Article 28 Insertion of Chapter 3A

After Chapter 3 (administrators and procedure) insert—

“CHAPTER 3A

Seized personal property

Seized personal property

86A.

(1)

This article applies to moveable property which is held by a person and which—

(a)

has been seized by an appropriate officer under a relevant seizure power; or

(b)

has been produced to an appropriate officer in compliance with a production order under—

(i)

article 40 of the Proceeds of Crime Act 2002 (External Investigations) Order 2013^f1; or

(ii)

article 6 of the Proceeds of Crime Act 2002 (External Investigations) (Scotland) Order 2015^f2.

(2)

The sheriff may by order authorise an appropriate officer to realise the property if—

(a)

an external order is made against the person by whom the property is held;

(b)

an administrator has not been appointed under article 73 (appointment of enforcement administrators) in relation to the property; and

(c)

any period allowed under article 72 (time for payment) for payment of the amount ordered to be paid under the external order has ended.

Costs of storage and realisation

86B.

(1)

This article applies if the sheriff makes an order under article 86A.

(2)

The sheriff may determine an amount which may be recovered by the appropriate officer in respect of reasonable costs incurred in—

(a)

storing or insuring the property since it was seized or produced as mentioned in paragraph (1) of that article;

(b)

realising the property.

(3)

If the sheriff makes a determination under this article the appropriate officer is entitled to payment of the amount under article 78(5A).

(4)

A determination under this article may be made on the same occasion as the article 86A order or on any later occasion; and more than one determination may be made in relation to any case.

Articles 86A and 86B: appeals

86C.

(1)

If a sheriff decides not to make an order under article 86A, an appropriate officer may appeal to the Court of Session.

(2)

If a sheriff makes an order under article 86A, a person affected by the order may appeal to the Court of Session.

(3)

But the person mentioned in article 86A(2)(a) may not appeal.

(4)

An appropriate officer may appeal to the Court of Session against—

(a)

a determination made by a sheriff under article 86B;

(b)

a decision by a sheriff not to make a determination under that article.

(5)

An appeal under this article must be made before the end of the period of 21 days starting with the day on which the decision or (as the case may be) the order was made.

(6)

On an appeal under this article, the Court of Session may—

(a)

confirm, quash or vary the decision or (as the case may be) the order; or

(b)

make such order as the Court of Session believes is appropriate.

Proceeds of realisation

86D.

(1)

This article applies to sums which—

(a)

are in the hands of an appropriate officer; and

(b)

are the proceeds of the realisation of property under article 86A.

(2)

The sums must be applied as follows—

(a)

first, they must be applied in payment of such expenses incurred by a person acting as an insolvency practitioner as are payable under this paragraph by virtue of article 3;

(b)

second, they must be applied in making any payments directed by the sheriff;

(c)

third, they must be paid to the appropriate clerk of court on account of the amount payable under the external order.

(3)

If the amount payable under the external order has been fully paid and any sums remain in the appropriate officer’s hands, the appropriate officer must distribute them—

(a)

among such persons who held (or hold) interests in the property represented by the proceeds as the sheriff directs; and

(b)

in such proportions as the sheriff directs.

(4)

Before making a direction under paragraph (3) the sheriff must give persons who held (or hold) interests in the property a reasonable opportunity to make representations to the sheriff.

(5)

The appropriate clerk of court is the sheriff clerk appointed under article 69(1).”.