Appeal By Samantha Warburton Against A Direction By The Accountant In Bankruptcy
| Jurisdiction | Scotland |
| Judge | Sheriff W Holligan |
| Neutral Citation | [2021] SC EDIN 64 |
| Court | Sheriff Court |
| Docket Number | EDI-S Q7-21 |
| Date | 15 October 2021 |
| Published date | 09 December 2021 |
SHERIFFDOM OF LOTHIAN AND BORDERS AT EDINBURGH
[2021] SC EDIN 64
EDI-S Q7-21
JUDGMENT OF SHERIFF WILLIAM HOLLIGAN
in the Appeal under Section 188(1)(c) of the Bankruptcy (Scotland) Act 2016 by
Samanth a Warburton, Insolvency Practitioner, Carrington Dean Group Ltd, as assumed
trust ee conform to (i) Protected Trust Deed granted by PS (“the debtor”) in favour of Fiona
Rae on 28 January 2016 and registered as a Protected Trust Deed on 21 March 2016; (ii) Deed
of assumption and resignation by Fiona Rae in favour of Nicola Teader dated 12 July 2018;
and (iii) Deed of Assumption by Nicola Teader in favour of Samantha Warburton dated 4
June 2019
Appellant
against a direction by
The Account ant in Bankruptcy
Respondent
Act: Advocate Instructed by Creditfix Ltd
Alt: Thomson QC instructed by Harper Macleod
Edinbur gh, 15 October 2021
The sheriff, having resumed consideration of the cause allows the appeal; reduces the
Direction of the Accountant in Bankruptcy dated 22 January 2021; makes the following
directions: (i) that the Storage charge which the Appellant charged and recorded against the
Trust deed is not a Category 1 Disbursement as defined in paragraph 18 of Statement of
Insolvency Practice 9 (Scotland); (ii) that the Storage Charge is not an outlay for the purposes
of Regulation 23 of the Protected Trust Deeds (Scotland) Regulations 2013; (iii) that the
Stor age charge cannot be reimbursed to the Appellant through the payment of a cost
charged against the Trust Deed; reserves all questions of expenses meantime.
2
NOTE
[1] This action began as an appeal in terms of the Bankruptcy (Scotland) Act 2016 (“the
2016 Act”). The appellant is the current trustee in the Protected Trust Deed (“PTD”)
executed on or about 28 January 2016 by PS; it became registered as a protected trust deed
on 21 March 2016. The appellant became trustee following various deeds of assumption and
conveyance. For the purposes of this appeal, I shall refer to the appellant as “the trustee”.
The respondent is the Accountant in Bankruptcy (“the AIB”).
[2] The issue between the parties concerns a very small sum of money (£35). However, I
am advised th at this case is one of thousands in which the particular issue has arisen. The
parties are anxious to have a decision on the matter. This particular PTD was chosen as a
test case. Unfortunately, the procedure has taken a rather unusual course. Put very crudely,
and I will expand upon this in greater detail, the question is whether the sum of £35
incurred by or on behalf of the trustee can properly be considered a charge on the estate of
the debtor. In order to bring the issue before the court the AIB purported to make a
direction under section 179 of the 2016 Act to the effect that the sum of £35 could not be
considered an allowable charge by the trustee. He did so by issuing a letter to her dated
22 January 2021 (document 8 in the bundle lodged by the trustee). The trustee did not agree
with th e direction and, in terms of section 188(1)(c) of the 2016 Act, appealed to the sheriff
against th e direction. In the course of her preparations for this matter, Ms Roxburgh realised
that the 2016 Act does not apply to this matter because the PTD predates the commencement
of the 2016 Act (30 November 2016 – see section 162 of the 2016 Act and regulation 2 of the
Bankr uptcy (Scotland) Act 2016 (Commencement) Regulations, SSI 2016/294). I should add I
am not aware that Ms Roxburgh was involved in this matter from the outset. It follows that
this matter is governed by the Protected Trust Deeds (Scotland) Regulations 2013 (SSI
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