Act of Sederunt (Sheriff Court Bankruptcy Rules) 2016

Made: 6th October 2016

Laid before the Scottish Parliament: 10th October 2016

Coming into force: 30th November 2016

This Act of Sederunt makes provision for a purpose mentioned in section 2(2) of the European Communities Act 1972[^f00005] and it appears to the Court of Session that it is expedient for the references in this Act of Sederunt to Council Regulation (E.C.) No. 1346/2000 of 29th May 2000 on insolvency proceedings, and to Regulation (E.C.) No. 1393/2007 of the European Parliament and of the Council of 13th November 2007 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters (service of documents), and repealing Council Regulation (E.C.) No. 1348/2000, be construed as references to those instruments as amended from time to time.

CHAPTER 1 — CITATION, COMMENCEMENT AND INTERPRETATION ETC.

Citation, commencement and application, etc.

1.1

• (1) This Act of Sederunt may be cited as the Act of Sederunt (Sheriff Court Bankruptcy Rules) 2016.

• (2) It comes into force on 30th November 2016.

• (3) It applies to sequestrations as regards which the petition is presented, or the debtor application is made, on or after that date.

• (4) A certified copy is to be inserted in the Books of Sederunt.

Interpretation

1.2

• (1) In this Act of Sederunt—

• “the 2016 Act” means the Bankruptcy (Scotland) Act 2016;

• “AiB sequestration” means the sequestration of a debtor’s estate by AiB following a debtor application made under the following provisions of the 2016 Act—section 2(1)(a);section 5(a);section 6(3)(a);section 6(4)(a);section 6(4)(b); orsection 6(7)(a);

• “Council Regulation” means Regulation (EU) 2015/848 of the European Parliament and of the Council of 20th May 2015 on insolvency proceedings, as amended from time to time.

• “Model Law on Cross-Border Insolvency” means the Model Law on cross-border insolvency as adopted by the United Nations Commission on International Trade Law on 30th May 1997 as set out in schedule 1 of the Cross-Border Insolvency Regulations 2006[^f00007];

• “Register of Inhibitions” means the register mentioned in section 44(1) of the Conveyancing (Scotland) Act 1924[^f00008].

• (2) In this Act of Sederunt, the following expressions have the meaning given by section 228(1) of the 2016 Act—

• “AiB”;

• “debtor application”;

• “establishment”;

• “main proceedings”;

• “member State insolvency practitioner”;

• “temporary administrator”.

Computation of periods of time

1.3

If any period of time specified in these Rules expires on a Saturday, Sunday or public or court holiday, it is extended to expire on the next day that the sheriff clerk’s office is open for civil business.

Forms

1.4

• (1) Where there is a reference in these Rules to a form, it is a reference to that form in schedule 1.

• (2) Schedule 2 makes provision about forms relating to the Register of Inhibitions.

• (3) Where these Rules require a form to be used, that form may be varied where the circumstances require it.

Sequestration process

1.5

• (1) The sheriff clerk must prepare a sequestration process when an initiating document mentioned in paragraph (2) is lodged.

• (2) The initiating documents are—

• (a) a petition for sequestration;

• (b) a petition for recall of sequestration;

• (c) an application or remit under the 2016 Act;

• (d) an appeal under the 2016 Act.

• (3) Any other document lodged with the sheriff clerk is to be placed in the sequestration process.

• (4) Where a further initiating document relating to a sequestration is lodged—

• (a) paragraph (1) does not apply;

• (b) that document is to be placed in the existing sequestration process.

CHAPTER 2 — RELIEF FOR FAILURE TO COMPLY

Relief for failure to comply with rules

2.1

• (1) The sheriff may relieve a party from the consequences of a failure to comply with a provision in these Rules.

• (2) The sheriff may do so only where the party shows that the failure is due to—

• (a) mistake;

• (b) oversight;

• (c) any other excusable cause.

• (3) Where relief is granted, the sheriff may—

• (a) impose conditions that must be satisfied before relief is granted;

• (b) make an order to enable the proceedings to proceed as if the failure had not occurred.

CHAPTER 3 — SANCTIONS FOR FAILURE TO COMPLY

Circumstances where a party is in default

3.1

A party is in default if that party fails—

• (a) to implement an order made by the sheriff within the period specified in the order;

• (b) to appear or be represented at any hearing; or

• (c) otherwise to comply with any requirement imposed on that party by these Rules.

Sanctions where a party is in default

3.2

• (1) This rule—

• (a) applies where a party is in default; but

• (b) does not apply where a party is in default because the party has failed to comply with rule 12.4(1) (peremptory hearing).

• (2) The sheriff may make any order to secure the expeditious disposal of the proceedings.

• (3) In particular, the sheriff may—

• (a) refuse the appeal, application or petition, if the party in default is the appellant, applicant or petitioner;

• (b) allow the appeal, application or petition, if the condition in paragraph (4) is satisfied, where—

• (i) the party in default is the sole respondent; or

• (ii) every respondent is in default.

• (4) The condition is that the appellant, applicant or petitioner must show cause why the appeal, application or petition should be allowed.

CHAPTER 4 — REPRESENTATION AND SUPPORT

Representation and support

4.1

• (1) A natural person who is a party to proceedings may appear and act on the party’s own behalf.

• (2) A party who appears and acts on the party’s own behalf is to be known as a party litigant.

• (3) A party may be represented in any proceedings by—

• (a) a legal representative (see rule 4.2); or

• (b) an authorised person (see rule 4.3).

• (4) A party who is a natural person may also be represented by a lay representative (see rule4.4).

• (5) A lay supporter (see rule 4.6) may assist a party litigant with the conduct of any proceedings.

Legal representation

4.2

A party is represented by a legal representative if that party is represented by an advocate or a solicitor.

Representation by authorised person

4.3

• (1) This rule applies where an enactment authorises a person to conduct proceedings in the sheriff court.

• (2) A party is represented by an authorised person if that party is represented by a person who is authorised in accordance with such an enactment.

• (3) An authorised person may do everything for the preparation and conduct of the proceedings that a party litigant may do, unless the enactment provides otherwise.

Lay representation

4.4

• (1) A party may apply to the sheriff for permission to be represented by a person who is not a legal representative or an authorised person, and such a person is to be known as a lay representative.

• (2) The sheriff may grant an application only if the sheriff considers that it would assist the sheriff’s consideration of the case to grant it.

• (3) If the sheriff no longer considers that it would assist the sheriff’s consideration of the case for a party to be represented by a lay representative, the sheriff may withdraw permission.

• (4) A lay representative may represent a party at a specified hearing for the purpose of making oral submissions on behalf of the party.

• (5) The party must appear along with the lay representative at any hearing where the lay representative is to make oral submissions.

• (6) A party may show any document (including a court document) or communicate any information about the proceedings to that party’s lay representative without contravening any prohibition or restriction on disclosure of the document or information.

• (7) Where a document or information is disclosed under paragraph (6), the lay representative is subject to any prohibition or restriction on disclosure in the same way as the party is.

• (8) A lay representative must not receive directly or indirectly from the party any remuneration or other reward for assisting the party.

Expenses

4.5

• (1) This rule applies where a party is represented by an authorised person or a lay representative.

• (2) Despite that representation, the sheriff may award the party any expenses or outlays that the party would be entitled to by virtue of the Litigants in Person (Costs and Expenses) Act 1975[^f00009].

Lay support

4.6

• (1) A party litigant may apply to the sheriff for permission for a named person to assist the party litigant in the conduct of proceedings, and such a person is to be known as a lay supporter.

• (2) The sheriff may refuse an application only if the sheriff is of the opinion that—

• (a) the named person is an unsuitable person to act as a lay supporter; or

• (b) it would be contrary to the efficient administration of justice to grant it.

• (3) The sheriff, if satisfied that it would be contrary to the efficient administration of justice for permission to continue, may withdraw permission.

• (4) A lay supporter may assist a party by accompanying the party at hearings.

• (5) A lay supporter may, if authorised by the party, assist the party by—

• (a) providing moral support;

• (b) helping to manage court documents and other papers;

• (c) taking notes of the proceedings;

• (d) quietly advising on—

• (i) points of law and procedure;

• (ii) issues which the party litigant might want to raise with the court.

• (6) A party may show any document (including a court document) or communicate any information about the proceedings to that party’s lay supporter without contravening any prohibition or restriction on disclosure of the document or information.

• (7) Where a document or information is disclosed under paragraph (6), the lay supporter is subject to any prohibition or restriction on disclosure in the same way as the party is.

• (8) A lay supporter must not receive directly or indirectly from the party any remuneration or other reward for assisting the party.

CHAPTER 5 — INTIMATION AND LODGING

Interpretation of this Chapter

5.1

In this Chapter—

• “first class post” means a postal service which seeks to deliver documents or other things by post no later than the next working day in all or the majority of cases;

• “intimating party” means any party who has to give intimation in accordance with rule 5.2;

• “receiving party” means any party to whom intimation is to be given in accordance with rule 5.2;

• “recorded delivery” means a postal service which provides for the delivery of the document or other thing by post to be recorded.

Intimation

5.2

Unless the sheriff orders otherwise, where—

• (a) any provision in these Rules requires a party to—

• (i) take any procedural step;

• (ii) lodge any document;

• (iii) intimate any other matter; or

• (b) the sheriff orders a party to intimate something,

intimation is to be given to every other party.

Methods of intimation

5.3

• (1) Intimation may be given to a receiving party by any of the methods specified in rules5.4 and 5.5.

• (2) Where the receiving party is represented by a solicitor, intimation may also be given by any of the methods specified in rule 5.6.

Methods of intimation: intimation by recorded delivery

5.4

An intimating party may give intimation by recorded delivery to the receiving party.

Methods of intimation: intimation by sheriff officer

5.5

• (1) A sheriff officer may give intimation on behalf of an intimating party by—

• (a) delivering the intimation personally to the receiving party; or

• (b) leaving the intimation in the hands of—

• (i) a resident at the receiving party’s dwelling place; or

• (ii) an employee, agent or representative at the receiving party’s place of business.

• (2) Where a sheriff officer has been unsuccessful in intimation in accordance with paragraph (1), the sheriff officer may give intimation by—

• (a) depositing it in the receiving party’s dwelling place or place of business; or

• (b) leaving it at the receiving party’s dwelling place or place of business in such a way that it is likely to come to the attention of that party.

Additional methods of intimation where receiving party represented by solicitor

5.6

• (1) An intimating party may give intimation to the solicitor for the receiving party by—

• (a) delivering it personally to the solicitor;

• (b) delivering it to a document exchange of which the solicitor is a member;

• (c) first class post;

• (d) fax.

• (2) Where intimation is given by the method in paragraph (1)(a) or (d) not later than 1700 hours on any day, the date of intimation is that day.

• (3) Where intimation is given by the method in—

• (a) paragraph (1)(b) or (c); or

• (b) paragraph (1)(a) or (d) after 1700 hours on any day,

the date of intimation is the next day.

Form of certificate of intimation

5.7

A certificate of intimation is to be in Form 5.7.

Lodging

5.8

• (1) Where any provision in these Rules requires a party to lodge a document, it is to be lodged with the sheriff clerk.

• (2) A document may be lodged by—

• (a) delivering it personally to the sheriff clerk’s office;

• (b) delivering it to a document exchange of which the sheriff clerk is a member;

• (c) first class post;

• (d) fax.

CHAPTER 6 — PETITIONS FOR SEQUESTRATION

Form of petition for sequestration

6.1

• (1) A petition for sequestration is to be made in Form 6.1–A.

• (2) An undertaking for the purposes of section 51(1) or (6) of the 2016 Act is to be in Form6.1–B.

Debt payment programmes and moratorium on diligence

6.2

• (1) This rule applies where a creditor is petitioning for sequestration on the ground of the debtor’s apparent insolvency.

• (2) The petitioner must, when lodging the sequestration petition, lodge a statement in Form 6.2.

Citation of debtor

6.3

• (1) A debtor is cited for the purposes of section 22(3) of the 2016 Act by serving the documents mentioned in paragraph (2) in accordance with rules 6.4 to 6.6.

• (2) Those documents are—

• (a) a citation in Form 6.3–A;

• (b) a copy of the petition for sequestration;

• (c) a copy of the warrant of citation.

• (3) The petitioner must lodge a certificate of citation in Form 6.3–B no later than 2 days before the date on which the debtor has been cited to appear.

Service by sheriff officer

6.4

• (1) Where the debtor is of a type mentioned in the first column of the following table, a sheriff officer may effect service of the documents referred to in rule 6.3(2) by the method specified in the second column—