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Bankruptcy (Scotland) Act 2016

Type Act of the Scottish Parliament

Publication 2016-04-28

Last updated 2025-06-25

State In force

Jurisdiction Scotland

Department Statute Law Database

Source legislation.gov.uk

articles Not indexed

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PART 1 — Application or petition for sequestration

Applications and petitions

Discharge of trustee

1

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

Sequestration of estate of living debtor

2

(1) The sequestration of the estate of a living debtor is—

(a) by debtor application made by the debtor, if subsection (2) or (8) applies to the debtor, or

(b) on the petition of—

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

(ii) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(iii) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(iv) a trustee acting under a trust deed if a condition mentioned in subsection (7) is satisfied.

(2) This subsection applies to the debtor where—

(a) the debtor—

(i) has been assessed by the common financial tool as requiring to make no debtor's contribution, or

(ii) has been in receipt of payments, of a kind prescribed, for a period of at least 6 months ending with the day on which the debtor application is made,

(b) the total amount of the debtor's debts (including interest) at the date the debtor application is made is—

(i) not less than such amount as may be prescribed, and

(ii) not more than £25,000 or such other amount as may be prescribed,

(c) the total value of the debtor's assets (leaving out of account any liabilities) on the date the debtor application is made does not exceed £2,000 or such other amount as may be prescribed,

(d) no single asset of the debtor has a value which exceeds £1,000 or such other amount as may be prescribed,

(e) the debtor does not own land,

(f) the debtor has been granted, within the prescribed period and in accordance with section 9, a certificate for sequestration of the debtor's estate,

(g) in the 10 years ending on the day before the day on which the debtor application is made or such other period as may be prescribed, no award of sequestration has been made against the debtor in pursuance of an application made by the debtor by virtue of this subsection, and

(h) in the 5 years ending on the day before the day on which the debtor application is made, no award of sequestration has been made against the debtor in pursuance of—

(i) an application made by the debtor other than by virtue of this subsection, or

(ii) a petition.

(2A) For the purposes of subsection (2)(b), the amount of a loan made to the debtor is not to be regarded as a debt where the loan was made by virtue of regulations to which section 73B (regulations relating to student loans) of the Education (Scotland) Act 1980 applies.

(3) For the purposes of subsection (2)(c) and (d)—

(a) any property of the debtor is not to be regarded as an asset if, under any provision of this or any other enactment, it would be excluded from vesting in AiB as trustee,

(b) if the debtor reasonably requires the use of a vehicle, any vehicle owned by the debtor the value of which does not exceed £3,000 or such other amount as may be prescribed is not to be regarded as an asset, and

(4) For the purposes of subsection (2)(c) and (d), the Scottish Ministers may by regulations make provision about how the value of the debtor's assets is to be determined.

(5) The Scottish Ministers may by regulations modify subsection (2).

(6) Schedule 1 makes further provision about the application of certain provisions of this Act in relation to a debtor to whom subsection (2) applies.

(7) The conditions mentioned in subsection (1)(b)(iv) are—

(a) that the debtor has failed to comply—

(i) with an obligation imposed on the debtor under the trust deed, being an obligation with which the debtor reasonably could have complied, or

(ii) with an instruction reasonably given to, or requirement reasonably made of, the debtor by the trustee for the purposes of the trust deed, or

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

(8) This subsection applies to the debtor where—

(a) the total amount of the debtor's debts (including interest) at the date the debtor application is made is not less than £3,000 or such sum as may be prescribed,

(b) an award of sequestration has not been made against the debtor in the 5 years ending on the day before the date the debtor application is made,

(d) the debtor has given a statement of undertakings (including an undertaking to pay to the trustee, after the award of sequestration of the debtor's estate, an amount determined using the common financial tool), and

(e) the debtor—

(i) is apparently insolvent,

(ii) has been granted, within the prescribed period and in accordance with section 9, a certificate for sequestration of the debtor's estate, or

(iii) has granted a trust deed which, by reason of creditors objecting, or not agreeing, to it is not a protected trust deed.

(9) For the purposes of subsection (8)(e)(i), the debtor is not apparently insolvent by reason only of granting a trust deed or of giving notice to creditors as mentioned in section 16(1)(c).

(10) In subsection (8)(e)(ii), “the prescribed period” means such period, ending immediately before the date the debtor application is made, as may be prescribed under section 9(4)(b).

Debt advice and information package

3

(1) No petition may be presented under section 2(1)(b)(i) unless the qualified creditor has, or qualified creditors have, provided the debtor, by such time prior to the presentation of the petition as may be prescribed, with a debt advice and information package.

(2) In this Act, “debt advice and information package” means the debt advice and information package referred to in section 10(5) of the 2002 Act.

Money advice

4

(1) An application for the sequestration of a living debtor's estate may not be made unless the debtor has obtained from a money adviser advice on—

(a) the debtor's financial circumstances,

(b) the effect of the proposed sequestration,

(d) such other matters as may be prescribed.

(2) In this Act, “money adviser” means a person who—

(a) is not an associate of the debtor, and

(b) is of a prescribed description or falls within a prescribed class.

Sequestration of estate of deceased debtor

5

The sequestration of the estate of a deceased debtor is—

(a) by debtor application made by the executor, or a person entitled to be appointed as executor, on the estate,

(b) on the petition of a qualified creditor, or qualified creditors, of the deceased debtor,

(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(e) on the petition of a trustee acting under a trust deed.

Sequestration of other estates

6

(1) The estate belonging to any of the following (or held for or jointly by, as the case may be, the trustees, partners or members of any of the following) may be sequestrated—

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

(b) a partnership (including a dissolved partnership),

(d) an unincorporated body,

(e) a limited partnership (including a dissolved limited partnership) within the meaning of the Limited Partnerships Act 1907.

(2) But it is not competent to sequestrate the estate of any of the following—

(a) a company registered under the Companies Act 2006,

(b) a limited liability partnership, or

(c) any other entity if it is 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 is—

(a) by debtor application made by a majority of trustees, with the concurrence of a qualified creditor or qualified creditors, or

(b) on the petition of—

(i) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(ii) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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

(4) The sequestration of the estate of a partnership is—

(a) by debtor application made by the partnership where the partnership is apparently insolvent,

(b) by debtor application made by the partnership with the concurrence of a qualified creditor or qualified creditors, or

(i) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(ii) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(iii) a trustee acting under a trust deed, or

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

(5) For the purposes of an application under subsection (4)(a), section 16(4) is to be read as if—

(a) the word “either”, and

(b) the words “or if any of the partners is apparently insolvent for a debt of the partnership”,

were omitted.

(6) A petition under subsection (4)(c) 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.

(7) The sequestration of the estate of a body corporate or of an unincorporated body is—

(a) by debtor application made by a person authorised to act on behalf of the body, with the concurrence of a qualified creditor or qualified creditors, or

(b) on the petition of—

(i) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(ii) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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

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

(9) Subsections (3)(a) of section 8 and (3) to (6) of section 10 apply for the purposes of this section as they apply for the purposes of their respective sections.

Qualified creditor and qualified creditors

7

(1) In this Act—

“qualified creditor” means a creditor who, at the date of the presentation of the petition, or as the case may be at the date the debtor application is made, is a creditor of the debtor in respect of relevant debts which amount (or of one such debt which amounts) to not less than £5,000 or such sum as may be prescribed, and

“qualified creditors” means creditors who, at the date in question, are creditors of the debtor in respect of relevant debts which amount in aggregate to not less than £5,000 or such sum as may be prescribed.

(2) In the definitions of “qualified creditor” and “qualified creditors” in subsection (1) “relevant debts” means liquid or illiquid debts (other than contingent or future debts or amounts payable under a confiscation order) whether secured or unsecured.

(3) In subsection (2), “confiscation order” means a confiscation order under Part 2, 3 or 4 of the Proceeds of Crime Act 2002.

(4) Paragraphs 1(1) and (3), 2(1)(a) and (2) and 5 of schedule 2 apply in order to ascertain the amount of the debt or debts for the purposes of subsection (1) as those paragraphs 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 the presentation of the petition or, as the case may be, the date the debtor application is made.

Debtor applications: general

8

(1) Any debtor application must be made to AiB.

(2) A debtor application must—

(a) include a declaration by the money adviser who provided the advice referred to in section 4(1) that such advice has been given, and

(b) specify the name and address of the money adviser.

(3) The debtor must send to AiB along with the application—

(a) a statement of assets and liabilities, and

(b) a statement of undertakings.

(4) If the debtor—

(a) fails, in a statement of assets and liabilities sent to AiB in accordance with subsection (3)(a), to disclose a material fact, or

(b) makes in such a statement a material misstatement,

then the debtor commits an offence.

(5) A person who commits an offence under subsection (4) is 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 both to such fine and to such imprisonment.

(6) In any proceedings for an offence under subsection (4), it is a defence to show that the accused had a reasonable excuse for the failure in question or, as the case may be, for making the statement in question.

Certificate for sequestration

9

(1) A certificate for sequestration of the estate of a debtor is a certificate granted by a money adviser certifying that the debtor is unable to pay debts as they become due.

(2) A certificate may be granted only on the debtor applying for it.

(3) A money adviser must grant a certificate if, and only if, the debtor can demonstrate that the debtor is unable to pay debts as they become due.

(4) The Scottish Ministers may—

(a) by regulations make provision about certification by a money adviser, including—

(i) the form and manner in which a certification must be made,

(ii) the fee, if any, which a money adviser is entitled to charge for or in connection with granting a certificate,

(b) prescribe a period for the purpose of section 2(2)(f) or (8)(e)(ii).

Death or withdrawal

10

(1) Where, after a petition for sequestration is presented but before the sequestration is awarded, the debtor dies then, if the petitioner is a creditor, the proceedings are to continue in accordance with this Act so far as circumstances will permit.

(2) Where, after a debtor application is made but before the sequestration is awarded, the debtor dies then the application falls.

(3) Where, after a petition for sequestration is presented but before the sequestration is awarded, a creditor who is the petitioner withdraws or dies, there may be sisted in the place of that creditor any creditor who both was a qualified creditor at the date when the petition was presented and is a qualified creditor at the date of the sist.

(4) Where, after a petition for sequestration is presented but before the sequestration is awarded, a creditor who has lodged answers to the petition withdraws or dies, there may be sisted in the place of that creditor any other creditor.

(5) Where, after a debtor application is made but before the sequestration is awarded, a creditor who concurs in the application withdraws or dies, any other creditor may, if the conditions mentioned in subsection (6) are met, notify AiB that the other creditor concurs in the application in place of the creditor who has withdrawn or died.

(6) The conditions are that the other creditor—

(a) was a qualified creditor at the date when the debtor application was made, and

(b) is a qualified creditor at the date of the notification.

Debtor application: provision of information

11

(1) Where a debtor application is made other than under section 5(a), the debtor must state in the application—

(a) whether or not the debtor's centre of main interests is situated in the United Kingdom or in a member State (other than Denmark), and

(b) if the debtor's centre of main interests is situated in a member State (other than Denmark), whether or not the debtor possesses an establishment in the United Kingdom.

(2) Where a debtor application is made by an executor under section 5(a) the executor must state in the application—

(a) whether or not the debtor's centre of main interests was situated in the United Kingdom or in a member State (other than Denmark), and

(b) if the debtor's centre of main interests was situated in a member State (other than Denmark), whether or not the debtor possessed an establishment in the United Kingdom.

(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Petition for sequestration of estate: provision of information

12

(1) A petitioner for sequestration of the estate of a debtor is, in so far as it is within the petitioner's knowledge, to state in the petition—

(a) whether or not the debtor's centre of main interests is situated in the United Kingdom or in a member State (other than Denmark), and

(b) if the debtor's centre of main interests is situated in a member State (other than Denmark), whether or not the debtor possesses an establishment in the United Kingdom.

(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Further provisions relating to presentation of petitions

13

(1) The petitioner is, on the day the petition for sequestration is presented under section 2, 5 or 6, to send a copy of the petition to AiB.

(2) A petition for the sequestration of the estate of a debtor (other than a limited partnership or a deceased debtor) may be presented—

(a) by a qualified creditor or qualified creditors only if the apparent insolvency founded on in the petition was constituted within 4 months before the date of presentation of the petition, or

(b) at any time by—

(i) a trustee acting under a trust deed,

(ii) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(iii) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3) A petition for the sequestration of the estate of a limited partnership may be presented—

(a) by a qualified creditor or qualified creditors only if the apparent insolvency founded on in the petition was constituted within 4 months (or such other period as may be prescribed) before the date of presentation of the petition, or

(b) at any time by—

(i) a trustee acting under a trust deed,

(ii) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(iii) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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

(a) by a qualified creditor or qualified creditors—

(i) in a case where the apparent insolvency of the debtor founded on in the petition was constituted within 4 months before the date of death, at any time, and

(ii) in any other case (whether or not apparent insolvency has been constituted), not earlier than 6 months after the date of death, or

(b) at any time by—

(i) a person entitled to be appointed as executor of the estate, or

(ii) a trustee acting under a trust deed,

(iii) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(iv) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(5) The presentation of a petition for sequestration bars the effect of any enactment or rule of law relating to the limitation of actions.

(6) Where, before sequestration is awarded, it becomes apparent that a petitioning creditor was ineligible to petition, that person must withdraw, or as the case may be withdraw from, the petition; but another creditor may be sisted in that person's place.

Further provisions relating to debtor applications

14

(1) A debtor application may be made at any time; but this subsection is subject to subsections (2) and (3).

(2) A debtor application made in relation to the estate of a limited partnership may be made—

(a) at any time unless a time is prescribed, and

(b) if a time is prescribed, within that time.

(3) Any intromission by an executor with the deceased debtor's estate after the 12 months mentioned in subsection (4) is deemed an intromission without title unless, within that period, the executor—

(a) makes a debtor application under section 5(a), or

(b) petitions for the appointment of a judicial factor to administer the estate.

(4) The 12 months referred to in subsection (3) is the 12 months following the day on which the executor knew, or ought to have known, that the estate was absolutely insolvent and likely to remain so.

(5) The making of, or concurrence in, a debtor application bars the effect of any enactment or rule of law relating to the limitation of actions.

(6) Where, before sequestration is awarded, it becomes apparent that a creditor concurring in a debtor application was ineligible to concur, AiB must withdraw the ineligible creditor from the application.

(7) But another creditor may concur in place of the ineligible creditor; and if the other creditor does concur in place of the ineligible creditor, the other creditor must notify AiB of that fact.

Jurisdiction

15

(1) Where a petition is presented for the sequestration of the estate of a debtor (whether living or deceased), the sheriff has jurisdiction if, at the relevant time, the debtor—

(a) had an established place of business in the sheriffdom, or

(b) was habitually resident in the sheriffdom.

(2) AiB may determine a debtor application for the sequestration of the estate of a living or deceased debtor if, at the relevant time, the debtor—

(a) had an established place of business in Scotland, or

(b) was habitually resident in Scotland.

(3) Where a petition is presented for the sequestration of the estate of an entity which may be sequestrated by virtue of section 6, the sheriff has jurisdiction if the entity—

(a) had at the relevant time an established place of business in the sheriffdom, or

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

(4) AiB may determine a debtor application for the sequestration of the estate of such an entity if the entity—

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

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

(5) Even where a person (whether living or deceased) does not fall within subsection (1), the sheriff has jurisdiction in respect of the sequestration of that person's estate if—

(a) a petition has been presented for the sequestration of the estate of a partnership of which the person is, or was at the relevant time before dying, a partner, and

(b) the process of that sequestration is still current.

(6) Subsection (7) applies as regards any proceedings under this Act which—

(a) may be brought before a sheriff, and

(b) relate either to a debtor application or to the sequestration of a debtor's estate following any such application.

(7) The proceedings are to be brought before the sheriff who, under subsection (1) or (3), would have jurisdiction in respect of a petition for sequestration of the debtor's estate.

(8) References in this section to “the relevant time” are to any time in the year immediately preceding (as the case may be)—

(a) the date of presentation of the petition,

(b) the date the debtor application is made, or

(9) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Meaning of “apparent insolvency”

16

(1) The apparent insolvency of a debtor is constituted, or where the debtor is already apparently insolvent again constituted, whenever—

(a) the debtor's estate is sequestrated,

(b) the debtor is adjudged bankrupt in England and Wales or in Northern Ireland,

(c) the debtor gives written notice to the debtor's creditors that the debtor has ceased to pay the debtor's debts in the ordinary course of business (but the debtor must not, at the time notice is so given, be a person whose property—

(i) is affected by a restraint order,

(ii) is detained under or by virtue of a relevant detention power, or

(iii) is subject to a confiscation or charging order),

(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(e) the debtor grants a trust deed,

(f) following the service on the debtor of a duly executed charge for payment of a debt, the days of charge expire without payment (unless the circumstances are shown to be such as are mentioned in subsection (2)),

(g) a decree of adjudication of any part of the debtor's estate is granted, either for payment or in security (unless the circumstances are shown to be such as are mentioned in subsection (2)),

(h) a debt constituted by a decree or document of debt, as defined in section 10 of the 2002 Act, is being paid by the debtor under a debt payment programme under Part 1 of that Act and the programme is revoked (unless the circumstances are shown to be such as are mentioned in subsection (2)), or

(i) a creditor of the debtor, in respect of a liquid debt which amounts to (or liquid debts which in aggregate amount to) not less than £1,500 or such sum as may be prescribed, serves on the debtor, by personal service by an officer of court, a demand in the prescribed form requiring the debtor either to pay the debt (or debts) or to find security for its (or their) payment and the condition set out in subsection (3) is met.

(2) The circumstances are—

(a) that at the time of the occurrence, the debtor was able and willing to pay the debtor's debts as they became due, or

(b) that, but for the debtor's property being affected by a restraint order or being subject to a confiscation order or charging order, the debtor would at that time have been able to pay those debts as they became due.

(3) The condition is that the debtor does not, within 3 weeks after the date of service—

(a) comply with the demand, or

(b) intimate to the creditor, by recorded delivery, that the debtor—

(i) denies that there is a debt, or

(ii) denies that the sum claimed by the creditor as the debt is immediately payable.

(4) The apparent insolvency of a partnership is constituted (or as the case may be again constituted) either—

(a) in accordance with subsection (1), or

(b) if any of the partners is apparently insolvent for a debt of the partnership.

(5) The apparent insolvency of an unincorporated body is constituted (or as the case may be again constituted) either—

(a) if a person representing the body is apparently insolvent for a debt of the body, or

(b) if a person holding property for the body in a fiduciary capacity is apparently insolvent for such a debt.

(6) Notwithstanding subsection (2) of section 6, the apparent insolvency of an entity such as is mentioned in that subsection may be constituted (or as the case may be again constituted) under subsection (1); and any reference to the debtor in subsections (1) to (3) and (7) is, except where the context otherwise requires, to be construed as including a reference to such an entity.

(7) The debtor's apparent insolvency continues—

(a) if constituted under paragraph (a) or (b) of subsection (1), until the debtor's discharge,

(b) if constituted under paragraph (c), (e), (f), (g), (h) or (i) of that subsection, until the debtor becomes able to pay the debtor's debts and pays them as they become due, or

(8) In this section—

“charging order” means an order made under section 78 of the Criminal Justice Act 1988 or under section 27 of the Drug Trafficking Act 1994,

“confiscation order” means a confiscation order made under Part 2, 3 or 4 of the Proceeds of Crime Act 2002,

“liquid debt” does not include a sum payable under a confiscation order,

“relevant detention power” means section 44A, 47J, 47K, 47M, 47P, 122A, 127J, 127K, 127M, 127P, 193A, 195J, 195K, 195M or 195P of the Proceeds of Crime Act 2002, and

“restraint order” means a restraint order made under Part 2, 3 or 4 of that Act of 2002.

Concurrent proceedings

Concurrent proceedings for sequestration or analogous remedy

17

(1) If, in the course of sequestration proceedings (referred to in this section and in section 18 as the “instant proceedings”), a person who is a petitioner for sequestration, the debtor, or a creditor concurring in a debtor application is or becomes aware of any of the circumstances mentioned in subsection (2), that person must as soon as may be take the action mentioned in subsection (3).

(2) The circumstances are that, notwithstanding the instant proceedings—

(a) a petition for sequestration of the debtor's estate is before a sheriff,

(b) such sequestration has been awarded and the debtor’s estate is being sequestrated,

(d) sequestration has been awarded by virtue of any such application and the debtor’s estate is being sequestrated,

(e) a petition for the appointment of a judicial factor on the debtor's estate is before a court,

(f) such a judicial factor has been appointed,

(g) a petition is before a court for the winding up of the debtor under section 28 of the Limited Partnerships Act 1907, Part 4 or 5 of the Insolvency Act 1986 or section 372 of the Financial Services and Markets Act 2000,

(ga) such a petition has been granted,

(gb) an application in respect of the debtor is before a court under section 29 of the Limited Partnerships Act 1907,

(gc) such an application has been granted,

(h) an application for an analogous remedy in respect of the debtor's estate is proceeding, or

(i) such an analogous remedy is in force.

(3) The action is—

(a) where the instant proceedings are by petition for sequestration, to notify the sheriff to whom that petition was presented of the circumstances in question,

(b) where the instant proceedings are by debtor application, to notify AiB of those circumstances.

(4) A petitioner who fails to comply with subsection (1) may be made liable for the expenses of presenting the petition for sequestration.

(5) A debtor who fails so to comply commits an offence.

(6) A debtor who commits an offence under subsection (5) is liable on summary conviction to a fine not exceeding level 5 on the standard scale.

(7) A creditor concurring in a debtor application who fails so to comply may be made liable for the expenses of making the debtor application.

(7A) For the purposes of subsection (2)(c), a debtor application is “pending” if it has been made and has not fallen, been withdrawn or been determined.

(8) In this section and in section 18, “analogous remedy” means—

(a) in relation to England and Wales—

(i) an individual voluntary arrangement or bankruptcy order under the Insolvency Act 1986,

(ii) an administration order under section 112 of the County Courts Act 1984, or

(iii) a remedy having the like effect to any of those mentioned in sub-paragraphs (i) and (ii) or to sequestration, and

(b) in relation to Northern Ireland or to any other country, a remedy having the like effect as a remedy mentioned in paragraph (a).

Powers in relation to concurrent proceedings

18

(1) Where, in the course of instant proceedings (see section 17(1)) which are by petition, any of the circumstances mentioned in paragraphs (a) to (g) (gc) of section 17(2) exists, the sheriff to whom the petition in the instant proceedings was presented may, on the sheriff's own motion or at the instance of the debtor, of a creditor or of any other person having an interest—

(a) allow the petition to proceed,

(b) sist it, or

(2) Without prejudice to subsection (1), where, in the course of such instant proceedings, any of the circumstances mentioned in paragraph (a), (b), (e), (f) or (g) , (g), (ga), (gb) or (gc) of section 17(2) exists, the Court of Session may, on the Court's own motion or at the instance of the debtor, of a creditor or of any other person having an interest—

(a) direct the sheriff before whom the petition in the instant proceedings is pending or the sheriff before whom the other petition is pending, to sist or dismiss the petition in the instant proceedings or, as the case may be, the other petition, or

(b) order the petitions to be heard together.

(3) Without prejudice to subsection (1), where, in the course of such instant proceedings, any of the circumstances mentioned in paragraph (c) or (d) of section 17(2) exists, the sheriff to whom the petition in the instant proceedings was presented may, on the sheriff's own motion or at the instance of the debtor, of a creditor or of any other person having an interest, direct AiB to dismiss the debtor application.

(4) AiB must recall an award of sequestration if—

(a) the award was by virtue of a debtor application, and

(b) the sheriff directs AiB to dismiss the debtor application.

(5) The effect of the recall of an award of sequestration is, so far as practicable, to restore the debtor and any other person affected by the sequestration to the position the debtor or, as the case may be, the other person would have been in if the sequestration had not been awarded.

(6) A recall of an award of sequestration does not—

(a) affect the interruption of prescription caused by—

(i) the presentation of the petition for sequestration,

(ii) the making of the debtor application, or

(iii) the submission of a claim under section 46 or 122,

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

(7) Without delay after granting recall of an award of sequestration under subsection (4), AiB must send a certified copy of the decision to the Keeper of the Register of Inhibitions for recording in that register.

(8) Where, in the course of instant proceedings which are by debtor application, any of the circumstances mentioned in paragraphs (a) to (g) (gc) of section 17(2) exists, AiB may dismiss the debtor application in the instant proceedings.

(9) Subsection (10) applies where, in respect of the same estate—

(a) a petition for sequestration is pending before a sheriff, and

(b) an application for an analogous remedy (see section 17(8)) is proceeding or an analogous remedy is in force.

(10) The sheriff, on the sheriff's own motion or at the instance of the debtor, of a creditor or of any other person having an interest, may—

(a) allow the petition for sequestration to proceed,

(b) sist it, or

(11) Subsection (12) applies where, in respect of the same estate—

(a) a debtor application has been made and is not yet determined, and

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

(12) AiB may proceed to determine the application or may dismiss it.

Creditor's oath

Creditor’s oath

19

(1) Every creditor who is—

(a) a petitioner for sequestration,

(b) a creditor who concurs in a debtor application, or

(c) a qualified creditor who becomes sisted under subsection (3) of section 10 (or under that subsection as applied by section 6(9)),

must produce an oath, in the prescribed form, made by or on behalf of the creditor.

(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—

(i) a British diplomatic or consular officer, or

(ii) 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 creditor and the identity of the person before whom the oath is made, and their authority to make and to administer the oath respectively, are presumed to be correctly stated unless the contrary is established.

(4) Any seal or signature on the oath is presumed to be authentic unless the contrary is established.

(5) If the oath contains an error or has omitted a fact—

(a) the sheriff to whom the petition was presented, or

(b) in the case of a creditor concurring in a debtor application, AiB,

may at any time before sequestration is awarded allow another oath to be produced rectifying the original oath.

(6) This section applies to the making of that other oath as it applies to the making of the original oath.

(7) The creditor must produce, along with the oath—

(a) an account or voucher (according to the nature of the debt) which constitutes prima facie evidence of the debt, and

(b) if a petitioning creditor, such evidence as is available to the creditor to show the apparent insolvency of the debtor.

PART 2 — Sequestration: award and recall

Incomplete or inappropriate debtor applications

Debtor application: incomplete application

20

(1) This section applies where a debtor application is made and AiB considers that—

(a) the application is incomplete,

(b) further information is required in relation to the application,

(d) any fee or charge applicable to the application is outstanding.

(2) AiB must specify by notice in writing to the debtor—

(a) any further information which must be provided,

(b) any further evidence which must be provided, and

(3) Any information, evidence, fee or charge to be provided or paid under subsection (2) must be provided or paid within 21 days (or such greater number of days as may be specified by AiB) beginning with the day on which notice is sent under that subsection.

(4) AiB may refuse to award sequestration if, after the expiry of the days referred to in subsection (3), AiB considers that—

(a) the application remains incomplete,

(b) the debtor has provided insufficient information or evidence under subsection (2)(a) or (b), or

Refusal of debtor application: inappropriate application

21

(1) This section applies where a debtor application is made and AiB considers that an award of sequestration may not be appropriate in the circumstances of the case.

(2) AiB must specify by notice in writing to the debtor—

(a) the reason why AiB considers the application may not be appropriate, and

(b) any further information which must be provided within 21 days (or such greater number of days as may be specified by AiB) beginning with the day on which notice is sent under this subsection.

(3) AiB may refuse to award sequestration if, after the expiry of the days referred to in subsection (2)(b), AiB remains of the view that an award of sequestration would be inappropriate in the circumstances of the case.

Award of sequestration

When sequestration is awarded

22

(1) Where a debtor application (other than an application under section 5(a)) is made and neither section 20 nor section 21 applies, AiB must award sequestration forthwith if satisfied—

(a) that the application is made in accordance with—

(i) this Act, and

(ii) any provisions made under this Act,

(b) that section 2(2) or (8) applies to the debtor, and

(2) Where a debtor application is made under section 5(a), AiB must award sequestration forthwith if satisfied—

(a) that the application has been made in accordance with this Act and with any provisions made under this Act, and

(b) that the provisions of section 8(3)(a) have been complied with.

(3) Where a petition for sequestration of the estate of a debtor is presented by—

(a) a creditor, or

(b) a trustee acting under a trust deed,

the sheriff must grant warrant to cite the debtor to appear before the sheriff on such date as is specified in the warrant to show cause why sequestration should not be awarded.

(4) Any date specified under subsection (3) must be—

(a) no fewer than 6, and

(b) no more than 14,

days after the date of citation.

(5) The sheriff must forthwith award sequestration on that petition on being satisfied—

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

(b) that the petition has been presented in accordance with this Act,

(d) that in the case of a petition by a trustee—

(i) at least one of the conditions in section 2(7)(a) applies, or

(ii) the petition includes an averment in accordance with section 2(7)(b), and

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

(6) But subsection (5) is subject to section 23.

(7) In this Act, “the date of sequestration” means—

(a) where a debtor application is made, the date on which sequestration is awarded,

(b) where the petition for sequestration is presented by a creditor, or by a trustee acting under a trust deed, and sequestration is awarded, the date on which the sheriff granted warrant under subsection (3) (or, where more than one warrant is so granted, the date on which the first warrant is so granted).

Circumstances in which sequestration is not to be awarded in pursuance of section 22(5)

23

(1) Sequestration must not be awarded in pursuance of section 22(5) if—

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

(b) the debtor forthwith pays or satisfies, or produces written evidence of the payment or satisfaction of—

(i) the debt in respect of which the debtor became apparently insolvent, and

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

(2) Where the sheriff is satisfied that the debtor will, within 42 days beginning with the day the debtor appears before the sheriff, pay or satisfy the debts mentioned in sub-paragraphs (i) and (ii) of subsection (1)(b), the sheriff may continue the petition for no more than 42 days.

(3) The sheriff may continue the petition for such period as the sheriff thinks fit if satisfied—

(a) that a debt payment programme, under Part 1 of the 2002 Act, relating to the debts mentioned in sub-paragraphs (i) and (ii) of subsection (1)(b) has been applied for and has not yet been approved or rejected, or

(b) that such a debt payment programme will be applied for.

Effect of sequestration on diligence generally

24

(1) The order of the sheriff, or as the case may be the determination of the debtor application by AiB, awarding sequestration has, as from the date of sequestration, in relation to diligence done (whether before or after that date) in respect of any part of the estate of the debtor, the effect mentioned in subsection (2).

(2) The effect is of—

(a) a decree of adjudication of the heritable estate of the debtor for payment of debts duly recorded in the Register of Inhibitions on the date of sequestration,

(b) an arrestment in execution and decree of furthcoming,

(d) an attachment,

in favour of the creditors according to their respective entitlements.

(3) Where an inhibition on the estate of the debtor takes effect within the 60 days before the date of sequestration, any relevant right of challenge vests, at the date of sequestration, in the trustee in the sequestration as does any right of the inhibitor to receive payment for the discharge of the inhibition.

(4) But subsection (3) neither entitles the trustee to receive any payment made to the inhibitor before the date of sequestration nor affects the validity of anything done before that date in consideration of such payment.

(5) In subsection (3), “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.

(6) No arrestment, money attachment, interim attachment or attachment of the debtor's estate (including any estate vesting in the trustee under section 86(5)) executed—

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

(b) on or after that date,

is effectual to create a preference for the arrester or attacher.

(7) The estate so arrested or attached is, or any funds released under section 73J(2) of the Debtors (Scotland) Act 1987 (automatic release of funds) or the proceeds of sale of such estate are, to be handed over to the trustee.

(8) An arrester or attacher whose arrestment, money attachment, interim attachment or attachment is executed within the period mentioned in subsection (6)(a) is entitled to payment, out of the arrested or attached estate or out of the proceeds of the sale of such estate, of the expenses incurred—

(a) in obtaining—

(i) warrant for interim attachment, or

(ii) the extract of the decree or other document on which the arrestment, money attachment or attachment proceeded,

(b) in executing the arrestment, money attachment, interim attachment or attachment, and

(9) Nothing in subsections (6) to (8) applies to an earnings arrestment, a current maintenance arrangement, a conjoined arrestment order or a deduction from earnings order under the Child Support Act 1991.

Effect of sequestration on diligence: estate of deceased debtor

25

(1) Sections 23A(1) and (2) and 24 apply to the estate of a deceased debtor which—

(a) has been sequestrated within 12 months after the date of death, or

(b) was absolutely insolvent at that date and in respect of which a judicial factor has been appointed under section 11A of the Judicial Factors (Scotland) Act 1889 within 12 months after that date,

but with the modifications mentioned in subsection (2).

(2) The modifications are that—

(a) any reference to the date of sequestration is to be construed as a reference to the date of death, and

(b) any reference to the debtor is to be construed as a reference to the deceased debtor.

(3) It is not competent, on or after the date of sequestration, for any creditor ... to be confirmed as executor-creditor on the estate.

(4) Subsections (5) and (6) apply where, within 12 months after the debtor's death—

(a) the debtor's estate is sequestrated, or

(b) a judicial factor is appointed under section 11A of the Judicial Factors (Scotland) Act 1889 to administer the debtor's estate and that estate is absolutely insolvent.

(5) No confirmation as executor-creditor on that estate at any time after the debtor's death is effectual in a question with the trustee or the judicial factor.

(6) But the executor-creditor is entitled—

(a) out of the estate, or

(b) out of the proceeds of sale of the estate,

to the expenses incurred by the executor-creditor in obtaining the confirmation.

Registration of warrant or determination of debtor application

26

(1) On the sheriff granting warrant under section 22(3) the sheriff clerk must forthwith send—

(a) a certified copy of the order granting the warrant to the Keeper of the Register of Inhibitions for recording in that register,

(b) a copy of that order to AiB, and

(c) where the debtor is taking part in a debt payment programme under Part 1 of the 2002 Act, a copy of that order to the DAS administrator (“DAS administrator” having the meaning given by regulation 2(1) of the Debt Arrangement Scheme (Scotland) Regulations 2011 (S.S.I. 2011/141)).

(2) On awarding sequestration on a debtor application AiB must forthwith send a certified copy of AiB's determination of the application to the Keeper of the Register of Inhibitions for recording in that register.

(3) Recording under subsection (1)(a) or (2) has 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 126.

(4) The effect mentioned in subsection (3) expires—

(a) on the recording by virtue of section 27(11)(a) of a certified copy of an order refusing to award sequestration or by virtue of section 30(9)(a) of a certified copy of an order recalling an award of sequestration,

(b) on the recording by virtue of section 18(7), 34(4) or 35(7) of a certified copy of a decision, or

(c) if the effect has not earlier expired by virtue of paragraph (a) or (b), at the end of 3 years beginning with the date of sequestration.

(5) But subsection (4)(c) is subject to subsections (6) and (7).

(6) The trustee may if not discharged send a memorandum, in a form prescribed by act of sederunt, to the Keeper of the Register of Inhibitions for recording in that register before the expiry of—

(a) the 3 years mentioned in subsection (4)(c), or

(b) a period for which the effect mentioned in subsection (3) has been renewed by virtue of subsection (7).

(7) The recording of a memorandum sent in accordance with subsection (6) renews the effect mentioned in subsection (3) for 3 years beginning with the expiry of—

(a) the 3 years mentioned in subsection (4)(c), or

(b) as the case may be, the period mentioned in subsection (6)(b).

(8) The trustee may, if appointed or reappointed under section 152, send a memorandum in a form prescribed by act of sederunt to the Keeper of the Register of Inhibitions for recording in that register before the expiry of that appointment.

(9) The recording of a memorandum sent in accordance with subsection (8) imposes the effect mentioned in subsection (3) for 3 years beginning with the day of notification in accordance with section 153(1).

Further matters in relation to award of sequestration

27

(1) On application the sheriff may, at any time after sequestration has been awarded, transfer the sequestration to any other sheriff.

(2) But subsection (1) is subject to subsection (3).

(3) The debtor may, with the leave of the sheriff, appeal to the Sheriff Appeal Court against such a transfer.

(4) Where the sheriff makes an order refusing to award sequestration, the petitioner may appeal against the order within 14 days after the date on which the order is made.

(5) If, following a debtor application, AiB refuses to award sequestration, the debtor or a creditor concurring in the application may apply to AiB for a review of the refusal.

(6) Any application under subsection (5) must be made within 14 days beginning with the day on which AiB refuses to award sequestration.

(7) If an application under subsection (5) is made, AiB must—

(a) take into account any representations made by an interested person within 21 days beginning with the day on which the application is made, and

(b) confirm the refusal, or award sequestration, within 28 days beginning with that day.

(8) If AiB confirms the refusal to award sequestration under subsection (7)(b), the debtor or a creditor concurring in the application may, within 14 days beginning with the day of that confirmation, appeal to the sheriff.

(9) An award of sequestration is not subject to review otherwise than by recall under—

(a) section 18(4),

(b) sections 29 and 30,

(d) section 35.

(10) Subsection (9) is without prejudice to any right to bring an action of reduction of an award of sequestration.

(11) Where a petition for sequestration is presented by a creditor, or by a trustee acting under a trust deed, the sheriff clerk is—

(a) on the final determination or the abandonment of any appeal under subsection (4) in relation to the petition, or (if there is no such appeal) within the 14 days mentioned in that subsection, to send a certified copy of the order refusing to award sequestration to the Keeper of the Register of Inhibitions for recording in that register,

(b) to send forthwith a copy of that order to—

(i) AiB, and

(ii) where the debtor is taking part in a debt payment programme under Part 1 of the 2002 Act, the DAS administrator (“DAS administrator” having the meaning given by regulation 2(1) of the Debt Arrangement Scheme (Scotland) Regulations 2011 (S.S.I. 2011/141)).

(12) Where sequestration has been awarded the process of sequestration is not to fall asleep.

Benefit from another estate

28

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

(a) the trustee in the sequestration, of that fact, and

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

(2) A debtor who fails to comply with subsection (1) commits an offence.

(3) A debtor who commits an offence under subsection (2) is liable, on summary conviction, to a fine not exceeding level 5 on the standard scale.

Recall of sequestration

Petitions for recall of sequestration

29

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

(a) the debtor,

(b) any creditor,

(c) any other person having an interest (whether or not a person who was a petitioner for, or concurred in a debtor application for, the sequestration),

(d) the trustee in the sequestration, or

(e) AiB.

(2) Such a petition may not be presented to the sheriff if the only ground is that the debtor has paid, or is able to pay, the debtor's debts in full.

(3) Subsection (2) does not apply where—

(a) sequestration was awarded following a petition of a qualified creditor or qualified creditors, and

(b) a petition for recall of the award of sequestration includes the ground that the debtor was not apparently insolvent.

(4) 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 after service of the notice, must be served by the petitioner on—

(a) the debtor (where the debtor is not the petitioner),

(b) any other person who was a petitioner for, or concurred in a debtor application for, the sequestration,

(d) AiB (where AiB is not the petitioner).

(5) On service, under subsection (4), of a copy of the petition AiB must enter particulars of the petition in the register of insolvencies.

(6) A petition under this section may be presented at any time.

(7) But subsection (6) is subject to sections 114(3) and 115(3).

(8) Notwithstanding that a petition has been presented under this section, the proceedings in the sequestration are to continue as if the petition had not been presented until the recall is granted.

(9) But subsection (8) is subject to section 30(7).

(10) Subsection (11) applies where a petitioner under this section, or a person who has lodged answers to the petition, withdraws or dies.

(11) Any person—

(a) entitled to present, or

(b) entitled to lodge answers to,

a petition under this section may be sisted in place of the person who has withdrawn or died.

Recall of sequestration by sheriff

30

(1) The sheriff may recall the award of sequestration if satisfied that in all the circumstances of the case (including those arising after the date of the award) it is appropriate to do so.

(2) In particular, the sheriff may recall the award if satisfied—

(a) that the debtor has paid the debtor's debts in full (including the payment of any interest payable on the debtor’s debts and the payment of the outlays and remuneration of the interim trustee and of the trustee),

(b) that 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) that another award of sequestration of the estate, or of an analogous remedy, as defined in section 17(8), has (or other such awards have) been granted.

(3) Where another award of sequestration of the debtor's estate has been granted, the sheriff may, after such intimation as the sheriff considers necessary, recall an award (whether or not the award in respect of which the petition for recall was presented).

(4) Where the sheriff intends to recall an award of sequestration on the ground that the debtor has paid the debtor's debts in full, the order recalling the award may not—

(a) be made before the payment in full of—

(i) any interest payable on the debtor’s debts (see section 37A), and

(ii) the outlays and remuneration of the trustee and of the interim trustee, or

(b) be subject to any conditions which are to be fulfilled before the order takes effect.

(5) On or before recalling an award of sequestration, the sheriff—

(a) must make provision for the payment of the outlays and remuneration of the trustee in the sequestration (see section 50(1)) and of any interim trustee (see section 53(1))—

(i) by directing that such payment must be made out of the debtor's estate, or

(ii) by requiring that a person who was a party to the petition for sequestration, or as the case may be to the debtor application, must pay the whole or any part of those outlays and remuneration,

(b) may direct that payment of the expenses of a creditor who was a petitioner for sequestration, or concurred in the debtor's application for sequestration, must be made out of the debtor's estate, and

(6) Subsection (5)(b) is without prejudice to subsection (8).

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

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

(9) The sheriff clerk must send—

(a) a certified copy of any order recalling an award of sequestration to the Keeper of the Register of Inhibitions for recording in that register, and

(b) a copy of any interim or final order recalling, or refusing to recall, an award of sequestration or a copy of any order under section 114(3)(b) or 115(3)(b)—

(i) to AiB, and

(ii) if AiB is not the trustee in the sequestration, to the trustee in the sequestration.

Application to Accountant in Bankruptcy for recall of sequestration

31

(1) An application for recall of an award of sequestration may be made to AiB on the ground that the debtor has paid or is able to pay the debtor's debts in full.

(2) An application may be made by—

(a) the debtor,

(b) any creditor (whether or not a person who was a petitioner for, or concurred in a debtor application for, the sequestration),

(d) any other person having an interest (whether or not a person who was a petitioner for the sequestration).

(3) The person making an application must, at the same time as applying to AiB, give to the other persons mentioned in subsection (4)—

(a) a copy of the application, and

(b) a notice informing the recipient that the person has a right to make representations to AiB in relation to the application within 21 days beginning with the day on which the notice is given.

(4) The persons are—

(a) the debtor ...,

(b) any person who was a petitioner for, or concurred in a debtor application for, the sequestration, and

(5) Despite an application being made, the proceedings in the sequestration are to continue as if the application had not been made until a recall of an award of sequestration is granted—

(a) where AiB is not the trustee, under section 34(1) (subject to any conditions imposed under section 34(3)),

(b) where AiB is the trustee, under section 35(6) (subject to any conditions imposed under section 35(6B)).

(6) Where the applicant withdraws the application or dies, AiB may continue the application by substituting any person mentioned in subsection (2) for the applicant.

Application under section 31: further procedure

32

(1) This section applies where—

(a) an application is made under section 31, and

(b) AiB is not the trustee.

(2) The trustee must prepare a statement on the debtor's affairs so far as within the knowledge of the trustee.

(3) The trustee must submit the statement to AiB—

(a) at the same time as the trustee makes the application under section 31, or

(b) where that application is made by another person, within 21 days beginning with the day on which notice is given under section 31(3)(b).

(4) The statement must—

(a) indicate whether the debtor has agreed to—

(i) the interim trustee's claim for outlays reasonably incurred and for remuneration for work reasonably undertaken by the interim trustee (including any outlays and remuneration which are yet to be incurred), and

(ii) the trustee's claim for outlays reasonably incurred and for remuneration for work reasonably undertaken by the trustee (including any outlays and remuneration which are yet to be incurred),

(b) state whether or not the debtor's debts have been paid in full , including the payment in full of—

(i) any interest payable on the debtor’s debts (see section 37A),

(ii) the outlays and remuneration of the interim trustee and of the trustee,

(i) provide details of any debt which has not been paid, and

(ii) indicate whether, in the opinion of the trustee, the debtor's assets are likely to be sufficient to pay the debts in full (including the payment of any interest payable on the debtor’s debts and payment of the outlays and remuneration of the interim trustee and of the trustee) within 8 weeks beginning with the day on which the statement is submitted, and

(d) provide details of any distribution of the debtor's estate.

(5) The trustee must notify every creditor known to the trustee that the application has been made—

(a) where it is made by the trustee, within 7 days beginning with the day on which it is made, and

(b) where it is made by a person other than the trustee, within 7 days beginning with the day on which notice is given under section 31(3)(b).

(6) If a creditor has not previously submitted a claim under section 46 or 122, the creditor must, in order to be included in the statement made by the trustee, submit a claim.

(7) That claim must be submitted—

(a) in accordance with section 46(2) to (4), and

(b) within 14 days beginning with the day on which notice is given under subsection (5).

(8) If any creditor submits a claim in accordance with subsection (7), the trustee must update and re-submit the statement within 7 days after the days mentioned in paragraph (b) of that subsection have expired.

(9) The trustee must update and re-submit the statement if—

(a) the statement previously submitted did not state in accordance with subsection (4)(b) that the debtor's debts have been paid in full, and

(b) before the day on which the application is determined by AiB, the trustee is able to make that statement.

Determination where amount of outlays and remuneration not agreed

33

(1) This section applies where—

(a) AiB receives an application under section 31, ...

(aa) AiB is not the trustee, and

(b) the statement submitted by the trustee under section 32 indicates that the amount of the outlays and remuneration of the trustee is not agreed.

(2) The trustee must—

(a) at the same time as submitting the statement under section 32, provide AiB with—

(i) the trustee's accounts of the trustee's intromissions with the debtor's estate for audit, and

(ii) details of the trustee's claim for outlays reasonably incurred and for remuneration for work reasonably undertaken by the trustee (including any outlays and remuneration which are yet to be incurred), and

(b) provide AiB with such other information in relation to that claim as may reasonably be requested by AiB.

(3) AiB must, within 28 days after the days mentioned in section 32(7)(b) have expired, issue a determination fixing the amount of the outlays and of the remuneration payable to the trustee.

(4) AiB may, within the 28 days mentioned in subsection (3), determine the expenses reasonably incurred by a creditor who was a petitioner for, or as the case may be concurred in a debtor application for, sequestration.

(5) Subsections (2) to (4) of section 133 apply to AiB for the purpose of issuing a determination in accordance with subsection (3) as they apply to the commissioners or to AiB for the purpose of fixing an amount under that section.

Recall of sequestration by Accountant in Bankruptcy

34

(A1) This section applies where AiB is not the trustee.

(1) AiB may recall an award of sequestration if—

(a) the trustee has notified AiB, in the statement submitted under section 32, that the debtor's debts have been paid in full , including the payment in full of—

(i) any interest payable on the debtor’s debts (see section 37A),

(ii) the outlays and remuneration of the interim trustee and of the trustee, and

(b) AiB is satisfied that in all the circumstances it is appropriate to do so.

(1A) Before recalling an award of sequestration AiB must take into account any representations made by an interested person within 21 days beginning with the day on which notice is given under section 31(3)(b).

(2) AiB may not recall an award of sequestration after—

(a) where no appeal in made under section 37(5)(a), the day which is 9 weeks after the day on which the statement was first submitted under section 32(3), or

(b) where such an appeal is made, such later day which is 14 days after the day on which the appeal is finally determined or abandoned.

(3) If AiB does not under subsection (1) recall an award of sequestration, the sequestration must continue but is to be subject to such conditions as AiB thinks fit.

(4) Without delay after granting recall under subsection (1), AiB must send a certified copy of the decision to the Keeper of the Register of Inhibitions for recording in that register.

Recall where Accountant in Bankruptcy trustee

35

(1) This section applies where AiB—

(a) is the trustee, and

(b) either—

(i) receives an application under section 31, or

(ii) considers recall of an award of sequestration may be granted on the ground that the debtor has paid, or is able to pay, the debtor's debts in full (including the payment of any interest payable on the debtor’s debts and the payment of the outlays and remuneration of the interim trustee and the trustee).

(2) AiB must—

(a) where an application under section 31 is received, notify every creditor known to AiB that the application has been made within 7 days beginning with the day on which the application is received,

(b) where AiB is acting on its own accord, notify the debtor and every creditor known to AiB that AiB considers subsection (1) applies.

(2A) At the same time as giving notice under subsection (2)(b), AiB must give to the persons mentioned in subsection (2B) a notice informing the recipient that the person has a right to make representations to AiB in relation to the notification within 21 days beginning with the day on which the notice is given.

(2B) The persons are—

(a) the debtor, and

(b) any person who was a petitioner for, or concurred in a debtor application for, the sequestration.

(3) If a creditor has not previously submitted a claim under section 46 or 122, the creditor must, in order for the creditor's claim to a dividend out of the debtor's estate to be considered, submit a claim.

(4) The claim must be submitted—

(a) in accordance with section 46(2) to (4), and

(b) within 14 days beginning with the day on which notice is given under subsection (2).

(5) Before recalling an award of sequestration AiB must—

(a) take into account any representations made by an interested person within 21 days beginning with the day on which notice is given under subsection (2A) or, as the case may be, section 31(3)(b), and

(b) make a determination of AiB's fees and outlays calculated in accordance with regulations under section 205.

(6) AiB may recall an award of sequestration if satisfied that—

(a) the debtor has paid the debtor's debts in full , including the payment in full of—

(i) any interest payable on the debtor’s debts (see section 37A),

(ii) the outlays and remuneration of the interim trustee and of the trustee,

(b) those debts were paid in full within 8 weeks after the days mentioned in subsection (5)(a) have expired, and

(6A) AiB may not recall an award of sequestration after—

(a) where no appeal is made under section 37(5)(a), the day which is 9 weeks after the days mentioned in subsection (5)(a) have expired, or

(b) where such an appeal is made, such later day which is 14 days after the day on which the appeal is finally determined or abandoned.

(6B) If AiB does not under subsection (6) recall an award of sequestration, the sequestration must continue but is to be subject to such conditions as AiB thinks fit.

(6C) Despite notice being given under subsection (2)(b), the proceedings in the sequestration are to continue as if the notification had not been made until a recall of an award of sequestration is granted under subsection (6) (subject to any conditions imposed under subsection (6B)).

(7) Without delay after recalling an award of sequestration under subsection (6), AiB must send a certified copy of the decision to the Keeper of the Register of Inhibitions for recording in that register.

Application for recall: remit to sheriff

36

(1) AiB may, at any time before deciding under section 34(1) whether to recall an award of sequestration, remit to the sheriff an application made under section 31.

(2) AiB may, at any time before deciding under section 35(6) whether to recall an award of sequestration, remit the case to the sheriff.

(3) If an application is remitted under subsection (1) or (2), the sheriff may dispose of the application or the case in accordance with section 30 as if it were a petition presented by AiB under section 29.

Recall of sequestration by Accountant in Bankruptcy: review and appeal

37

(1) A person mentioned in subsection (2) may apply to AiB for a review of—

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