Notes for Guidance - Bankruptcy (Scotland) Act 2016 (as amended)

Supervisory

The Accountant supervises the performance of interim trustees, trustees and commissioners in the exercise of their statutory duties and regulates the bankruptcy process generally.

Regulatory

The Accountant is required to report to the sheriff any trustee, or commissioner, when it appears they have failed without reasonable excuse to perform a duty imposed on them. When there are reasonable grounds to suspect an offence has been committed the Accountant is required to report the matter to the Lord Advocate.

Statutory

The Accountant is responsible for maintaining the public Register of Insolvencies (ROI). This contains details of bankruptcies, protected trust deeds and corporate insolvencies. The Accountant is required to produce annual accounts and an annual report to Scottish ministers and the Court of Session giving statistical information about bankruptcies and of the performance of the Accountant’s functions under The Bankruptcy (Scotland) Act 2016.

Officer of the court

The Accountant is responsible for determining debtor applications for bankruptcy and, when appropriate, granting the award of bankruptcy (section 22 of the Act refers). Page 12 of 270 the Accountant can grant, or refuse to grant, recall of the award of bankruptcy under certain circumstance (sections 34 and 35 of the Act refers).

The Accountant can issue directions on application by a trustee (section 52 of the Act refers). The Accountant can appoint a replacement trustee who has been elected at a statutory meeting of creditors (section 60 of the Act refers). The Accountant can determine a trustee is removed from office when they have ceased to be qualified to act and can appoint a replacement trustee, under this circumstance when the trustee is appointed in more than one bankruptcy (section 66 of the Act refers).

The Accountant can determine a trustee is removed from office when they are deceased or have ceased to be qualified to act, and can appoint a replacement trustee under this circumstance in a single bankruptcy (section 69 of the Act refers). The Accountant can declare the post of trustee vacant on application of the commissioners or a person representing not less than one quarter in value of the creditors, or when satisfied there are reasons to do so, and make arrangements for the continuation of the bankruptcy (section 70 of the Act refers).

The Accountant is responsible for making Debtor Contribution Orders (section 90 of the Act refers). The Accountant can grant, or refuse to grant, the discharge of the debtor (section 137 of the Act refers). The Accountant can grant, or refuse to grant, the deferral of the debtor’s discharge (section 141 of the Act refers).

The Accountant can grant, or refuse to grant, the discharge of the trustee (section 148 of the Act refers). The Accountant can re-appoint a trustee when assets are discovered after the discharge of the trustee (section 152 of the Act refers). The Accountant can make, apply for, or annul a Bankruptcy Restriction Order (sections 155 – 161 of the Act refers).

The Accountant can make an order granting the conversion of a Protected Trust Deed to bankruptcy (section 190 – 192 of the Act refers). Page 13 of 270 the Accountant can cure a defect, rectify an error in the administration of a bankruptcy or waive a time limit specified for any action in the Act (section 212 refers).

Review

The Accountant is responsible for reviewing decisions made by their staff, or a trustee. The role of the independent review team is carried out by the Operational Policy and Compliance team (OPC). The review team is responsible for investigating the request and providing a fully informed outcome. This team will always be independent of the Accountant, Depute Accountant, AiB team, or trustee responsible for the original decision.

An application for a review may be made:

• for the 23 circumstances prescribed in the Act
• by a party, prescribed in the Act. Normally a combination of the debtor, trustee, creditors, interested party
• before the expiry of 14 days (28 days in respect of a review regarding a creditor claim for the purpose of payment of a dividend) beginning with the day on which notice of the decision by the Accountant, or trustee, is given

A review should be submitted on a Form 3 of the Bankruptcy (Applications and Decisions) (Scotland) Regulations 2016. The review team must take into account any submissions made by the parties, as prescribed in the appropriate sections of the Act, before the expiry of the period of 21 days beginning with the day on which the application is made.

The review team must confirm, amend or revoke the decision before the expiry of the period of 28 days beginning with the day on which the application is made.

An appeal against a review decision may be made to the sheriff by those parties prescribed in the appropriate sections of the Act before the expiry of the period of 14 days beginning with the day of the review decision.

An appeal can be made on:

• a matter of fact
• a point of law
• the merits

The sheriff’s decision is final.