[F1Prohibitory property orders (Scotland)U.K.
Textual Amendments
F1Ss. 255A-255F and cross-heading inserted (1.1.2006) by Serious Organised Crime and Police Act 2005 (c. 15), ss. 98(2), 178(7)(a); S.I. 2005/3136, art. 2(a)
255AApplication for prohibitory property orderU.K.
(1)Where the enforcement authority may take proceedings for a recovery order in the Court of Session, the authority may apply to the court for a prohibitory property order (whether before or after starting the proceedings).
(2)A prohibitory property order is an order that—
(a)specifies or describes the property to which it applies, and
(b)subject to any exclusions (see section 255C(1)(b) and (2)), prohibits any person to whose property the order applies from in any way dealing with the property.
(3)An application for a prohibitory property order may be made without notice if the circumstances are such that notice of the application would prejudice any right of the enforcement authority to obtain a recovery order in respect of any property.
(4)The court may make a prohibitory property order on an application if it is satisfied that the condition in subsection (5) is met and, where applicable, that the condition in subsection (6) is met.
(5)The first condition is that there is a good arguable case—
(a)that the property to which the application for the order relates is or includes recoverable property, and
(b)that, if any of it is not recoverable property, it is associated property.
(6)The second condition is that, if—
(a)the property to which the application for the order relates includes property alleged to be associated property, and
(b)the enforcement authority has not established the identity of the person who holds it,
the authority has taken all reasonable steps to do so.
255BVariation and recall of prohibitory property orderU.K.
(1)The court may at any time vary or recall a prohibitory property order.
(2)If the court makes an interim administration order that applies to all of the property to which a prohibitory property order applies, it must recall the prohibitory property order.
(3)If the court makes an interim administration order that applies to some but not all of the property to which a prohibitory property order applies, it must vary the prohibitory property order so as to exclude any property to which the interim administration order applies.
(4)If the court decides that any property to which a prohibitory property order applies is neither recoverable property nor associated property, it must vary the order so as to exclude the property.
(5)Before exercising power under this Chapter to vary or recall a prohibitory property order, the court must (as well as giving the parties to the proceedings an opportunity to be heard) give such an opportunity to any person who may be affected by its decision.
(6)Subsection (5) does not apply where the court is acting as required by subsection (2) or (3).
255CExclusionsU.K.
(1)The power to vary a prohibitory property order includes (in particular) power to make exclusions as follows—
(a)power to exclude property from the order, and
(b)power, otherwise than by excluding property from the order, to make exclusions from the prohibition on dealing with the property to which the order applies.
(2)Exclusions from the prohibition on dealing with the property to which the order applies (other than exclusions of property from the order) may also be made when the order is made.
(3)An exclusion may, in particular, make provision for the purpose of enabling any person—
(a)to meet his reasonable living expenses, or
(b)to carry on any trade, business, profession or occupation.
(4)An exclusion may be made subject to conditions.
(5)An exclusion may not be made for the purpose of enabling any person to meet any legal expenses in respect of proceedings under this Part.
(6)If excluded property is not specified in the order it must be described in the order in general terms.
(7)The power to make exclusions must be exercised with a view to ensuring, so far as practicable, that the satisfaction of any right of the enforcement authority to recover the property obtained through unlawful conduct is not unduly prejudiced.
(8)Subsection (7) does not apply where the court is acting as required by section 255B(3) or (4).
255DRestriction on proceedings and remediesU.K.
(1)While a prohibitory property order has effect the court may sist any action, execution or other legal process in respect of the property to which the order applies.
(2)If a court (whether the Court of Session or any other court) in which proceedings are pending in respect of any property is satisfied that a prohibitory property order has been applied for or made in respect of the property, it may either sist the proceedings or allow them to continue on any terms it thinks fit.
(3)Before exercising any power conferred by this section, the court must (as well as giving the parties to any of the proceedings concerned an opportunity to be heard) give such an opportunity to any person who may be affected by the court's decision.
255EArrestment of property affected by prohibitory property orderU.K.
(1)On the application of the enforcement authority the Court of Session may, in relation to moveable recoverable property to which a prohibitory property order applies (whether generally or to such of it as is specified in the application), grant warrant for arrestment.
(2)An application under subsection (1) may be made at the same time as the application for the prohibitory property order or at any time thereafter.
(3)Such a warrant for arrestment may be granted only if the property would be arrestable if the person entitled to it were a debtor.
(4)A warrant under subsection (1) has effect as if granted on the dependence of an action for debt at the instance of the enforcement authority against the person and may be executed, recalled, loosed or restricted accordingly.
(5)An arrestment executed under this section ceases to have effect when, or in so far as, the prohibitory property order ceases to apply in respect of the property in relation to which the warrant for arrestment was granted.
(6)If an arrestment ceases to have effect to any extent by virtue of subsection (5) the enforcement authority must apply to the Court of Session for an order recalling or, as the case may be, restricting the arrestment.
255FInhibition of property affected by prohibitory property orderU.K.
(1)On the application of the enforcement authority, the Court of Session may, in relation to the property mentioned in subsection (2), grant warrant for inhibition against any person specified in a prohibitory property order.
(2)That property is heritable property situated in Scotland to which the prohibitory property order applies (whether generally or to such of it as is specified in the application).
(3)The warrant for inhibition—
(a)has effect as if granted on the dependence of an action for debt by the enforcement authority against the person and may be executed, recalled, loosed or restricted accordingly, and
(b)has the effect of letters of inhibition and must forthwith be registered by the enforcement authority in the register of inhibitions and adjudications.
(4)Section 155 of the Titles to Land Consolidation (Scotland) Act 1868 (c. 101) (effective date of inhibition) applies in relation to an inhibition for which warrant is granted under subsection (1) as it applies to an inhibition by separate letters or contained in a summons.
(5)An inhibition executed under this section ceases to have effect when, or in so far as, the prohibitory property order ceases to apply in respect of the property in relation to which the warrant for inhibition was granted.
(6)If an inhibition ceases to have effect to any extent by virtue of subsection (5) the enforcement authority must—
(a)apply for the recall or, as the case may be, the restriction of the inhibition, and
(b)ensure that the recall or restriction is reflected in the register of inhibitions and adjudications.]
[F2255GReceivers in connection with prohibitory property ordersU.K.
(1)Subsection (2) applies if—
(a)the Court of Session makes a prohibitory property order on an application by an enforcement authority, and
(b)the authority applies to the court to proceed under subsection (2) (whether as part of the application for the prohibitory property order or at any time afterwards).
(2)The Court of Session may by order appoint a person (a “PPO receiver”) in respect of any property to which the prohibitory property order applies.
(3)An application for an order under this section may be made without notice if the circumstances are such that notice of the application would prejudice any right of the enforcement authority to obtain a recovery order in respect of any property.
(4)In its application for an order under this section, the enforcement authority must nominate a suitably qualified person for appointment as a PPO receiver.
(5)Such a person may be a member of staff of the enforcement authority.
(6)The enforcement authority may apply a sum received by it under section 280(2) in making payment of the remuneration and expenses of a PPO receiver appointed under this section.
(7)Subsection (6) does not apply in relation to the remuneration of the PPO receiver if he is a member of the staff of the enforcement authority (but it does apply in relation to such remuneration if the PPO receiver is a person providing services under arrangements made by the enforcement authority).
Textual Amendments
F2Ss. 255G-255I inserted (1.3.2016) by Serious Crime Act 2015 (c. 9), ss. 23(2), 88(1); S.I. 2016/148, reg. 3(b)
255HPowers of receivers appointed under section 255GU.K.
(1)If the Court of Session appoints a PPO receiver under section 255G on an application by an enforcement authority, the court may act under this section on the application of the authority.
(2)The court may by order authorise or require the PPO receiver—
(a)to exercise any of the powers mentioned in paragraph 5 of Schedule 6 (management powers) in relation to any property in respect of which the PPO receiver is appointed,
(b)to take any other steps the court thinks appropriate in connection with the management of any such property (including securing the detention, custody or preservation of the property in order to manage it).
(3)The court may by order require any person in respect of whose property the PPO receiver is appointed—
(a)to bring the property to a place in Scotland specified by the PPO receiver or to place it in the custody of the PPO receiver (if, in either case, he is able to do so),
(b)to do anything he is reasonably required to do by the PPO receiver for the preservation of the property.
(4)The court may by order require any person in respect of whose property the PPO receiver is appointed to bring any documents relating to the property which are in his possession or control to a place in Scotland specified by the PPO receiver or to place them in the custody of the PPO receiver.
(5)In subsection (4) “document” means anything in which information of any description is recorded.
(6)Any prohibition on dealing with property imposed by a prohibitory property order does not prevent a person from complying with any requirements imposed by virtue of this section.
(7)If—
(a)the PPO receiver deals with any property which is not property in respect of which he is appointed under section 255G, and
(b)at the time he deals with the property the PPO receiver believes on reasonable grounds that he is entitled to do so by virtue of his appointment,
the PPO receiver is not liable to any person in respect of any loss or damage resulting from his dealing with the property except so far as the loss or damage is caused by his negligence.
Textual Amendments
F2Ss. 255G-255I inserted (1.3.2016) by Serious Crime Act 2015 (c. 9), ss. 23(2), 88(1); S.I. 2016/148, reg. 3(b)
255ISupervision of PPO receiver and variationsU.K.
(1)Any of the following persons may at any time apply to the Court of Session for directions as to the exercise of the functions of a PPO receiver—
(a)the PPO receiver,
(b)any party to the proceedings for the appointment of the PPO receiver or the prohibitory property order concerned,
(c)any person affected by any action taken by the PPO receiver,
(d)any person who may be affected by any action proposed to be taken by the PPO receiver.
(2)Before giving any directions under subsection (1), the court must give an opportunity to be heard to—
(a)the PPO receiver,
(b)the parties to the proceedings for the appointment of the PPO receiver and for the prohibitory property order concerned,
(c)any person who may be interested in the application under subsection (1).
(3)The court may at any time vary or recall—
(a)an order appointing a PPO receiver,
(b)any order under section 255H, or
(c)any directions under this section.
(4)Before exercising any power under subsection (3), the court must give an opportunity to be heard to—
(a)the PPO receiver,
(b)the parties to the proceedings for—
(i)the appointment of the PPO receiver,
(ii)the order under section 255H, or
(iii)(as the case may be) the directions under this section,
(c)the parties to the proceedings for the prohibitory property order concerned,
(d)any person who may be affected by the court's decision.]
Textual Amendments
F2Ss. 255G-255I inserted (1.3.2016) by Serious Crime Act 2015 (c. 9), ss. 23(2), 88(1); S.I. 2016/148, reg. 3(b)