Office of Public Sector Information
SCHEDULE 1 continued
27 (1) Section 68 (summary proceedings) shall be amended as follows.
(2) In subsection (1)—
(a) at the beginning there shall be inserted the words “Subject to subsection (1A) below,”; and
(b) for the word “6” there shall be substituted the word “12”.
(3) After subsection (1) there shall be inserted the following subsection—
“(1A) No such proceedings shall be commenced by virtue of this section more than three years after the commission of the offence.”
(4) In subsection (2) for the words “subsection (1) above” there shall be substituted the words “this section”.
28 After section 72 (regulations) of the 1985 Act there shall be inserted the following section—
For any reference in this Act to—
(a) a period of time;
(b) an amount of money; or
(c) a fraction,
there shall be substituted a reference to such other period or, as the case may be, amount or fraction as may be prescribed.”
29 (1) Section 73 (interpretation) shall be amended as follows.
(2) In subsection (1) in the definition of “accounting period” for the words “52(1) and (6)” there shall be substituted the words “52(2)”.
(3) In subsection (1) in the definition of “register of insolvencies” for the words “1(1)(c)” there shall be substituted the words “1A(1)(b)”.
(4) In subsection (1) in the definition of “statutory meeting” for the words “section 21(1)” there shall be substituted the words “section 20A”.
(5) In subsection (1) after the definition of “standard scale” there shall be inserted the following—
““statement of assets and liabilities” means a document (including a copy of a document) in such form as may be prescribed containing—
(i) a list of the debtor’s assets and liabilities;
(ii) a list of his income and expenditure; and
(iii) such other information as may be prescribed;”
(6) In subsection (1) for the definition of “trust deed” there shall be substituted the following—
““trust deed” has the meaning assigned by section 5(4A) of this Act;”.
(7) At the end there shall be added the following subsection—
“(6) Any reference in this Act, howsoever expressed, to the time when a petition for sequestration is presented shall be construed as a reference to the time when the petition is received by the clerk of the court.”
30 (1) Schedule 2 (which provides for the adaptation of procedure under the Act where a permanent trustee is not elected) shall be amended as follows.
(2) In paragraph 1 at the beginning there shall be inserted the words “Except where the permanent trustee is the Accountant in Bankruptcy,”.
(3) For paragraph 2 there shall be substituted the following paragraphs—
“2 (1) In place of section 25, sub-paragraph (2) below shall have effect.
(2) The sheriff clerk shall issue to the permanent trustee an act and warrant in such form as shall be prescribed by the Court of Session by act of sederunt.
2A Sections 26 and 26A shall apply as if for any reference to the confirmation of the permanent trustee in office there was substituted a reference to the permanent trustee receiving the act and warrant issued in pursuance of paragraph 2(2) above.”
(4) For paragraph 3 there shall be substituted the following paragraph—
“3 (1) In place of subsections (1A) to (5) of section 28, sub-paragraph (2) below shall have effect.
(2) Where the permanent trustee resigns under subsection (1) of section 28 of this Act or dies—
(a) the Accountant in Bankruptcy; or
(b) such person as may be nominated by the Accountant in Bankruptcy (being a person who is not ineligible for election as permanent trustee under section 24(2) of this Act) if that person consents to the nomination,
may apply to the sheriff for appointment as permanent trustee; and, on such an application being made, the sheriff shall appoint the Accountant in Bankruptcy or, as the case may be, the person nominated by him to be the permanent trustee.”
(5) For paragraph 4 there shall be substituted the following paragraph—
“4 (1) Section 29 shall have effect as follows.
(2) Where the permanent trustee is the Accountant in Bankruptcy, subsections (1) to (6) shall not have effect.
(3) In any other case—
(a) subsection (5) shall not have effect but sub-paragraph (2) of paragraph 3 above shall apply where the permanent trustee has been removed from office under subsection (1)(b) of section 29 of this Act or following an appeal under subsection (4) of that section as that sub-paragraph applies where he resigns or dies; and
(b) subsection (6) shall have effect as if for the words from “(b)” to the end there were substituted the words—
“(b) appoint as permanent trustee—
(i) the Accountant in Bankruptcy; or
(ii) such person as may be nominated by the Accountant in Bankruptcy (being a person who is not ineligible for election as permanent trustee under section 24(2) of this Act) if that person consents to the nomination.”
(4) In every case—
(a) subsection (7) shall not have effect; and
(b) subsection (8) shall have effect as if for the word “(5)” there were substituted the word “(6)”.”
(6) In paragraph 5 for the words “4(a) or (b)” there shall be substituted the words “4(3)(a) or (b)”.
(7) In paragraph 7—
(a) after the words “section 39” there shall be inserted the words “, subsection (1) shall not have effect where the permanent trustee is the Accountant in Bankruptcy and”; and
(b) for sub-paragraph (b) there shall be substituted the following sub-paragraph—
“(b) in subsection (2) the words “but if there are commissioners only with the consent of the commissioners, the creditors or the court” shall not have effect, and—
(i) if the permanent trustee is the Accountant in Bankruptcy, no consent shall be required for the actings mentioned in that subsection; and
(ii) in any other case, the consent of the Accountant in Bankruptcy shall be required for such actings.”
(8) After paragraph 7 there shall be inserted the following paragraph—
“7A In section 43 (money received by permanent trustee) for subsection (1) there shall be substituted the following subsection—
“(1) Subject to subsection (2) below, all money received by—
(a) the Accountant in Bankruptcy in respect of his actings as permanent trustee shall be deposited by him in the name of the debtor’s estate or in the name of the Secretary of State in an appropriate bank or institution;
(b) the permanent trustee (where he is not the Accountant in Bankruptcy) in the exercise of his functions shall be deposited by him in the name of the debtor’s estate in an appropriate bank or institution.”.”
(9) In paragraph 8—
(a) at the beginning there shall be inserted the words “Except where the permanent trustee is the Accountant in Bankruptcy,”.
(10) For paragraph 9 there shall be substituted the following paragraph—
“9 (1) Where the permanent trustee is the Accountant in Bankruptcy, section 53 shall have effect as follows.
(2) For subsections (1) to (7) there shall be substituted the following subsections—
“(1) At the end of each accounting period, the Accountant in Bankruptcy shall prepare accounts of his intromissions with the debtor’s estate, and he shall make a determination of his fees and outlays calculated in accordance with regulations made under section 69A of this Act.
(2) Such accounts and determination shall be available for inspection by the debtor and the creditors not later than 6 weeks after the end of the accounting period to which they relate.
(3) In making a determination as mentioned in subsection (1) above, the Accountant in Bankruptcy may take into account any adjustment which he may wish to make in the amount of his remuneration fixed in respect of any earlier accounting period.
(4) Not later than 8 weeks after the end of an accounting period, the debtor or any creditor may appeal to the sheriff against the determination of the Accountant in Bankruptcy; and the decision of the sheriff on such an appeal shall be final.
(5) On the expiry of the period within which an appeal may be made under subsection (4) above, the Accountant in Bankruptcy shall pay to the creditors their dividends in accordance with the scheme of division.”
(3) In subsection (10) for the words “the audited” there shall be substituted the word “his”.”
31 (1) Schedule 4 (discharge on composition) shall be amended as follows.
(2) In paragraph 2, after the words “permanent trustee” there shall be inserted the words “, where he is not the Accountant in Bankruptcy,”.
(3) In paragraph 9—
(a) in sub-paragraph (1), after the words “permanent trustee” there shall be inserted the words “, where he is not the Accountant in Bankruptcy,”;
(b) after sub-paragraph (1) there shall be inserted the following sub-paragraph—
“(1A) Where the offer of composition is approved and the permanent trustee is the Accountant in Bankruptcy, the permanent trustee shall prepare accounts of his intromissions with the debtor’s estate and he shall make a determination of his fees and outlays calculated in accordance with regulations made under section 69A of this Act.”;
(c) after sub-paragraph (2) there shall be inserted the following sub-paragraph—
“(3) Subsections (2), (3), (4), (5) and (10) of section 53 of this Act as adapted by paragraph 9(2) and (3) of Schedule 2 to this Act shall apply, subject to any necessary modifications, in respect of the accounts and determination prepared under sub-paragraph (1A) above as they apply in respect of the accounts and determination prepared under the said section 53 as so adapted.”
(4) Paragraph 16 shall be renumbered sub-paragraph (1) of that paragraph and there shall be added at the end the following sub-paragraph—
“(2) The discharge of the debtor by virtue of an order under paragraph 11 above shall not affect any right of a secured creditor—
(a) for a debt in respect of which the debtor has been discharged to enforce his security for payment of the debt and any interest due and payable on the debt until the debt is paid in full; or
(b) for an obligation in respect of which the debtor has been discharged to enforce his security in respect of the obligation.”
(5) Paragraph 16 of Schedule 4 to the 1985 Act shall be deemed always to have had effect as amended by this paragraph.
32 (1) Schedule 5 (which makes provision as to voluntary trust deeds for creditors) shall be amended as follows.
(2) For paragraph 5 (which sets out the conditions for a trust deed becoming a protected trust deed) there shall be substituted the following paragraph—
“5 (1) Paragraphs 6 and 7 of this Schedule shall apply in respect of a trust deed if—
(a) the trustee is a person who would not be disqualified under section 24(2) of this Act from acting as the permanent trustee if the debtor’s estate were being sequestrated;
(b) after the trust deed has been delivered to him, the trustee publishes in the Edinburgh Gazette the notice specified in sub-paragraph (3) below;
(c) not later than one week after the date of publication of such notice, the trustee sends to every creditor known to him—
(i) a copy of the trust deed;
(ii) a copy of the notice; and
(iii) such other information as may be prescribed;
(d) within the period of 5 weeks beginning with the date of publication of such notice, the trustee has not received notification in writing from a majority in number or not less than one third in value of the creditors that they object to the trust deed and do not wish to accede to it; and
(e) immediately after the expiry of the said period of 5 weeks, the trustee sends to the Accountant in Bankruptcy for registration in the register of insolvencies a copy of the trust deed with a certificate endorsed thereon that it is a true copy and that he has not received notification as mentioned in sub-sub-paragraph (d) above.
(2) Any creditor who has been sent a copy of the notice referred to in sub-paragraph (1)(b) above and who has not notified the trustee as mentioned in sub-paragraph (1)(d) above that he objects to the trust deed shall be treated for all purposes as if he had acceded to the trust deed; and any reference in this Act to a creditor who has acceded to a trust deed shall include a reference to a creditor who is treated for all purposes as if he had so acceded.
(3) The notice mentioned in sub-paragraph (1)(b) above shall be in the prescribed form and shall contain such information as may be prescribed.
(4) The Secretary of State may by regulations amend sub-paragraphs (1) to (3) above by replacing them, varying them or adding to or deleting anything from them.
(5) Regulations made under sub-paragraph (4) above may contain such amendments of this Act as appear to the Secretary of State to be necessary in consequence of any amendment made by the regulations to the said sub-paragraphs (1) to (3).”
(3) In paragraph 6, for sub-paragraph (a) there shall be substituted the following sub-paragraph—
“(a) subject to paragraph 7 of this Schedule, a creditor who has—
(i) not been sent a copy of the notice as mentioned in paragraph 5(1)(c) above; or
(ii) notified the trustee of his objection to the trust deed as mentioned in paragraph 5(1)(d) above,
shall have no higher right to recover his debt than a creditor who has acceded to the trust deed;”.
(4) In paragraph 7, in sub-paragraph (1)—
(a) for the words “who has not acceded to the trust deed” there shall be substituted the words “who has not been sent a copy of the notice as mentioned in paragraph 5(1)(c) above or who has notified the trustee of his objection to the trust deed as mentioned in paragraph 5(1)(d) above”; and
(b) in sub-sub-paragraph (a), for the words “paragraph 5(b)” there shall be substituted the words “paragraph 5(1)(b)”.
(5) In paragraph 10, for the words “who has not acceded to the trust deed” in both places where they occur there shall be substituted the words “who has not been sent a copy of the notice as mentioned in paragraph 5(1)(c) above or who has notified the trustee of his objection to the trust deed as mentioned in paragraph 5(1)(d) above”.
(6) In paragraph 11, for the words “who has not acceded to a protected trust deed” there shall be substituted the words “who has not been sent a copy of the notice as mentioned in paragraph 5(1)(c) above or who has notified the trustee of his objection to the trust deed as mentioned in paragraph 5(1)(d) above”.
Bankruptcy (Scotland) Act 1993