The Bankruptcy Fees (Scotland) Regulations 2018

Made: 19th April 2018

Laid before the Scottish Parliament: 20th April 2018

Coming into force: 1st June 2018

The Scottish Ministers make the following Regulations in exercise of the powers conferred by sections 69A and 72(1A) of the Bankruptcy (Scotland) Act 1985 , sections 205 and 225(2) of the Bankruptcy (Scotland) Act 2016 , and all other powers enabling them to do so.

Citation and commencement

1

• (1) These Regulations may be cited as the Bankruptcy Fees (Scotland) Regulations 2018.

• (2) They come into force on 1st June 2018.

Interpretation

2

In these Regulations, unless the context otherwise requires—

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

• “Accountant in Bankruptcy (or “AiB”) is to be construed in accordance with section 199 of the Act;

• “bankruptcy restrictions order” has the meaning given by section 155(1) of the Act;

• “debtor's contribution” has the meaning given by section 89(1) of the Act;

• “expenses of realisation” means any outlays incurred by the trustee in realising the debtor's estate which in the course of normal business practice are deducted from the price payable to the trustee;

• ...

• “table of fees” means the Table of Fees in the schedule;

• “statutory fee” means any fee payable under an enactment;

• “the statutory meeting” has the meaning given by section 43 of the Act;

• “trading expenses” means any outlays incurred by the trustee in the carrying on of any business of the debtor;

• “trust deed”, where granted before 1st April 1993, means a voluntary trust deed granted by or on behalf of a debtor, whereby the debtor's estate is conveyed to the trustee for the benefit of the creditors of that debtor generally and, where granted on or after that date, has the meaning given by section 228(1) of the Act; and

• “trustee vote” is to be construed in accordance with section 49(1) and (2) of the Act.

Fees and outlays as interim trustee or trustee

3

The fees payable to AiB in respect of the exercise by, or on behalf of, that office of its functions as interim trustee or trustee in a sequestration, which are specified in column 1 of Part 1 of the table of fees are the fees specified in relation to those functions in column 2 of the table of fees.

4

The outlays payable to AiB in respect of the exercise by, or on behalf of, that office of its functions as interim trustee or trustee in a sequestration are those outlays actually, necessarily and reasonably incurred in respect of the exercise of any of those functions and include, but are not limited to, outlays so incurred in respect of—

• (a) the making of searches in any public register;

• (b) the valuation of property;

• (c) legal services and related expenses;

• (d) estate agency services;

• (e) the services of auctioneers and valuers;

• (f) services related to taxation matters;

• (g) travel and subsistence expenses; and

• (h) any payment by AiB under section 201(4) of the Act to a person appointed to perform AiB's functions as interim trustee or trustee not met by the fee charged under item 2 of Part 1 of the table of fees.

5

Any fees and outlays payable to AiB in respect of the exercise by, or on behalf of, that office of its functions as interim trustee or trustee in a sequestration are due for payment from the sequestrated estate where—

• (a) AiB has made a determination of its fees and outlays calculated in accordance with these Regulations, under and in accordance with, as appropriate, one of these provisions of the Act—

• (i) section 64(3) (determination of fees and outlays where Accountant in Bankruptcy was original trustee and some other person becomes trustee);

• (ii) section 136(1) and (2) (determination of fees and outlays at end of each accounting period where Accountant in Bankruptcy is trustee);

• (iii) section 151(3) (determination of fees and outlays on discharge of Accountant in Bankruptcy as trustee); and

• (b) the period within which an appeal against such a determination may be taken to the sheriff has expired or, if an appeal is so taken, that appeal has been determined, under, as appropriate, one of these provisions of the Act—

• (i) section 64(8) and (9);

• (ii) section 136(4) and (6);

• (iii) section 151(7) and (8).

Other fees

6

The fees payable to AiB in respect of the exercise of that office's functions, other than as interim trustee or trustee in a sequestration, specified in column 1 of Part 2 of the table of fees are the fees specified in relation to those functions in column 2 of the table of fees.

7

A fee payable under regulation 6 is payable even although it is payable by or on behalf of AiB in the exercise of that office's functions as interim trustee or trustee in a sequestration.

Manner of payment

8

A fee payable to AiB for a function specified in Part 2 of the table of fees is due for payment—

• (a) for item 2 (supervision of sequestration proceedings)—

• (i) at the end of each 12 month period of supervision; or

• (ii) if the trustee is discharged during a 12 month period, in advance of the grant of a certificate of discharge under section 148(5) of the Act;

• (b) for item 8(c) (protected trust deed supervision)—

• (i) at the end of each 12 month period of supervision; or

• (ii) if the trustee is discharged during a 12 month period, in advance of the date of discharge of the trustee under section 186 of the Act;

• (c) for item 12 (election of replacement trustee by trustee vote) on submission of the relevant report to AiB;

• (d) on the application for these services being made to AiB for—

• (i) item 14 (removal of trustee and trustee not acting);

• (ii) item 15 (declaration of office of trustee as vacant);

• (iii) item 16 (replacement of trustee acting in more than one sequestration);

• (iv) item 17 (appointment or reappointment of trustee where newly identified estate);

• (v) item 18 (application by trustee for a direction);

• (vi) item 19 (curing defects in procedure);

• (vii) item 21 (conversion of trust deed into sequestration);

• (e) for item 22 (determination of debtor applications)—

• (i) on the application being made to AiB; and

• (ii) if paragraph 1 of schedule 1 of the Act ceases to apply to the debtor, on receiving a request from AiB for the fee due under item 22(b) taking account of the fee already paid under item 22(a);

• (f) for any other such function, on performance by AiB of that function.

9

A fee payable to AiB in respect of a function specified in Part 2 of the table of fees by an interim trustee, trustee in a sequestration or trustee under a protected trust deed is payable by the trustee whether or not there are subsequently funds available for distribution from the debtor's estate to meet that fee.

Waiver of fees

10

• (1) The fees in Part 2 of the table of fees payable to AiB may not be waived by AiB in whole or in part, subject to paragraph (2).

• (2) AiB may waive (in whole or in part) the fees due in accordance with—

• (a) regulation 8(b)(ii) (protected trust deed final supervision period) if the debtor who granted the protected trust deed failed to meet the debtor's obligations for the purposes of section 184(2)(a) of the Act;

• (b) regulation 8(e)(ii) (minimal asset process ceasing to apply), unless the debtor provided false or misleading information in the debtor application.

Repayment of fees - refusal of bankruptcy restrictions order

11

• (1) Where AiB or a sheriff does not grant an application for a bankruptcy restrictions order under section 155(1) of the Act, AiB or the sheriff may hold that in the circumstances of the case it was not reasonable to make the application.

• (2) In that event, any fee charged by AiB under item 23 of Part 2 of the table of fees must be repaid.

Sequestrations and trust deeds before 1st June 2018

12

These Regulations have no effect in relation to—

• (a) sequestrations as regards which the petition was presented or the debtor application was made before; or

• (b) trust deeds executed before,

1st June 2018.

Revocations

13

The Bankruptcy Fees (Scotland) Regulations 2014 and regulation 4 of the Bankruptcy (Miscellaneous Amendments) (Scotland) Regulations 2015 are revoked (subject to regulation 12).

SCHEDULE — TABLE OF FEES - BANKRUPTCY

PART 1 — Fees for Accountant in Bankruptcy as interim trustee or trustee in sequestration

PART 2 — Fees for other functions of the Accountant in Bankruptcy