Bankruptcy (Scotland) Act 1993
| Year | 1993 |
Bankruptcy (Scotland) Act 1993
1993 CHAPTER 6
An Act to amend the Bankruptcy (Scotland) Act 1985; and for connected purposes.
[18th February 1993]
Be it enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:—
1 Accountant in Bankruptcy.
(1) In the Bankruptcy (Scotland) Act 1985 (in this Act referred to as ‘the 1985 Act’), for section 1 (functions of the Accountant in Bankruptcy) there shall be substituted the following sections—
1 ‘Accountant in Bankruptcy.
(1) The Accountant in Bankruptcy shall be appointed by the Secretary of State on such terms and conditions as the Secretary of State may, with the approval of the Treasury, determine.
(2) The Accountant in Bankruptcy shall have such staff appointed by the Secretary of State on such terms and conditions as the Secretary of State may, with the approval of the Treasury, determine.
(3) The Secretary of State may appoint a member of the staff to be Depute Accountant in Bankruptcy to exercise all of the functions of the Accountant in Bankruptcy at any time when the Accountant in Bankruptcy is unable to do so.
(4) The Secretary of State may pay to the Accountant in Bankruptcy and his staff such remuneration and allowances as the Secretary of State may, with the approval of the Treasury, determine.
(5) The Secretary of State may, with the approval of the Treasury, make such arrangements as he considers appropriate for the provision of superannuation, pensions or gratuities for the Accountant in Bankruptcy and his staff.
1A Supervisory functions of theAccountant in Bankruptcy.
(1) The Accountant in Bankruptcy shall have the following general functions in the administration of sequestration and personal insolvency—
(a) the supervision of the performance by—
(i) interim trustees (not being the Accountant in Bankruptcy);
(ii) permanent trustees; and
(iii) commissioners,
of the functions conferred on them by this Act or any other enactment (including an enactment contained in subordinate legislation) or any rule of law and the investigation of any complaints made against them;
(b) the maintenance of a register (in this Act referred to as the ‘register of insolvencies’), in such form as may be prescribed by the Court of Session by act of sederunt, which shall contain particulars of—
(i) estates which have been sequestrated; and
(ii) trust deeds which have been sent to him for registration under paragraph 5(1)(e) of Schedule 5 to this Act;
(c) the preparation of an annual report which shall be presented to the Secretary of State and the Court of Session and shall contain—
(i) statistical information relating to 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) particulars of trust deeds registered as protected trust deeds in that year; and
(iii) particulars of the performance of the Accountant in Bankruptcy's functions under this Act; and
(d) such other functions as may from time to time be conferred on him by the Secretary of State.
(2) If it appears to the Accountant in Bankruptcy that a person mentioned in paragraph (a) of subsection (1) above has failed without reasonable excuse to perform a duty imposed on him by any provision of this Act or by any other enactment (including an enactment contained in subordinate legislation) or by any rule of law, he shall report the matter to the court which, after hearing that person on the matter, may remove him from office or censure him or make such other order as the circumstances of the case may require.
(3) Where the Accountant in Bankruptcy has reasonable grounds to suspect that an offence has been committed—
(a) by a person mentioned in paragraph (a) of subsection (1) above in the performance of his functions under this Act or any other enactment (including an enactment contained in subordinate legislation) or any rule of law; or
(b) in relation to a sequestration, by the debtor in respect of his assets, his dealings with them or his conduct in relation to his 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 permanent trustee in respect of the debtor's assets, business or financial affairs,
he shall report the matter to the Lord Advocate.
(4) The Accountant in Bankruptcy shall—
(a) make the register of insolvencies, at all reasonable times, available for inspection; and
(b) provide any person, on request, with a certified copy of any entry in the register.
1B Performance of certain functions of theAccountant in Bankruptcy.
(1) The functions of the Accountant in Bankruptcy, other than functions conferred by section 1A of this Act, may be carried out on his behalf by any member of his staff authorised by him to do so.
(2) Without prejudice to subsection (1) above, the Accountant in Bankruptcy may appoint on such terms and conditions as he considers appropriate such persons as he considers fit to perform on his behalf any of his functions in respect of the sequestration of the estate of any debtor.
(3) A person appointed under subsection (2) above shall comply with such general or specific directions as the Accountant in Bankruptcy may from time to time give to such person as to the performance of his functions in relation to any sequestration.
(4) The Accountant in Bankruptcy may pay to a person appointed under subsection (2) above such fee as he may consider appropriate.
1C Directions.
(1) The Secretary of State may, after consultation with the Lord President of the Court of Session, give to the Accountant in Bankruptcy general directions as to the performance of his functions under this Act.
(2) Directions under this section may be given in respect of all cases or any class or description of cases, but may not be given in respect of any particular case.
(3) The Accountant in Bankruptcy shall comply with any directions given to him under this section.’
(2) When a person is first appointed to be the Accountant in Bankruptcy under section 1 of the 1985 Act as inserted by subsection (1) above, the Accountant of Court shall cease to be the Accountant in Bankruptcy.
(3) On such appointment—
(a) the Accountant of Court shall deliver to the Accountant in Bankruptcy all registers, records, documents and other material in his possession relating to the functions of the Accountant in Bankruptcy before the commencement of this section; and
(b) there shall be transferred to and vest in the Accountant in Bankruptcy all property, rights, liabilities, functions and responsibilities of the Accountant of Court which, immediately before the commencement of this section, were vested in the Accountant of Court in connection with his functions in the administration of sequestrations and personal insolvency under the Bankruptcy (Scotland) Act 1913 or, in his capacity as Accountant in Bankruptcy, under the 1985 Act.
2 Appointment and functions of interim trustee.
2. For section 2 of the 1985 Act (interim trustee) there shall be substituted the following section—
2 ‘Appointment and functions of interim trustee.
(1) Where the court awards sequestration of the debtor's estate and the petition for the sequestration—
(a) nominates a person to be interim trustee;
(b) states that the person satisfies the conditions mentioned in subsection (3) below; and
(c) has annexed to it a copy of the undertaking mentioned in subsection (3)(c) below,
the court may, if it appears to the court that the person satisfies those conditions and if no interim trustee has been appointed in pursuance of subsection (5) below, appoint that person to be interim trustee in the sequestration.
(2) Where the court awards sequestration of the debtor's estate and—
(a) it does not appoint a person to be interim trustee in pursuance of subsection (1) above; and
(b) no interim trustee has been appointed in pursuance of subsection (5) below,
the court shall appoint the Accountant in Bankruptcy to be interim trustee in the sequestration.
(3) The conditions referred to in subsection (1) above are that the person—
(a) resides within the jurisdiction of the Court of Session;
(b) is qualified to act as an insolvency practitioner; and
(c) has given an undertaking, in writing, that he will act—
(i) as interim trustee; and
(ii) where no permanent trustee is elected, as permanent trustee,
in the sequestration.
(4) The interim trustee's general functions shall be—
(a) to safeguard the debtor's estate pending the appointment of a permanent trustee under this Act;
(b) to ascertain the reasons for the debtor's insolvency and the circumstances surrounding it;
(c) to ascertain the state of the debtor's liabilities and assets;
(d) to administer the sequestration process pending the appointment of a permanent trustee; and
(e) whether or not he is still acting in the sequestration, to supply the Accountant in Bankruptcy with such information as the Accountant in Bankruptcy considers necessary to enable him to discharge his functions under this Act.
(5) Where a petition for sequestration is presented by a creditor or a trustee acting under a trust deed, the court may appoint an interim trustee before sequestration is awarded—
(a)...
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