2014 No. 227
The Bankruptcy Fees (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 69A and 72(1A) of the Bankruptcy (Scotland) Act 19851 and all other powers enabling them to do so.
Citation and commencement1
1
These Regulations may be cited as the Bankruptcy Fees (Scotland) Regulations 2014.
2
They come into force on 1st April 2015.
Interpretation2
In these Regulations—
“the 1985 Act” means the Bankruptcy (Scotland) Act 1985;
“bankruptcy restrictions order” means an order made under section 56A of the 1985 Act2;
“debtor who has few assets” means a debtor to whom section 5(2ZA) of the 1985 Act3 applies;
“debtor’s contribution” has the meaning given by section 5D(1) of the 1985 Act4;
“expenses of realisation” means any outlays incurred by the trustee in realising the debtor’s estate which in the course of normal business practice are deducted from the price payable to the trustee;
“member State liquidator” has the meaning given by section 73(1) of the 1985 Act5;
“table of fees” means the Table of Fees in the Schedule;
“statutory fee” means any fee payable under an enactment;
“the statutory meeting” has the meaning given by section 20A of the 1985 Act6;
“trading expenses” means any outlays incurred by the trustee in the carrying on of any business of the debtor;
“trust deed”, where granted before 1st April 1993, means a voluntary trust deed granted by or on behalf of a debtor, whereby the debtor’s estate is conveyed to the trustee for the benefit of the creditors of that debtor generally and, where granted on or after that date, has the meaning assigned by section 5(4A) of the 1985 Act7; and
“trustee vote” is to be construed in accordance with section 24(1) of the 1985 Act8.
Fees and outlays as interim trustee or trustee
3
The fees payable to the Accountant in Bankruptcy in respect of the exercise by, or on behalf of, that office of its functions as interim trustee or trustee in a sequestration, which are specified in column 1 of Part 1 of the table of fees are the fees specified in relation to those functions in column 2 of the table of fees.
4
The outlays payable to the Accountant in Bankruptcy in respect of the exercise by, or on behalf of, that office of its functions as interim trustee or trustee in a sequestration are those outlays actually, necessarily and reasonably incurred in respect of the exercise of any of those functions and include, but are not limited to, outlays so incurred in respect of—
a
the making of searches in any public register;
b
the valuation of property;
c
legal services and related expenses;
d
estate agency services;
e
the services of auctioneers and valuers;
f
services related to taxation matters; and
g
travel and subsistence expenses.
5
Any fees and outlays payable to the Accountant in Bankruptcy in respect of the exercise by, or on behalf of, that office of its functions as interim trustee or trustee in a sequestration are due for payment from the sequestrated estate where—
a
the Accountant in Bankruptcy has made a determination of its fees and outlays calculated in accordance with these Regulations, under and in accordance with, as appropriate, one of these provisions of the 1985 Act—
i
section 26A(3)(b)9 (determination of fees and outlays where Accountant in Bankruptcy was interim trustee and some other person becomes trustee);
ii
section 53(1), as modified by section 53A(2)10 (determination of fees and outlays at end of each accounting period where Accountant in Bankruptcy is trustee);
iii
section 58A(4)(a)11 (determination of fees and outlays on discharge of Accountant in Bankruptcy as trustee); and
b
the period within which an appeal against such a determination may be taken to the sheriff has expired or, if an appeal is so taken, that appeal has been determined, under, as appropriate, one of these provisions of the 1985 Act—
i
section 26A(5) and (6)12;
ii
section 53(4), as modified by section 53A(2);
iii
section 58A(5) and (6)13.
Other fees
6
The fees payable to the Accountant in Bankruptcy in respect of the exercise of that office’s functions, other than as interim trustee or trustee in a sequestration, specified in column 1 of Part 2 of the table of fees are the fees specified in relation to those functions in column 2 of the table of fees.
7
A fee payable under regulation 6 is payable even although it is payable by or on behalf of the Accountant in Bankruptcy in the exercise of that office’s functions as interim trustee or trustee in a sequestration.
Manner of payment
8
A fee payable to the Accountant in Bankruptcy for a function specified in Part 2 of the table of fees is due for payment—
a
on the application for these services being made to the Accountant in Bankruptcy, in respect of—
i
item 14 (removal of trustee and trustee not acting);
ii
item 15 (declaration of office of trustee as vacant);
iii
item 16 (replacement of trustee acting in more than one sequestration);
iv
item 17 (appointment or reappointment of trustee where newly identified estate);
v
item 18 (application by trustee for a direction);
vi
item 19 (curing defects in procedure);
vii
item 21 (conversion of trust deed into sequestration);
b
in respect of the functions specified in item 2 (supervision of sequestration proceedings)—
i
at the end of each 12 month period of supervision; or
ii
if the trustee is discharged during a 12 month period, in advance of the granting of a certificate of discharge under section 57(3)14 of the 1985 Act;
c
in respect of the functions specified in item 8(c) (protected trust deed supervision)—
i
at the end of each 12 month period of supervision; or
ii
if the trustee is discharged during a 12 month period, in advance of the date of discharge of the trustee under regulation 25 of the Protected Trust Deeds (Scotland) Regulations 201315;
d
in respect of the functions specified in item 12 (election of replacement trustee by trustee vote), on the submission of the relevant report to the Accountant in Bankruptcy;
e
in respect of the functions specified in item 22 (determination of debtor applications)—
i
on the application being made to the Accountant in Bankruptcy; and
ii
if paragraph 1 of Schedule A1 to the 1985 Act16 ceases to apply to the debtor, on receiving a request from the Accountant in Bankruptcy for the fee due under item 22(b) taking account of the fee already paid under item 22(a);
f
in respect of any other such function, on performance by the Accountant in Bankruptcy of that function.
9
A fee payable to the Accountant in Bankruptcy in respect of the functions specified in item 22 (determination of debtor applications) of Part 2 of the table of fees is payable whether or not it is subsequently determined in favour of the applicant.
10
A fee payable to the Accountant in Bankruptcy in respect of a function specified in Part 2 of the table of fees by an interim trustee, trustee in a sequestration or trustee under a protected trust deed is payable by the trustee whether or not there are subsequently funds available for distribution from the debtor’s estate to meet that fee.
Waiver of fees not permissible11
1
Subject to paragraphs (2) and (3), the fees in Part 2 of the table of fees payable to the Accountant in Bankruptcy may not be waived by the Accountant in Bankruptcy in whole or in part.
2
For the purposes of regulation 8(c)(ii), the Accountant in Bankruptcy may waive the balance due, if the debtor who granted the protected trust deed failed to meet the debtor’s obligations for the purposes of regulation 24(2)(a) of the Protected Trust Deeds (Scotland) Regulations 2013.
3
For the purposes of regulation 8(e)(ii), the Accountant in Bankruptcy may waive the balance due, unless the debtor provided false or misleading information in the debtor application.
Repayment of fees - refusal of bankruptcy restrictions order12
1
Where the Accountant in Bankruptcy or a sheriff does not grant an application for a bankruptcy restrictions order under section 56A(1) of the 1985 Act, the Accountant in Bankruptcy or the sheriff may hold that in the circumstances of the case it was not reasonable to make the application.
2
In that event, any fee charged by the Accountant in Bankruptcy under item 23 of Part 2 of the table of fees must be repaid.
Sequestrations and trust deeds before 1st April 201513
1
Except as mentioned in paragraph (4), nothing in these Regulations has effect as regards any sequestration in respect of which—
a
the petition is presented before 1st April 2015; or
b
a debtor application was made before that date.
2
Except as mentioned in paragraph (4), nothing in these Regulations has effect as regards any trust deed which was granted before 1st April 2015.
3
The Bankruptcy Fees etc. (Scotland) Regulations 201217, continue to apply and have effect in relation to any such sequestration or trust deed.
4
This Regulation does not apply in respect of items 18, 20 and 21 in Part 2 of the table of fees.
Revocation of Bankruptcy Fees etc. (Scotland) Regulations 201214
The Bankruptcy Fees etc. (Scotland) Regulations 2012 are revoked (subject to regulation 13).
SCHEDULETABLE OF FEES
PART 1Fees for Accountant in Bankruptcy as interim trustee or trustee in sequestration
Column 1 | Column 2 | Column 3 |
---|---|---|
(Functions) | (Fee Payable) | (Former Rates) |
1. In respect of the exercise by the Accountant in Bankruptcy of that office’s functions as interim trustee in a sequestration where the Accountant in Bankruptcy is not appointed as trustee in that sequestration. | £200.00 | £100 per hour for each hour of work done |
2. In respect of the exercise by the Accountant in Bankruptcy of that office’s functions as interim trustee or trustee in a sequestration, other than in respect of—
| £1,100.00 | £100 per hour for each hour of work done |
3. In respect of the exercise by the Accountant in Bankruptcy of that office’s functions as trustee in a sequestration in relation to the realisation of assets in the sequestrated estate— | ||
| ||
| 15% of that amount | (No change) |
| 5% of that amount | (No change) |
| 2% of that amount | (No change) |
| ||
| 15% of that amount | (No change) |
| 5% of that amount | (No change) |
| 2% of that amount | (No change) |
4. In respect of the exercise by the Accountant in Bankruptcy of that office’s functions as interim trustee or trustee in a sequestration in ingathering debtor’s contributions. | 25% of funds ingathered | (No change to fee; function formerly in respect of ingathering debtor’s estate) |
5. In respect of the exercise by the Accountant in Bankruptcy of that office’s functions as trustee in relation to the payment of dividends to creditors— | ||
| 10% of that amount | (No change) |
| 5% of that amount | (No change) |
| 1% of that amount | 2% of that amount |
PART 2Fees for other functions of the Accountant in Bankruptcy
Column 1 | Column 2 | Column 3 | ||
---|---|---|---|---|
(Functions) | (Fee Payable) | (Fee Formerly Payable) | ||
1. For administration of— | ||||
| £100.00 | (No change to fee, but petition by executor of a deceased debtor is now administered by debtor application – see item 22(b)) | ||
| £200.00 | (No change) | ||
2. For supervising proceedings in sequestration— | ||||
| (a) | £70.00 per 12 month period of supervision beginning on the date of appointment of the trustee and ending on discharge of the trustee (or part of such period) for the first 12 month period (or part of such period); and | Where applicable— | |
(a) | £139.00 for supervising proceedings; | |||
(b) | £20.00 for registering award of sequestration; | |||
(c) | £69.00 for any special report to the court; | |||
(b) | thereafter £50.00 per 12 month period of supervision throughout which commissioners are in post (or part of such period). | (d) | £36.00 for examination of the sederunt book and related work, in connection with the discharge of a trustee; | |
(e) | £36.00 for granting a certificate of discharge to an interim trustee. | |||
| £70.00 per 12 month period of supervision beginning on the date of appointment of the trustee and ending on discharge of the trustee (or part of such period). | Where applicable— | ||
(a) | £210.00 for supervision of trustee; | |||
(b) | £20.00 for registering award of sequestration; | |||
(c) | £69.00 for supervising payment of dividend to creditors where no commissioners have been elected; | |||
(d) | £69.00 for any special report to court; | |||
(e) | £36.00 for examination of the sederunt book and related work, in connection with the discharge of a trustee; | |||
(f) | £36.00 for granting a certificate of discharge to an interim trustee. | |||
3. For considering and issuing a determination in an appeal against a determination of commissioners as to the outlays and remuneration payable to a trustee. | 5% of the sum remaining on deduction from the sum of outlays and remuneration determined by the Accountant in Bankruptcy of any outlays incurred by way of statutory fees, trading expenses or expenses of realisation. | (No change) | ||
4. For issuing a determination fixing the outlays and remuneration payable to— | 17.5% of the sum remaining on deduction from the sum of outlays and remuneration determined of any outlays incurred by way of statutory fees, trading expenses or expenses of realisation. | (No change) | ||
| ||||
| ||||
5. For attendance at any meeting of creditors – fee per hour or part thereof, including travelling time. | £69.00 | (No change) | ||
6. For calling any meeting of creditors. | £36.00 | (No change) | ||
7. For attendance at any examination of the debtor – fee per hour or part thereof, including travelling time. | £69.00 | (No change) | ||
8. In respect of protected trust deeds— | ||||
| ||||
| £35.00 | (No change) | ||
| £90.00 | (No change) | ||
| £36.00 | (No change) | ||
| £100.00 per 12 month period of supervision beginning on the date of registration of the protected trust deed and ending on the discharge of the trustee (or part of such period). | (No change) | ||
9. For auditing the accounts of a trustee under a protected trust deed and fixing the trustee’s remuneration. | 5% of the sum remaining on deduction from the sum of outlays and remuneration determined of any outlays incurred by way of statutory fees, trading expenses or expenses of realisation. | (No change) | ||
10. For lodging any unclaimed dividend in an appropriate bank or institution set aside for payment to a creditor or creditors, in respect of each creditor on consignation. | £26.00 | (No change) | ||
11. For uplifting any unclaimed dividend consigned in an appropriate bank or institution, in respect of each creditor. | £26.00 | (No change) | ||
12. For receiving a report of proceedings at the statutory meeting to elect a replacement trustee, other than following the death of a trustee acting in only one sequestration. | £50.00 | None | ||
13. For appointing a replacement trustee where the original trustee has resigned and no new trustee is elected by trustee vote. | £50.00 | None | ||
14. For considering and making an order in relation to an application for removal of a trustee by commissioners or a person representing at least one quarter in value of the creditors. | £50.00 | None | ||
15. For considering and making a declaration and any necessary order in relation to an application for declaration of the office of trustee as vacant by commissioners, a debtor or a creditor. | £50.00 | None | ||
16. For making a determination or appointment on receipt of an application by a person with an interest for the replacement of a trustee acting in more than one sequestration. | £50.00 | None | ||
17. For appointing a trustee where newly identified estate is discovered after the trustee’s discharge, on receipt of an application by the trustee who was discharged. | £50.00 | None | ||
18. For giving a direction on receipt of an application by a trustee in relation to a particular matter arising in the sequestration. | £50.00 | None | ||
19. For issuing an order curing defects in procedure on receipt of an application by any person having an interest. | £50.00 | None | ||
20. For determination of an application for recall of sequestration (except on direction of a sheriff). | £100.00 | None | ||
21. For considering and making any order in relation to an application by a member State liquidator for conversion of a trust deed into sequestration. | £50.00 | None | ||
22. For determination of a debtor application in relation to— | ||||
| £90.00 | £200 | ||
| £200.00 | (No change to fee, but fee now applicable to executor of deceased debtor) | ||
23. For an application to the court or the Accountant in Bankruptcy for a bankruptcy restrictions order. | £250.00 | (No change) | ||
24. For registering a court order appointing a replacement trustee. | £19.00 | (No change) |
(This note is not part of the Regulations)