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Act of Sederunt (Sheriff Court Bankruptcy Rules) 1996

S.I. 1996/2507 · Made 27 September 1996

Original text. legislation.gov.uk does not revise statutory instruments, so later amendments are not shown here. Changes made to it are listed under each provision when known.

SHERIFF COURT, SCOTLAND

INSOLVENCY

BANKRUPTCY, SCOTLAND

Made 27th September 1996

Coming into force 1st January 1997

The Lords of Council and Session, under and by virtue of the powers conferred on them by section 32 of the Sheriff Courts (Scotland) Act 1971f1, sections 1A(1)(b), 14(4) and 25(2) of, and paragraph 2(2) of Schedule 2 and paragraph 2 of Schedule 5 to, the Bankruptcy (Scotland) Act 1985f2, and of all other powers enabling them in that behalf, having approved, with modifications, draft rules submitted to them by the Sheriff Court Rules Council in accordance with section 34 of the said Act of 1971, do hereby enact and declare:

Annotations to the whole text

Footnotes

f1

1971 c. 58; section 32 was amended by the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 (c. 73), Schedule 2, paragraph 12, by the Civil Evidence (Scotland) Act 1988 (c. 32), section 2(4), and by the Children (Scotland) Act 1995 (c. 36), Schedule 4, paragraph 18(2).

f2

1985 c. 66; section 1A was inserted by the Bankruptcy (Scotland) Act 1993 (c. 6) (“the 1993 Act”), section 1; section 14(4) was amended by the 1993 Act, Schedule 1, paragraph 3; and paragraph 2 of Schedule 2 was substituted by the 1993 Act, Schedule 1, paragraph 30.

Contents

  1. 1Citation and commencement
  2. 2Bankruptcy Rules
  3. 3Revocation and saving
  4. Signature
  5. Schedule: SHERIFF COURT BANKRUPTCY RULES
  6. 1Citation and interpretation
  7. 2Forms of petitions etc.
  8. 3Petitions for sequestration
  9. 4Application for certificate for summary administration
  10. 5Intimation of certificate for summary administration
  11. 6Withdrawal of certificate for summary administration
  12. 7Intimation of appointment of interim trustee
  13. 8Application to exclude vesting
  14. 9Application to determine amount for aliment and obligations, etc.
  15. 10Application to vary or recall an order made under section 32(2) of the Act of 1985
  16. 11Determination without hearing
  17. 12Notes
  18. 13Appeals to the sheriff
  19. 14Appeals to the Sheriff Principal and the Court of Session
  20. 15Forms and register of insolvencies
  21. 16Reports
  22. 1Appendix 1
  23. 2Information to be contained in the Register of Insolvencies
  24. Explanatory note

1Citation and commencement

(1)

This Act of Sederunt may be cited as the Act of Sederunt (Sheriff Court Bankruptcy Rules) 1996 and shall come into force on 1st January 1997.

(2)

This Act of Sederunt shall be inserted in the Books of Sederunt.

2Bankruptcy Rules

The Schedule to this Act of Sederunt shall have the effect of providing rules in the sheriff court for the purpose of the Bankruptcy (Scotland)Act 1985.

3Revocation and saving

The Act of Sederunt (Bankruptcy Rules) 1993 f1 is hereby revoked.

Signature

Hope of Craighead

Lord President I.P.D.

Edinburgh

27th September 1996

1Citation and interpretation

(1)

These Rules may be cited as the Sheriff Court Bankruptcy Rules.

(2)

In these Rules, “the Act of 1985” means the Bankruptcy (Scotland) Act 1985.

(3)

Any reference in this Act of Sederunt to a form shall be construed as a reference to the form so numbered in Appendix 1 to these Rules or a form substantially to the same effect, with such variation as circumstances may require.

2Forms of petitions etc.

(1)

A petition, note, application, report and the like under the Act of 1985 shall be written, typed or printed on A4 size paper of durable quality and shall not be backed.

(2)

On receipt of a petition for sequestration, the sheriff clerk shall prepare a process folder which shall include an inventory of process.

(3)

The petition and any production or part of process lodged shall be placed by the sheriff clerk in the process folder.

3Petitions for sequestration

(1)

A petition by the debtor under section 5(2)(a) of the Act of 1985f1 (sequestration of the estate of living debtor) shall be in –

(a)

Form 1 where section 5(2A) of the Act of 1985f2 (with concurrence of qualified creditor or creditors) applies; or

(b)

Form 2 where section 5(2B) of the Act of 1985f3 (without concurrence of qualified creditor or creditors) applies.

(2)

A petition by a qualified creditor under section 5(2)(b) of the Act of 1985 shall be in Form 3.

(3)

A petition by a trustee acting under a trust deed under section 5(2)(c) of the Act of 1985 shall be in Form 4.

(4)

The court, when considering a petition lodged in accordance with paragraph (1) above, shall not require –

(a)

intimation to be made to any person, or

(b)

the debtor to appear or be represented,

unless the court considers it necessary.

(5)

An undertaking by the interim trustee under section 2(3)(c) of the Act of 1985f4 shall be in Form 5.

4Application for certificate for summary administration

(1)

An application for the grant of a certificate for the summary administration of the sequestration of the debtor’s estate under section 23A(1) of the Act of 1985f1 shall be in Form 6.

(2)

Where such an application has been made to the court before the appointment or confirmation of a permanent trustee, the application shall be considered at the same time as the court appoints or confirms the permanent trustee.

(3)

A certificate for the summary administration of the debtor’s estate granted under section 23A(1) of the Act of 1985 shall be in Form 7.

5Intimation of certificate for summary administration

Where the court grants a certificate for the summary administration of the sequestration of the debtor’s estate, the sheriff clerk shall send a copy of the certificate to the applicant who without delay shall intimate the grant of such certificate to the persons referred to in section 23A(5) of the Act of 1985.

6Withdrawal of certificate for summary administration

(1)

An application under subsection (5) of section 23A of the Act of 1985 (application for withdrawal of certificate for summary administration) shall be in Form 8, and shall be intimated by the first class recorded delivery service, by the applicant to the other persons mentioned in that subsection.

(2)

A person receiving intimation under paragraph (1) above, who wishes to object to the application, must object by letter to the sheriff clerk within 14 days after the date of intimation to him.

(3)

The permanent trustee shall, within 42 days of the date of intimation to him of an application under section 23A(5) of the Act of 1985 –

(a)

lodge in court a report under section 23A(6) of the Act of 1985 (report on circumstances of the sequestration); and

(b)

send a copy of that report to the Accountant in Bankruptcy and the debtor.

(4)

The sheriff, on considering the application and any written objections which have been received by the court, may fix a hearing.

(5)

The sheriff clerk shall intimate the court’s decision to the applicant, who without delay shall intimate that decision to the persons referred to in section 23A(5) of the Act of 1985.

7Intimation of appointment of interim trustee

The sheriff clerk shall, without delay, intimate the appointment of any interim trustee to the person so appointed, and to the Accountant in Bankruptcy where he is not the interim trustee.

8Application to exclude vesting

(1)

An application under section 31(6) of the Act of 1985 (exclusion of estate from vesting in the permanent trustee) shall be by note in the bankruptcy process, and shall include –

(a)

a crave by the applicant to be sisted in the process; and

(b)

a statement of the facts on which the application is based.

(2)

An application under paragraph (1) above shall be served by the applicant on the permanent trustee and shall be intimated by the applicant to the debtor.

(3)

Where the permanent trustee or the debtor intends to object to the application, he shall lodge answers with the sheriff clerk within 14 days after the date of service or intimation, as the case may be, in accordance with paragraph (2) above.

(4)

Where answers are lodged, the sheriff may fix a hearing to take place not less than 14 days after such service or intimation of the application or may, at any time, after the period of 14 days, determine the application by way of affidavits or otherwise as he thinks fit.

(5)

Where no answers are lodged, the sheriff may fix a hearing or determine the application in chambers without the attendance of the applicant.

(6)

Where the sheriff determines an application in chambers in accordance with paragraphs (4) or (5) above, the sheriff clerk shall intimate the decision of the sheriff to the applicant, the permanent trustee and the debtor.

9Application to determine amount for aliment and obligations, etc.

(1)

An application by the permanent trustee under section 32(2) of the Act of 1985 (determination of suitable amount of aliment for the debtor, his relevant obligations, and to fix the amount of excess) shall be by note in the bankruptcy process and shall be in Form 9.

(2)

An application under paragraph (1) above shall be intimated by the applicant to the debtor.

(3)

Where the debtor intends to object to the application, he shall lodge answers with the sheriff clerk within 14 days after the date of intimation in accordance with paragraph (2) above.

(4)

Where answers are lodged, the sheriff may fix a hearing to take place not less than 14 days after intimation of the application or may, at any time, after the period of 14 days, determine the application by way of affidavits or otherwise as he thinks fit.

(5)

Where no answers are lodged, the sheriff may fix a hearing or determine the application in chambers without the attendance of the applicant.

(6)

Where the sheriff determines an application in chambers in accordance with paragraphs (4) or (5) above, the sheriff clerk shall intimate the decision of the sheriff to the applicant and the respondent.

10Application to vary or recall an order made under section 32(2) of the Act of 1985

(1)

An application under section 32(4) of the Act of 1985 (variation or recall of an order made under section 32(2)) shall be by note in the bankruptcy process, and shall be in Form 10.

(2)

An application under paragraph (1) above shall be intimated by the applicant to the debtor and, or, the permanent trustee as the case may be.

(3)

Where the debtor or the permanent trustee intends to object to the application, he shall lodge answers with the sheriff clerk within 14 days after the date of intimation in accordance with paragraph (2) above.

(4)

Where answers are lodged, the sheriff may fix a hearing to take place not less than 14 days after intimation of the application or may, at any time, after the period of 14 days, determine the application by way of affidavits or otherwise as he thinks fit.

(5)

Where no answers are lodged, the sheriff may fix a hearing or determine the application in chambers without the attendance of the applicant.

(6)

Where the sheriff determines an application in chambers in accordance with paragraphs (4) or (5) above, the sheriff clerk shall intimate the decision of the sheriff to the applicant and the respondent.

11Determination without hearing

Where a hearing is not mandatory under the Act of 1985, the sheriff may grant any application in chambers outwith the presence of parties.

12Notes

(1)

Except as otherwise provided, all applications shall be made by note in the bankruptcy process.

(2)

Where a note is unopposed, the crave of the note shall be granted by the sheriff in chambers without the attendance of parties, unless the sheriff otherwise directs.

(3)

Where the sheriff requires to hear a party on a note, the sheriff clerk shall inform that party of the date on which the note will be heard.

13Appeals to the sheriff

An appeal to the sheriff under the Act of 1985 shall be made by note of appeal in the bankruptcy process.

14Appeals to the Sheriff Principal and the Court of Session

(1)

An appeal under the following provisions of the Act of 1985 shall be made in accordance with the provisions of this rule:–

  • section 15(3) (order refusing to award sequestration),

  • section 29(4) (order of sheriff removing permanent trustee),

  • section 54(6) (order deferring discharge of debtor or dismissal of application to defer discharge),

  • paragraph 8(3) of Schedule 4 (order approving or refusing to approve offer of composition).

(2)

An appeal under a provision mentioned in paragraph (1) above shall be made by note of appeal which shall be written by the appellant –

(a)

on the interlocutor sheet,

(b)

on any other written record containing the interlocutor appealed against, or

(c)

on a separate sheet lodged with the sheriff clerk

in the following terms:–

  • “The petitioner [or as the case may be] appeals to the Sheriff Principal [or Court of Session].”.

(3)

Such a note of appeal shall –

(a)

be signed by the appellant or his solicitor;

(b)

bear the date on which it was signed; and

(c)

have appended to it the name and address of any firm of solicitors who will be acting for the appellant in the appeal.

(4)

Where the Act of 1985 does not specify a period within which an appeal shall be made, such appeal shall be made within 14 days after the date of the interlocutor appealed against.

(5)

The sheriff clerk shall, within four days of the note of appeal being marked –

(a)

on an appeal to the Sheriff Principal, transmit the process to the Sheriff Principal; or

(b)

on an appeal to the Court of Session, transmit the process to the Deputy Principal Clerk of Session.

(6)

Within the period of four days mentioned in paragraph (5) above, the sheriff clerk shall send written notice of the appeal –

(a)

in an appeal under section 15(3) of the Act of 1985, to any concurring creditor and the debtor, as the case may be;

(b)

in an appeal under section 29(4) of the Act of 1985 to –

(i)

the permanent trustee,

(ii)

the Accountant in Bankruptcy,

(iii)

the commissioners, and

(iv)

any person representing not less than one quarter in value of the creditors,

as the case may be;

(c)

in an appeal under section 54(6) of the Act of 1985, to –

(i)

the applicant creditor,

(ii)

the permanent trustee, and

(iii)

the debtor,

as the case may be;

(d)

in an appeal under paragraph 8(3) of Schedule 4 to the Act of 1985, to

(i)

the permanent trustee,

(ii)

the debtor, and

(iii)

the creditors to whom notice of the hearing fixed by the sheriff was given,

as the case may be.

(7)

The sheriff clerk shall certify on the interlocutor sheet that he has sent the notice required under paragraph (6) above.

(8)

Failure by the sheriff clerk to give the notice prescribed in paragraph (6) above shall not invalidate the appeal.

15Forms and register of insolvencies

(1)

The memorandum to be sent by the permanent trustee to the Keeper of the Register of Inhibitions and Adjudications under section 14(4) of the Act of 1985 shall be in Form 11.

(2)

The act and warrant to be issued by the sheriff clerk under section 25(2) of, or paragraph 2(2) of Schedule 2 to, the Act of 1985 shall be in Form 12.

(3)

The notice which the trustee may record in the Register of Inhibitions and Adjudications under paragraph 2(1) of Schedule 5 to the Act of 1985 shall be in Form 13.

(4)

The notice to recall the notice referred to in paragraph (3) above which is to be recorded by the trustee in the Register of Inhibitions and Adjudications under paragraph 2(2) of Schedule 5 to the Act of 1985 shall be in Form 14.

(5)

The register of insolvencies maintained by the Accountant in Bankruptcy under section 1A(1)(b) of the Act of 1985 shall contain the information specified in Appendix 2 to this Act of Sederunt.

16Reports

(1)

The report to be made by the interim trustee under section 21B(1)(a) of the Act of 1985f1 shall be in Form 15.

(2)

The report to be made by the Accountant in Bankruptcy as interim trustee under section 24(3A) of the Act of 1985f2 shall be in Form 16.

(3)

The report to be made by the interim trustee under section 24(4)(b) of the Act of 1985f3 shall be in Form 17.

(4)

The report to be made by the interim trustee under section 25(1)(a) of the Act of 1985 shall be in Form 18.

1

FORM 1

Form of debtor’s petition (with concurrence of qualified creditor(s)) under the Bankruptcy (Scotland) Act 1985

Rule 3(1)(a)

FORM 2

Form of debtor’s petition (without concurrence of qualified creditor(s) under the Bankruptcy (Scotland) Act 1985

Rule 3(1)(b)

FORM 3

Form of petition by qualified creditor(s) under section 5(2)(b) of the Bankruptcy (Scotland) Act 1985

Rule 3(2)

FORM 4

Form of petition by a trustee under a trust deed in terms of section 5(2)(c) of the Bankruptcy (Scotland) Act 1985

Rule 3(3)

FORM 5

Form of undertaking required by section 2(3)(c) of the Bankruptcy (Scotland) Act 1985

Rule 3(5)

FORM 6

Form of application for a certificate for summary administration under the Bankruptcy (Scotland) Act 1985

Rule 4(1)

FORM 7

Form of certificate for summary administration under the Bankruptcy (Scotland) Act 1985

Rule 4(3)

FORM 8

Form of application for withdrawal of certificate for summary administration under the Bankruptcy (Scotland) Act 1985

Rule 6(1)

FORM 9

Form of application by permanent trustee for an order for a contribution from the debtors income, in terms of section 32(2) of the Bankruptcy (Scotland) Act 1985

Rule 9(1)

FORM 10

Form of application under section 32(4) of the Bankruptcy (Scotland) Act 1985 for variation or recall of an order made under section 32(2) of that Act

Rule 10(1)

FORM 11

Form of memorandum by permanent trustee to be recorded in the Register of Inhibitions and Adjudications under section 14(4) of the Bankruptcy (Scotland) Act 1985

Rule 15(1)

FORM 12

Form of act and warrant on confirmation or appointment of trustee under respectively section 25(2) or paragraph 2(2) of Schedule 2 to the Bankruptcy (Scotland) Act 1985

Rule 15(2)

FORM 13

Form of notice of inhibition by trustee under trust deed to be recorded in the Register of Inhibitions and Adjudications under paragraph 2(1) of Schedule 5 to the Bankruptcy (Scotland) Act 1985

Rule 15(3)

FORM 14

Form of notice of recall of inhibition to be recorded in the Register of Inhibitions and Adjudications under paragraph 2(2) of Schedule 5 to the Bankruptcy (Scotland) Act 1985

Rule 15(4)

FORM 15

Form of report by the interim trustee under section 21B(1)(a) of the Bankruptcy (Scotland) Act 1985 and application for the appointment of permanent trustee under section 25A of that Act

Rule 16(1)

FORM 16

Form of report by the Accountant in Bankruptcy under section 24 (3A) of the Bankruptcy (Scotland) Act 1985 and application for the appointment of permanent trustee under section 25A of that Act

Rule 16(2)

FORM 17

Form of report by the interim trustee and application for appointment as permanent trustee under section 24(4) of the Bankruptcy (Scotland) Act 1985

Rule 16(3)

FORM 18

Form of report by the interim trustee under section 25(1)(a) of the Bankruptcy (Scotland) Act 1985 and application for confirmation of election in terms of section 25(2) of that Act

Rule 16(4)

2Information to be contained in the Register of Insolvencies

A. Sequestrations

  • Name of debtor

  • Debtor’s residence and his 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

  • Name and address of petitioner for sequestration

  • Court by which sequestration awarded

  • Sheriff court to which sequestration remitted (where applicable)

  • Date of first order

  • Date of award of sequestration

  • Date of recall of sequestration (where applicable)

  • Date certificate for summary administration of sequestration of debtor’s estate granted (where applicable)

  • Date certificate for summary administration of sequestration of debtor’s estate withdrawn (where applicable)

  • Name and address of interim trustee and date of appointment

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

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

  • Name and address of permanent trustee and date of confirmation of appointment

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

  • Date of interim trustee’s discharge

  • Date of permanent trustee’s discharge

B. Protected trust deeds for creditors

  • Name and address of granter of trust deed

  • Name and address of trustee under deed

  • Date (or dates) of execution of deed

  • Date on which copy deed and certificate of accession were 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

Explanatory note

(This note is not part of the Act of Sederunt)

This Act of Sederunt consolidates the Act of Sederunt (Bankruptcy Rules) 1993, making provision for the procedure to be followed, and forms to be used, in proceedings brought in the sheriff court under the Bankruptcy (Scotland) Act 1985. It also makes provision as to the manner of appealing from the sheriff court to the Court of Session under that Act, and repeals the Act of Sederunt (Bankruptcy Rules) 1993.