Legalize / United Kingdom / Scotland / Act of the Scottish Parliament

Bankruptcy (Scotland) Act 2016

Type Act of the Scottish Parliament

Publication 2016-04-28

Last updated 2025-06-25

State In force

Jurisdiction Scotland

Department Statute Law Database

Source legislation.gov.uk

articles Not indexed

Reform history JSON API

(2) In this section, “newly identified estate” means any part of the debtor's estate which—

(a) vested in the trustee in accordance with section 78 or 86, and

(b) was not, before the trustee was discharged, known to the trustee.

(3) AiB may—

(a) in a case where the trustee was discharged under section 148—

(i) on the application of the trustee who was discharged, reappoint that person as trustee on the debtor's estate, or

(ii) appoint AiB as trustee on that estate, or

(b) in a case where AiB was discharged under section 151, reappoint AiB as trustee on that estate.

(4) AiB may make an appointment or reappointment under subsection (3) only if, in the opinion of AiB, the value of the newly identified estate is likely to exceed the costs of—

(a) the appointment or reappointment, and

(b) the recovery, management, realisation and distribution of the newly identified estate.

(5) Where the trustee was discharged under section 148 and applies for reappointment under subsection (3)(a)(i), the discharged trustee must provide to AiB the information mentioned in subsection (8)(a) to (c).

(6) Where the trustee was discharged under section 148 and does not apply for reappointment under subsection (3)(a)(i), the discharged trustee must—

(a) provide AiB with details of any newly identified estate that the discharged trustee becomes aware of, where that estate has a value not less than the value mentioned in subsection (1), and

(b) if requested by AiB, provide AiB with the information mentioned in subsection (8)(b) and (c).

(7) Where AiB was discharged under section 151, AiB must record and consider the information mentioned in subsection (8).

(8) The information is—

(a) the estimated value of the newly identified estate,

(b) the reason why the newly identified estate forms part of the debtor's estate,

(d) the estimated outlays and remuneration of the trustee following an appointment or reappointment under subsection (3), and

(e) the likely distribution under section 129 following such an appointment or reappointment.

(9) This section is without prejudice to any other right to take action following the discharge of the trustee.

Assets discovered after discharge of trustee: notice

153

(1) AiB must notify the debtor and any other person AiB considers to have an interest where—

(a) an application is made under section 152(3)(a)(i), or

(b) AiB proposes to make an appointment or reappointment under section 152(3)(a)(ii) or (b).

(2) A notice under subsection (1) must inform the recipient that the recipient has a right to make representations to AiB, within 14 days beginning with the day on which the notice is given, in relation to the application or the proposed appointment or reappointment.

(3) Before making an appointment or reappointment under section 152, AiB must take into account any representations made by an interested person.

(4) If AiB makes an appointment or reappointment under section 152, AiB must as soon as is practicable notify the debtor of the appointment or reappointment.

(5) Any notice under subsection (4) must include information in relation to the debtor's duty, under section 215, to co-operate with the trustee.

Assets discovered after discharge of trustee: appeal

154

Where AiB makes or refuses to make an appointment or reappointment under section 152, an interested person may, within 14 days after AiB's decision, appeal to the sheriff against that decision.

PART 13 — Bankruptcy restrictions orders and interim bankruptcy restrictions orders

Bankruptcy restrictions orders

Bankruptcy restrictions order

155

(1) Where sequestration of a living debtor's estate is awarded, an order (to be known as a “bankruptcy restrictions order”) in respect of the debtor may be made—

(a) by AiB, or

(b) on the application of AiB, by the sheriff.

(2) If AiB proposes to make a bankruptcy restrictions order, AiB must so notify the debtor.

(3) A notice under subsection (2) must inform the debtor that the debtor has a right to make representations to AiB in relation to the proposed bankruptcy restrictions order.

(4) Before making a bankruptcy restrictions order, AiB must take into account any representations made by the debtor.

Grounds for making bankruptcy restrictions order

156

(1) A bankruptcy restrictions order must be made if AiB, or as the case may be the sheriff, thinks it appropriate having regard to the conduct, whether before or after the date of sequestration, of the debtor.

(2) AiB, or as the case may be the sheriff, is in particular to take into account any of the following kinds of behaviour on the part of the debtor—

(a) failing to keep records which account for a loss of property—

(i) by the debtor, or

(ii) by a business carried on by the debtor,

where the loss occurred in the period beginning 2 years before the date of presentation of the petition for sequestration, or as the case may be the date the debtor application was made, and ending with the date of the application for a bankruptcy restrictions order,

(b) failing to produce records of that kind on demand by—

(i) AiB,

(ii) the interim trustee, or

(iii) the trustee in the sequestration,

(c) failing to supply accurate information to an authorised person for the purpose of the granting under section 9 of a certificate for sequestration of the debtor's estate,

(d) making a gratuitous alienation, or any other alienation, for no consideration or for no adequate consideration, which a creditor has, under any rule of law, right to challenge,

(e) creating an unfair preference, or any other preference, which a creditor has, under any rule of law, right to challenge,

(f) making an excessive pension contribution,

(g) failing to supply goods or services which were wholly or partly paid for, where the failure has given rise to a claim submitted by a creditor under section 46 or 122,

(h) trading at a time before the date of sequestration when the debtor knew, or ought to have known, that the debtor was unable to meet the debtor's debts,

(i) incurring, before the date of sequestration, a debt which the debtor had no reasonable expectation of being able to pay,

(j) failing to account satisfactorily to the sheriff, AiB, the interim trustee or the trustee, for—

(i) a loss of property, or

(ii) an insufficiency of property to meet the debtor's debts,

(k) carrying on any gambling, speculation or extravagance—

(i) which may have contributed materially to, or increased the extent of, the debtor's debts, or

(ii) which took place between the date of presentation of the petition for sequestration, or as the case may be the date the debtor application was made, and the date on which sequestration is awarded,

(l) neglect of business affairs, being neglect of a kind which may have contributed materially to, or increased the extent of, the debtor's debts,

(m) fraud or breach of trust,

(n) failing to co-operate with—

(i) AiB,

(ii) the interim trustee, or

(iii) the trustee in the sequestration.

(3) AiB, or as the case may be the sheriff, must in particular also consider whether the debtor—

(a) has previously been sequestrated, and

(b) remained undischarged from that sequestration at any time during the 5 years ending with the date of the sequestration to which the application relates.

(4) For the purposes of subsection (2)—

“excessive pension contribution” is to be construed in accordance with section 101, and

“gratuitous alienation” means an alienation challengeable under section 98.

Bankruptcy restrictions order: application of section 218(13)

157

(1) Where—

(a) AiB thinks it appropriate, AiB may, or

(b) as the case may be, the sheriff thinks it appropriate, the sheriff may,

specify in a bankruptcy restrictions order that section 218(13) is to apply to the debtor, during the period the debtor is subject to the order, as if the debtor were a debtor within the meaning of section 219(2)(a).

(2) But for the purposes of subsection (1), section 219(2) has effect as if, for paragraph (c) of that section, there were substituted—

(c) the “relevant information” about the status of the debtor is the information that (as the case may be)— (i) the debtor is subject to a bankruptcy restrictions order, or (ii) where the debtor's estate has been sequestrated and the debtor has not been discharged, that fact.

Timing for making a bankruptcy restrictions order

158

(1) AiB must make, or apply to the sheriff for, any bankruptcy restrictions order within the period which begins with the date of sequestration and ends with the date on which the debtor's discharge becomes effective.

(2) But subsection (1) is subject to subsection (3).

(3) After the end of the period referred to in subsection (1), AiB may—

(a) make a bankruptcy restrictions order, or

(b) make an application for a bankruptcy restrictions order,

with the permission of the sheriff.

Duration of bankruptcy restrictions order and application for revocation or variation

159

(1) A bankruptcy restrictions order—

(a) comes into force when made, and

(b) ceases to have effect at the end of a day specified, for the purposes of this paragraph, in the order.

(2) The day specified under subsection (1)(b)—

(a) in the case of an order made by AiB—

(i) must not be before the expiry of 2 years beginning with the day on which the order is made, but

(ii) must be within 5 years beginning with that day, and

(b) in the case of an order made by the sheriff—

(i) must not be before the expiry of the 5 years beginning with the day on which the order is made, but

(ii) must be within 15 years beginning with that day.

(3) On an application by the debtor, the person mentioned in subsection (4) may—

(a) revoke a bankruptcy restrictions order, or

(b) vary it.

(4) The person is, in the case of a bankruptcy restrictions order —

(a) made by AiB, AiB, and

(b) made by the sheriff, the sheriff.

(5) If an application under subsection (3) is made to AiB, AiB must—

(a) take into account any representations made, within 21 days beginning with the day on which the application is made, by an interested person, and

(b) confirm, revoke or vary the order within 28 days beginning with that day.

(6) The debtor may appeal to the sheriff against any decision of AiB under subsection (5)(b) within 14 days beginning with the date of the decision.

(7) The sheriff may—

(a) in determining such an appeal, or

(b) otherwise on an application by AiB,

make an order providing that the debtor may not make another application under subsection (3) for such period as may be specified in the order.

(8) Variation under subsection (3)(b) may include providing for such an order to cease to have effect at the end of a day earlier than that specified under subsection (1)(b).

Interim bankruptcy restrictions orders

160

(1) Subsection (2) applies at any time—

(a) after AiB notifies the debtor under section 155(2) that AiB proposes to make a bankruptcy restrictions order, and

(b) before AiB decides whether to make the order.

(2) AiB may make an interim bankruptcy restrictions order if AiB thinks—

(a) that there are prima facie grounds to suggest that a bankruptcy restrictions order will be made, and

(b) that it is in the public interest to make such an order.

(3) Subsection (4) applies at any time between—

(a) the making of an application to the sheriff for a bankruptcy restrictions order, and

(b) the determination of that application.

(4) The sheriff may, on the application of AiB, make an interim bankruptcy restrictions order if the sheriff thinks—

(a) that there are prima facie grounds to suggest that the application for the bankruptcy restrictions order will be successful, and

(b) that it is in the public interest to make an interim bankruptcy restrictions order.

(5) An interim bankruptcy restrictions order—

(a) has the same effect as a bankruptcy restrictions order, and

(b) comes into force on being made.

(6) An interim bankruptcy restrictions order ceases to have effect—

(a) where it was made by AiB, on AiB deciding whether or not to make a bankruptcy restrictions order,

(b) where it was made by the sheriff, on the determination of the application for the bankruptcy restrictions order, or

(7) Where a bankruptcy restrictions order is made in respect of a debtor who is subject to an interim bankruptcy restrictions order, subsection (2) of section 159 has effect in relation to the bankruptcy restrictions order as if the reference in that subsection to the day the order is made were a reference to the day the interim bankruptcy restrictions order is made.

Effect of recall of sequestration

Bankruptcy restrictions orders and interim bankruptcy restrictions orders: effect of recall of sequestration

161

(1) Where an award of sequestration of a debtor's estate is recalled under section 30(1)—

(a) the sheriff may revoke any bankruptcy restrictions order or interim bankruptcy restrictions order in force in respect of the debtor, and

(b) no new bankruptcy restrictions order or interim bankruptcy restrictions order may be made in respect of the debtor.

(2) Where the sheriff refuses to revoke, under subsection (1)(a), a bankruptcy restrictions order or interim bankruptcy restrictions order the debtor may, within 28 days after the date on which the award of sequestration is recalled, appeal to the Sheriff Appeal Court against the refusal.

(3) The decision of the Sheriff Appeal Court on an appeal under subsection (2) is final.

(4) Where an award of sequestration of a debtor's estate is recalled under section 34(1) or 35(6)—

(a) AiB may revoke any bankruptcy restrictions order or interim bankruptcy restrictions order in force in respect of the debtor, and

(b) no new bankruptcy restrictions order or interim bankruptcy restrictions order may be made in respect of the debtor.

(5) Where AiB refuses to revoke under subsection (4) a bankruptcy restrictions order or interim bankruptcy restrictions order, the debtor may apply to AiB for a review of the refusal.

(6) Any application under subsection (5) must be made within 14 days beginning with the day on which the award of sequestration is recalled.

(7) If an application under subsection (5) is made, AiB must—

(a) take into account any representations made by an interested person within 21 days beginning with the day on which the application is made, and

(b) confirm the refusal or revoke the order within 28 days beginning with that day.

(8) The debtor may appeal to the sheriff against any decision of AiB under subsection (7)(b) within 14 days beginning with the day of the decision.

(9) The decision of the sheriff on an appeal under subsection (8) is final.

PART 14 — Voluntary trust deeds for creditors

General

Voluntary trust deeds for creditors

162

Sections 163 to 193 and schedule 4 have effect in relation to voluntary trust deeds executed on or after the date on which this Part comes into force.

Protected trust deeds: protected status

Protected status: general

163

(1) A trust deed has protected status (and is to be known as a “protected trust deed”) where—

(a) the conditions set out in sections 164, 165, 166(2) (where it applies) and 167 to 170 are met, and

(b) the deed is registered under section 171(2) in the register of insolvencies.

(2) And it has that status from the date on which it is so registered (that date being, in this Part, referred to as the “date of protection”).

Conditions for protected status

Protected status: the debtor

164

(1) The debtor must be—

(a) a living individual who,

(b) a partnership which,

(d) a trust which,

(e) a corporate body which, or

(f) an unincorporated body which,

has a sufficient connection to Scotland and grants a trust deed for a single estate.

(1A) For the purposes of subsection (1), a debtor has a sufficient connection to Scotland if—

(a) in the case of a debtor who is a living individual, the individual—

(i) was habitually resident in Scotland at any time in the year immediately preceding the date the trust deed is granted, or

(ii) had an established place of business in Scotland within that period,

(b) in the case of a debtor which is a body or entity of a kind mentioned in paragraphs (b) to (f) of subsection (1), the body or entity—

(i) had an established place of business in Scotland at any time in the year immediately preceding the date the trust deed is granted, or

(ii) was constituted or formed under Scots law and at any time carried on business in Scotland.

(2) The debtor must not be—

(a) a debtor whose estate has been sequestrated if the trustee in the sequestration has not been discharged under section 148 or 151, or

(b) an entity referred to in section 6(2).

(3) The total amount of the debtor's debts (including interest) as at the date on which the debtor grants the trust deed must be not less than £5,000.

Protected status: the trustee

165

The trustee under the trust deed must be a person who would not be disqualified under section 49(3) to (5) from acting as the replacement trustee were the debtor's estate being sequestrated.

Exclusion of a secured creditor from trust deed

166

(1) The conditions set out in subsection (2) apply where a secured creditor is, by virtue of an agreement such as is mentioned in paragraph (b)(ii) of the definition of “trust deed” in section 228(1) (in this Part referred to as “the trust deed definition”), excluded from a trust deed.

(2) Before the debtor grants the trust deed—

(a) the trustee must provide the debtor and the secured creditor with a valuation, made by a chartered surveyor or other suitably qualified person, of the dwellinghouse (or part) which is to be excluded from the estate conveyed as mentioned in paragraph (b)(i) of the trust deed definition,

(b) the debtor must, in such form as may be prescribed for the purposes of this paragraph, request obtaining the secured creditor's agreement not to claim under the trust deed for any of the debt in respect of which the security is held, and

Statements in and advice regarding trust deed

167

(1) The trust deed must state—

(a) that, subject to any exclusion mentioned in paragraph (b)(i) of the trust deed definition, all of the debtor's estate (other than property listed in section 88(1) or which would be excluded under any other provision of this Act or of any other enactment from vesting in the trustee of a sequestrated estate) is conveyed to the trustee, and

(b) that the debtor agrees to convey to the trustee, for the benefit of creditors generally, any estate (wherever situated) which—

(i) is acquired by the debtor during the 4 years beginning with the date on which the trust deed is granted, and

(ii) would have been conveyed to the trustee by virtue of paragraph (a) had it been part of the debtor's estate on the date on which the trust deed was granted.

(2) Where the debtor's dwellinghouse, or part of the debtor's dwellinghouse, is excluded as mentioned in paragraph (b)(i) of the trust deed definition from the estate conveyed to the trustee, the trust deed must also include details—

(a) of any secured creditor who has agreed not to claim under the trust deed for any of the debt in respect of which the security is held, and

(b) of that debt.

(3) Before the debtor grants the trust deed—

(a) the trustee must advise the debtor that granting the deed may result—

(i) in the debtor's estate being sequestrated,

(ii) in the debtor's being refused credit, whether before or after the debtor's discharge under section 184,

(iii) subject to any exclusion mentioned in paragraph (b)(i) of the trust deed definition, in the debtor's not being able to remain in the debtor's current place of residence,

(iv) subject to any such exclusion, in the debtor's being required to relinquish property which the debtor owns,

(v) in the debtor's being required to make contributions from income for the benefit of creditors,

(vi) in damage to the debtor's business interests and employment prospects, and

(vii) in the fact of the debtor's having granted a trust deed becoming public information,

(b) the trustee must provide the debtor with—

(i) a copy of a debt advice and information package, and

(ii) a copy of a trust deed information document,

(ba) the trustee must give the debtor adequate time to consider the advice and material provided under paragraphs (a) and (b),

(c) the trustee and the debtor must both sign a statement to the effect that the trustee has fulfilled the duties referred to in this subsection.

(4) For the purposes of subsection (3) a “trust deed information document” means a document containing such information (including information regarding the consequences of granting a trust deed), and in such form, as the Scottish Ministers may determine.

(5) The trustee must have regard to any guidance issued by the Scottish Ministers about giving debtors adequate time to consider the advice and material provided under paragraphs (a) and (b) of subsection (3).

(6) The Scottish Ministers must publish any guidance issued under subsection (5).

Payment of debtor’s contribution

168

(1) The trust deed must state that the debtor is, during the payment period mentioned in subsection (2), to pay any contributions from income for the benefit of creditors (including, where the debtor is an individual, any contribution required by the common financial tool) at regular intervals.

(2) The payment period is—

(a) a period of 48 months beginning with the date on which the trust deed is granted,

(b) such period shorter than 48 months as is determined by the trustee, or

(i) determined by the trustee where there has been a period during which the debtor has not paid those contributions, or

(ii) agreed between the debtor and the trustee.

(3) The trustee may, under subsection (2)(b), determine a shorter payment period only if, in the trustee's opinion, payment of those contributions (from income or otherwise) during that period would allow distribution of the debtor's estate to meet in full the total amount, as at the date on which the debtor grants the trust deed, of the debtor's debts (including interest).

(4) Where the debtor is an individual, those contributions must be such as to result, over the payment period, in the payment of a sum less than the total amount, as at the date on which the debtor grants the trust deed, of the debtor's debts (including interest).

(5) In calculating those contributions for the purposes of subsections (1) and (4), the whole of the debtor's surplus income over the amount allowed for expenditure in the statement of the debtor's income and expenditure supplied under section 170(1)(d)(ii) must be applied.

Notice in register of insolvencies

169

After the trust deed has been delivered to the trustee, the trustee must without delay send a notice in such form as may be prescribed for the purposes of this section to AiB for publication by registration in the register of insolvencies.

Documents to be sent to creditors

170

(1) Not later than 7 days after the date of registration under section 169, the trustee must send to every creditor known to the trustee (other than any secured creditor who has, as mentioned in paragraph (b)(ii) of the trust deed definition, agreed not to claim under the trust deed for any of the debt in respect of which the security is held)—

(a) a copy of the trust deed,

(b) a copy of such form as may be prescribed for the purposes of a creditor making a statement of claim,

(d) a statement of the debtor's affairs, prepared by the trustee, containing—

(i) a list of the debtor's assets and liabilities,

(ii) a statement of the debtor's income and expenditure as at the date on which the trust deed was granted (being, where the debtor is a living individual, a statement in the form prescribed for that purpose by the Protected Trust Deeds (Forms) (Scotland) Regulations 2016),

(iii) a statement as to the extent to which those assets and that income will not vest in the trustee,

(iv) a statement as to whether, and if so on what basis, the EU insolvency proceedings regulation applies to the trust deed,

(v) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(vi) a statement as to whether the creditors are likely to be paid a dividend and the amount of the dividend that is expected to be paid,

(vii) if the case is one in which there is an exclusion such as is mentioned in paragraph (b)(i) of the trust deed definition, a statement by the trustee, on the basis of the information for the time being available to the trustee, as to what the effect of that exclusion is likely to be on any such dividend,

(viii) a statement that the trustee on request must provide a copy of any valuation held by the trustee which has been made by a third party and which relates to an asset of the debtor, any statement showing the amount due by the debtor under a security and any document showing the income for the time being of the debtor,

(ix) a copy of any agreement referred to in section 175(1),

(x) a statement explaining the conditions which require to be fulfilled before the trust deed will become a protected trust deed and the consequences of its so becoming,

(xi) details of any protected trust deed in respect of which, in the 6 months preceding publication of the notice provided for in section 169, the debtor has been discharged in terms of section 184(1) (or regulation 24(1) of the Protected Trust Deeds (Scotland) Regulations 2013 (S.S.I. 2013/318)) or been refused a letter of discharge under section 184(8) (or regulation 24(8) of those regulations), and

(xii) where a secured creditor's agreement has been obtained by virtue of paragraph (b) of section 166(2), a statement containing the valuation made by virtue of paragraph (a) of that section and a statement of the amount owed, in respect of the security held, to that creditor, and

(e) a statement, in such form as may be prescribed for the purposes of this paragraph, of the trustee's anticipated realisations from the trust deed.

(2) The trust deed must be acceded to by the creditors to whom the trustee is required by subsection (1) to send documents (those creditors being in this Part referred to as “the notified creditors”) but is deemed to have been acceded to by them unless, within the relevant period, the trustee receives notification in writing from a majority in number, or no fewer than ⅓ in value, of them that they object to the trust deed being granted protected status.

Registration for protected status

171

(1) As soon as reasonably practicable after the expiry of the relevant period (and in any event within 4 weeks after that expiry), the trustee must send to AiB for registration in the register of insolvencies—

(a) a copy of the trust deed,

(b) either—

(i) a copy of every form of agreement obtained by virtue of section 166(2)(c), or

(ii) a statement by the trustee that no such form of agreement has been obtained,

(c) a statement by the trustee that those creditors, if any, who have objected in writing to the trust deed during the relevant period do not constitute a majority in number, or ⅓ or more in value, of the creditors,

(d) a copy of the statement referred to in section 167(3)(c),

(e) a copy of the statement referred to in section 170(1)(d),

(f) a copy of any agreement referred to in section 175(1),

(g) a statement, in the form prescribed for the purposes of section 170(1)(e), of the trustee's anticipated realisations from the trust deed,

(h) where the debtor, being a living individual, makes a contribution from income—

(i) a statement that the amount of the contribution is in accordance with the common financial tool as assessed by the trustee, and

(ii) any evidence or explanation required in applying the common financial tool

(i) a statement by the trustee, in the form prescribed for that purpose in the Protected Trust Deeds (Forms) (Scotland) Regulations 2016, that—

(i) the documents and statements required under paragraphs (a) to (h) of this subsection accompany the statement, and

(ii) the conditions set out in sections 164 to 170 have been met.

(2) AiB must register the trust deed in the register of insolvencies if—

(a) AiB has received all the documents required to be sent under subsection (1),

(b) AiB is satisfied that the conditions set out in sections 164 to 170 have been met, and

(3) Subsection (4) applies where AiB notifies the trustee either—

(a) that the trust deed is registered in the register of insolvencies, or

(b) that such registration is refused.

(4) The trustee must, within 7 days after being so notified, notify the debtor and every creditor known to the trustee that the trust deed is so registered or refused.

Effect of protected status etc.

Effect of protected status: general

172

(1) Where a trust deed has protected status then—

(a) subject to section 177, a creditor who (either or both)—

(i) is not a notified creditor, or

(ii) notified the trustee, during the relevant period, of objection to the trust deed,

has no higher right to recover the debt than a creditor who has acceded to, or been deemed by virtue of section 170(2) to have acceded to, the trust deed, and

(b) an application for sequestration of the debtor's estate may not be made by the debtor while the trust deed subsists.

(2) A creditor ceases to be deemed (by virtue of section 170(2)) to have acceded to a trust deed if AiB agrees that the debtor should not be discharged from the trust deed under section 184A.

(3) Where a secured creditor's agreement has been obtained by virtue of section 166(2)(b) and the trust deed becomes a protected trust deed, that creditor is not entitled—

(a) to make a claim under the protected trust deed for any of the debt in respect of which the security is held,

(b) to do diligence against the assets conveyed to the trustee under the protected trust deed, or

Effect of protected status on diligence against earnings

173

(1) This section applies where a trust deed has protected status.

(2) On the date of protection, any current earnings arrestment, maintenance arrestment, or, subject to subsection (3), conjoined arrestment order ceases to have effect.

(3) Any sum paid, before the date of protection, by the employer to the sheriff clerk under a conjoined arrestment order must be disbursed by the sheriff clerk under section 64 of the Debtors (Scotland) Act 1987 even if the date of disbursement is after the date of protection.

(4) A deduction from earnings order under that Act of 1987 is not competent after the date of protection to secure the payment of any amount due by the debtor under a maintenance calculation (within the meaning of that Act) in respect of which a claim could be made under the trust deed.

(5) The execution of an earnings arrestment or the making of a conjoined arrestment order is not competent, after the date of protection, to enforce a debt in respect of which the creditor is entitled to make a claim under the trust deed.

Deductions by virtue of protected trust deed from debtor’s earnings

174

(1) This section applies where—

(a) a debtor is required to pay to the trustee, by virtue of a protected trust deed, a contribution from income for the benefit of creditors,

(b) in respect of that contribution, an amount is required to be paid from the debtor's earnings from employment, and

(2) Following a request by the trustee, the debtor must give the debtor's employer an instruction, in such form as may be prescribed for the purposes of this section, to make—

(a) deductions of specified amounts from the debtor's earnings, and

(b) payments to the trustee of the amounts so deducted.

(3) The trustee may give the debtor's employer an instruction, in such form as may be prescribed for the purposes of this section (being a form to the same effect as is mentioned in subsection (2)), if the debtor fails to comply with the requirement imposed by that subsection.

(4) If agreed between the debtor and the trustee, the debtor may give the debtor's employer a variation to an instruction mentioned in subsection (2).

(5) The employer must comply with any instruction given in accordance with subsection (2) or (3) (or, if an instruction under subsection (2) is varied in accordance with subsection (4), with that instruction as so varied).

(6) The instruction having been delivered, the employer must, while it is in effect—

(a) deduct the sum specified in it on every pay day, and

(b) pay the sum deducted to the trustee as soon as it is reasonable to do so.

(7) Where an employer fails without good cause to make a payment due under an instruction, the employer is—

(a) liable to pay on demand by a trustee the amount that should have been paid, and

(b) not entitled to recover from a debtor the amount paid to the debtor in breach of the instruction.

(8) An employer may, on making a payment due under an instruction—

(a) charge a fee equivalent to the fee chargeable for the time being under section 71 (employer's fee for operating diligence against earnings) of the Debtors (Scotland) Act 1987, and

(b) deduct that fee from the balance due to the debtor.

(9) The trustee must, without delay after the discharge of a debtor under section 184, notify in writing any person who has received an instruction under subsection (2) or (3) (or an instruction under subsection (2) varied in accordance with subsection (4)) that the instruction is recalled.

Agreement in respect of debtor’s heritable property

175

(1) Subject to the conditions in subsection (2), the trustee may, in such form as may be prescribed for the purposes of this section as at the date on which the trust deed is granted, agree—

(a) not to realise any specified heritable estate of the debtor which has been conveyed to the trustee,

(b) to relinquish the trustee's interest in respect of such heritable estate, and

(c) to recall any notice of inhibition in respect of such heritable estate in accordance with paragraph 3(3) of schedule 4.

(2) The conditions are that the debtor must—

(a) pay any amount determined by the trustee by a date so determined,

(b) pay a monthly amount so determined for a period so determined (being, in a case where there is a contribution from income, a period following the payment period applicable by virtue of section 168(2)), and

(3) The amount of the debtor's payments under paragraphs (a) and (b) of subsection (2) must be determined in accordance with a valuation made by a chartered surveyor, or other qualified third party, of the debtor's heritable estate as at the date of grant of the trust deed.

(4) If the debtor fails to fulfil a condition mentioned in subsection (2), the trustee may withdraw from the agreement.

(5) The trustee must, as soon as is practicable, send a copy of the agreement (in the form mentioned in subsection (1)) to AiB and to every creditor known to the trustee other than any secured creditor who has, as mentioned in paragraph (b)(ii) of the trust deed definition, agreed not to claim under the trust deed for any of the debt in respect of which the security is held.

(6) This section does not apply to the debtor's dwellinghouse (or any part of that dwellinghouse) if the dwellinghouse or part is, by virtue of an exclusion such as is mentioned in paragraph (b)(i) of the trust deed definition, excluded from the estate conveyed to the trustee.

Dividend payments

176

(1) If the funds of the debtor's estate are sufficient, the trustee must pay a dividend out of it to the creditors no later than 6 weeks after the end of—

(a) a first dividend period of 12 months beginning with the date on which the trust deed is granted, and

(b) any subsequent dividend period of 3 months beginning with the end of the previous dividend period.

(2) The funds of the debtor's estate are “sufficient” if, after—

(a) deduction of the trustee's fees and of any outlays payable under this Part, and

(b) making allowance for future contingencies,

a dividend may be paid to the creditors amounting to at least 5 pence for each pound sterling of the debtor's debt, as at the date of protection, under the trust deed.

Sequestration petition by qualified creditor

177

(1) A qualified creditor who is not a notified creditor or who has notified the trustee of objection to the trust deed within the relevant period may—

(a) not later than 5 weeks after the date of registration under section 169 of the notice mentioned in that section, or

(b) at any time if the creditor avers that the provision for distribution of the estate is, or is likely to be, unduly prejudicial to a creditor or class of creditors,

present a petition to the sheriff for sequestration of the debtor's estate.

(2) Subsection (1)(b) is subject to section 13(2)(a).

(3) The sheriff may award sequestration in pursuance of—

(a) subsection (1)(a), only if satisfied that to do so would be in the best interests of the creditors, and

(b) subsection (1)(b), only if satisfied that the creditor's averment is correct.

Creditor’s application as respects intromissions of trustee

178

(1) A creditor who is not sent a copy of the notice mentioned in section 169 or who has notified the trustee of objection to the trust deed within the relevant period may apply to the sheriff under this section.

(2) Where on such an application the sheriff is satisfied, on grounds other than those on which a petition under section 177(1)(b) has been or could have been presented by the creditor, that the intromissions of the trustee with the estate of the debtor have been so unduly prejudicial to the creditor's claim that the creditor should not be bound by the trustee's discharge, the sheriff may order that the creditor is not to be so bound.

(3) On the sheriff making an order under subsection (2), the sheriff clerk must—

(a) send a copy of the order to the trustee, and

(b) send a copy of the order to AiB for registration in the register of insolvencies.

(4) Any application under subsection (1) must be made within 28 days after the registration in the register of insolvencies of the trustee's statement of realisation and distribution of estate under the protected trust deed, as mentioned in section 186(8)(b).

(5) The sheriff to whom the application may be made is the sheriff to whom a petition for sequestration would be brought in respect of the debtor by virtue of section 15(1) or (3).

Administration, accounting and discharge

Directions to trustee under protected trust deed

179

(1) AiB may give directions to the trustee under a protected trust deed as to how the trustee should conduct the administration of the trust.

(2) On a direction being issued by virtue of subsection (1) its terms must be intimated to the debtor and to all known creditors.

(3) The direction may be issued on the initiative of AiB or (at AiB's discretion) on the request of the trustee, the debtor or any creditor.

(4) The trustee must, unless subsection (5) applies, comply with the direction within 30 days beginning with the day on which the direction is given.

(5) Where the trustee has appealed under section 188(1)(c) and the appeal has been dismissed by the sheriff or withdrawn by the trustee, the trustee must comply with the direction within 30 days beginning with the day of dismissal or withdrawal.

(6) If it appears to AiB that the trustee has failed, without reasonable excuse, to comply with the direction, AiB may report the matter to the sheriff who, after hearing the trustee on the matter, may—

(a) censure the trustee, or

(b) make such other order as the circumstances of the case require.

Information and notification obligations of trustee under protected trust deed

180

(1) Where the trustee under a protected trust deed makes a determination to shorten or lengthen the payment period by virtue of section 168, the trustee must without delay notify the debtor accordingly.

(2) Whether or not still acting in the administration of the trust under a protected trust deed, the trustee must supply AiB with such information relating to the trust deed as AiB considers necessary to enable AiB to discharge AiB's functions under this Act.

(3) If it appears to AiB that the trustee has failed, without reasonable excuse, to supply information to AiB which is requested in accordance with subsection (2), AiB may report the matter to the sheriff who, after hearing the trustee on the matter, may—

(a) censure the trustee, or

(b) make such other order as the circumstances of the case require.

(4) On the trustee under a protected trust deed being replaced with a new trustee, the new trustee must without delay notify AiB accordingly.

Administration of trust under protected trust deed

181

(1) At intervals of not more than 12 months (the first such interval beginning with the date on which the trust deed was granted) and within 6 weeks after the end of each interval, the trustee under a protected trust deed must send the trustee's accounts of the trustee's intromissions with the debtor's estate in administering the trust during the period in question—

(a) to the debtor,

(b) to each creditor, and

(2) At such intervals the trustee must send to AiB, the debtor and each creditor a report, in such form as may be prescribed for the purposes of this subsection, on the management of the trust during the period in question.

(3) Subsection (4) applies where—

(a) within 21 days after the date on which the report is sent, the trustee receives notification in writing from—

(i) a majority in number, or

(ii) no fewer than ⅓ in value,

of the creditors that they object to a course of action recommended in the report, and

(b) the expected final dividend to ordinary creditors set out in the report is at least 20% lower than the expected dividend to ordinary creditors set out in the form prescribed for the purposes of section 170(1)(e).

(4) The trustee must request under section 179(3) a direction as to the administration of the trust.

(5) The debtor or any creditor may, within 14 days after receiving a statement by virtue of subsection (1), require AiB to exercise the function mentioned in section 200(1)(a) (in so far as relating to trustees under protected trust deeds) by carrying out an examination of the administration of the trust by the trustee.

(6) In determining the amount of any contribution from income to be made by the debtor—

(a) the trustee may take account of any social security benefit paid to the debtor, but

(b) any contribution must not include an amount derived from social security benefit.

Retention of documents by trustee under protected trust deed

182

The trustee under a protected trust deed must retain the following documents (or copies of those documents) for at least 12 months after the date of the trustee's discharge by the creditors under section 186—

(a) the trust deed,

(b) the statement mentioned in section 167(3)(c),

(d) the statement mentioned in section 170(1)(d),

(e) all statements of objection or accession received from creditors,

(f) the statement of anticipated realisations provided for in section 170(1)(e),

(g) any written agreement relating to the debtor's heritable estate and mentioned in section 175(1),

(h) all reports sent under section 181(2),

(i) any adjudication on a creditor's claim,

(j) any scheme of division among creditors,

(k) any circular sent to creditors with accounts,

(l) the debtor's discharge from the trust deed,

(m) the application to creditors for the trustee's discharge,

(n) the statement of realisation and distribution provided for in section 186(8)(b),

(o) any decree, interlocutory decree, direction or order granted by the court and relating to the administration of the trust, and

(p) any other document relating to the administration of the trust if it is a document which AiB, by notice to the trustee prior to the trustee's discharge, identifies as a document the trustee should retain.

Remuneration payable to trustee under protected trust deed

183

(1) For work done by the trustee in administering the trust, the trustee under a protected trust deed is entitled to remuneration consisting only of—

(a) a fixed fee which must be set out in a form prescribed for the purposes of this paragraph,

(b) an additional fee based on a percentage of the total assets and contributions realised by the trustee, being a fee set out in a form so prescribed, and

(i) after the date on which the trust deed is granted, or

(ii) before that date on a single valuation of any item of the debtor's heritable estate specified or valued in such a valuation.

(2) In the event of unforeseen circumstances the fixed fee may by increased by—

(a) approval by a majority in value of the notified creditors, or

(b) approval by AiB (all notified creditors having first been asked to approve the increase).

(3) AiB must approve an increase in the fixed fee if satisfied—

(a) that a majority in value of the notified creditors have not refused to approve the increase, and

(b) that the increase is required for work to be completed by the trustee for the benefit of the creditors generally, being work which was not foreseen in submitting a form by virtue of section 170(1)(e).

(4) In deciding whether or not to grant the approval mentioned in subsection (2)(b), AiB may determine the amount of any increase in the fixed fee.

(5) The trustee is entitled to include work done in seeking to comply with section 166(2) (whether or not a secured creditor has agreed not to claim under the trust deed) in the fixed fee and any outlays incurred.

(6) Any debt due to a third party for work done before the granting of the trust deed does not rank higher than any other creditor's claim.

(7) The trustee is entitled to recover from the debtor's estate any audit fee charged by AiB under paragraph 1 or 2 of schedule 4 in accordance with such rate as may be prescribed under section 205.

(8) AiB may, at any time, audit the trustee's accounts and fix the outlays of the trustee in the administration of the trust.

Protected trust deed: discharge of debtor

184

(1) If the conditions set out in subsection (2) are met then, subject to subsections (6) and (9) and to section 185(1)—

(a) the debtor falls to be discharged from all debts and obligations —

(i) in terms of the protected trust deed, or

(ii) for which the debtor was liable as at the date that deed was granted, and

(b) the trustee under the protected trust deed must send—

(i) to AiB, an application for discharge of the debtor from the trust deed (being an application in such form as may be prescribed for the purposes of this paragraph), and

(ii) to the debtor, a copy of that application.

(2) The conditions are—

(a) that the trustee makes a statement (being a statement in such form as may be prescribed for the purposes of this paragraph) that, to the best of the trustee's knowledge, the debtor has—

(i) met the debtor's obligations in terms of the trust deed, and

(ii) co-operated with the administration of the trust, and

(b) any notice of inhibition under paragraph 3 of schedule 4 has been recalled or has expired.

(3) Subject to subsection (9), on receipt of the application referred to in subsection (1)(b)(i), AiB must register it in the register of insolvencies and the date of discharge is the date on which it is so registered.

(4) AiB must without delay notify the trustee of—

(a) the fact of registration, and

(b) the date of the debtor's discharge.

(5) The trustee must, within 7 days after receipt of the notification mentioned in subsection (4), notify the debtor and every creditor known to the trustee of the information set out in that notification.

(6) The letter of discharge does not—

(a) discharge the debtor from—

(i) any liability arising after the date on which the protected trust deed was granted,

(ii) any liability or obligation mentioned in section 145(3),

(iii) any liability for a debt in respect of which a security is held if the secured creditor has, as mentioned in paragraph (b)(ii) of the trust deed definition, agreed not to claim under the trust deed for any of the debt in respect of which the security is held, or

(b) affect the rights of a secured creditor.

(7) For the purposes of subsection (2)(a)(i), it is not a failure to meet the debtor's obligations for the debtor to refuse to —

(a) consent to the sale of the debtor's dwellinghouse (or of a part of that dwellinghouse) if the dwellinghouse or part is excluded, as mentioned in paragraph (b)(i) of the trust deed definition, from the estate conveyed to the trustee,

(b) give a relevant consent in terms of section 113(1)(a).

(8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(9) AiB may refuse to register under subsection (3) an application sent under subsection (1)(b)(i) if not satisfied that the debtor has—

(a) met the debtor's obligations in terms of the trust deed, or

(b) co-operated with the administration of the trust.

(10) If AiB does so refuse, AiB must provide written notification of the refusal and of the reason for it to the trustee and the debtor.

(11) Within 7 days after the date on which the trustee receives any such notification as is mentioned in subsection (10), the trustee must send a copy of it to every creditor known to the trustee.

Student loans

185

(1) Section 184 does not affect the right to recover any debt arising from a student loan.

(2) In subsection (1), “student loan” means a loan made by virtue of—

(a) section 73(f) of the Education (Scotland) Act 1980,

(b) section 1 of the Education (Student Loans) Act 1990,

(d) Article 3 of the Education (Student Support) (Northern Ireland) Order 1998 (S.I. 1998/1760).

Protected trust deed: discharge of trustee

186

(1) This section applies where a trustee under a protected trust deed has made the final distribution of the trust estate among the creditors.

(2) Within 28 days after the date of final distribution, the trustee must apply for discharge to such of those creditors as have acceded (or are deemed to have acceded) to the trust deed.

(3) Any application under subsection (2) must be in such form as may be prescribed for the purposes of that subsection.

(4) The trustee must send AiB by the date of application—

(a) a copy of the application, and

(b) the accounts of the trustee's intromissions for the last period for which accounts must be sent under section 181(1).

(5) For the purposes of subsection (2), the “date of final distribution” is the date on which all of the estate distributed has been placed beyond the control of the trustee.

(6) A creditor who does not respond to the application within 14 days after it is made is deemed to have agreed to the trustee's discharge.

(7) If a majority of the creditors in value consent to the application the trustee is discharged.

(8) On being discharged, the trustee must within 28 days of the discharge—

(a) inform AiB of the discharge,

(b) send AiB, for registration in the register of insolvencies, a statement of realisation and distribution of estate under the protected trust deed, and

(9) A statement under subsection (8)(b) must be in such form as may be prescribed for the purposes of that subsection.

(10) Where the trustee's discharge is granted under this section, the discharge also applies as regards any previous trustee under the trust deed unless, under section 189, a person with an interest obtains an order to the contrary from the sheriff.

Electronic delivery of notices etc. under this Part

187

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Appeals and directions

Protected trust deed: appeal

188

(1) The persons mentioned in subsection (2) may appeal to the sheriff against—

(a) any refusal by AiB to register a trust deed if it is a refusal on the grounds that AiB is not satisfied as mentioned in section 171(2)(c),

(b) any determination by AiB fixing the remuneration payable to the trustee under a protected trust deed,

(d) any refusal by AiB under section 184(9) , or

(e) any determination by AiB under section 184C(4).

(2) The persons are—

(a) the trustee,

(b) the debtor, if able to satisfy the sheriff that the debtor has, or is likely to have, a pecuniary interest in the outcome of the appeal, and

(c) any creditor, if able to satisfy the sheriff that the creditor has, or is likely to have any such interest in that outcome.

(2A) The persons mentioned in subsection (2B) may appeal to the sheriff against the outcome of any review undertaken by AiB under section 171B.

(2B) The persons are—

(a) the trustee,

(b) the debtor,

(2C) Where an appeal is brought under subsection (2A), AiB’s determination on a review under section 171B is suspended until the determination of that appeal.

(3) The trustee may appeal to the sheriff against a refusal by the creditors to grant the trustee's discharge under section 186(2).

(4) The debtor may appeal to the sheriff against a refusal by the trustee to seek agreement from AiB to refuse to discharge the debtor under section 184A(1).

(5) Any appeal under subsection (1) or (2A) must be made within 21 days after the refusal, determination or direction appealed against.

(6) The sheriff to whom any appeal under this section is to be made is the sheriff who, had a petition for the sequestration of the estate been presented at the date the trust deed was granted, would have had jurisdiction to hear that petition in terms of section 15(1) or (3).

(7) The decision of the sheriff on an appeal under this section is final.

Protected trust deed: sheriff’s direction

189

(1) Any person with an interest may at any time apply to the sheriff for a direction as regards the administration of a trust under a protected trust deed.

(2) A direction by virtue of subsection (1) may include—

(a) any order the sheriff thinks fit to make in the interests of justice, or

(b) an order to cure any defect in procedure.

(3) The sheriff to whom any application under this section is to be made is the sheriff who, had a petition for the sequestration of the estate been presented at the date the trust deed was granted, would have had jurisdiction to hear that petition in terms of section 15(1) or (3).

Application for conversion to sequestration

190

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Contents of affidavit required under section 190(2)

191

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Powers of Accountant in Bankruptcy on application for conversion to sequestration

192

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Part 14: general

Interpretation of Part 14

193

In this Part—

“the date of protection” has the meaning given by section 163(2),

“the date of protection” has the meaning given by section 163(2),

“the notified creditors” has the meaning given by section 170(2),

“the relevant period” means the period of 5 weeks beginning with the date of registration of the notice referred to in section 169,

“remuneration” means reasonable fees and outlays, and

“the trust deed definition” has the meaning given by section 166(1).

Regulations modifying Part 14

194

(1) The Scottish Ministers may by regulations modify (or add to) the provisions of this Part but, subject to subsections (2) and (3), only in so far as corresponding modifications or additions might, before the coming into force of this Part, have been made by virtue of paragraph 5(1) of schedule 5 of the Bankruptcy (Scotland) Act 1985 to the Protected Trust Deeds (Scotland) Regulations 2013 (S.S.I. 2013/318).

(2) Regulations under subsection (1) may make provision enabling applications to be made to the court.

(3) Regulations under subsection (1) may contain such modifications of the provisions of this Act as appear to the Scottish Ministers to be necessary in consequence of those regulations.

PART 15 — Moratorium on diligence

Moratorium on diligence: notice of intention to make debtor application under section 2(1)(a)

195

(1) A person may give written notice to AiB of the person's intention—

(a) to make a debtor application under section 2(1)(a),

(b) to seek to fulfil the conditions required in order for a trust deed granted by or on behalf of that person to be granted the status of protected trust deed, or

(2) A person may not give notice under subsection (1) if that person has given such notice in the immediately preceding 12 months.

(3) AiB must, without delay after receipt of a notice under subsection (1), enter in the registers mentioned in subsection (4)—

(a) the name of the person who gave the notice, and

(b) such other information as AiB considers appropriate in relation to that person.

(4) The registers are—

(a) the register of insolvencies, and

(b) the register of debt payment programmes (in this Part referred to as the “DAS register”) established and maintained in accordance with section 7 of the 2002 Act.

Moratorium on diligence: notice of intention to make debtor application under section 6

196

(1) A person may give written notice to AiB of the person's intention to make a debtor application under section 6.

(2) A person may not give notice under subsection (1) in respect of an estate if any person has given such notice in respect of the same estate in the immediately preceding 12 months.

(3) AiB must, without delay after receipt of a notice under subsection (1), enter in the register of insolvencies—

(a) the name of the person who is the subject of the notice, and

(b) such other information as AiB considers appropriate in relation to that person.

Moratorium on diligence following notice under section 195(1) or 196(1)

197

(1) This section applies where a person gives notice under section 195(1) or 196(1).

(2) A moratorium on diligence applies in relation to the person who is the subject of the notice for the moratorium period determined in accordance with section 198.

(3) While a moratorium on diligence applies in relation to the person it is not competent—

(a) to serve a charge for payment in respect of any debt owed by the person, or

(b) to commence or execute any diligence to enforce payment of any debt owed by the person,

(c) to found on any debt owed by the person in presenting, or concurring in the presentation of, a petition for sequestration of the person's estate, or

(d) where an arrestment mentioned in subsection (1) of section 73J of the Debtors (Scotland) Act 1987 has been granted in respect of funds due to the person, to release funds to the creditor under subsection (2) of that section.

(4) The moratorium period applying in relation to the person must be disregarded for the purpose of determining the period mentioned in subsection (3) of that section 73J.

(5) Despite subsection (3)(b), it is competent to—

(a) auction an article which has been attached in accordance with the 2002 Act where—

(i) notice has been given to the debtor under section 27(4) of that Act, or

(ii) the article has been removed, or notice of removal has been given, under section 53 of that Act,

(b) implement a decree of furthcoming,

(d) execute—

(i) an earnings arrestment,

(ii) a current maintenance arrestment, or

(iii) a conjoined arrestment order,

which came into effect before the day on which the moratorium period in relation to the person began.

Period of moratorium

198

(1) The moratorium period applying in relation to a person is the period which—

(a) begins on the day on which an entry is made under section 195(3) or 196(3) in the register of insolvencies, and

(b) ends on—

(i) the day which is 6 months after that day,

(ii) such earlier day as is mentioned in subsection (2), or

(iii) if subsection (3), (5) or (7) applies, such later day as is determined in accordance with subsection (4), (6) or (8).

(2) The earlier day is the day on which, in relation to the person who is the subject of the moratorium—

(a) an entry is made in the register of insolvencies recording the award of sequestration of the estate,

(b) an entry is made in the register of insolvencies recording that a trust deed granted by the person has been granted or refused protected status,

(c) an entry is made in the DAS register recording the approval of a debt payment programme in accordance with section 2 of the 2002 Act, or

(d) written notice is given to AiB—

(i) by the person withdrawing the notice given under section 195(1), or

(ii) by or on behalf of the person withdrawing the notice given under section 196(1).

(3) This subsection applies if, on the day which is 6 months after the day on which the moratorium began under subsection (1)(a)—

(a) a debtor application has been made for sequestration of the estate of the person who is the subject of the moratorium,

(b) the moratorium has not ended by virtue of subsection (2)(a), and

(4) Where subsection (3) applies, the moratorium period ends on—

(a) the day on which an entry is made in the register of insolvencies recording the award of sequestration of the estate,

(b) in the case of refusal to award sequestration—

(i) the day of the expiry of the period applying by virtue of section 27(6) where no application for review is made under section 27(5), or

(ii) the day on which a decision is made by AiB under section 27(7)(b) where an application for review is made, or

(i) by the person withdrawing the notice given under section 195(1), or

(ii) by or on behalf of the person withdrawing the notice given under section 196(1).

(5) This subsection applies if, on the day which is 6 months after the day on which the moratorium began under subsection (1)(a)—

(a) an entry has been made in the register of insolvencies recording an application for a trust deed granted by or on behalf of the person who is the subject of the moratorium to be granted the status of protected trust deed, and

(b) the moratorium has not ended by virtue of subsection (2)(b).

(6) Where subsection (5) applies, the moratorium period ends on—

(a) the day on which an entry is made in the register of insolvencies recording that the trust deed granted by or on behalf of the person has been granted the status of protected trust deed,

(b) where such an entry is not made, the day which is 7 weeks after the day on which the moratorium would have ended but for this subsection), or

(7) This subsection applies if, on the day which is 6 months after the day on which the moratorium began under subsection (1)(a)—

(a) the person who is the subject of the moratorium has applied for approval of a debt payment programme under section 2 of the 2002 Act,

(b) the moratorium has not ended by virtue of subsection (2)(c), and

(8) Where subsection (7) applies, the moratorium period ends on—

(a) the day on which an entry is made in the DAS register recording the approval of the debt payment programme in accordance with section 2 of the 2002 Act,

(b) in the case of a rejection of a debt payment programme, the day on which an entry is made in the DAS register recording the rejection, or

(9) The Scottish Ministers may by regulations modify this section so as to vary any of the periods specified in subsections (1)(b)(i), (3), (5), (6)(b) or (7).

PART 16 — Accountant in Bankruptcy

Appointment

Accountant in Bankruptcy

199

(1) The Accountant in Bankruptcy (in this Act referred to as “AiB”) is appointed by the Scottish Ministers and is an officer of the court.

(2) The Scottish Ministers may appoint a member of the staff of AiB—

(a) to be Depute Accountant in Bankruptcy, and

(b) as Depute Accountant in Bankruptcy, to exercise all the functions of AiB at any time when AiB is unable to do so.

Functions

Supervisory functions of Accountant in Bankruptcy

200

(1) AiB has, in the administration of sequestration and personal insolvency, the following general functions—

(a) as regards interim trustees (not being AiB), trustees in sequestrations (not being AiB), trustees under protected trust deeds and commissioners—

(i) supervision of the performance by them of the functions conferred on them by this Act, or by any other enactment or by any rule of law, and

(ii) the investigation of any complaints made against them,

(b) the determination of debtor applications,

(c) the maintenance of a register (in this Act referred to as the “register of insolvencies”), in such form as may be prescribed,

(d) the preparation of an annual report, and

(e) such other functions as may from time to time be conferred on AiB by the Scottish Ministers.

(2) The register of insolvencies is to contain particulars of—

(a) persons who are the subject of notices under sections 195(1) and 196(1),

(b) estates which have been sequestrated,

(d) bankruptcy restrictions orders and interim bankruptcy restrictions orders,

(e) the winding up and receivership of business associations which the Court of Session has jurisdiction to wind up, and

(f) any other document specified in regulations made under subsection (1) or any other enactment.

(3) The annual report must be presented to the Scottish Ministers and the Court of Session and must contain—

(a) statistical information relating to—

(i) the state of all sequestrations of which particulars have been registered in the register of insolvencies during the year to which the report relates,

(ii) the winding up and receivership of business associations of which particulars have been registered in the register of insolvencies during the year to which the report relates,

(b) particulars of trust deeds registered as protected trust deeds in that year, and

(4) If it appears to AiB that a person mentioned in subsection (1)(a) has failed, without reasonable excuse, to perform a duty imposed on that person by any provision of this Act, or by any other enactment or by any rule of law, AiB must report the matter to the sheriff who, after hearing the person on the matter, may—

(a) remove the person from office,

(b) censure the person, or

(5) Subsection (6) applies where AiB has reasonable grounds to suspect that an offence has been committed—

(a) by a person mentioned in subsection (1)(a) in the performance of the person's functions under this Act or any other enactment or any rule of law,

(b) in relation to a sequestration, by the debtor in respect of the debtor's assets, the debtor's dealings with them or the debtor's conduct in relation to the debtor's business or financial affairs, or

(c) in relation to a sequestration, by a person other than the debtor in that person's dealings with the debtor, the interim trustee or the trustee in the sequestration in respect of the debtor's assets or the debtor's business or financial affairs.

(6) AiB must report the matter to the Lord Advocate.

(7) AiB must—

(a) make the register of insolvencies available for inspection at all reasonable times, and

(b) provide any person, on request, with a certified copy of an entry in the register.

(8) Regulations under subsection (1)(c) may in particular prescribe circumstances where information need not be in included in the register of insolvencies if, in the opinion of AiB, inclusion of the information would be likely to jeopardise the safety or welfare of any person.

(9) In subsections (2) and (3), “business association” has the meaning given in section C2 of Part 2 of schedule 5 of the Scotland Act 1998.

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