Bankruptcy (Scotland) Act 2016
2016 asp 21 · Enacted 28 April 2016 · Extends to Scotland
An Act of the Scottish Parliament to consolidate the Bankruptcy (Scotland) Act 1985, the Bankruptcy (Scotland) Act 1993, Part 1 of the Bankruptcy and Diligence etc. (Scotland) Act 2007, Part 2 of the Home Owner and Debtor Protection (Scotland) Act 2010, the Bankruptcy and Debt Advice (Scotland) Act 2014, the Protected Trust Deeds (Scotland) Regulations 2013 and related enactments.
The Bill for this Act of the Scottish Parliament was passed by the Parliament on 22nd March 2016 and received Royal Assent on 28th April 2016C1C2
Annotations to the whole text
Modifications
- C1
Act modified (30.11.2016) by The Bankruptcy (Scotland) Regulations 2016 (S.S.I. 2016/397), reg. 31(2)
- C2
Act applied (with modifications) (8.12.2017) by The Risk Transformation Regulations 2017 (S.I. 2017/1212), regs. 1(2), 166(2), 167(2), Sch. 2, Sch. 3 (with regs. 168, 189)
Contents
- Part 1: Application or petition for sequestration
- Applications and petitions
- 1Sequestration
- 2Sequestration of estate of living debtor
- 3Debt advice and information package
- 4Money advice
- 5Sequestration of estate of deceased debtor
- 6Sequestration of other estates
- 7Qualified creditor and qualified creditors
- 8Debtor applications: general
- 9Certificate for sequestration
- 10Death or withdrawal
- 11Debtor application: provision of information
- 12Petition for sequestration of estate: provision of information
- 13Further provisions relating to presentation of petitions
- 14Further provisions relating to debtor applications
- 14AMain proceedings in Scotland: undertaking by trustee in respect of assets in another EU member State Repealed
- 14BMain proceedings in another member State: approval of undertaking offered by member State insolvency practitioner to local creditors in the UK Repealed
- Jurisdiction
- 15Jurisdiction
- Meaning of “apparent insolvency”
- 16Meaning of “apparent insolvency”
- Concurrent proceedings
- 17Concurrent proceedings for sequestration or analogous remedy
- 18Powers in relation to concurrent proceedings
- Creditor's oath
- 19Creditor's oath
- Part 2: Sequestration: award and recall
- Incomplete or inappropriate debtor applications
- 20Debtor application: incomplete application
- 21Refusal of debtor application: inappropriate application
- Award of sequestration
- 22When sequestration is awarded
- 23Circumstances in which sequestration is not to be awarded in pursuance of section 22(5)
- 23AEffect of sequestration on land attachment
- 24Effect of sequestration on diligence generally
- 25Effect of sequestration on diligence: estate of deceased debtor
- 26Registration of warrant or determination of debtor application
- 27Further matters in relation to award of sequestration
- 28Benefit from another estate
- Recall of sequestration
- 29Petitions for recall of sequestration
- 30Recall of sequestration by sheriff
- 31Application to Accountant in Bankruptcy for recall of sequestration
- 32Application under section 31: further procedure where Accountant in Bankruptcy is not trustee
- 33Determination where amount of outlays and remuneration not agreed
- 34Recall of sequestration where Accountant in Bankruptcy is not trustee
- 35Recall of sequestration where Accountant in Bankruptcy is trustee
- 36Application for recall: remit to sheriff
- 37Recall of sequestration by Accountant in Bankruptcy: review and appeal
- 37AInterest
- 38Effect of recall of sequestration
- Part 3: Initial stages of sequestration, statutory meeting and trustee vote
- Initial stages
- 39Interim preservation of estate
- 40Offences in relation to interim preservation of estate
- 41Statement of assets and liabilities etc.
- 42Duties on receipt of list of assets and liabilities
- Statutory meeting
- 43Statutory meeting
- 44Calling of statutory meeting
- 45Procedure where no statutory meeting called
- 46Submission of claims for voting purposes
- 47Offences in relation to submission of claims for voting purposes
- 48Proceedings before trustee vote
- Trustee vote
- 49Trustee vote
- Part 4: Trustees and commissioners
- Trustees
- 50Functions of trustee
- 51Appointment of trustee
- 52Application to Accountant in Bankruptcy by trustee for a direction
- Interim trustees
- 53Functions of interim trustee
- 54Appointment of interim trustee
- 55Removal, resignation etc. of interim trustee
- 56Termination of interim trustee's functions where not appointed trustee
- 57Appeal or review by virtue of section 56
- 58Termination of Accountant in Bankruptcy's functions as interim trustee where not appointed trustee
- 59Review or appeal by virtue of section 58
- Replacement trustees
- 60Appointment of replacement trustee
- 61Procedure in application to Accountant in Bankruptcy under section 60
- 62Procedure in application under section 60, or appeal under section 61, to sheriff
- 63Termination of original trustee's functions
- 64Accountant in Bankruptcy's intromissions in capacity of original trustee
- 65Discharge of original trustee
- 66Replacement of trustee acting in more than one sequestration
- 67Further provision as regards replacement under section 66
- 68Review of determination or appointment under section 66
- Resignation or death of trustee
- 69Resignation or death of trustee
- Removal of trustee and appointment of new trustee
- 70Removal of trustee other than where trustee is unable to act or should no longer continue to act: general
- 71Removal of trustee other than where trustee is unable to act or should no longer continue to act: review, appeal and election of new trustee
- 72Removal of trustee where trustee is unable to act or should no longer continue to act: general
- 73Removal of trustee where trustee is unable to act or should no longer continue to act: review, appeal and election of new trustee
- 74Election or appointment of new trustee by virtue of section 71(6) or 73(1)
- 75Further provision as regards election or appointment of new trustee
- Commissioners
- 76Commissioners
- 77Election, resignation and removal of commissioners
- Part 5: Vesting etc.
- Vesting
- 78Vesting of estate at date of sequestration
- 79Provision supplementary to section 78 and interpretation of Part 5
- 80Property subject to restraint order
- 81Property released from detention
- 82Property in respect of which receivership or administration order is made
- 83Property in respect of which realisation order is made
- 84Property subject to certain orders where confiscation order discharged or quashed
- 85Vesting of income received by debtor after sequestration
- 86Further provision as regards vesting of estate
- 87Dealings and circumstances of debtor after sequestration
- Limitation on vesting
- 88Limitation on vesting
- Part 6: Debtor's contribution
- Common financial tool
- 89Assessment of debtor's contribution
- Payments by debtor following sequestration
- 90Debtor contribution order: general
- 91Debtor contribution order: payment period and intervals
- 92Debtor contribution order: review and appeal
- 93Effect of debtor contribution order
- 94Deductions from debtor's earnings and other income
- 95Variation and removal of debtor contribution order by trustee
- 96Payment break
- 97Sections 95 and 96: review and appeal
- Part 7: Safeguarding interests of creditors
- Gratuitous alienations and unfair preferences
- 98Gratuitous alienations
- 99Unfair preferences
- Recall of certain orders
- 100Recall of order for payment of capital sum on divorce or on dissolution of civil partnership
- Excessive contributions
- 101Recovery of excessive pension contributions
- 102Orders under section 101
- 103Orders under section 101: supplementary
- 104Excessive contributions in pension-sharing cases: general
- 105Excessive contributions in pension-sharing cases: recovery orders
- 106Recovery orders: supplementary
- 107References in Part 7 to “the 1889 Act” and to “the 1999 Act”
- Part 8: Administration of estate by trustee
- General
- 108Taking possession of estate by trustee
- 109Management and realisation of estate
- Contractual powers and money received
- 110Contractual powers of trustee
- 111Money received by trustee
- Debtor's home
- 112Debtor's family home
- 113Power of trustee in relation to debtor's family home
- Rights of spouse or civil partner
- 114Protection of rights of spouse against arrangements intended to defeat them
- 115Protection of rights of civil partner against arrangements intended to defeat them
- Account of state of affairs
- 116Debtor's account of state of affairs
- Financial education for debtor
- 117Financial education for debtor
- Part 9: Examination of debtor
- Private and public examination
- 118Private examination
- 119Public examination
- 120Provisions ancillary to sections 118 and 119
- Conduct of examination
- 121Conduct of examination
- Part 10: Claims, dividends and distribution etc.
- Submission and adjudication of claims
- 122Submission of claims to trustee
- 123Evidence as to validity or amount of claim
- 124False claims etc.
- 125Further provision as to claims
- 126Adjudication of claims: general
- 127Adjudication of claims: review and appeal
- Entitlement to vote and draw a dividend
- 128Voting and drawing a dividend
- Distribution
- 129Priority in distribution
- 129ASection 129: interpretation
- 130Accounting periods
- 131Distribution in accordance with accounting periods
- Procedure after end of accounting period
- 132Submission of accounts and scheme of division
- 133Audit of accounts and determination as to outlays and remuneration payable to trustee
- 134Appeal against determination as to outlays and remuneration payable to trustee
- 135Further provision as to procedure after end of accounting period
- 136Procedure after end of accounting period where Accountant in Bankruptcy is trustee
- Part 11: Discharge
- Discharge of debtor
- 137Discharge of debtor where Accountant in Bankruptcy not trustee
- 138Discharge of debtor where Accountant in Bankruptcy trustee
- 139Discharge of debtor: review and appeal
- 140Discharge of debtor to whom section 2(2) applies
- 141Deferral of discharge where debtor cannot be traced
- 142Debtor not traced: new trustee
- 143Debtor not traced: subsequent debtor contact
- 144Subsequent debtor contact: review and appeal
- 145Effect of discharge under section 137, 138 or 140
- 146Discharge under section 140: conditions
- 147Section 146: sanctions
- Failure of debtor to co-operate with trustee
- 147ADebtor fails to co-operate: Accountant in Bankruptcy appointment as new trustee
- 147BAccountant in Bankruptcy appointment as new trustee: review and appeal
- 147CDebtor fails to co-operate with AiB as trustee
- Discharge of trustee
- 148Discharge of trustee
- 149Further provision as regards discharge of trustee
- 150Unclaimed dividends
- 151Discharge of Accountant in Bankruptcy
- Part 12: Assets discovered after discharge of trustee
- 152Assets discovered after discharge of trustee: appointment of trustee
- 153Assets discovered after discharge of trustee: notice
- 154Assets discovered after discharge of trustee: appeal
- Part 13: Bankruptcy restrictions orders and interim bankruptcy restrictions orders
- Bankruptcy restrictions orders
- 155Bankruptcy restrictions order
- 156Grounds for making bankruptcy restrictions order
- 157Bankruptcy restrictions order: application of section 218(13)
- 158Timing for making a bankruptcy restrictions order
- 159Duration of bankruptcy restrictions order and application for revocation or variation
- Interim bankruptcy restrictions orders
- 160Interim bankruptcy restrictions orders
- Effect of recall of sequestration
- 161Bankruptcy restrictions orders and interim bankruptcy restrictions orders: effect of recall of sequestration
- Part 14: Voluntary trust deeds for creditors
- General
- 162Voluntary trust deeds for creditors
- Protected trust deeds: protected status
- 163Protected status: general
- Conditions for protected status
- 164Protected status: the debtor
- 165Protected status: the trustee
- 166Exclusion of a secured creditor from trust deed
- 167Statements in and advice regarding trust deed
- 168Payment of debtor's contribution
- 169Notice in register of insolvencies
- 170Documents to be sent to creditors
- Registration for protected status
- 171Registration for protected status
- Removal of protected status where material error or irregularity
- 171ARemoval of protected status where material error or irregularity
- 171BDecision under section 171A: application to review
- 171CEffect of removal of protected status
- Effect of protected status etc.
- 172Effect of protected status: general
- 173Effect of protected status on diligence against earnings
- 173AEffect of protected status on essential supplies
- 174Deductions by virtue of protected trust deed from debtor's earnings
- 175Agreement in respect of debtor's heritable property
- 176Dividend payments
- 177Sequestration petition by qualified creditor
- 178Creditor's application as respects intromissions of trustee
- Administration, accounting and discharge
- 179Directions to trustee under protected trust deed
- 180Information and notification obligations of trustee under protected trust deed
- 181Administration of trust under protected trust deed
- 182Retention of documents by trustee under protected trust deed
- 183Remuneration payable to trustee under protected trust deed
- 184Protected trust deed: discharge of debtor
- 184AProtected trust deed: refusal of debtor discharge
- 184BProtected trust deed: early discharge in extenuating circumstances
- 184CEarly discharge in extenuating circumstances: procedure where creditors object
- 185Student loans
- 186Protected trust deed: discharge of trustee
- 186AReplacement of trustee in a protected trust deed
- 186BModification of this Part where Accountant in Bankruptcy becomes trustee in a protected trust deed
- 187Electronic delivery of notices etc. under this Part Repealed
- Appeals and directions
- 188Protected trust deed: appeal
- 189Protected trust deed: sheriff's direction
- Application for conversion to sequestration
- 190Application for conversion to sequestration Repealed
- 191Contents of affidavit required under section 190(2) Repealed
- 192Powers of Accountant in Bankruptcy on application for conversion to sequestration Repealed
- Part 14: general
- 193Interpretation of Part 14
- 194Regulations modifying Part 14
- Part 15: Moratorium on diligence
- 195Moratorium on diligence: notice of intention to make debtor application under section 2(1)(a)
- 196Moratorium on diligence: notice of intention to make debtor application under section 6
- 197Moratorium on diligence following notice under section 195(1) or 196(1)
- 198Period of moratorium
- Part 16: Accountant in Bankruptcy
- Appointment
- 199Accountant in Bankruptcy
- Functions
- 200Supervisory functions of Accountant in Bankruptcy
- 201Performance of certain functions of Accountant in Bankruptcy
- 202Further duty of Accountant in Bankruptcy
- Directions to Accountant in Bankruptcy
- 203Directions to Accountant in Bankruptcy
- Conduct of proceedings in the sheriff court
- 204Conduct of proceedings in the sheriff court
- Fees for Accountant in Bankruptcy
- 205Fees for Accountant in Bankruptcy
- Part 17: Miscellaneous
- 206Liabilities and rights of co-obligants
- 207Member State insolvency practitioner deemed creditor Repealed
- 208Trustee's duty to provide certain notices and copies of documents to member State insolvency practitioner Repealed
- 209Extortionate credit transactions
- 210Sederunt book and other documents
- 211Power of court to cure defects in procedure
- 212Power of Accountant in Bankruptcy to cure defects in procedure
- 213Decision under section 212(1): review
- 214Review of decision by Accountant in Bankruptcy: grounds of appeal
- 215Debtor to co-operate with trustee
- 216Arbitration and compromise
- 217Meetings of creditors and commissioners
- 218General offences by debtor etc.
- 219General offences: supplementary and penalties
- 220Summary proceedings
- 221Outlays of insolvency practitioner in actings as interim trustee or trustee
- 222Supplies by utilities
- 223Disqualification provisions: power to make regulations
- 224Regulations: applications to Accountant in Bankruptcy etc.
- 224AService of documents
- Part 18: General
- 225Regulations: general
- 226Modification of regulation making powers Repealed
- 227Variation of references to time, money etc.
- 228Interpretation
- 229Meaning of “associate”
- 230“Associates”: regulations for the purposes of section 229
- 231Proceedings under EU insolvency proceedings regulation: modified definition of “estate” Repealed
- 232Crown application
- 233Re-enactment
- 234Modifications, repeals, savings, revocations and transitional provisions
- 235Continuity of the law
- 236Sequestrations to which this Act applies
- 237Commencement
- 238Short title
- Schedule 1: DEBTOR TO WHOM SECTION 2(2) APPLIES: APPLICATION OF ACT
- Modification of certain provisions of Act
- 1Paragraph 1
- Accountant in Bankruptcy's duty to consider whether paragraph 1 should cease to have effect
- 2Paragraph 2
- Procedure where Accountant in Bankruptcy considers paragraph 1 should cease to have effect
- 3Paragraph 3
- Debtor's right of appeal against decision under paragraph 3
- 4Paragraph 4
- Decision that paragraph 1 ceases to have effect: modification of certain provisions of Act
- 5Paragraph 5
- Schedule 2: DETERMINATION OF AMOUNT OF CREDITOR'S CLAIM
- Amount which may be claimed generally
- 1Paragraph 1
- Claims for aliment and for periodical allowance on divorce or on dissolution of civil partnership
- 2Paragraph 2
- Debts depending on contingency
- 3Paragraph 3
- Secured debts
- 4Paragraph 4
- Valuation of claims against partners for debts of the partnership
- 5Paragraph 5
- Schedule 3: PREFERRED DEBTS
- Part 1: List of preferred debts
- Contributions to occupational pension schemes etc.
- 1Paragraph 1
- Remuneration of employees etc.
- 2Paragraph 2
- 3Paragraph 3
- Levies on coal and steel production
- 4Paragraph 4
- Debts owed to the Financial Services Compensation Scheme
- 5Paragraph 5
- Deposits covered by Financial Services Compensation Scheme
- 6Paragraph 6
- Other deposits
- 7Paragraph 7
- 8Paragraph 8
- Certain HMRC debts
- 8AParagraph 8A
- Part 2: Interpretation of Part 1
- Meaning of “the relevant date”
- 9Paragraph 9
- Amounts payable by way of remuneration
- 10Paragraph 10
- Meaning of “prescribed”
- 11Paragraph 11
- Meaning of “scheme manager”
- 12Paragraph 12
- Meaning of “eligible deposit”
- 13Paragraph 13
- Transitional provisions
- 14Paragraph 14
- Schedule 4: VOLUNTARY TRUST DEEDS FOR CREDITORS
- Remuneration of trustee
- 1Paragraph 1
- Accountant in Bankruptcy's power to carry out audit
- 2Paragraph 2
- Registration of notice of inhibition
- 3Paragraph 3
- Lodging of claim to bar effect of limitation of actions
- 4Paragraph 4
- Valuation of claims
- 5Paragraph 5
- Schedule 5: INFORMATION TO BE INCLUDED IN THE SEDERUNT BOOK
- 1Paragraph 1
- 2Paragraph 2
- 3Paragraph 3
- 3AParagraph 3A Repealed
- 4Paragraph 4
- 5Paragraph 5
- 6Paragraph 6
- 7Paragraph 7
- 8Paragraph 8
- 9Paragraph 9
- 10Paragraph 10
- 11Paragraph 11
- 12Paragraph 12
- 13Paragraph 13
- 14Paragraph 14
- 15Paragraph 15
- 16Paragraph 16
- 17Paragraph 17
- 18Paragraph 18
- 19Paragraph 19
- 20Paragraph 20
- 21Paragraph 21
- 22Paragraph 22
- 23Paragraph 23
- 24Paragraph 24
- 25Paragraph 25
- 26Paragraph 26
- 27Paragraph 27
- 28Paragraph 28
- 29Paragraph 29
- 30Paragraph 30
- 31Paragraph 31
- 32Paragraph 32
- 33Paragraph 33
- 34Paragraph 34
- 35Paragraph 35
- 36Paragraph 36
- 37Paragraph 37
- 38Paragraph 38
- 39Paragraph 39
- 40Paragraph 40
- Schedule 6: MEETINGS OF CREDITORS AND COMMISSIONERS
- Part 1: Meetings of creditors other than the statutory meeting
- Calling of meeting
- 1Paragraph 1
- 2Paragraph 2
- 3Paragraph 3
- 4Paragraph 4
- 5Paragraph 5
- 6Paragraph 6
- 7Paragraph 7
- Role of trustee at meeting
- 8Paragraph 8
- 9Paragraph 9
- 10Paragraph 10
- Appeals
- 11Paragraph 11
- Part 2: All meetings of creditors
- Validity of proceedings
- 12Paragraph 12
- Holding of meeting
- 13Paragraph 13
- 13AParagraph 13A
- Mandatories
- 14Paragraph 14
- 15Paragraph 15
- 16Paragraph 16
- Quorum
- 17Paragraph 17
- Voting at meeting
- 18Paragraph 18
- Objections by creditors
- 19Paragraph 19
- 20Paragraph 20
- 21Paragraph 21
- Adjournment of meeting
- 22Paragraph 22
- 23Paragraph 23
- 24Paragraph 24
- Minutes of meeting
- 25Paragraph 25
- Part 3: Meetings of commissioners
- 26Paragraph 26
- 27Paragraph 27
- 28Paragraph 28
- 29Paragraph 29
- 30Paragraph 30
- 31Paragraph 31
- 32Paragraph 32
- Schedule 7: RE-ENACTMENT OF SECTIONS 10 AND 189 OF THE BANKRUPTCY (SCOTLAND) ACT 1913
- Arrestments and attachments
- 1Paragraph 1
- Exemptions from stamp or other duties for conveyances, deeds etc. relating to sequestrated estates
- 2Paragraph 2
- Schedule 8: MODIFICATION OF ENACTMENTS
- Judicial Factors (Scotland) Act 1889
- 1Paragraph 1
- Sheriff Courts (Scotland) Act 1907
- 2Paragraph 2
- Conveyancing (Scotland) Act 1924
- 3Paragraph 3
- Administration of Justice Act 1956
- 4Paragraph 4
- Conveyancing and Feudal Reform (Scotland) Act 1970
- 5Paragraph 5
- Prescription and Limitation (Scotland) Act 1973
- 6Paragraph 6
- Local Government (Scotland) Act 1973
- 7Paragraph 7
- Education (Scotland) Act 1980
- 8Paragraph 8
- Family Law (Scotland) Act 1985
- 9Paragraph 9
- Legal Aid (Scotland) Act 1986
- 10Paragraph 10
- Debtors (Scotland) Act 1987
- 11Paragraph 11
- Agricultural Holdings (Scotland) Act 1991
- 12Paragraph 12
- Crofters (Scotland) Act 1993
- 13Paragraph 13
- Proceeds of Crime (Scotland) Act 1995
- 14Paragraph 14
- Education (Scotland) Act 1996
- 15Paragraph 15
- Adults with Incapacity (Scotland) Act 2000
- 16Paragraph 16
- International Criminal Court (Scotland) Act 2001
- 17Paragraph 17
- Debt Arrangement and Attachment (Scotland) Act 2002
- 18Paragraph 18
- Agricultural Holdings (Scotland) Act 2003
- 19Paragraph 19
- Fire (Scotland) Act 2005
- 20Paragraph 20
- Further and Higher Education (Scotland) Act 2005
- 21Paragraph 21
- Charities and Trustee Investment (Scotland) Act 2005
- 22Paragraph 22
- Licensing (Scotland) Act 2005
- 23Paragraph 23
- Bankruptcy and Diligence etc. (Scotland) Act 2007
- 24Paragraph 24
- Criminal Proceedings etc. (Reform) (Scotland) Act 2007
- 25Paragraph 25
- Legal Services (Scotland) Act 2010
- 26Paragraph 26
- Housing (Scotland) Act 2010
- 27Paragraph 27
- Food (Scotland) Act 2015
- 28Paragraph 28
- Schedule 9: REPEALS AND REVOCATIONS
- 1Repeals
- 2Revocations