Act of Sederunt (Debt Arrangement and Attachment (Scotland) Act 2002) Amendment (The Debt Arrangement Scheme (Scotland) Regulations 2004) 2004

Made: 22nd November 2004

Coming into force: 30th November 2004

The Lords of Council and Session, under and by virtue of the powers conferred by section 32 of the Sheriff Courts (Scotland) Act 1971[^f00001] and of all other powers enabling them in that behalf, having approved draft rules submitted to them by the Sheriff Court Rules Council in accordance with section 34 of the Sheriff Courts (Scotland) Act 1971, do hereby enact and declare:

Citation and commencement

1

This Act of Sederunt–

• (a) may be cited as the Act of Sederunt (Debt Arrangement and Attachment (Scotland) Act 2002) Amendment (The Debt Arrangement Scheme (Scotland) Regulations 2004) 2004;

• (b) shall come into force on 30th November 2004; and

• (c) shall be inserted in the Books of Sederunt.

Amendment and revocation of the principal Rules

2

• (1) In the Act of Sederunt (Debt Arrangement and Attachment (Scotland) Act 2002) 2002[^f00002], Schedule 1 (Rules for applications in the Sheriff Court under the Debt Arrangement and Attachment (Scotland) Act 2002) is amended in accordance with the following paragraphs.

• (2) After Chapter 3 (Attachment: Articles kept within dwellinghouses) insert–

(37) (1) In this Chapter, “the Regulations” means the Debt Arrangement Scheme (Scotland) Regulations 2004[^f00003]. (2) Any reference in this Chapter to a “regulation” shall be a reference to a regulation of the Regulations. (38) (1) An application to the sheriff for approval of a debt payment programme under regulation 27 of the Regulations shall be in Form 29. (2) An application to which paragraph (1) applies shall be lodged with the sheriff clerk who shall– (a) fix a date for the hearing of the application (which date shall be not less than 7 days from the date of intimation made under sub-paragraph (c)); (b) obtain from the sheriff a warrant to intimate the application to the debtor and the creditors; (c) intimate the application and warrant to the debtor and the creditors; (d) intimate the warrant to the applicant; and (e) complete a certificate of intimation. (3) A warrant for intimation referred to in this rule shall be in Form 30. (4) A certificate of intimation referred to in this rule shall be in Form 31. (5) An interlocutor granted by the sheriff determining the application for approval of a debt payment programme shall be in Form 32. (39) (1) At a hearing fixed under rule 38(2)(a), the sheriff having heard interested parties– (a) shall grant the application in terms of regulation 27(1) if he is satisfied that the programme is fair and reasonable; (b) may require of any of the parties further information before making any determination; or (c) may adjourn the hearing and make the determination at the adjourned hearing. (2) In determining whether a programme is fair and reasonable, the sheriff shall have regard to the matters referred to in regulation 26(2). (3) An approval under rule 39(1)(a) may be made subject to a condition under regulation 30. (40) (1) An application to the sheriff for approval of a variation of a debt payment programme under regulation 39(3) shall be in Form 33. (2) An application to which paragraph (1) applies shall be lodged with the sheriff clerk who shall– (a) fix a date for the hearing of the application (which date shall be not less than 7 days from the date of intimation made under sub-paragraph (c)); (b) obtain from the sheriff a warrant to intimate the application to the debtor and the creditors; (c) intimate the application and warrant to the debtor and the creditors; (d) intimate the warrant to the applicant; and (e) complete a certificate of intimation. (3) A warrant for intimation referred to in this rule shall be in Form 30. (4) A certificate of intimation referred to in this rule shall be in Form 31. (5) An interlocutor granted by the sheriff determining an application for variation shall be in Form 34. (41) (1) At a hearing fixed under rule 40(2)(a), the sheriff having heard interested parties– (a) shall grant the application in terms of regulation 39(3) if, having regard to the matters referred to in regulation 39(4), he is satisfied that the programme is fair and reasonable; (b) may require of any of the parties further information before making any determination; or (c) may adjourn the hearing and make the determination at the adjourned hearing. (2) An approval under rule 41(1)(a) may be made subject to a condition under regulation 30.

• (3) In Appendix 1 of Schedule 1 (Forms) after Form 28 insert Forms 29 to 34 as set out in the Schedule to this Act of Sederunt.

SCHEDULE

FORM 29

Rule 38(1)

Debt Arrangement Scheme (Scotland) Regulations 2004 Regulation 27 [image omitted]

FORM 30

Rule 38(3) and 40(3)

Debt Arrangement Scheme (Scotland) Regulations 2004 Regulation 27 and 39(3) [image omitted]

FORM 31

Rule 38(4) and 40(4)

Debt Arrangement Scheme (Scotland) Regulations 2004 Regulation 27 and 39(3) [image omitted]

FORM 32

Rule 38(5)

Debt Arrangement Scheme (Scotland) Regulations 2004 Regulation 27 [image omitted]

FORM 33

Rule 40(1)

Debt Arrangement Scheme (Scotland) Regulations 2004 Regulation 39 [image omitted]

FORM 34

Rule 40(5)

Debt Arrangement Scheme (Scotland) Regulations 2004 Regulation 39 [image omitted]

Signed

CULLEN OF WHITEKIRK — Lord President I.P.D. — 22nd November 2004

Explanatory note

(This note is not part of the Act of Sederunt)

This Act of Sederunt amends Schedule 1 (rules for applications in the Sheriff Court under the Debt Arrangement and Attachment (Scotland) Act 2002) of the Act of Sederunt (Debt Arrangement and Attachment (Scotland) 2002) 2002 (“the 2002 Act of Sederunt”).

Article 2 (2) inserts new rules 37 to 41 into Schedule 1 of the 2002 Act of Sederunt. These rules set out procedure in relation to applications for approval and applications for approval of variation of debt payment plans pursuant to the Debt Arrangement Scheme (Scotland) Regulations 2004.

In the new rules–

• (a) rule 38 provides that an application to the sheriff for approval of a debt payment programme shall be made using an application in the form specified; such applications are to be lodged with the sheriff clerk who will then fix a date for the hearing of the application, obtain from the sheriff a warrant to intimate the application to the debtor and the creditors, intimate the application and warrant to the debtors and creditors, intimate the warrant to the applicants, and complete the certifications of intimation; specific forms of warrant for intimation, certificate of intimation and interlocutor are provided for;

• (b) rule 39 provides that the sheriff (having heard the interested parties) shall grant the application if he is satisfied that the programme is fair and reasonable; the sheriff may require further information from any of the parties before making any determination and may adjourn the hearing and make the determination at such an adjourned hearing; and

• (c) rules 40 and 41 make similar provisions in respect of applications for approval by the sheriff in variation of a debt payment plan.

Footnotes

[^f00001]: 1971 c. 58. Section 32 was amended by the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 (c. 73), Schedule 2, paragraph 12, the Civil Evidence (Scotland) Act 1988 (c. 32), section 2(4), the Children (Scotland) Act 1995 (c. 36), Schedule 4, paragraph 18(2), the Adults with Incapacity (Scotland) Act 2001 (asp 4), schedule 5, paragraph 13 and the Debt Arrangement and Attachment (Scotland) Act 2002 (asp 17), section 43 and extended by the Child Support Act 1991 (c. 48), sections 39(2) and 49.

[^f00002]: S.S.I. 2002/560.

[^f00003]: S.S.I. 2004/468; amended by S.S.I. 2004/470.