Act of Sederunt (Sheriff Court Bankruptcy Rules) 2008

JurisdictionScotland
CitationSSI 2008/119

2008 No. 119

SHERIFF COURT

Act of Sederunt (Sheriff Court Bankruptcy Rules) 2008

Made 13th March 2008

Coming into force 1st April 2008

The Lords of Council and Session, under and by virtue of the powers conferred on them by section 32 of the Sheriff Courts (Scotland) Act 19711, sections 1A(1)(b),14(4) and 62(2) of, and paragraph 2 of Schedule 5 to, the Bankruptcy (Scotland) Act 19852, and these rules making provision for a purpose mentioned in section 2(2) of the European Communities Act 1972, and it appearing to the Lords of Council and Session that it is expedient for the reference to Council Regulation (E.C.) No. 1346/2000 of 29th May 2000 on insolvency proceedings to be construed as a reference to that instrument as amended from time to time, under and by virtue of the powers conferred by paragraph 1A of Schedule 2 to the European Communities Act 19723and under and by virtue 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 said Act of 1971, do hereby enact and declare:

S-1 Citation and commencement

Citation and commencement

1.—(1) This Act of Sederunt may be cited as the Act of Sederunt (Sheriff Court Bankruptcy Rules) 2008 and shall come into force on 1st April 2008.

(2) This Act of Sederunt shall be inserted in the Books of Sederunt.

S-2 Bankruptcy Rules

Bankruptcy Rules

2. The Schedule to this Act of Sederunt shall have the effect of providing rules in the sheriff court for the purpose of the Bankruptcy (Scotland) Act 1985.

S-3 Revocation and saving

Revocation and saving

3.—(1) The Act of Sederunt (Sheriff Court Bankruptcy Rules) 19964is revoked.

(2) Notwithstanding sub-paragraph (1), the Act of Sederunt (Sheriff Court Bankruptcy Rules) 1996 shall continue to apply to sequestrations commenced before the coming into force of this Act of Sederunt.

(3) For the purposes of sub-paragraph (2), a sequestration shall be taken to have commenced when a petition has been presented or an application has been made to the Accountant in Bankruptcy under section 5(2)(a) or 6(3)(a), (4)(a) or (6)(a) of the Bankruptcy (Scotland) Act 1985.

A. C. Hamilton

Lord President

Edinburgh

13th March 2008

SCHEDULE

Paragraph 2

SHERIFF COURT BANKRUPTCY RULES

SCH-1.1

1. Citation and interpretation

(1) These Rules may be cited as the Sheriff Court Bankruptcy Rules.

(2) In these Rules–

“Act of 1985” means the Bankruptcy (Scotland) Act 19855;

“AIB sequestration” means the sequestration of a debtor’s estate by the Accountant in Bankruptcy following a debtor application made under section 5(2)(a) or 6(3)(a), (4)(a) or (6)(a) of the Act of 1985;

“centre of main interests” has the same meaning as in the Council Regulation;

“Council Regulation” means Council Regulation (E.C.) No. 1346/2000 of 29th May 2000 on insolvency proceedings as it may be amended from time to time6;

“debtor application” has the same meaning as in section 73 of the Act of 19857;

“enactment” includes an enactment comprised in, or in an instrument made under, an Act of the Scottish Parliament;

“establishment” has the same meaning as in Article 2(h) of the Council Regulation;

“main proceedings” means proceedings opened in accordance with Article 3(1) of the Council Regulation and falling within the definition of insolvency proceedings in Article 2(a) of the Council Regulation and–

(a) in relation to England and Wales, Scotland and Northern Ireland, set out in Annex A to the Council Regulation under the heading “United Kingdom”; and

(b) in relation to another member State, set out in Annex A to the Council Regulation under the heading relating to that member State;

“member State” means a member State of the European Community that has adopted the Council Regulation;

“Model Law” means the Model Law on Cross-Border Insolvency as set out in Schedule 1 to the Cross-Border Insolvency Regulations 20068;

“territorial proceedings” means proceedings opened in accordance with Article 3(2) and (4) of the Council Regulation and falling with the definition of insolvency proceedings in Article 2(a) of the Council Regulation and–

(a) in relation to England and Wales, Scotland and Northern Ireland, set out in Annex A to the Council Regulation under the heading “United Kingdom”; and

(b) in relation to another member State, set out in Annex A to the Council Regulation under the heading relating to that member State.

(3) Any reference in this Act of Sederunt to a form shall be construed as a reference to the form so numbered in Appendix 1 to these Rules or a form substantially to the same effect, with such variation as circumstances may require.

SCH-1.2

2. Forms of petitions etc

(1) A petition, application, note, report and the like under the Act of 1985 shall be written, typed or printed on A4 size paper of durable quality and shall not be backed.

(2) On receipt of–

(a)

(a) a petition for sequestration; or

(b)

(b) an application or appeal relating to an AIB sequestration,

the sheriff clerk shall prepare a process folder which shall include an inventory of process.

(3) The petition, application or appeal, as the case may be, and any production or part of process lodged shall be placed by the sheriff clerk in the process folder.

(4) Sub-paragraph (2)(b) shall not apply to a second or subsequent application or appeal relating to an AIB sequestration, and any such application or appeal shall be placed in the process folder of the initial application or appeal relating to that sequestration, as the case may be.

SCH-1.3

3. Petitions for sequestration

(1) A petition by a qualified creditor under section 5(2)(b)(i) of the Act of 198521shall be in Form 1.

(2) A petition–

(i)

(i) under section 5(2)(b)(ii) of the Act of 1985 by a temporary administrator;

(ii)

(ii) under section 5(2)(b)(iii) of the Act of 1985 by a member State liquidator appointed in main proceedings; or

(iii)

(iii) under article 11 of the Model Law by a foreign representative,

shall be in Form 2.

(3) A petition by a trustee acting under a trust deed under section 5(2)(b)(iv) of the Act of 1985 shall be in Form 3.

(4) An undertaking by the trustee under section 2(3)(c) of the Act of 1985 shall be in Form 4.

SCH-1.4

4. Intimation of appointment of trustee

The sheriff clerk shall, without delay, intimate the appointment of any trustee to the person so appointed, and to the Accountant in Bankruptcy where he is not the trustee.

SCH-1.5

5. Applications

(1) Except as otherwise provided, an application under the Act of 1985 shall be made in Form 5.

(2) An application under paragraph (1) which relates to a petition for sequestration shall be lodged in the bankruptcy process.

(3) An application under paragraph (1) which relates to an AIB sequestration shall contain–

(a)

(a) the date of the sequestration;

(b)

(b) the name and address of the trustee in the sequestration; and

(c)

(c) the name and address of any former or interim trustee.

(4) Where an application referred to in paragraph (3) is made by the debtor or the Accountant in Bankruptcy, there shall be lodged with the application a copy of the debtor application to which it relates.

(5) The sheriff may order intimation of an application under paragraph (1) to such person or persons as he deems appropriate.

(6) Where an application is unopposed it shall be granted by the sheriff in chambers without the attendance of parties, unless the sheriff otherwise directs.

(7) Where the sheriff requires to hear a party on an application, the sheriff clerk shall inform that party of the date on which the application will be heard.

(8) The sheriff may order such further procedure in relation to the hearing of an application under paragraph (1) as he considers appropriate.

SCH-1.6

6. Application to determine amount for aliment and obligations, etc.

An application by the trustee under section 32(2) of the Act of 1985 (determination of suitable amount of aliment for the debtor, his relevant obligations, and to fix the amount of excess) shall include–

(a) an extract of the statement of assets and liabilities provided to the trustee by the debtor; and

(b) the trustee’s assessment of the debtor’s current income, alimentary requirements and relevant obligations.

SCH-1.7

7. Appeals to the sheriff

(1) An appeal to the sheriff under the Act of 1985 shall be made by note of appeal in Form 6.

(2) A note of appeal under paragraph (1) which relates to a petition for sequestration shall be lodged in the bankruptcy process.

(3) A note of appeal under paragraph (1) which relates to an AIB sequestration shall contain–

(a)

(a) the date of the sequestration;

(b)

(b) the name and address of the trustee in the sequestration; and

(c)

(c) the name and address of any former or interim trustee.

(4) There shall be lodged with the note of appeal referred to in paragraph (3) a copy of the debtor application to which it relates.

(5) The sheriff may order intimation of an application under paragraph (1) to such person or persons as he deems appropriate.

(6) The sheriff may order such further procedure in relation to an appeal under paragraph (1) as he considers appropriate.

SCH-1.8

8. Appeals to the sheriff principal and the Court of Session

(1) An appeal under the following provisions of the Act of 1985 shall be made in accordance with the provisions of this rule:–

section 15(2A) (order transferring sequestration)9;

section 15(3) (order refusing to award sequestration)10;

section 29(4) (order of sheriff removing trustee)11;

section 54(6) (order deferring discharge of debtor or dismissal of application to defer discharge);

section 56J(2) (refusal to annul Bankruptcy Restrictions Order, Interim Bankruptcy Restrictions Order or Bankruptcy Restrictions Undertaking)12;

paragraph 8(3) of Schedule 4 (order approving or refusing to approve offer of composition).

(2) An appeal under a provision mentioned in paragraph (1) above shall be made by note of appeal which shall be...

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