Bankruptcy (Scotland) Act 1985 (repealed)

Administration of bankruptcyS

[1F1Accountant in Bankruptcy.S

(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.]

1AF2Supervisory functions of the Accountant in Bankruptcy.S

(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.

1BF3Performance of certain functions of the Accountant in Bankruptcy.S

(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.

1CF4Directions.S

(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.

[2F5Appointment and functions of interim trustee.S

(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)if the debtor consents; or

(b)if the trustee acting under the trust deed or any creditor shows cause.

(6)For the purposes of the appointment of an interim trustee under subsection (5) above—

(a)where a person is nominated as mentioned in subsection (1)(a) above and the provisions of that subsection apply, the court may appoint that person; and

(b)where such a person is not appointed, the court shall appoint the Accountant in Bankruptcy.

(7)Where the petition for sequestration was presented by a creditor or the trustee acting under a trust deed, the interim trustee shall, as soon as practicable, notify the debtor of his appointment.]

3 Permanent trustee.S

(1)In every sequestration there shall be a permanent trustee whose general functions shall be—

(a)to recover, manage and realise the debtor’s estate, whether situated in Scotland or elsewhere;

(b)to distribute the estate among the debtor’s creditors according to their respective entitlements;

(c)to ascertain the reasons for the debtor’s insolvency and the circumstances surrounding it;

(d)to ascertain the state of the debtor’s liabilities and assets;

(e)to maintain a sederunt book during his term of office for the purpose of providing an accurate record of the sequestration process;

(f)to keep regular accounts of his intromissions with the debtor’s estate, such accounts being available for inspection at all reasonable times by the commissioners (if any), the creditors and the debtor; and

(g)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.

(2)A permanent trustee in performing his functions under this Act shall have regard to advice offered to him by the commissioners (if any).

(3)If the permanent trustee has reasonable grounds to suspect that an offence has been committed in relation to a sequestration—

(a)by the debtor in respect of his assets, his dealings with them or his conduct in relation to his business or financial affairs; or

(b)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 Accountant in Bankruptcy.

(4)A report under subsection (3) above shall be absolutely privileged.

[F6(5)Paragraph (g) of subsection (1) above and subsection (3) above shall not apply in any case where the permanent trustee is the Accountant in Bankruptcy.

(6)A permanent trustee may apply to the sheriff for directions in relation to any particular matter arising in the sequestration.

(7)Where the debtor, a creditor or any other person having an interest is dissatisfied with any act, omission or decision of the permanent trustee, he may apply to the sheriff and, on such an application being made, the sheriff may confirm, annul or modify any act or decision of the permanent trustee or may give him directions or make such order as he thinks fit.]

4 Commissioners.S

In any sequestration (other than one to which Schedule 2 to this Act applies) commissioners, whose general functions shall be to supervise the intromissions of the permanent trustee with the sequestrated estate and to advise him, may be elected in accordance with section 30 of this Act.

Petitions for sequestrationU.K.

5 Sequestration of the estate of living or deceased debtor.S

(1)The estate of a debtor may be sequestrated in accordance with the provisions of this Act.

[F7(2)The sequestration of the estate of a living debtor shall be on the petition of—

(a)the debtor, if either subsection (2A) or (2B) below applies to him;

(b)a qualified creditor or qualified creditors, if the debtor is apparently insolvent; or

(c)the trustee acting under a trust deed if, and only if, one or more of the conditions in subsection (2C) below is satisfied.

(2A)This subsection applies to the debtor if a qualified creditor or qualified creditors concur in the petition.

(2B)This subsection applies to the debtor where—

(a)the total amount of his debts (including interest) at the date of presentation of the petition is not less than £1,500;

(b)an award of sequestration has not been made against him in the period of 5 years ending on the day before the date of presentation of the petition; and

(c)the debtor either—

(i)is apparently insolvent; or

(ii)has granted a trust deed and the trustee has complied with the requirements of sub-sub-paragraphs (a) to (c) of paragraph 5(1) of Schedule 5 to this Act but has received notification as mentioned in sub-sub-paragraph (d) of that paragraph,

and for the purposes of this paragraph a debtor shall not be apparently insolvent by reason only that he has granted a trust deed or that he has given notice to his creditors as mentioned in paragraph (b) of section 7(1) of this Act.

(2C)The conditions mentioned in subsection (2)(c) above are—

(a)that the debtor has failed to comply—

(i)with any obligation imposed on him under the trust deed with which he could reasonably have complied; or

(ii)with any instruction or requirement reasonably given to or made of him by the trustee for the purposes of the trust deed; or

(b)that the trustee avers in his petition that it would be in the best interests of the creditors that an award of sequestration be made.]

(3)The sequestration of the estate of a deceased debtor shall be on the petition of—

(a)an executor or a person entitled to be appointed as executor on the estate;

(b)a qualified creditor or qualified creditors of the deceased debtor; or

(c)the trustee acting under a trust deed.

(4)In this Act “qualified creditor” means a creditor who, at the date of the presentation of the petition, is a creditor of the debtor in respect of liquid or illiquid debts (other than contingent or future debts [F8or amounts payable under a confiscation order]), whether secured or unsecured, which amount (or of one such debt which amounts) to not less than [F9£1,500] or such sum as may be prescribed; and “qualified creditors” means creditors who at the said date are creditors of the debtor in respect of such debts as aforesaid amounting in aggregate to not less than [F9£1,500] or such sum as may be prescribed [F10; and in the foregoing provisions of this subsection “confiscation order” has the meaning assigned by section 1(1) of the Criminal Justice (Scotland) Act 1987 [F11, by section 71(9)(a) of the Criminal Justice Act 1988] or by section 1(8) of the M1 Drug Trafficking Offences Act 1986].

[F12(4A)In this Act, “trust deed” means a voluntary trust deed granted by or on behalf of the debtor whereby his estate (other than such of his estate as would not, under section 33(1) of this Act, vest in the permanent trustee if his estate were sequestrated) is conveyed to the trustee for the benefit of his creditors generally.]

(5)Paragraphs 1(1) and (3), 2(1)(a) and (2) and 6 of Schedule 1 to this Act shall apply in order to ascertain the amount of the debt or debts for the purposes of subsection (4) above as they apply in order to ascertain the amount which a creditor is entitled to claim, but as if for any reference to the date of sequestration there were substituted a reference to the date of presentation of the petition.

(6)The petitioner shall [F13, on the day the petition for sequestration is presented under this section, send a copy of the petition] to the Accountant in Bankruptcy.

[F14(6A)Where the petitioner is the debtor—

(a)he shall lodge with the petition a statement of assets and liabilities; and

(b)he shall, on the day the petition is presented, send to the Accountant in Bankruptcy such statement of assets and liabilities as was lodged in court in pursuance of paragraph (a) above.]

(7)Where, after a petition for sequestration has been presented but before the sequestration has been awarded, the debtor dies then—

(a)if the petitioner was the debtor, the petition shall fall;

(b)if the petitioner is a creditor, the proceedings shall continue in accordance with this Act so far as circumstances will permit.

(8)Where, after a petition for sequestration has been presented under this section but before the sequestration has been awarded, a creditor who—

(a)is the petitioner or concurs in a petition by the debtor; or

(b)has lodged answers to the petition,

withdraws or dies, there may be sisted in the place of—

(i)the creditor mentioned in paragraph (a) above, any creditor who was a qualified creditor at the date when the petition was presented and who remains so qualified at the date of the sist;

(ii)the creditor mentioned in paragraph (b) above, any other creditor.

[F15(9)If the debtor—

(a)fails to send to the Accountant in Bankruptcy in accordance with subsection (6A)(b) above such statement of assets and liabilities; or

(b)fails to disclose any material fact in such statement of assets and liabilities; or

(c)makes a material misstatement in such statement of assets and liabilities,

he shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale or to imprisonment for a term not exceeding 3 months or to both such fine and imprisonment.

(10)In any proceedings for an offence under subsection (9) above, it shall be a defence for the accused to show that he had a reasonable excuse for—

(a)failing to send to the Accountant in Bankruptcy in accordance with subsection (6A)(b) above such statement of assets and liabilities; or

(b)failing to disclose a material fact; or

(c)making a material misstatement.]

6 Sequestration of other estates.S

(1)Subject to subsection (2) below, the estate belonging to or held for or jointly by the members of any of the following entities may be sequestrated—

(a)a trust in respect of debts incurred by it;

(b)a partnership, including a dissolved partnership;

(c)a body corporate or an unincorporated body;

(d)a limited partnership (including a dissolved partnership) within the meaning of the M2Limited Partnerships Act 1907.

(2)It shall not be competent to sequestrate the estate of any of the following entities—

(a)a company registered under the M3Companies Act 1985 or under the former Companies Acts (within the meaning of that Act); or

(b)an entity in respect of which an enactment provides, expressly or by implication, that sequestration is incompetent.

(3)The sequestration of a trust estate in respect of debts incurred by the trust shall be on the petition of—

(a)a majority of the trustees, with the concurrence of a qualified creditor or qualified creditors; or

(b)a qualified creditor or qualified creditors, if the trustees as such are apparently insolvent.

(4)The sequestration of the estate of a partnership shall be on the petition of—

(a)the partnership, with the concurrence of a qualified creditor or qualified creditors; or

(b)a qualified creditor or qualified creditors, if the partnership is apparently insolvent.

(5)A petition under subsection (4)(b) above may be combined with a petition for the sequestration of the estate of any of the partners as an individual where that individual is apparently insolvent.

(6)The sequestration of the estate of a body corporate or of an unincorporated body shall be on the petition of—

(a)a person authorised to act on behalf of the body, with the concurrence of a qualified creditor or qualified creditors; or

(b)a qualified creditor or qualified creditors, if the body is apparently insolvent.

(7)The application of this Act to the sequestration of the estate of a limited partnership shall be subject to such modifications as may be prescribed.

(8)Subsections (6) and (8) of section 5 of this Act shall apply for the purposes of this section as they apply for the purposes of that section.

7 Meaning of apparent insolvency.S

(1)A debtor’s apparent insolvency shall be constituted (or, where he is already apparently insolvent, constituted anew) whenever—

(a)his estate is sequestered, or he is adjudged bankrupt in England or Wales or Northern Ireland; or

(b)[F20not being a person whose property is for the time being affected by a restraint order or subject to a confiscation, or charging, order,] he gives written notice to his creditors that he has ceased to pay his debts in the ordinary course of business; or

(c)any of the following circumstances occurs—

(i)he grants a trust deed;

(ii)following the service on him of a duly executed charge for payment of a debt, the days of charge expire without payment;

(iii)following a poinding or seizure of any of his moveable property in pursuance of a summary warrant for the recovery of rates or taxes, 14 days elapse without payment;

(iv)a decree of adjudication of any part of his estate is granted, either for payment or in security;

(v)his effects are sold under a sequestration for rent due by him; or

(vi)a receiving order is made against him in England or Wales,

unless it is shown that at the time when any such circumstances occurred, the debtor was able and willing to pay his debts as they became due [F21or that but for his property being affected by a restraint order or subject to a confiscation, or charging, order he would be able to do so]; or

(d)a creditor of the debtor, in respect of a liquid debt which amounts (or liquid debts which in aggregate amount) to not less than £750 or such sum as may be prescribed, has served on the debtor, by personal service by an officer of court, a demand in the prescribed form requiring him either to pay the debt (or debts) or to find security for its (or their) payment, and within 3 weeks after the date of service of the demand the debtor has not—

(i)complied with the demand; or

(ii)intimated to the creditor, by recorded delivery, that he denies that there is a debt or that the sum claimed by the creditor as the debt is immediately payable.

[F22In paragraph (d) above, “liquid debt” does not include a sum payable under a confiscation order; and in the foregoing provisions of this subsection—

• “charging order” has the meaning assigned by section 9(2) of the Drug Trafficking Offences Act 1986 [F23or by section 78(2) of the Criminal Justice Act 1988];

• “confiscation order” has the meaning assigned by section 1(1) of the Criminal Justice (Scotland) Act 1987 [F24, by section 71(9)(a) of the said Act of 1988] or by section 1(8) of the said Act of 1986; and

• “restraint order” has the meaning assigned by section 9 of the said Act of 1987 [F25, by section 77(1) of the said Act of 1988] or by section 8 of the said Act of 1986.]

(2)A debtor’s apparent insolvency shall continue, if constituted under—

(a)subsection (1)(a) above, until his discharge; or

(b)subsection (1)(b), (c) or (d) above, until he becomes able to pay his debts and pays them as they become due.

(3)The apparent insolvency of—

(a)a partnership shall be constituted either in accordance with the foregoing provisions of this section or if any of the partners is apparently insolvent for a debt of the partnership;

(b)an unincorporated body shall be constituted if a person representing the body is apparently insolvent, or a person holding property of the body in a fiduciary capacity is apparently insolvent, for a debt of the body.

(4)Notwithstanding subsection (2) of section 6 of this Act, the apparent insolvency of an entity such as is mentioned in paragraph (a) or (b) of that subsection may be constituted (or as the case may be constituted anew) under subsection (1) above; and any reference in the foregoing provisions of this section to a debtor shall, except where the context otherwise requires, be construed as including a reference to such an entity.

8 Further provisions relating to presentation of petitions.U.K.

(1)Subject to subsection (2) below, a petition for the sequestration of a debtor’s estate (other than a deceased debtor’s estate) may be presented—

(a)at any time by the debtor or by a trustee acting under a trust deed; but

(b)by a qualified creditor or qualified creditors, only if the apparent insolvency founded on in the petition was constituted within 4 months before the petition is presented.

(2)A petition for the sequestration of the estate of a limited partnership may be presented within such time as may be prescribed.

(3)A petition for the sequestration of the estate of a deceased debtor may be presented—

(a)at any time by an executor or a person entitled to be appointed as executor on the estate or a trustee acting under a trust deed;

(b)by a qualified creditor or qualified creditors of the deceased debtor—

(i)in a case where the apparent insolvency of the debtor was constituted within 4 months before his death, at any time;

(ii)in any other case (whether or not apparent insolvency has been constituted), not earlier than 6 months after the debtor’s death.

(4)If an executor does not petition for sequestration of the deceased debtor’s estate or for the appointment of a judicial factor to administer the estate within a reasonable period after he knew or ought to have known that the estate was absolutely insolvent and likely to remain so, any intromission by him with the estate after the expiry of that period shall be deemed to be an intromission without a title.

(5)The presentation of, or the concurring in, a petition for sequestration shall bar the effect of any enactment or rule of law relating to the limitation of actions in any part of the United Kingdom.

(6)Where before sequestration is awarded it becomes apparent that a petitioning or concurring creditor was ineligible so to petition or concur he shall withdraw, or as the case may be withdraw from, the petition but another creditor may be sisted in his place.

9 Jurisdiction.S

(1)The Court of Session shall have jurisdiction in respect of the sequestration of the estate of a living debtor or of a deceased debtor if the debtor had an established place of business in Scotland, or was habitually resident there, at the relevant time.

(2)The Court of Session shall have jurisdiction in respect of the sequestration of the estate of any entity which may be sequestrated by virtue of section 6 of this Act, if the entity—

(a)had an established place of business in Scotland at the relevant time; or

(b)was constituted or formed under Scots law, and at any time carried on business in Scotland.

(3)Notwithstanding that the partner of a firm, whether alive or deceased, does not fall within subsection (1) above, the Court of Session shall have jurisdiction in respect of the sequestration of his estate if a petition has been presented for the sequestration of the estate of the firm of which he is, or was at the relevant time before his decease, a partner and the process of that sequestration is still current.

(4)The provisions of this section shall apply to the sheriff as they apply to the Court of Session but as if for the word “Scotland” wherever it occurs there were substituted the words “the sheriffdom” and in subsection (3) after the word “presented” there were inserted the words “in the sheriffdom”.

(5)In this section “the relevant time” means at any time in the year immediately preceding the date of presentation of the petition or the date of death, as the case may be.

10 Concurrent proceedings for sequestration or analogous remedy.S

(1)If, in the course of sequestration proceedings, the petitioner for sequestration, the debtor or a creditor concurring in the petition (the petition in such proceedings being hereafter in this section referred to as the “instant petition”), is, or becomes, aware that—

(a)another petition for sequestration of the debtor’s estate is before a court or such sequestration has been awarded; or

(b)a petition for the appointment of a judicial factor on the debtor’s estate is before a court or such a judicial factor has been appointed; or

[F27(c)a petition is before a court for the winding up of the debtor under Part IV or V of the M4 Insolvency Act 1986 or section 72 of the Financial Services Act 1986;]

(d)an application for an analogous remedy in respect of the debtor’s estate is proceeding or such an analogous remedy is in force,

he shall as soon as possible bring that fact to the notice of the court to which the instant petition was presented.

(2)If a petitioner (not being the debtor) or a creditor concurring in the petition fails to comply with subsection (1) above, he may be made liable for the expenses of presenting the petition for sequestration; and, if the debtor fails to comply with subsection (1) above, he shall be guilty of an offence and liable, on summary conviction, to a fine not exceeding level 5 on the standard scale.

(3)Where in the course of sequestration proceedings any of the circumstances mentioned in paragraph (a), (b) or (c) of subsection (1) above exists then—

(a)the court to which the instant petition was presented may, on its own motion or at the instance of the debtor or any creditor or other person having an interest, allow that petition to proceed or may sist or dismiss it; or

(b)without prejudice to paragraph (a) above, the Court of Session may, on its own motion or on application by the debtor or any creditor or other person having an interest, direct the sheriff before whom the instant petition is pending, or the court before which the other petition is pending, to sist or dismiss the instant petition or, as the case may be, the other petition, or may order the petitions to be heard together.

(4)Where in respect of the same estate—

(a)a petition for sequestration is pending before a court; and

(b)an application for an analogous remedy is proceeding or an analogous remedy is in force,

the court, on its own motion or at the instance of the debtor or any creditor or other person having an interest, may allow the petition for sequestration to proceed or may sist or dismiss it.

(5)In this section “analogous remedy” means a bankruptcy order under the M5Bankruptcy Act 1914 or under the M6Insolvency Act 1985 or an administration order under section 112 of the M7County Courts Act 1984 in England and Wales or under any enactment having the like effect in Northern Ireland or a remedy analogous to either of the aforesaid remedies, or to sequestration, in any other country.

11 Creditor’s oath.S

(1)Every creditor, being a petitioner for sequestration, a creditor who concurs in a petition by a debtor or a qualified creditor who becomes sisted under subsection (8)(i) of section 5 of this Act or under that subsection as applied by section 6(8) of this Act, shall produce an oath in the prescribed form made by him or on his behalf.

(2)The oath may be made—

(a)in the United Kingdom, before any person entitled to administer an oath there;

(b)outwith the United Kingdom, before a British diplomatic or consular officer or any person authorised to administer an oath or affirmation under the law of the place where the oath is made.

(3)The identity of the person making the oath and the identity of the person before whom the oath is made and their authority to make and to administer the oath respectively shall be presumed to be correctly stated, and any seal or signature on the oath shall be presumed to be authentic, unless the contrary is established.

(4)If the oath contains any error or has omitted any fact, the court to which the petition for sequestration was presented may, at any time before sequestration is awarded, allow another oath to be produced rectifying the original oath; and this section shall apply to the making of that other oath as it applies to the making of the original oath.

(5)Every creditor must produce along with the oath an account or voucher (according to the nature of the debt) which constitutesprima facie evidence of the debt; and a petitioning creditor shall in addition produce such evidence as is available to him to show the apparent insolvency of the debtor.

Award of sequestration and appointment and resignation of interim trusteeS

12 When sequestration is awarded.S

[F29(1)Where a petition for the sequestration of his estate is presented by the debtor, unless cause is shown why sequestration cannot competently be awarded, the court shall award sequestration forthwith if it is satisfied—

(a)that the petition has been presented in accordance with the provisions of this Act;

(b)that either subsection (2A) or (2B) of section 5 of this Act applies to the debtor; and

(c)that the provisions of subsections (6) and (6A) of that section have been complied with.]

[F30(1A)Where a petition is presented as mentioned in subsection (1) above, the Accountant in Bankruptcy may, not later than 7 days after the date on which sequestration is awarded, apply to the court for the grant of a certificate for the summary administration of the sequestration of the debtor’s estate.]

(2)Where a petition for sequestration of a debtor’s estate is presented by a creditor or a trustee acting under a trust deed, the court to which the petition is presented shall grant warrant to cite the debtor to appear before it on such date as shall be specified in the warrant, being a date not less than 6 nor more than 14 days after the date of citation, to show cause why sequestration should not be awarded.

[F31(3)Where, on a petition for sequestration presented by a creditor or a trustee acting under a trust deed, the court is satisfied—

(a)that, if the debtor has not appeared, proper citation has been made of the debtor;

(b)that the petition has been presented in accordance with the provisions of this Act;

(c)that the provisions of subsection (6) of section 5 of this Act have been complied with;

(d)that, in the case of a petition by a creditor, the requirements of this Act relating to apparent insolvency have been fulfilled; and

(e)that, in the case of a petition by a trustee, the averments in his petition as to any of the conditions in subsection (2C) of the said section 5 are true,

it shall, subject to subsection (3A) below, award sequestration forthwith.

(3A)Sequestration shall not be awarded in pursuance of subsection (3) above if—

(a)cause is shown why sequestration cannot competently be awarded; or

(b)the debtor forthwith pays or satisfies, or produces written evidence of the payment or satisfaction of, or gives or shows that there is sufficient security for the payment of—

(i)the debt in respect of which he became apparently insolvent; and

(ii)any other debt due by him to the petitioner and any creditor concurring in the petition.]

[F29(4)In this Act “the date of sequestration” means—

(a)where the petition for sequestration is presented by the debtor, the date on which sequestration is awarded;

(b)where the petition for sequestration is presented by a creditor or a trustee acting under a trust deed—

(i)the date on which the court grants warrant under subsection (2) above to cite the debtor; or

(ii)where more than one such warrant is granted, the date on which the first such warrant is granted.]

[13F32Resignation, removal etc. of interim trustee.S

(1)Where, under section 1A(2) of this Act, the court removes from office an interim trustee, the court shall, on the application of the Accountant in Bankruptcy, appoint a new interim trustee.

(2)Without prejudice to section 1A(2) of this Act or to subsection (1) above, where the court is satisfied that an interim trustee—

(a)is unable to act (whether by, under or by virtue of a provision of this Act or from any other cause whatsoever); or

(b)has so conducted himself that he should no longer continue to act in the sequestration,

the court, on the application of the debtor, a creditor or the Accountant in Bankruptcy, shall remove from office the interim trustee and appoint a new interim trustee.

(3)An interim trustee (not being the Accountant in Bankruptcy) may apply to the court for authority to resign office; and if the court is satisfied that the grounds mentioned in paragraph (a) or (b) of subsection (2) above apply in relation to the interim trustee, it shall grant the application.

(4)Where, following an application under subsection (3) above, the interim trustee resigns office, the court shall appoint a new interim trustee.

(5)Where the interim trustee has died, the court, on the application of the debtor, a creditor or the Accountant in Bankruptcy, shall appoint a new interim trustee.

(6)No one (other than the Accountant in Bankruptcy) shall act as interim trustee in a sequestration if he would, by virtue of section 24(2) of this Act, be disqualified from acting as permanent trustee in that sequestration; but where an interim trustee is, by virtue of this subsection, prohibited from so acting, he shall forthwith make an application under subsection (3) above.

(7)Subsections (1) and (2) of section 2 of this Act shall apply as regards the appointment of an interim trustee under this section as if for any reference to—

(a)the court awarding sequestration of the debtor’s estate, there was substituted a reference to the court appointing a new interim trustee; and

(b)the petition for sequestration there was substituted a reference to the application under this section for the appointment of a new interim trustee.]

14 Registration of court order.S

(1)The clerk of the court shall forthwith after the date of sequestration send—

(a)a certified copy of the relevant court order to the keeper of the register of inhibitions and adjudications for recording in that register; and

(b)a copy of the order to the Accountant in Bankruptcy.

(2)Recording under subsection (1)(a) above shall have the effect as from the date of sequestration of an inhibition and of a citation in an adjudication of the debtor’s heritable estate at the instance of the creditors who subsequently have claims in the sequestration accepted under section 49 of this Act.

(3)The effect mentioned in subsection (2) above shall expire—

(a)on the recording under section 15(5)(a) or 17(8)(a) of, or by virtue of paragraph 11 of Schedule 4 to, this Act or a certified copy of an order; or

(b)subject to subsection (4) below, if the effect has not expired by virtue of paragraph (a) above, at the end of the period of 3 years beginning with the date of sequestration.

(4)The permanent trustee, if not discharged, [F34may]before the end of the period of 3 years mentioned in subsection (3)(b) above send a memorandum in a form prescribed by the Court of Session by act of sederunt to the keeper of the register of inhibitions and adjudications for recording in that register, and such recording shall renew the effect mentioned in subsection (2) above; and thereafter the said effect shall continue to be preserved only if such a memorandum is so recorded before the expiry of every subsequent period of 3 years.

(5)In this section “relevant court order” means, if the petition for sequestration is presented by—

(a)the debtor, the order of the court awarding sequestration; or

(b)a creditor or the trustee acting under a trust deed, the order of the court granting warrant under section 12(2) of this Act.

15 Further provisions relating to award of sequestration.S

(1)Where sequestration has been awarded by the Court of Session, it shall remit the sequestration to such sheriff as in all the circumstances of the case it considers appropriate.

(2)The Court of Session may at any time after sequestration has been awarded, on application being made to it, transfer the sequestration from the sheriff before whom it is depending or to whom it has been remitted to any other sheriff.

(3)Where the court makes an order refusing to award sequestration, the petitioner or a creditor concurring in the petition for sequestration may appeal against the order within 14 days of the date of making of the order.

(4)Without prejudice to any right to bring an action of reduction of an award of sequestration, such an award shall not be subject to review otherwise than by recall under sections 16 and 17 of this Act.

(5)Where a petition for sequestration is presented by a creditor or a trustee acting under a trust deed, the clerk of the court shall—

(a)on the final determination or abandonment of any appeal under subsection (3) above in relation to the petition, or if there is no such appeal on the expiry of the 14 days mentioned in that subsection, send a certified copy of an order refusing to award sequestration to the keeper of the register of inhibitions and adjudications for recording in that register;

(b)forthwith send a copy of an order awarding or refusing to award sequestration to the Accountant in Bankruptcy.

[F35(6)The interim trustee shall, as soon as an award of sequestration has been granted, publish in the Edinburgh Gazette a notice—

(a)stating that sequestration of the debtor’s estate has been awarded;

(b)inviting the submission of claims to him; and

(c)giving such other information as may be prescribed.]

(7)Where sequestration has been awarded, the process of sequestration shall not fall asleep.

(8)Where a debtor learns, whether before or after the date of sequestration, that he may derive benefit from another estate, he shall as soon as practicable after that date inform—

(a)the permanent trustee or, if the permanent trustee has not yet been elected or appointed, the interim trustee of that fact; and

(b)the person who is administering that other estate of the sequestration.

(9)If the debtor fails to comply with subsection (8) above, he shall be guilty of an offence and liable, on summary conviction, to a fine not exceeding level 5 on the standard scale.

16 Petitions for recall of sequestration.S

(1)A petition for recall of an award of sequestration may be presented to the Court of Session by—

(a)the debtor, any creditor or any other person having an interest (notwithstanding that he was a petitioner, or concurred in the petition, for the sequestration);

(b)the interim trustee, the permanent trustee, or the Accountant in Bankruptcy.

(2)The petitioner shall serve upon the debtor, any person who was a petitioner, or concurred in the petition, for the sequestration, the interim trustee or permanent trustee and the Accountant in Bankruptcy, a copy of the petition along with a notice stating that the recipient of the notice may lodge answers to the petition within 14 days of the service of the notice.

(3)At the same time as service is made under subsection (2) above, the petitioner shall publish a notice in the Edinburgh Gazette stating that a petition has been presented under this section and that any person having an interest may lodge answers to the petition within 14 days of the publication of the notice.

(4)Subject to section 41(1)(b) of this Act, a petition under this section may be presented—

(a)within 10 weeks after the date of [F36the award of]sequestration; but

(b)at any time if the petition is presented on any of the grounds mentioned in paragraphs (a) to (c) of section 17(1) of this Act.

(5)Notwithstanding that a petition has been presented under this section, the proceedings in the sequestration shall continue (subject to section 17(6) of this Act) as if that petition had not been presented until the recall is granted.

(6)Where—

(a)a petitioner under this section; or

(b)a person who has lodged answers to the petition,

withdraws or dies, any person entitled to present or, as the case may be, lodge answers to a petition under this section may be sisted in his place.

17 Recall of sequestration.S

(1)The Court of Session may recall an award of sequestration if it is satisfied that in all the circumstances of the case (including those arising after the date of the award of sequestration) it is appropriate to do so and, without prejudice to the foregoing generality, may recall the award if it is satisfied that—

(a)the debtor has paid his debts in full or has given sufficient security for their payment;

(b)a majority in value of the creditors reside in a country other than Scotland and that it is more appropriate for the debtor’s estate to be administered in that other country; or

(c)one or more other awards of sequestration of the estate or analogous remedies (as defined in section 10(5) of this Act) have been granted.

(2)Where one or more awards of sequestration of the debtor’s estate have been granted, the Court may, after such intimation as it considers necessary, recall an award whether or not the one in respect of which the petition for recall was presented.

(3)On recalling an award of sequestration, the Court—

(a)shall make provision for the payment of the outlays and remuneration of the interim trustee and permanent trustee by directing that such payment shall be made out of the debtor’s estate or by requiring any person who was a party to the petition for sequestration to pay the whole or any part of the said outlays and remuneration;

(b)without prejudice to subsection (7) below, may direct that payment of the expenses of a creditor who was a petitioner, or concurred in the petition, for sequestration shall be made out of the debtor’s estate;

(c)may make any further order that it considers necessary or reasonable in all the circumstances of the case.

(4)Subject to subsection (5) below, the effect of the recall of an award of sequestration shall be, so far as practicable, to restore the debtor and any other person affected by the sequestration to the position he would have been in if the sequestration had not been awarded.

(5)A recall of an award of sequestration shall not—

(a)affect the interruption of prescription caused by the presentation of the petition for sequestration or the submission of a claim under section 22 or 48 of this Act;

(b)invalidate any transaction entered into before such recall by the interim trustee or permanent trustee with a person acting in good faith.

(6)Where the Court considers that it is inappropriate to recall or to refuse to recall an award of sequestration forthwith, it may order that the proceedings in the sequestration shall continue but shall be subject to such conditions as it may think fit.

(7)The Court may make such order in relation to the expenses in a petition for recall as it thinks fit.

(8)The clerk of the court shall send—

(a)a certified copy of any order recalling an award of sequestration to the keeper of the register of inhibitions and adjudications for recording in that register; and

(b)a copy of any order recalling or refusing to recall an award of sequestration, or of any order under section 41(1)(b)(ii) of this Act, to—

(i)the Accountant in Bankruptcy; and

(ii)the permanent trustee (if any) who shall insert it in the sederunt book.

Period between award of sequestration and statutory meeting of creditorsS

18 Interim preservation of estate.S

(1)The interim trustee may give general or particular directions to the debtor relating to the management of the debtor’s estate.

(2)In exercising the functions conferred on him by section [F372(4)(a)] of this Act, an interim trustee may—

(a)require the debtor to deliver up to him any money or valuables, or any document relating to the debtor’s business or financial affairs, belonging to or in the possession of the debtor or under his control;

(b)place in safe custody anything mentioned in paragraph (a) above;

(c)require the debtor to deliver up to him any perishable goods belonging to the debtor or under his control and may arrange for the sale or disposal of such goods;

(d)make or cause to be made an inventory or valuation of any property belonging to the debtor;

(e)require the debtor to implement any transaction entered into by the debtor;

(f)effect or maintain insurance policies in respect of the business or property of the debtor;

(g)close down the debtor’s business.

[F38(h)carry on any business of the debtor or borrow money in so far as it is necessary for the interim trustee to do so to safeguard the debtor’s estate.]

(3)The court, on the application of the interim trustee, may—

F39(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b)on cause shown, grant a warrant authorising the interim trustee to enter the house where the debtor resides or his business premises and to search for and take possession of anything mentioned in paragraphs (a) and (c) of subsection (2) above, if need be by opening shut and lock-fast places; or

(c)make such other order to safeguard the debtor’s estate as it thinks appropriate.

(4)The court, on an application by the debtor on the grounds that a direction under subsection (1) above is unreasonable, may—

(a)if it considers the direction to be unreasonable, set aside the direction; and

(b)in any event, give such directions to the debtor regarding the management of his estate as it considers appropriate;

but, subject to any interim order of the court, the debtor shall comply with the direction appealed against pending the final determination of the appeal.

(5)The debtor shall be guilty of an offence if—

(a)he fails without reasonable excuse to comply with—

(i)a direction under subsection (1) or (4)(b) above; or

(ii)a requirement under subsection (2)(a), (c) or (e) above; or

(b)he obstructs the interim trustee where the interim trustee is acting in pursuance of subsection (3)(b) above.

(6)A person convicted of an offence under subsection (5) above shall be liable—

(a)on summary conviction to a fine not exceeding the statutory maximum or—

(i)to imprisonment for a term not exceeding 3 months; or

(ii)if he has previously been convicted of an offence inferring dishonest appropriation of property or an attempt at such appropriation, to imprisonment for a term not exceeding 6 months,

or (in the case of either sub-paragraph) to both such fine and such imprisonment; or

(b)on conviction on indictment to a fine or to imprisonment for a term not exceeding 2 years or to both.

[19F40Statement of assets and liabilities etc.S

(1)Where the petitioner for sequestration is the debtor he shall, not later than 7 days after the appointment of the interim trustee (where he is not the Accountant in Bankruptcy), send to the interim trustee such statement of assets and liabilities as was lodged in court in pursuance of section 5(6A)(a) of this Act.

(2)Where the petitioner for sequestration is a creditor or a trustee acting under a trust deed, the debtor shall, not later than 7 days after having been notified by the interim trustee as mentioned in section 2(7) of this Act, send to the interim trustee a statement of assets and liabilities.

(3)If the debtor—

(a)fails to send to the interim trustee in accordance with subsection (1) or (2) above such statement of assets and liabilities; or

(b)fails to disclose any material fact in such statement of assets and liabilities; or

(c)makes a material misstatement in such statement of assets and liabilities,

he shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale or to imprisonment for a term not exceeding 3 months or to both such fine and imprisonment.

(4)In any proceedings for an offence under subsection (3) above, it shall be a defence for the accused to show that he had a reasonable excuse for—

(a)failing to send to the interim trustee in accordance with subsection (1) or (2) above such statement of assets and liabilities; or

(b)failing to disclose a material fact; or

(c)making a material misstatement.]

20 Trustee’s duties on receipt of list of assets and liabilities.S

[F41(1)When the interim trustee has received the statement of assets and liabilities, he shall, as soon as practicable, prepare a statement of the debtor’s affairs so far as within the knowledge of the interim trustee and shall indicate in the statement of the debtor’s affairs whether, in his opinion, the debtor’s assets are unlikely to be sufficient to pay any dividend whatsoever in respect of the debts mentioned in paragraphs (e) to (h) of section 51(1) of this Act.]

(2)The interim trustee shall, not later than 4 days before the date fixed for the statutory meeting, send to the Accountant in Bankruptcy—

(a)[F41the statement] of assets and liabilities; and

(b)a copy of the F42. . . statement of the debtor’s affairs; and

(c)written comments by the interim trustee indicating what in his opinion are the causes of the insolvency and to what extent the conduct of the debtor may have contributed to the insolvency.

(3)The written comments made under subsection (2)(c) above shall be absolutely privileged.

(4)The interim trustee may request—

(a)the debtor to appear before him and to give information relating to his assets, his dealings with them or his conduct in relation to his business or financial affairs; or

(b)the debtor’s spouse or any other person who the interim trustee believes can give such information to give that information,

and if the interim trustee considers it necessary he may apply to the sheriff for an order requiring the debtor, spouse or other person to appear before the sheriff for private examination.

(5)Subsections (2) to (4) of section 44 and sections 46 and 47 of this Act shall apply, subject to any necessary modifications, in respect of private examination under subsection (4) above as they apply in respect of private examination under the said subsection (2).

[F43(5A)Subsections (2) and (3) above do not apply in any case where the Accountant in Bankruptcy is the interim trustee.]

[20AF44Statutory meeting.S

A meeting of creditors called by the interim trustee under section 21 or 21A of this Act shall, in this Act, be referred to as “the statutory meeting”.]

Statutory meeting of creditors and confirmation of permanent trusteeU.K.

21 Calling of statutory meeting.S

(1)[F45Where the interim trustee is not the Accountant in Bankruptcy he shall call the statutory meeting] to be held within 28 days, or such longer period as the sheriff on cause shown may allow, after the date of the award of sequestration.

[F46(1A)The statutory meeting shall be held at such time and place as the interim trustee determines.]

(2)Not less than 7 days before the date fixed for the statutory meeting, the interim trustee shall notify—

(a)every creditor known to him; and

(b)the Accountancy in Bankruptcy,

of the date, time and place of the meeting, and shall in the notification to creditors invite the submission of such claims as have not already been submitted and inform them of his duties under section 23(3) and (5) of this Act.

(3)The creditors may continue the statutory meeting to a date not later than 7 days after the end of the period—

(a)of 28 days mentioned in subsection (1) above; or (as the case may be),

(b)allowed by the sheriff under that subsection.

[F46(4)This section does not apply in any case where the Accountant in Bankruptcy is the interim trustee.]

[21AF47Calling of statutory meeting where interim trustee is Accountant in Bankruptcy.S

(1)Subject to subsections (5) and (6) below, where the interim trustee is the Accountant in Bankruptcy, the statutory meeting may be held at such time and place as the interim trustee may determine.

(2)Not later than 60 days after the date of the sequestration, or such longer period as the sheriff may on cause shown allow, the interim trustee shall give notice to every creditor known to him of whether he intends to call the statutory meeting.

(3)A notice given under subsection (2) above shall—

(a)be accompanied by a copy of the interim trustee’s statement of the debtor’s affairs; and

(b)where the interim trustee is notifying his intention not to hold the statutory meeting, inform creditors—

(i)of the effect of subsections (4) and (5) below; and

(ii)whether he intends to apply for the grant of a certificate for the summary administration of the sequestration of the debtor’s estate.

(4)Within 7 days of the giving of notice under subsection (2) above, any creditor may request the interim trustee to call the statutory meeting.

(5)Where a request or requests under subsection (4) above are made by not less than one quarter in value of the debtor’s creditors, the interim trustee shall call the statutory meeting not later than 28 days, or such other period as the sheriff may on cause shown allow, after the giving of notice under subsection (2) above.

(6)Where the interim trustee gives notice under subsection (2) above that he intends to call the statutory meeting, such meeting shall be called not later than 28 days after the giving of such notice.

(7)Not less than 7 days before the date fixed for the statutory meeting, the interim trustee shall notify every creditor known to him of the date, time and place of the meeting, and shall in such notice invite the submission of such claims as have not already been submitted and inform them of his duties under section 23(3) of this Act.

(8)The creditors may continue the statutory meeting to a date not later than 7 days after the end of the period mentioned in subsection (6) above or such longer period as the sheriff may on cause shown allow.

(9)This section applies in any case where the Accountant in Bankruptcy is the interim trustee.]

21BF48Procedure where no statutory meeting called.S

(1)Where the interim trustee does not call the statutory meeting and the period mentioned in section 21A(4) of this Act has expired, he shall—

(a)forthwith make a report to the sheriff on the circumstances of the sequestration; and

(b)provide to the sheriff a copy of the interim trustee’s statement of the debtor’s affairs.

(2)In the case of a sequestration which falls within subsection (1) above—

(a)section 25A of this Act shall apply; and

(b)the interim trustee may apply to the sheriff for the grant of a certificate for the summary administration of the sequestration of the debtor’s estate.

22 Submission of claims for voting purposes at statutory meeting.U.K.

(1)For the purposes of voting at the statutory meeting, a creditor shall submit a claim in accordance with this section to the interim trustee at or before the meeting.

(2)A creditor shall submit a claim under this section by producing to the interim trustee—

(a)a statement of claim in the prescribed form; and

(b)an account or voucher (according to the nature of the debt) which constitutesprima facie evidence of the debt:

(3)Where a creditor neither resides nor has a place of business in the United Kingdom, the interim trustee—

(a)shall, if he knows where the creditor resides or has a place of business and if no notification has been given to that creditor under section 21(2) of this Act, write to him informing him that he may submit a claim under this section;

(b)may allow the creditor to submit an informal claim in writing.

(4)A creditor who has produced a statement of claim in accordance with subsection (2) above may at any time before the statutory meeting produce in place of that statement of claim another such statement of claim specifying a different amount for his claim.

(5)If a creditor produces under this section a statement of claim, account, voucher or other evidence which is false—

(a)the creditor shall be guilty of an offence unless he shows that he neither knew nor had reason to believe that the statement of claim, account, voucher or other evidence was false;

(b)the debtor shall be guilty of an offence if he—

(i)knew or became aware that the statement of claim, account, voucher or other evidence was false; and

(ii)failed as soon as practicable after acquiring such knowledge to report it to the interim trustee or permanent trustee.

(6)A creditor may, in such circumstances as may be prescribed, state the amount of his claim in foreign currency.

(7)The interim trustee shall, on production of any document to him under this section, initial the document and keep a record of it stating the date when it was produced to him, and, if requested by the sender, shall return it (if it is not a statement of claim) to him.

(8)The submission of a claim under this section shall bar the effect of any enactment or rule of law relating to the limitation of actions in any part of the United Kingdom.

(9)Schedule 1 to this Act shall have effect for determining the amount in respect of which a creditor shall be entitled to claim.

(10)A person convicted of an offence under subsection (5) above shall be liable—

(a)on summary conviction to a fine not exceeding the statutory maximum or—

(i)to imprisonment for a term not exceeding 3 months; or

(ii)if he has previously been convicted of an offence inferring dishonest appropriation of property or an attempt at such appropriation, to imprisonment for a term not exceeding 6 months,

or (in the case of either sub-paragraph) to both such fine and such imprisonment; or

(b)on conviction on indictment to a fine or to imprisonment for a term not exceeding 2 years or to both.

23 Proceedings at statutory meeting before election of permanent trustee.S

(1)At the commencement of the statutory meeting, the chairman shall be the interim trustee who as chairman shall—

(a)for the purposes of subsection (2) below, accept or reject in whole or in part the claim of each creditor, and, if the amount of a claim is stated in foreign currency, he shall convert that amount into sterling, in such manner as may be prescribed, at the rate of exchange prevailing at the close of business on the date of sequestration;

(b)invite the creditors thereupon to elect one of their number as chairman in his place and shall preside over the election:

(c)arrange for a record to be made of the proceedings at the meeting.

(2)The acceptance of a claim in whole or in part under subsection (1) above shall, subject to section 24(3) of this Act, determine the entitlement of a creditor to vote at the statutory meeting.

(3)On the conclusion of the proceedings under subsection (1) above, the interim trustee—

[F49(a)shall make available for inspection—

(i)the statement of assets and liabilities; and

(ii)his statement of the debtor’s affairs prepared under section 20(1) of this Act;]

(b)shall answer to the best of his ability any questions, and shall consider any representations, put to him by the creditors relating to the debtor’s assets, business or financial affairs or his conduct in relation thereto;

(c)shall, after considering any such representations as are mentioned in paragraph (b) above, indicate whether, in his opinion, the debtor’s assets are unlikely to be sufficient as mentioned in section 20(1) of this Act; and

[F49(d)shall determine whether it is necessary to revise his statement of the debtor’s affairs and, if he determines that it is necessary to revise the statement, he shall do so either at, or as soon as possible after, the statutory meeting.]

F50(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F49(5)Where the interim trustee has revised his statement of the debtor’s affairs, he shall, as soon as possible after the statutory meeting, send a copy of the revised statement to every creditor known to him.]

[23AF51Summary administration.S

(1)Where an application is made to the court under this Act for the grant of a certificate for the summary administration of the sequestration of the debtor’s estate, the court shall, subject to subsection (9) below, grant such a certificate where it appears to the court that—

(a)the aggregate amount of the debtor’s liabilities does not exceed £20,000; and

(b)the aggregate amount of the debtor’s assets does not exceed £2,000.

(2)In calculating—

(a)the aggregate amount of the debtor’s liabilities under paragraph (a) of subsection (1) above, no account shall be taken of any debt to the extent that a creditor holds a security for that debt; and

(b)the aggregate amount of the debtor’s assets under paragraph (b) of that subsection, no account shall be taken of—

(i)any heritable property of his; or

(ii)any property of his which, under section 33(1) of this Act, does not vest in the permanent trustee.

(3)For the purposes of an application under subsection (1) above made by—

(a)the Accountant in Bankruptcy; or

(b)an interim trustee who is not the Accountant in Bankruptcy,

a certificate by the Accountant in Bankruptcy or, as the case may be, the interim trustee as to the aggregate amounts of the debtor’s liabilities and assets shall be sufficient evidence of such aggregate amounts.

(4)Where a certificate for the summary administration of the sequestration of the debtor’s estate is granted—

(a)in any case where the application for the certificate was made by the Accountant in Bankruptcy, section 25A of this Act; and

(b)in every case, Schedule 2A to this Act (which modifies the duties of the permanent trustee),

shall apply to the sequestration.

(5)The debtor, a creditor, the permanent trustee or the Accountant in Bankruptcy may, at any time, apply to the sheriff to withdraw the certificate for the summary administration of the sequestration of the debtor’s estate.

(6)Where an application is made under subsection (5) above by a person who is not the permanent trustee, the applicant shall send a copy of the application to the permanent trustee who shall prepare and present to the sheriff a report on all of the circumstances of the sequestration.

(7)If it appears to the sheriff, on considering an application under subsection (5) above and any report under subsection (6) above, that it is no longer appropriate for the sequestration to be subject to summary administration, he shall withdraw the certificate and the sequestration of the estate shall proceed as if the certificate had not been granted.

(8)The sheriff clerk shall send to the permanent trustee and, where he is not the permanent trustee, the Accountant in Bankruptcy a copy of the sheriff’s decision on any application under subsection (5) above.

(9)The court shall not grant an application as mentioned in subsection (1) above—

(a)in any case where the application is made by the Accountant in Bankruptcy and the court has appointed as interim trustee a person who is not the Accountant in Bankruptcy; or

(b)in any other case—

(i)where a person has been elected as permanent trustee, before the sheriff has confirmed the election of that person as permanent trustee; or

(ii)where no such person has been elected, unless the court at the same time appoints the interim trustee as permanent trustee.]

24 Election of permanent trustee.S

[F52(1)At the statutory meeting, the creditors shall, at the conclusion of the proceedings under section 23(3) of this Act, proceed to the election of the permanent trustee.]

(2)None of the following persons shall be eligible for election as permanent trustee, nor shall anyone who becomes such a person after having been elected as permanent trustee be qualified to continue to act as permanent trustee—

(a)the debtor;

(b)a person who is not qualified to act as an insolvency practitioner or who, though qualified to act as an insolvency practitioner, is not qualified to act as such in relation to the debtor;

(c)a person who holds an interest opposed to the general interests of the creditors;

(d)a person who resides outwith the jurisdiction of the Court of Session.

[F53(e)a person who has not given an undertaking, in writing, to act as permanent trustee;

(f)the Accountant in Bankruptcy.]

(3)The following persons shall not be entitled to vote in the election of the permanent trustee—

(a)anyone acquiring a debt due by the debtor, otherwise than by succession, after the date of sequestration;

(b)any creditor to the extent that his debt is a postponed debt.

[F53(3A)In any case where the Accountant in Bankruptcy is the interim trustee, if—

(a)no creditor entitled to vote in the election of the permanent trustee attends the statutory meeting; or

(b)no permanent trustee is elected,

the Accountant in Bankruptcy shall forthwith report the proceedings at the statutory meeting to the sheriff and section 25A of this Act shall apply.

(3B)Where a report is made in pursuance of subsection (3A) above, the Accountant in Bankruptcy may apply to the sheriff for the grant of a certificate for the summary administration of the sequestration of the debtor’s estate.]

(4)[F53In any case where the Accountant in Bankruptcy is not the interim trustee,]if no creditor entitled to vote in the election of the permanent trustee attends the statutory meeting or if no permanent trustee is elected, the interim trustee shall forthwith—

(a)so notify the Accountant in Bankruptcy; and

(b)report the proceedings at the statutory meeting to the sheriff, who shall thereupon appoint the interim trustee as the permanent trustee.

[F53(4A)Where a report is made in pursuance of subsection (4) above, the interim trustee may apply to the sheriff for the grant of a certificate for the summary administration of the sequestration of the debtor’s estate.]

(5)Where subsection (4) above applies, the provisions of this Act shall have effect as regards the sequestration subject to such modifications, and with such further provisions, as are set out in Schedule 2 to this Act.

25 Confirmation of permanent trustee.S

(1)On the election of the permanent trustee—

(a)the interim trustee shall forthwith make a report of the proceedings at the statutory meeting to the sheriff; and

(b)the debtor, a creditor, the interim trustee, the permanent trustee or the Accountant in Bankruptcy may, within 4 days after the statutory meeting, object to any matter connected with the election; and such objection shall be by summary application to the sheriff, specifying the grounds on which the objection is taken.

(2)If there is no timeous objection under subsection (1)(b) above, the sheriff shall forthwith declare the elected person to be the permanent trustee; and the sheriff shall confirm his election and the sheriff clerk shall issue to him an act and warrant in a form prescribed by the Court of Session by act of sederunt and send a copy of the act and warrant to the Accountant in Bankruptcy.

[F54(2A)Where a report is made in pursuance of subsection (1) above, the interim trustee may apply to the sheriff for the grant of a certificate for the summary administration of the sequestration of the debtor’s estate.]

(3)If there is a timeous objection under subsection (1)(b) above, the sheriff shall forthwith give parties an opportunity to be heard thereon and shall give his decision.

(4)If in his decision under subsection (3) above the sheriff—

(a)rejects the objection, subsection (2) above shall apply as if there had been no timeous objection;

(b)sustains the objection, he shall order the interim trustee to arrange a new meeting for the election of a permanent trustee; and sections 23 and 24 of this Act and this section shall apply in relation to such a meeting.

(5)Any declaration, confirmation or decision of the sheriff under this section shall be final, and no expense in objecting under this section shall fall on the debtor’s estate.

(6)The permanent trustee shall—

(a)insert a copy of the said act and warrant in the sederunt book; and

(b)where he is not the same person as the interim trustee, publish a notice in the Edinburgh Gazette F55. . .stating that he has been confirmed in office as permanent trustee [F54and giving such other information as may be prescribed].

[25AF56Appointment of permanent trustee in certain cases.S

(1)Where this section applies as mentioned in section 21B(2), 23A(4) or 24(3A) of this Act, the court shall appoint as permanent trustee—

(a)the Accountant in Bankruptcy; or

(b)such person as may be nominated by the Accountant in Bankruptcy (being a person who is not ineligible for election as permanent trustee under section 24(2) of this Act) if that person consents to the nomination.

(2)Where this section applies as mentioned in section 28(5) of this Act, if either of the persons mentioned in paragraphs (a) and (b) of subsection (1) above applies to the sheriff for appointment as permanent trustee, the sheriff shall so appoint such person.

(3)Where a person is appointed to be permanent trustee under this section, the provisions of this Act shall apply to the sequestration subject to such modifications, and with such further provisions, as are set out in Schedule 2 to this Act.]

26 Provisions relating to termination of interim trustee’s functions.S

(1)Where the interim trustee does not himself become the permanent trustee, he shall, on confirmation of the permanent trustee in office, hand over to him everything in his possession which relates to the sequestration (including [F57the statement of assets and liabilities, and a copy], of the statement prepared under section 23(3)(d), and of the written comments sent under section 20(2)(c) of this Act) and shall thereupon cease to act in the sequestration.

(2)Within 3 months of the confirmation in office of the permanent trustee, the interim trustee shall—

(a)submit to the Accountant in Bankruptcy—

(i)his accounts of his intromissions (if any) with the debtor’s estate; and

(ii)a claim for outlays reasonably incurred, and for remuneration for work reasonably undertaken, by him; and

(b)send to the permanent trustee (unless the interim trustee has himself become the permanent trustee), a copy of what is submitted to the Accountant in Bankruptcy under paragraph (a) above.

(3)On a submission being made to him under subsection (2) above, the Accountant in Bankruptcy—

(a)shall—

(i)audit the accounts; and

(ii)issue a determination fixing the amount of the outlays and remuneration payable to the interim trustee; and

(b)shall send a copy of—

(i)the said determination to the interim trustee (except where the interim trustee has himself become the permanent trustee); and

(ii)the interim trustee’s audited accounts and of the said determination to the permanent trustee, who shall insert the copies in the sederunt book.

(4)The interim trustee, the permanent trustee, the debtor or any creditor may appeal to the sheriff against a determination under subsection (3)(a)(ii) above within 14 days of its issue [F58; and the decision of the sheriff on such an appeal shall be final].

(5)The permanent trustee, on being confirmed in office, shall make such insertions in the sederunt book as are appropriate to provide a record of the sequestration process before his confirmation, but he shall make no insertion therein relating to the written comments made by the interim trustee under section 20(2)(c) of this Act.

[F58(5A)This section does not apply in any case where the Accountant in Bankruptcy is the interim trustee.]

[26AF59Accountant in Bankruptcy to account for intromissions.S

(1)This section applies in any case where the Accountant in Bankruptcy was the interim trustee and some other person becomes the permanent trustee.

(2)The Accountant in Bankruptcy shall, on confirmation of the permanent trustee in office, hand over to the permanent trustee everything in his possession which relates to the sequestration and which he obtained in his capacity as interim trustee (including the statement of assets and liabilities); and thereupon he shall cease to act as interim trustee.

(3)The Accountant in Bankruptcy shall, not later than 3 months after the confirmation in office of the permanent trustee, supply to the permanent trustee—

(a)his accounts of his intromissions (if any) as interim trustee with the debtor’s estate;

(b)a determination of his fees and outlays calculated in accordance with regulations made under section 69A of this Act; and

(c)a copy of the notice mentioned in subsection (4)(b) below.

(4)The Accountant in Bankruptcy shall send to the debtor and to all creditors known to him—

(a)a copy of the determination mentioned in subsection (3)(b) above; and

(b)a notice in writing stating—

(i)that the Accountant in Bankruptcy has commenced the procedure under this Act leading to discharge in respect of his actings as interim trustee;

(ii)that the accounts of his intromissions (if any) with the debtor’s estate are available for inspection at such address as the Accountant in Bankruptcy may determine;

(iii)that an appeal may be made to the sheriff under subsection (5) below; and

(iv)the effect of subsection (7) below.

(5)The permanent trustee, the debtor and any creditor may appeal to the sheriff against—

(a)the determination of the Accountant in Bankruptcy mentioned in subsection (3)(b) above;

(b)the discharge of the Accountant in Bankruptcy in respect of his actings as interim trustee; or

(c)both such determination and discharge.

(6)An appeal under subsection (5) above shall be made not more than 14 days after the issue of the notice mentioned in subsection (4)(b) above; and the decision of the sheriff on such an appeal shall be final.

(7)Where—

(a)the requirements of this section have been complied with; and

(b)no appeal is made to the sheriff under subsection (5) above or such an appeal is made but is refused as regards the discharge of the Accountant in Bankruptcy,

the Accountant in Bankruptcy shall be discharged from all liability (other than any liability arising from fraud) to the creditors or to the debtor in respect of any act or omission of the Accountant in Bankruptcy in exercising the functions of interim trustee in the sequestration.

(8)The permanent trustee, on being confirmed in office, shall make such insertions in the sederunt book as are appropriate to provide a record of the sequestration process before his confirmation.]

27 Discharge of interim trustee.S

(1)On receiving a copy of the Accountant in Bankruptcy’s determination sent under subsection (3)(b)(i) of section 26 of this Act the interim trustee may apply to him for a certificate of discharge.

(2)The interim trustee shall send notice of an application under subsection (1) above to the debtor and to the permanent trustee and shall inform the debtor—

(a)that he, the permanent trustee or any creditor may make written representations relating to the application to the Accountant in Bankruptcy within a period of 14 days after such notification;

(b)that the audited accounts of his intromissions (if any) with the debtor’s estate are available for inspection at the office of the interim trustee and that a copy of those accounts has been sent to the permanent trustee for insertion in the sederunt book; and

(c)of the effect mentioned in subsection (5) below.

(3)On the expiry of the period mentioned in subsection (2)(a) above the Accountant in Bankruptcy, after considering any representations duly made to him, shall—

(a)grant or refuse to grant the certificate of discharge; and

(b)notify (in addition to the interim trustee) the debtor, the permanent trustee, and all creditors who have made such representations, accordingly.

(4)The interim trustee, the permanent trustee, the debtor or any creditor who has made representations under subsection (2)(a) above may, within 14 days after the issuing of the determination under subsection (3) above, appeal therefrom to the sheriff and if the sheriff determines that a certificate of discharge which has been refused should be granted he shall order the Accountant in Bankruptcy to grant it; and the sheriff clerk shall send a copy of the decree of the sheriff to the Accountant in Bankruptcy.

[F60(4A)The decision of the sheriff in an appeal under subsection (4) above shall be final.]

(5)The grant of a certificate of discharge under this section by the Accountant in Bankruptcy shall have the effect of discharging the interim trustee from all liability (other than any liability arising from fraud) to the creditors or to the debtor in respect of any act or omission of the interim trustee in exercising the functions conferred on him by this Act.

(6)Where a certificate of discharge is granted under this section, the permanent trustee shall make an appropriate entry in the sederunt book.

(7)Where the interim trustee has died, resigned office or been removed from office, then once the accounts of his intromissions (if any) with the debtor’s estate are or have been submitted to and audited by the Accountant in Bankruptcy, the Accountant in Bankruptcy shall issue a determination fixing the amount of the outlays and remuneration payable to the interim trustee and the provisions of subsection (4) of section 26 of this Act and the foregoing provisions of this section shall, subject to any necessary modifications, apply in relation to that interim trustee or, if he has died, to his executor as they apply in relation to an interim trustee receiving a copy of such a determination under subsection (3)(b)(i) of that section.

[F60(7A)This section does not apply in any case where the Accountant in Bankruptcy is the interim trustee.]

Replacement of permanent trusteeS

28 Resignation and death of permanent trustee.S

[F61(1)The permanent trustee may apply to the sheriff for authority to resign office and, where the sheriff is satisfied that either of the grounds mentioned in paragraphs (a) and (b) of section 13(2) of this Act applies to the permanent trustee, he shall grant the application.

(1A)The sheriff may make the granting of an application under subsection (1) above subject to the election of a new permanent trustee and to such conditions as he thinks appropriate in all the circumstances of the case.]

(2)Where the sheriff grants an application under F62. . . subsection (1) above—

(a)except where paragraph (b) below applies, the commissioners, or if there are no commissioners, the Accountant in Bankruptcy, shall call a meeting of the creditors, to be held not more than 28 days after the permanent trustee has resigned, for the election by them of a new permanent trustee;

(b)if the application has been granted subject to the election of a new permanent trustee, the resigning permanent trustee shall himself call a meeting of the creditors, to be held not more than 28 days after the granting of the application, for the purpose referred to in paragraph (a) above.

(3)Where the commissioners become, or if there are no commissioners the Accountant in Bankruptcy becomes, aware that the permanent trustee has died, they or as the case may be the Accountant in Bankruptcy shall as soon as practicable after becoming so aware call a meeting of creditors for the election by the creditors of a new permanent trustee.

(4)The foregoing provisions of this Act relating to the election and confirmation in office of the permanent trustee shall, subject to any necessary modifications, apply in relation to the election and confirmation in office of a new permanent trustee in pursuance of subsection (1), [F63(1A),] (2) or (3) above.

[F64(5)Where no new permanent trustee is elected in pursuance of subsection (2) or (3) above, the provisions of section 25A of this Act shall apply.]

(6)The new permanent trustee may require—

(a)delivery to him of all documents relating to the sequestration in the possession of the former trustee or his representatives, except the former trustee’s accounts of which he shall be entitled to delivery of only a copy;

(b)the former trustee or his representatives to submit the trustee’s accounts for audit to the commissioners or, if there are no commissioners, to the Accountant in Bankruptcy, and the commissioners or the Accountant in Bankruptcy shall issue a determination fixing the amount of the outlays and remuneration payable to the trustee or representatives in accordance with section 53 of this Act.

(7)The former trustee or his representatives, the new permanent trustee, the debtor or any creditor may appeal against a determination issued under subsection (6)(b) above within 14 days after it is issued—

(a)where it is a determination of the commissioners, to the Accountant in Bankruptcy; and

(b)where it is a determination of the Accountant in Bankruptcy, to the sheriff;

and the determination of the Accountant in Bankruptcy under paragraph (a) above shall be appealable to the sheriff.

[F63(8)The decision of the sheriff on an appeal under subsection (7) above shall be final.]

29 Removal of permanent trustee and trustee not acting.S

(1)The permanent trustee may be removed from office—

(a)by the creditors (other than any such person as is mentioned in section 24(3) of this Act) at a meeting called for the purpose if they also elect forthwith a new permanent trustee; or

(b)without prejudice to section [F661A(2)] of this Act, by order of the sheriff, on the application of—

(i)the Accountant in Bankruptcy;

(ii)the commissioners; or

(iii)a person representing not less than one quarter in value of the creditors,

if the sheriff is satisfied that cause has been shown on the basis of circumstances other than those to which subsection (9) below applies.

(2)The sheriff shall order any application under subsection (1)(b) above to be served on the permanent trustee and intimated in the Edinburgh Gazette, and before disposing of the application shall give the permanent trustee an opportunity of being heard.

(3)On an application under subsection (1)(b) above, the sheriff may, in ordering the removal of the permanent trustee from office, make such further order as he thinks fit or may, instead of removing the permanent trustee from office, make such other order as he thinks fit.

(4)The permanent trustee, the Accountant in Bankruptcy, the commissioners or any creditor may appeal against the decision of the sheriff on an application under subsection (1)(b) above within 14 days after the date of that decision.

(5)If the permanent trustee has been removed from office under subsection (1)(b) above or under section [F661A(2)] of this Act or following an appeal under subsection (4) above, the commissioners or, if there are no commissioners, the Accountant in Bankruptcy shall call a meeting of creditors, to be held not more than 28 days after such removal, for the election by them of a new permanent trustee.

(6)Without prejudice to section [F661A(2)] of this Act, where the sheriff is satisfied of any of the circumstances to which subsection (9) below applies he may, on the application of a commissioner, the debtor, a creditor or the Accountant in Bankruptcy, and after such intimation as the sheriff considers necessary—

(a)declare the office of permanent trustee to have become or to be vacant; and

(b)make any necessary order to enable the sequestration to proceed or to safeguard the estate pending the election of a new permanent trustee;

and thereafter the commissioners or, if there are no commissioners, the Accountant in Bankruptcy shall call a meeting of creditors, to be held not more than 28 days after such declaration, for the election by them of a new permanent trustee.

(7)The foregoing provisions of this Act relating to the election and confirmation in office of the permanent trustee shall, subject to any necessary modifications, apply in relation to the election and confirmation in office of a new permanent trustee in pursuance of subsection (5) or (6) above.

(8)Subsections (5) to (7) of section 28 of this Act shall apply for the purposes of this section as they apply for the purposes of that section.

(9)The circumstances to which this subsection applies are that the permanent trustee—

(a)is unable to act (whether by, under or by virtue of a provision of this Act or from any other cause whatsoever other than death); or

(b)has so conducted himself that he should no longer continue to act in the sequestration.

Election, resignation and removal of commissionersS

30 Election, resignation and removal of commissioners.S

(1)At the statutory meeting or any subsequent meeting of creditors, the creditors (other than any such person as is mentioned in section 24(3) of this Act) may, from among the creditors or their mandatories, elect one or more commissioners (or new or additional commissioners); but not more than 5 commissioners shall hold office in any sequestration at any one time.

(2)None of the following persons shall be eligible for election as a commissioner, nor shall anyone who becomes such a person after having been elected as a commissioner be entitled to continue to act as a commissioner—

(a)any person mentioned in paragraph (a) or (c) of section 24(2) of this Act as not being eligible for election;

(b)a person who is an associate of the debtor or of the permanent trustee.

(3)A commissioner may resign office at any time.

(4)Without prejudice to section [F671A(2)] of this Act, a commissioner may be removed from office—

(a)if he is a mandatory of a creditor, by the creditor recalling the mandate and intimating in writing its recall to the permanent trustee;

(b)by the creditors (other than any such person as is mentioned in section 24(3) of this Act) at a meeting called for the purpose.

Vesting of estate in permanent trusteeS

31 Vesting of estate at date of sequestration.S

(1)Subject to section 33 of this Act, the whole estate of the debtor shall vest as at the date of sequestration in the permanent trustee for the benefit of the creditors; and—

(a)the estate shall so vest by virtue of the act and warrant issued on confirmation of the permanent trustee’s appointment; and

(b)the act and warrant shall, in respect of the heritable estate in Scotland of the debtor, have the same effect as if a decree of adjudication in implement of sale, as well as a decree of adjudication for payment and in security of debt, subject to no legal reversion, had been pronounced in favour of the permanent trustee.

(2)The exercise by the permanent trustee of any power conferred on him by this Act in respect of any heritable estate vested in him by virtue of the act and warrant shall not be challengeable on the ground of any prior inhibition (reserving any effect of such inhibition on ranking).

(3)Where the debtor has an uncompleted title to any heritable estate in Scotland, the permanent trustee may complete title thereto either in his own name or in the name of the debtor, but completion of title in the name of the debtor shall not validate by accretion any unperfected right in favour of any person other than the permanent trustee.

(4)Any moveable property, in respect of which but for this subsection—

(a)delivery or possession; or

(b)intimation of its assignation,

would be required in order to complete title to it, shall vest in the permanent trustee by virtue of the act and warrant as if at the date of sequestration the permanent trustee had taken delivery or possession of the property or had made intimation of its assignation to him, as the case may be.

(5)Any non-vested contingent interest which the debtor has shall vest in the permanent trustee as if an assignation of that interest had been executed by the debtor and intimation thereof made at the date of sequestration.

(6)Any person claiming a right to any estate claimed by the permanent trustee may apply to the court for the estate to be excluded from such vesting, a copy of the application being served on the permanent trustee; and the court shall grant the application if it is satisfied that the estate should not be so vested.

(7)Where any successor of a deceased debtor whose estate has been sequestrated has made up title to, or is in possession of, any part of that estate, the court may, on the application of the permanent trustee, order the successor to convey such estate to him.

(8)In subsection (1) above the “whole estate of the debtor” means [F68, subject to subsection (9) below [F69 and to section 89(2) of the Social Security Administration Act 1992],] his whole estate at the date of sequestration, wherever situated, including—

(a)any income or estate vesting in the debtor on that date; and

(b)the capacity to exercise and to take proceedings for exercising, all such powers in, over, or in respect of any property as might have been exercised by the debtor for his own benefit as at, or on, the date of sequestration or might be exercised on a relevant date (within the meaning of section 32(10) of this Act).

[F70(9)Subject to subsection (10) below, the “whole estate of the debtor” does not include any interest of the debtor as tenant under any of the following tenancies—

(a)a tenancy which is an assured tenancy within the meaning of Part II of the M8 Housing (Scotland) Act 1988, or

(b)a protected tenancy within the meaning of the M9 Rent (Scotland) Act 1984 in respect of which, by virtue of any provision of Part VIII of that Act, no premium can lawfully be required as a condition of the assignation, or

(c)a secure tenancy within the meaning of Part III of the M10 Housing (Scotland) Act 1987.

(10)On the date on which the permanent trustee serves notice to that effect on the debtor, the interest of the debtor as tenant under any of the tenancies referred to in subsection (9) above shall form part of his estate and vest in the permanent trustee as if it had vested in him under section 32(6) of this Act.]

32 Vesting of estate, and dealings of debtor, after sequestration.S

(1)Subject to subsection (2) below, any income of whatever nature received by the debtor on a relevant date, other than income arising from the estate which is vested in the permanent trustee, shall vest in the debtor.

(2)The sheriff, on the application of the permanent trustee, may, after having regard to all the circumstances, determine a suitable amount to allow for—

(a)aliment for the debtor; and

(b)the debtor’s relevant obligations;

and if the debtor’s income is in excess of the total amount so allowed the sheriff shall fix the amount of the excess and order it to be paid to the permanent trustee.

(3)The debtor’s relevant obligations referred to in paragraph (b) of subsection (2) above are—

(a)any obligation of aliment owed by him (“obligation of aliment” having the same meaning as in the M11Family Law (Scotland) Act 1985);

(b)any obligation of his to make a periodical allowance to a former spouse;

but any amount allowed under that subsection for the relevant obligations need not be sufficient for compliance with a subsisting order or agreement as regards such aliment or periodical allowance.

(4)In the event of any change in the debtor’s circumstances, the sheriff, on the application of the permanent trustee, the debtor or any other interested person, may vary or recall any order under subsection (2) above.

(5)Diligence in respect of a debt or obligation of which the debtor would be discharged under section 55 of this Act were he discharged under section 54 thereof shall not be competent against income vesting in him under subsection (1) above.

(6)Without prejudice to subsection (1) above, any estate, wherever situated, which—

(a)is acquired by the debtor on a relevant date; and

(b)would have vested in the permanent trustee if it had been part of the debtor’s estate on the date of sequestration,

shall vest in the permanent trustee for the benefit of the creditors as at the date of acquisition; and any person who holds any such estate shall, on production to him of a copy of the act and warrant certified by the sheriff clerk confirming the permanent trustee’s appointment, convey or deliver the estate to the permanent trustee:

(7)The debtor shall immediately notify the permanent trustee of any assets acquired by him on a relevant date or of any other substantial change in his financial circumstances; and, if the debtor fails to comply with this subsection, he shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale or to imprisonment for a term not exceeding 3 months or to both.

(8)Subject to subsection (9) below, any dealing of or with the debtor relating to his estate vested in the permanent trustee under section 31 of this Act shall be of no effect in a question with the permanent trustee.

(9)Subsection (8) above shall not apply where the person seeking to uphold the dealing establishes—

(a)that the permanent trustee—

(i)has abandoned to the debtor the property to which the dealing relates;

(ii)has expressly or impliedly authorised the dealing; or

(iii)is otherwise personally barred from challenging the dealing, or

(b)that the dealing is—

(i)the performance of an obligation undertaken before the date of sequestration by a person obliged to the debtor in the obligation;

(ii)the purchase from the debtor of goods for which the purchaser has given value to the debtor or is willing to give value to the permanent trustee; or

(iii)a banking transaction in the ordinary course of business between the banker and the debtor,

and that the person dealing with the debtor was, at the time when the dealing occurred, unaware of the sequestration and had at that time no reason to believe that the debtor’s estate had been sequestrated or was the subject of sequestration proceedings.

(10)In this section “a relevant date” means a date after the date of sequestration and before the date on which the debtor’s discharge becomes effective.

33 Limitations on vesting.S

(1)The following property of the debtor shall not vest in the permanent trustee—

(a)property exempted from poinding for the purpose of protecting the debtor and his family;

(b)property held on trust by the debtor for any other person.

(2)The vesting of a debtor’s estate in a permanent trustee shall not affect the right of hypothec of a landlord.

(3)Sections 31 and 32 of this Act are without prejudice to the right of any secured creditor which is preferable to the rights of the permanent trustee.

Safeguarding of interests of creditors of insolvent personsS

34 Gratuitous alienations. S

(1)Where this subsection applies, an alienation by a debtor shall be challengeable by—

(a)any creditor who is a creditor by virtue of a debt incurred on or before the date of sequestration, or before the granting of the trust deed or the debtor’s death, as the case may be; or

(b)the permanent trustee, the trustee acting under the trust deed or the judicial factor, as the case may be.

(2)Subsection (1) above applies where—

(a)by the alienation, whether before or after the coming into force of this section, any of the debtor’s property has been transferred or any claim or right of the debtor has been discharged or renounced; and

(b)any of the following has occurred—

(i)his estate has been sequestrated (other than, in the case of a natural person, after his death); or

(ii)he has granted a trust deed which has become a protected trust deed; or

(iii)he has died and within 12 months after his death, his estate has been sequestrated; or

(iv)he has died and within the said 12 months, a judicial factor has been appointed under section 11A of the M12Judicial Factors (Scotland) Act 1889 to administer his estate and the estate was absolutely insolvent at the date of death; and

(c)the alienation took place on a relevant day.

(3)For the purposes of paragraph (c) of subsection (2) above, the day on which an alienation took place shall be the day on which the alienation became completely effectual; and in that paragraph “relevant day” means, if the alienation has the effect of favouring—

(a)a person who is an associate of the debtor, a day not earlier than 5 years before the date of sequestration, the granting of the trust deed or the debtor’s death, as the case may be; or

(b)any other person, a day not earlier than 2 years before the said date.

(4)On a challenge being brought under subsection (1) above, the court shall grant decree of reduction or for such restoration of property to the debtor’s estate or other redress as may be appropriate, but the court shall not grant such a decree if the person seeking to uphold the alienation establishes—

(a)that immediately, or at any other time, after the alienation the debtor’s assets were greater than his liabilities; or

(b)that the alienation was made for adequate consideration; or

(c)that the alienation—

(i)was a birthday, Christmas or other conventional gift; or

(ii)was a gift made, for a charitable purpose, to a person who is not an associate of the debtor,

which having regard to all the circumstances, it was reasonable for the debtor to make:

(5)In subsection (4) above, “charitable purpose” means any charitable, benevolent or philanthropic purpose whether or not it is charitable within the meaning of any rule of law.

(6)For the purposes of the foregoing provisions of this section, an alienation in implementation of a prior obligation shall be deemed to be one for which there was no consideration or no adequate consideration to the extent that the prior obligation was undertaken for no consideration or no adequate consideration.

(7)This section is without prejudice to the operation of section 2 of the M13Married Women’s Policies of Assurance (Scotland) Act 1880 (policy of assurance may be effected in trust for spouse, future spouse and children).

(8)A permanent trustee, the trustee acting under a protected trust deed and a judicial factor appointed under section 11A of the M14Judicial Factors (Scotland) Act 1889 shall have the same right as a creditor has under any rule of law to challenge an alienation of a debtor made for no consideration or for no adequate consideration.

(9)The permanent trustee shall insert in the sederunt book a copy of any decree under this section affecting the sequestrated estate.

35 Recalling of order for payment of capital sum on divorce.S

(1)This section applies where—

(a)a court has made an order, whether before or after the coming into force of this section, under section 5 of the M15Divorce (Scotland) Act 1976 or section 8(2) of the M16Family Law (Scotland) Act 1985, for the payment by a debtor of a capital sum or under the said section 8(2) for the transfer of property by him;

(b)on the date of the making of the order the debtor was absolutely insolvent or was rendered so by implementation of the order; and

(c)within 5 years after the making of the order—

(i)the debtor’s estate has been sequestrated other than after his death; or

(ii)he has granted a trust deed which has (whether or not within the 5 years) become a protected trust deed; or

(iii)he has died and, within 12 months after his death, his estate has been sequestrated; or

(iv)he has died and, within the said 12 months, a judicial factor has been appointed under section 11A of the Judicial Factors (Scotland) Act 1889 to administer his estate.

(2)Where this section applies, the court, on an application brought by the permanent trustee, the trustee acting under the trust deed or the judicial factor, may make an order for recall of the order made under the said section 5 or 8(2) and for the repayment to the applicant of the whole or part of any sum already paid, or as the case may be for the return to the applicant of all or part of any property already transferred, under that order, or, where such property has been sold, for payment to the applicant of all or part of the proceeds of sale:

(3)Where an application is brought under this section in a case where the debtor’s estate has been sequestrated, the permanent trustee shall insert a copy of the decree of recall in the sederunt book.

36 Unfair preferences. S

(1)Subject to subsection (2) below, subsection (4) below applies to a transaction entered into by a debtor, whether before or after the coming into force of this section, which has the effect of creating a preference in favour of a creditor to the prejudice of the general body of creditors, being a preference created not earlier than 6 months before—

(a)the date of sequestration of the debtor’s estate (if, in the case of a natural person, a date within his lifetime); or

(b)the granting by him of a trust deed which has become a protected trust deed; or

(c)his death where, within 12 months after his death—

(i)his estate has been sequestrated, or

(ii)a judicial factor has been appointed under section 11A of the M17Judicial Factors (Scotland) Act 1889 to administer his estate and his estate was absolutely insolvent at the date of death.

(2)Subsection (4) below shall not apply to any of the following transactions—

(a)a transaction in the ordinary course of trade or business;

(b)a payment in cash for a debt which when it was paid had become payable unless the transaction was collusive with the purpose of prejudicing the general body of creditors;

(c)a transaction whereby the parties thereto undertake reciprocal obligations (whether the performance by the parties of their respective obligations occurs at the same time or at different times) unless the transaction was collusive as aforesaid;

(d)the granting of a mandate by a debtor authorising an arrestee to pay over the arrested funds or part thereof to the arrester where—

(i)there has been a decree for payment or a warrant for summary diligence; and

(ii)the decree or warrant has been preceded by an arrestment on the dependence of the action or followed by an arrestment in execution.

(3)For the purposes of subsection (1) above, the day on which a preference was created shall be the day on which the preference became completely effectual.

(4)A transaction to which this subsection applies shall be challengeable by—

(a)any creditor who is a creditor by virtue of a debt incurred on or before the date of sequestration, the granting of the protected trust deed or the debtor’s death, as the case may be; or

(b)the permanent trustee, the trustee acting under the protected trust deed, or the judicial factor, as the case may be.

(5)On a challenge being brought under subsection (4) above, the court, if satisfied that the transaction challenged is a transaction to which this section applies, shall grant decree of reduction or for such restoration of property to the debtor’s estate or other redress as may be appropriate:

(6)A permanent trustee, the trustee acting under a protected trust deed and a judicial factor appointed under section 11A of the M18Judicial Factors (Scotland) Act 1889 shall have the same right as a creditor has under any rule of law to challenge a preference created by a debtor.

(7)The permanent trustee shall insert in the sederunt book a copy of any decree under this section affecting the sequestrated estate.

Effect of sequestration on diligenceS

37 Effect of sequestration on diligence.S

(1)The order of the court awarding sequestration shall as from the date of sequestration have the effect, in relation to diligence done (whether before or after the date of sequestration) in respect of any part of the debtor’s estate, of—

(a)a decree of adjudication of the heritable estate of the debtor for payment of his debts which has been duly recorded in the register of inhibitions and adjudications on that date; and

(b)an arrestment in execution and decree of furthcoming, an arrestment in execution and warrant of sale, and a completed poinding,

in favour of the creditors according to their respective entitlements.

(2)No inhibition on the estate of the debtor which takes effect within the period of 60 days before the date of sequestration shall be effectual to create a preference for the inhibitor and any relevant right of challenge shall, at the date of sequestration, vest in the permanent trustee as shall any right of the inhibitor to receive payment for the discharge of the inhibition:

(3)In subsection (2) above, “any relevant right of challenge” means any right to challenge a deed voluntarily granted by the debtor if it is a right which vested in the inhibitor by virtue of the inhibition.

(4)No arrestment or poinding of the estate of the debtor (including any estate vesting in the permanent trustee under section 32(6) of this Act) executed—

(a)within the period of 60 days before the date of sequestration and whether or not subsisting at that date; or

(b)on or after the date of sequestration,

shall be effectual to create a preference for the arrester or poinder; and the estate so arrested or poinded, or the proceeds of sale thereof, shall be handed over to the permanent trustee.

(5)An arrester or poinder whose arrestment or poinding is executed within the said period of 60 days shall be entitled to payment, out of the arrested or poinded estate or out of the proceeds of the sale thereof, of the expenses incurred—

(a)in obtaining the extract of the decree or other document on which the arrestment or poinding proceeded;

(b)in executing the arrestment or poinding; and

(c)in taking any further action in respect of the diligence.

[F78(5A)Nothing in subsection (4) or (5) above shall apply to an earnings arrestment, a current maintenance arrestment or a conjoined arrestment order.]

(6)No poinding of the ground in respect of the estate of the debtor (including any estate vesting in the permanent trustee under section 32(6) of this Act) executed within the period of 60 days before the date of sequestration or on or after that date shall be effectual in a question with the permanent trustee, except for the interest on the debt of a secured creditor, being interest for the current half-yearly term and arrears of interest for one year immediately before the commencement of that term.

(7)The foregoing provisions of this section shall apply to the estate of a deceased debtor which—

(a)has been sequestrated; or

(b)was absolutely insolvent at the date of death and in respect of which a judicial factor has been appointed under section 11A of the M21Judicial Factors (Scotland) Act 1889,

within 12 months after his death, but as if for any reference to the date of sequestration and the debtor there were substituted respectively a reference to the date of the deceased’s death and to the deceased debtor.

(8)It shall be incompetent on or after the date of sequestration for any creditor to raise or insist in an adjudication against the estate of a debtor (including any estate vesting in the permanent trustee under section 32(6) of this Act) or to be confirmed as executor-creditor on the estate.

(9)Where—

(a)a deceased debtor’s estate is sequestrated; or

(b)a judicial factor is appointed under section 11A of the M22Judicial Factors (Scotland) Act 1889 to administer his estate (in a case where the estate is absolutely insolvent),

within 12 months after the debtor’s death, no confirmation as executor-creditor on that estate at any time after the debtor’s death shall be effectual in a question with the permanent trustee or the judicial factor; but the executor-creditor shall be entitled out of that estate, or out of the proceeds of sale thereof, to the expenses incurred by him in obtaining the confirmation.

Administration of estate by permanent trusteeS

38 Taking possession of estate by permanent trustee. S

(1)The permanent trustee shall—

(a)as soon as may be after his confirmation in office, for the purpose of recovering the debtor’s estate under section 3(1)(a) of this Act, and subject to section 40 of this Act, take possession of the debtor’s whole estate so far as vesting in the permanent trustee under sections 31 and 32 of this Act and any document in the debtor’s possession or control relating to his assets or his business or financial affairs;

(b)make up and maintain an inventory and valuation of the estate which he shall record in the sederunt book; and

(c)forthwith thereafter send a copy of any such inventory and valuation to the Accountant in Bankruptcy.

(2)The permanent trustee shall be entitled to have access to all documents relating to the assets or the business or financial affairs of the debtor sent by or on behalf of the debtor to a third party and in that third party’s hands and to make copies of any such documents.

(3)If any person obstructs a permanent trustee who is exercising, or attempting to exercise, a power conferred by subsection (2) above, the sheriff, on the application of the permanent trustee, may order that person to cease so to obstruct the permanent trustee.

(4)The permanent trustee may require delivery to him of any title deed or other document of the debtor, notwithstanding that a right of lien is claimed over the title deed or document; but this subsection is without prejudice to any preference of the holder of the lien.

39 Management and realisation of estate.S

(1)As soon as may be after his confirmation in office, the permanent trustee shall consult with the commissioners or, if there are no commissioners, with the Accountant in Bankruptcy concerning the exercise of his functions under section 3(1)(a) of this Act; and, subject to subsection (6) below, the permanent trustee shall comply with any general or specific directions given to him, as the case may be—

(a)by the creditors;

(b)on the application under this subsection of the commissioners, by the court; or

(c)if there are no commissioners, by the Accountant in Bankruptcy,

as to the exercise by him of such functions.

(2)The permanent trustee may, but if there are commissioners only with the consent of the commissioners, the creditors or the court, do any of the following things if he considers that its doing would be beneficial for the administration of the estate—

(a)carry on any business of the debtor;

(b)bring, defend or continue any legal proceedings relating to the estate of the debtor;

(c)create a security over any part of the estate;

(d)where any right, option or other power forms part of the debtor’s estate, make payments or incur liabilities with a view to obtaining, for the benefit of the creditors, any property which is the subject of the right, option or power.

(3)Any sale of the debtor’s estate by the permanent trustee may be by either public sale or private bargain.

(4)The following rules shall apply to the sale of any part of the debtor’s heritable estate over which a heritable security is held by a creditor or creditors if the rights of the secured creditor or creditors are preferable to those of the permanent trustee—

(a)the permanent trustee may sell that part only with the concurrence of every such creditor unless he obtains a sufficiently high price to discharge every such security;

(b)subject to paragraph (c) below, the following acts shall be precluded—

(i)the taking of steps by a creditor to enforce his security over that part after the permanent trustee has intimated to the creditor that he intends to sell it;

(ii)the commencement by the permanent trustee of the procedure for the sale of that part after a creditor has intimated to the permanent trustee that he intends to commence the procedure for its sale;

(c)where the permanent trustee or a creditor has given intimation under paragraph (b) above, but has unduly delayed in proceeding with the sale, then, if authorised by the court in the case of intimation under—

(i)sub-paragraph (i) of that paragraph, any creditor to whom intimation has been given may enforce his security; or

(ii)sub-paragraph (ii) of that paragraph, the permanent trustee may sell that part.

(5)The function of the permanent trustee under section 3(1)(a) of this Act to realise the debtor’s estate shall include the function of selling, with or without recourse against the estate, debts owing to the estate.

(6)The permanent trustee may sell any perishable goods without complying with any directions given to him under subsection (1)(a) or (c) above if the permanent trustee considers that compliance with such directions would adversely affect the sale.

(7)The validity of the title of any purchaser shall not be challengeable on the ground that there has been a failure to comply with a requirement of this section.

(8)It shall be incompetent for the permanent trustee or an associate of his or for any commissioner, to purchase any of the debtor’s estate in pursuance of this section.

40 Power of permanent trustee in relation to the debtor’s family home.S

(1)Before the permanent trustee sells or disposes of any right or interest in the debtor’s family home he shall—

(a)obtain the relevant consent; or

(b)where he is unable to do so, obtain the authority of the court in accordance with subsection (2) below.

(2)Where the permanent trustee requires to obtain the authority of the court in terms of subsection (1)(b) above, the court, after having regard to all the circumstances of the case, including—

(a)the needs and financial resources of the debtor’s spouse or former spouse;

(b)the needs and financial resources of any child of the family;

(c)the interests of the creditors;

(d)the length of the period during which (whether before or after the relevant date) the family home was used as a residence by any of the persons referred to in paragraph (a) or (b) above,

may refuse to grant the application or may postpone the granting of the application for such period (not exceeding twelve months) as it may consider reasonable in the circumstances or may grant the application subject to such conditions as it may prescribe.

(3)Subsection (2) above shall apply—

(a)to an action for division and sale of the debtor’s family home; or

(b)to an action for the purpose of obtaining vacant possession of the debtor’s family home,

brought by the permanent trustee as it applies to an application under subsection (1)(b) above and, for the purposes of this subsection, any reference in the said subsection (2) to that granting of the application shall be construed as a reference to the granting of decree in the action.

(4)In this section—

(a)“family home” means any property in which, at the relevant date, the debtor had (whether alone or in common with any other person) a right or interest, being property which was occupied at that date as a residence by the debtor and his spouse or by the debtor’s spouse or former spouse (in any case with or without a child of the family) or by the debtor with a child of the family;

(b)“child of the family” includes any child or grandchild of either the debtor or his spouse or former spouse, and any person who has been brought up or accepted by either the debtor or his spouse or former spouse as if he or she were a child of the debtor, spouse or former spouse whatever the age of such a child, grandchild or person may be;

(c)“relevant consent” means in relation to the sale or disposal of any right or interest in a family home—

(i)in a case where the family home is occupied by the debtor’s spouse or former spouse, the consent of the spouse, or, as the case may be, the former spouse, whether or not the family home is also occupied by the debtor;

(ii)where sub-paragraph (i) above does not apply, in a case where the family home is occupied by the debtor with a child of the family, the consent of the debtor; and

(d)“relevant date” means the day immediately preceding the date of sequestration.

41 Protection of rights of spouse against arrangements intended to defeat them.S

(1)If a debtor’s sequestrated estate includes a matrimonial home of which the debtor, immediately before the date of issue of the act and warrant of the permanent trustee (or, if more than one such act and warrant is issued in the sequestration, of the first such issue) was an entitled spouse and the other spouse is a non-entitled spouse—

(a)the permanent trustee shall, where he—

(i)is aware that the entitled spouse is married to the non-entitled spouse; and

(ii)knows where the non-entitled spouse is residing,

inform the non-entitled spouse, within the period of 14 days beginning with that date, of the fact that sequestration of the entitled spouse’s estate has been awarded, of the right of petition which exists under section 16 of this Act and of the effect of paragraph (b) below; and

(b)the Court of Session, on the petition under section 16 of this Act of the non-entitled spouse presented either within the period of 40 days beginning with that date or within the period of 10 weeks beginning with the date of sequestration may—

(i)under section 17 of this Act recall the sequestration; or

(ii)make such order as it thinks appropriate to protect the occupancy rights of the non-entitled spouse;

if it is satisfied that the purpose of the petition for sequestration was wholly or mainly to defeat the occupancy rights of the non-entitled spouse.

(2)In subsection (1) above—

• “entitled spouse” and “non-entitled spouse” have the same meanings as in section 6 of the M23Matrimonial Homes (Family Protection) (Scotland) Act 1981;

• “matrimonial home” has the meaning assigned by section 22 of that Act as amended by the M24Law Reform (Miscellaneous Provisions) (Scotland) Act 1985; and

• “occupancy rights” has the meaning assigned by section 1(4) of the said Act of 1981.

42 Contractual powers of permanent trustee. S

(1)Subject to subsections (2) and (3) below, the permanent trustee may adopt any contract entered into by the debtor before the date of sequestration where he considers that its adoption would be beneficial to the administration of the debtor’s estate, except where the adoption is precluded by the express or implied terms of the contract, or may refuse to adopt any such contract.

(2)The permanent trustee shall, within 28 days from the receipt by him of a request in writing from any party to a contract entered into by the debtor or within such longer period of that receipt as the court on application by the permanent trustee may allow, adopt or refuse to adopt the contract.

(3)If the permanent trustee does not reply in writing to the request under subsection (2) above within the said period of 28 days or longer period, as the case may be, he shall be deemed to have refused to adopt the contract.

(4)The permanent trustee may enter into any contract where he considers that this would be beneficial for the administration of the debtor’s estate.

43 Money received by permanent trustee.S

(1)Subject to subsection (2) below, all money received by the permanent trustee in the exercise of his functions shall be deposited by him in the name of the debtor’s estate in an appropriate bank or institution.

(2)The permanent trustee may at any time retain in his hands a sum not exceeding £200 or such other sum as may be prescribed.

Examination of debtorU.K.

44 Private examination.S

(1)The permanent trustee may request—

(a)the debtor to appear before him and to give information relating to his assets, his dealings with them or his conduct in relation to his business or financial affairs; or

(b)the debtor’s spouse or any other person who the permanent trustee believes can give such information (in this Act such spouse or other person being referred to as a “relevant person”), to give that information,

and, if he considers it necessary, the permanent trustee may apply to the sheriff for an order to be made under subsection (2) below.

(2)Subject to section 46(2) of this Act, on application to him under subsection (1) above the sheriff may make an order requiring the debtor or a relevant person to attend for private examination before him on a date (being not earlier than 8 days nor later than 16 days after the date of the order) and at a time specified in the order.

(3)A person who fails without reasonable excuse to comply with an order made under subsection (2) above shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale or to imprisonment for a term not exceeding 3 months or to both.

(4)Where the debtor is an entity whose estate may be sequestrated by virtue of section 6(1) of this Act, the references in this section and in sections 45 to 47 of this Act to the debtor shall be construed, unless the context otherwise requires, as references to a person representing the entity.

45 Public examination.S

(1)Not less than 8 weeks before the end of the first accounting period, the permanent trustee—

(a)may; or

(b)if requested to do so by the Accountant in Bankruptcy or the commissioners (if any) or one quarter in value of the creditors, shall,

apply to the sheriff for an order for the public examination before the sheriff of the debtor or of a relevant person relating to the debtor’s assets, his dealings with them or his conduct in relation to his business or financial affairs:

(2)Subject to section 46(2) of this Act, the sheriff, on an application under subsection (1) above, shall make an order requiring the debtor or relevant person to attend for examination before him in open court on a date (being not earlier than 8 days nor later than 16 days after the date of the order) and at a time specified in the order.

(3)On the sheriff making an order under subsection (2) above, the permanent trustee shall—

(a)publish in the Edinburgh Gazette a notice in such form and containing such particulars as may be prescribed; and

(b)send a copy of the said notice—