Criminal Justice (Scotland) Act 1987

Sequestration etc. of estate comprising realisable property

33Sequestration of person holding realisable property

(1)Where the estate of a person who holds realisable property is sequestrated—

(a)property for the time being subject to a restraint order made before the date of sequestration (within the meaning of section 12(4) of the [1985 c. 66.] 1985 Act); and

(b)any proceeds of property realised by virtue of section 13(1) of this Act for the time being in the hands of an administrator appointed under that section,

is excluded from the debtor's estate for the purposes of that Act.

(2)Where an award of sequestration has been made, the powers conferred on the Court of Session by sections 8, 11 to 13, 16, 24, 27 and 28 of this Act or on an administrator appointed under subsection (1) of the said section 13 shall not be exercised in relation to—

(a)property comprised in the whole estate of the debtor (within the meaning of section 31(8) of the 1985 Act); or

(b)any income of the debtor which has been ordered, under subsection (2) of section 32 of that Act, to be paid to the permanent trustee or any estate which, under subsection (6) of that section, vests in the permanent trustee,

and it shall not be competent to submit a claim in relation to the confiscation order to the permanent trustee in accordance with section 48 of that Act.

(3)Nothing in the 1985 Act shall be taken as restricting, or enabling the restriction of, the exercise of the powers so conferred.

(4)Where, during the period before sequestration is awarded, an interim trustee stands appointed under the proviso to section 13(1) of the 1985 Act and any property in the debtor's estate is subject to a restraint order, the powers conferred on the interim trustee by virtue of that Act do not apply to property for the time being subject to the restraint order.

(5)Where the estate of a person is sequestrated and he has directly or indirectly made an implicative gift—

(a)no decree shall, at any time when proceedings as regards an offence to which section 1 of this Act relates have been instituted against him and have not been concluded or when property of the person to whom the gift was made is subject to a restraint order, be granted under section 34 or 36 of the 1985 Act (gratuitous alienations and unfair preferences) in respect of the making of the gift; and

(b)any decree granted under either of the said sections 34 and 36 after the conclusion of the proceedings shall take into account any realisation under this Act of property held by the person to whom the gift was made.

(6)In any case in which, notwithstanding the coming into force of the 1985 Act, the [3 & 4 Geo. 5 c. 20.] Bankruptcy (Scotland) Act 1913 applies to a sequestration, subsection (2) above shall have effect as if for paragraphs (a) and (b) thereof there were substituted the following paragraphs—

“(a)property comprised in the whole property of the debtor which vests in the trustee under section 97 of the Bankruptcy (Scotland) Act 1913,

(b)any income of the bankrupt which has been ordered, under subsection (2) of section 98 of that Act, to be paid to the trustee or any estate which, under subsection (1) of that section, vests in the trustee,”;

and subsection (3) above shall have effect as if, for the reference in it to the [1985 c. 66.] 1985 Act, there were substituted a reference to the said Act of 1913.

34Bankruptcy in England and Wales of person holding realisable property

(1)Where a person who holds realisable property is adjudged bankrupt—

(a)property for the time being subject to a restraint order made before the order adjudging him bankrupt, and

(b)any proceeds of property realised by virtue of section 13(1) of this Act for the time being in the hands of an administrator appointed under that section,

is excluded from the bankrupt's estate for the purposes of Part IX of the [1986 c. 45.] Insolvency Act 1986.

(2)Where a person has been adjudged bankrupt, the powers conferred on the Court of Session by sections 8, 11 to 13, 16, 24, 27 and 28 of this Act or on an administrator appointed under subsection (1) of the said section 13 shall not be exercised in relation to—

(a)property for the time being comprised in the bankrupt's estate for the purposes of the said Part IX,

(b)property in respect of which his trustee in bankruptcy may (without leave of the court) serve a notice under section 307 or 308 of the Insolvency Act 1986 (after-acquired property and tools, clothes etc. exceeding value of reasonable replacement), and

(c)property which is to be applied for the benefit of creditors of the bankrupt by virtue of a condition imposed under section 280(2)(c) of the Insolvency Act 1986.

(3)Nothing in the Insolvency Act 1986 shall be taken as restricting, or enabling the restriction of, the exercise of the powers so conferred.

(4)Where, in the case of a debtor, an interim receiver stands appointed under section 286 of the Insolvency Act 1986 and any property of the debtor is subject to a restraint order the powers conferred on the receiver by virtue of that Act do not apply to property for the time being subject to the restraint order.

(5)Where a person is adjudged bankrupt and has directly or indirectly made an implicative gift—

(a)no order shall, at any time when proceedings for a drug trafficking offence have been instituted against him and have not been concluded or when property of the person to whom the gift was made is subject to a restraint order, be made under section 339 or 423 of the Insolvency Act 1986 (avoidance of certain transactions) in respect of the making of the gift, and

(b)any order made under either of those sections after the conclusion of the proceedings shall take into account any realisation under this Act of property held by the person to whom the gift was made.

(6)In any case in which a petition in bankruptcy was presented, or a receiving order or adjudication in bankruptcy was made, before the date on which the Insolvency Act 1986 came into force, subsections (2) to (5) above have effect with the following modifications—

(a)for references to the bankrupt's estate for the purposes of Part IX of that Act there are substituted references to the property of the bankrupt for the purposes of the [4 & 5 Geo. 5 c. 59.] Bankruptcy Act 1914,

(b)for references to the said Act of 1986 and to sections 280(2)(c), 286, 339, and 423 of that Act there are respectively substituted references to the said Act of 1914 and to sections 26(2), 8,27 and 42 of that Act,

(c)the references in subsection (4) to an interim receiver appointed as there mentioned include, where a receiving order has been made, a reference to the receiver constituted by virtue of section 7 of the said Act of 1914, and

(d)subsections (2)(b) and (4) are omitted.

35Winding up company holding realisable property

(1)Where realisable property is held by a company and an order for the winding up of the company has been made or a resolution has been passed by the company for the voluntary winding up, the functions of the liquidator (or any provisional liquidator) shall not be exercisable in relation to—

(a)property for the time being subject to a restraint order made before the relevant time, and

(b)any proceeds of property realised by virtue of section 13(1) of this Act for the time being in the hands of an administrator appointed under that section.

(2)Where, in the case of a company, such an order has been made or such a resolution has been passed, the powers conferred on the Court of Session by sections 8, 11 to 13, 16, 24, 27 and 28 of this Act or on an administrator appointed under subsection (1) of the said section 13 shall not be exercised in relation to any realisable property held by the company in relation to which the functions of the liquidator are exercisable—

(a)so as to inhibit the liquidator from exercising those functions for the purpose of distributing any property held by the company to the company's creditors, or

(b)so as to prevent the payment out of any property of expenses (including the remuneration of the liquidator or any provisional liquidator) properly incurred in the winding up in respect of the property.

(3)Nothing in the [1986 c. 45.] Insolvency Act 1986 shall be taken as restricting, or enabling the restriction of, the exercise of the powers so conferred.

(4)For the purposes of the application of Parts IV and V of the Insolvency Act 1986 (winding up of registered companies and winding up of unregistered companies) to a company which the Court of Session has jurisdiction to wind up, a person is not a creditor in so far as any sum due to him by the company is due in respect of a confiscation order (whether under this Act or under and within the meaning of section 1 of the [1986 c. 32.] Drug Trafficking Offences Act 1986 or any corresponding provision in Northern Ireland).

(5)In this section—

• "company" means any company which may be wound up under the Insolvency Act 1986; and

• "the relevant time" means—

  (a)

  where no order for the winding up of the company has been made, the time of the passing of the resolution for voluntary winding up,

  (b)

  where such an order has been made and, before the presentation of the petition for the winding up of the company by the court, such a resolution had been passed by the company, the time of the passing of the resolution, and

  (c)

  in any other case where such an order has been made, the time of the making of the order.

(6)In any case in which a winding up of a company commenced, or is treated as having commenced, before the date on which the Insolvency Act 1986 came into force, subsections (2) to (5) above have effect with the substitution for references to that Act of references to the [1985 c. 6.] Companies Act 1985.

36Property subject to floating charge

(1)Where any property held subject to a floating charge by a company is realisable property and a receiver has been appointed by, or on the application of, the holder of the charge, the powers of the receiver in relation to the property so held shall not be exercisable in relation to—

(a)so much of it as is for the time being subject to a restraint order made before the appointment of the receiver, and

(b)any proceeds of property realised by virtue of section 13(1) of this Act for the time being in the hands of an administrator appointed under that section.

(2)Where, in the case of a company, such an appointment has been made, the powers conferred on the Court of Session by sections 8, 11 to 13, 16 and 24 of this Act or on an administrator appointed under subsection (1) of the said section 13 shall not be exercised in relation to am' realisable property held by the company in relation to which the powers of the receiver are exercisable—

(a)so as to inhibit the receiver from exercising his powers for the purpose of distributing any property held by the company to the company's creditors, or

(b)so as to prevent the payment out of any property of expenses (including the remuneration of the receiver) properly incurred in the exercise of the receiver's powers in respect of the property.

(3)Nothing in the [1986 c. 45.] Insolvency Act 1986, shall be taken as restricting, or enabling the restriction of, the exercise of the powers so conferred.

(4)In this section—

• "company" has the same meaning as in section 35 of this Act; and

• "floating charge" includes a floating charge within the meaning given by section 462 of the Companies Act 1985 (power of incorporated company to create floating charge).

(5)In any case in which a receiver was appointed as is mentioned in subsection (1) above before the date on which the Insolvency Act 1986 came into force, subsections (2) to (4) above have effect with the substitution for references to that Act of references to the Companies Act 1985.

37Insolvency practitioners dealing with property subject to restraint order

(1)Without prejudice to the generality of any enactment contained in the Insolvency Act 1986 or in the 1985 Act, where—

(a)any person acting as an insolvency practitioner seizes or disposes of any property in relation to which his functions are, because that property is for the time being subject to a restraint order, not exercisable; and

(b)at the time of the seizure or disposal he believes, and has reasonable grounds for believing, that he is entitled (whether in pursuance of a court order or otherwise) to seize or dispose of that property,

he shall not be liable to any person in respect of any loss or damage resulting from the seizure or disposal except in so far as the loss or damage is caused by the insolvency practitioner's negligence; and the insolvency practitioner shall have a lien on the property, or the proceeds of its sale, for such of his expenses as were incurred in connection with the liquidation, sequestration or other proceedings in relation to which the seizure or disposal purported to take place and for so much of his remuneration as may reasonably be assigned for his actings in connection with those proceedings.

(2)Any person who, acting as an insolvency practitioner, incurs expenses—

(a)in respect of such property as is mentioned in paragraph (a) of subsection (1) above and in so doing does not know and has no reasonable grounds to believe that the property is for the time being subject to a restraint order; or

(b)other than in respect of such property as is so mentioned, being expenses which, but for the effect of a restraint order, might have been met by taking possession of and realising the property,

shall be entitled (whether or not he has seized or disposed of that property so as to have a lien under that subsection) to payment of those expenses under section 16(1) or (3)(a) of this Act.

(3)In the foregoing provisions of this section, the expression "acting as an insolvency practitioner" shall be construed in accordance with section 388 (interpretation) of the said Act of 1986 except that for the purposes of such construction the reference in subsection (2)(a) of that section to a permanent or interim trustee in a sequestration shall be taken to include a reference to a trustee in a sequestration and subsection (5) of that section (which provides that nothing in the section is to apply to anything done by the official receiver) shall be disregarded; and the expression shall also comprehend the official receiver acting as receiver or manager of the property.