the Act, the Accountant must notify any commissioners required to call a meeting under section 29(5) or (6C) of the Act.

Contractual powers of trustee

13.—(1) Where an application is made under section 42(2A)(b) of the Act (contractual powers of trustee)(24), the Accountant must before the expiry of the period of 14 days beginning with the day on which the application is made—

(a)decide whether to extend the 28 day period for the trustee to adopt or refuse to adopt a contract under section 42(2) of the Act; or

(b)refer the matter to the sheriff under section 42(2E) of the Act.

(2) The Accountant must notify all interested persons—

(a)of any decision of the Accountant on such an application; and

(b)of any direction of the sheriff within 7 days of receipt of that direction.

(3) For the avoidance of doubt, the time limit in paragraph (1) does not apply to any review application.

Bankruptcy restrictions orders: proposal to make an order

14.—(1) The Accountant must allow the period of 14 days beginning with the day on which notice is given under section 56A(3) of the Act (proposal to make bankruptcy restrictions order)(25) for representations by the debtor.

(2) Those representations must be made in writing by any means by which an application may be made (see regulation 3(1)).

(3) Notice under section 56A(3) informing the debtor under section 56A(4) of the Act must also inform the debtor—

(a)of the reasons for proposing to make the order;

(b)of any grounds for proposing an interim bankruptcy restrictions order;

(c)that the representations must be made—

(i)in writing (including by email or using the computer system); and

(ii)before the expiry of 14 days beginning with the date on which the notice was given (or in the case of any proposed interim bankruptcy restrictions order, before the expiry of the period of 2 days beginning with the date on which the notice was given).

(4) The Accountant must make or decide not to make the bankruptcy restrictions order before the expiry of 21 days beginning with the date on which the notice was given.

Bankruptcy restrictions orders: annulment or variation

15.—(1) Where an application is made to the Accountant under section 56E(3) of the Act (to annul or vary a bankruptcy restrictions order)(26), the Accountant must notify all interested persons that those persons have the right to make representations to the Accountant in relation to the application before the expiry of the period of 21 days beginning with the day on which the application is made.

(2) Those representations must be made in writing by any means by which an application may be made (see regulation 3(1)).

(3) Where following recall of sequestration the Accountant refuses under section 56J(4)(27) of the Act to annul a bankruptcy restrictions order, the Accountant must inform the debtor that the debtor has the right to apply to the Accountant for review of that decision before the expiry of the period of 14 days beginning with the day on which the award of sequestration was recalled.

Conversion of protected trust deed into bankruptcy

16.—(1) An application to the Accountant under section 59A(1) of the Act (conversion of protected trust deed into sequestration)(28) must be made in writing in Form 6.

(2) An award under section 59C(1) of the Act (power of Accountant in Bankruptcy: conversion of protected trust deed into sequestration) must be made in writing in Form 7.

(3) Where the Accountant makes, or refuses to make, an order for conversion into sequestration, the Accountant must inform the member State liquidator, the debtor, the trustee and any other person who has been served with a copy of the application and the affidavit.

Power to cure defects

17.  Where the Accountant makes, or refuses to make, under section 63A of the Act (curing defects in procedure)(29) a corrective order or to waive a time limit, the Accountant must notify all interested persons.

Debts depending on contingency

18.  Where the Accountant puts a value on a debt under paragraph 3(2) of Schedule 1 to the Act (debts depending on a contingency)(30), the Accountant must notify the creditor and all other interested persons.

PART 4Reference to sheriff and review by Accountant in Bankruptcy

Reference to sheriff: time limits

19.  Where the Accountant has applied to refer or remit a matter to the sheriff under the Act—

(a)if the sheriff (or a court on appeal from the sheriff) makes any disposal which requires the Accountant to make an order, declaration or decision, the period allowed for the decision of the Accountant is the greater of—

(i)the unexpired days before the time limit set out in the Act for that decision would have elapsed (ignoring its reference or remit) after the date on which the reference or remit was made; or

(ii)a period of 7 days;

(b)if the sheriff’s (or the court’s) disposal has no such requirement, that time limit does not apply.

Review applications

20.—(1) An application for a review by the Accountant under the following provisions of the Act must be made in writing in Form 3—

(a)section 3A(4) (power of direction of trustee)(31);

(b)section 13A(10A) (interim trustee termination)(32);

(c)section 13B(6A) (Accountant in Bankruptcy interim trustee termination)(33);

(d)section 15(3A) (refusal of sequestration on debtor application)(34);

(e)section 17G(1) (recall: only ground that debtor has paid or is able to pay debts in full)(35);

(f)section 18(3A) (interim preservation)(36);

(g)section 25A(5) (appointment of replacement trustee)(37);

(h)section 26A(4A) (Accountant in Bankruptcy to account for intromissions)(38);

(i)section 27(3A) (discharge of original trustee)(39);

(j)section 28B(1) (trustee replacement in more than one sequestration)(40);

(k)section 29(3A) (removal of trustee)(41);

(l)section 29(6E) (removal - declaring vacancy)(42);

(m)section 32C(1) (debtor contribution order)(43);

(n)section 32H(1) (variation and payment break)(44);

(o)section 42(2B) (contractual powers of trustee)(45);

(p)section 49(6) (adjudication of claims)(46);

(q)section 54B(1) (discharge)(47);

(r)section 54G(1) (discharge – subsequent contact)(48);

(s)section 56J(5) (refusal to annul bankruptcy restrictions order);

(t)section 57(3B) (discharge of private trustee)(49);

(u)section 58A(4A) (Accountant in Bankruptcy discharge as trustee)(50);

(v)section 63B(1) (curing defects)(51); and

(w)paragraph 3(3) of Schedule 1 (valuing contingent debts).

(2) A review application must specify—

(a)the decision to be reviewed and its date;

(b)the change sought to the decision; and

(c)the reasons for seeking that change.

(3) When a review application is made to the Accountant, the Accountant must—

(a)without delay send a copy to any person specified in the provision of the Act which provides for the review as a person to be notified, able to make representations or appeal against the review decision; and

(b)advise those persons that they have the period of 21 days beginning with the date specified in the Act to make representations to the Accountant.

(4) Those representations must be made in writing by any means by which an application may be made (see regulation 3(1)).

(5) On making a review decision under the relevant provision of the Act, the Accountant must notify the persons mentioned in paragraph (3)(a) of the Accountant’s decision.

(6) Paragraphs (3) to (5) do not apply to the extent that equivalent provision is made in the Act.

Review proceedings: staff of the Accountant in Bankruptcy

21.—(1) No member of the staff of the Accountant who was involved in a decision under review may be involved in the review decision.

(2) If the Accountant herself or himself was involved in a decision under review, the Accountant must not be involved in any review decision (and is accordingly unable to exercise those functions in which case the Depute Accountant may act in accordance with section 1(2) of the Act(52)).

Review decision

22.  The decision of the Accountant and a statement of reasons on the review application will be made publicly available.

FERGUS EWING

Authorised to sign by the Scottish Ministers

St Andrews House

Edinburgh

20th August 2014

Back to top

Options/Help

Print Options

Close

Legislation is available in different versions:

Latest Available (revised):The latest available updated version of the legislation incorporating changes made by subsequent legislation and applied by our editorial team. Changes we have not yet applied to the text, can be found in the ‘Changes to Legislation’ area.

Original (As Enacted or Made): The original version of the legislation as it stood when it was enacted or made. No changes have been applied to the text.

Close

Opening Options

Different options to open legislation in order to view more content on screen at once

Close

Policy Note

Policy Note sets out a brief statement of the purpose of a Scottish Statutory Instrument and provides information about its policy objective and policy implications. They aim to make the Scottish Statutory Instrument accessible to readers who are not legally qualified and accompany any Scottish Statutory Instrument or Draft Scottish Statutory Instrument laid before the Scottish Parliament from July 2012 onwards. Prior to this date these type of notes existed as ‘Executive Notes’ and accompanied Scottish Statutory Instruments from July 2005 until July 2012.

Close

More Resources

Access essential accompanying documents and information for this legislation item from this tab. Dependent on the legislation item being viewed this may include:

  • the original print PDF of the as enacted version that was used for the print copy
  • lists of changes made by and/or affecting this legislation item
  • confers power and blanket amendment details
  • all formats of all associated documents
  • correction slips
  • links to related legislation and further information resources
Close

More Resources

Use this menu to access essential accompanying documents and information for this legislation item. Dependent on the legislation item being viewed this may include:

  • the original print PDF of the as made version that was used for the print copy
  • correction slips

Click 'View More' or select 'More Resources' tab for additional information including:

  • lists of changes made by and/or affecting this legislation item
  • confers power and blanket amendment details
  • all formats of all associated documents
  • links to related legislation and further information resources