The Bankruptcy (Scotland) Act 2016 and the ROI - CAJR Guidance

Background

The Bankruptcy (Scotland) Act 2016 consolidates existing bankruptcy legislation in Scotland into a single act. This means that the law itself isn't changing; instead, what will change is the name of the act that contains the law. The new Act came into force on 30th November 2016.

Implications for the ROI

Currently, various pieces of secondary legislation (SSIs and Acts of Sederunt) contain prescribed styles for forms that can be recorded in the Register of Inhibitions. These have been replaced by new pieces of secondary legislation, which contain the same forms. The content of these forms is largely the same, with two key differences:

The reference to the associated piece of primary and/or secondary legislation will refer to the 2016 Act or a 2016 item of secondary legislation; and
In some cases, the number of the form has changed.

Useful links

Sequestration

Insolvency - Personal and Corporate (2012 Act manual)

Bankruptcy (Scotland) Act 2016 (external link)

There have also been some minor changes to content in two of the forms which are intended to provide more clarity and make the forms easier to use. Please see the section below on new forms for further details. The pieces of new secondary legislation also came into force on 30th November.

Responsibility for Forms

The new Act will govern sequestration where applications and petitions for sequestration take place on or after 30th November. Where these processes took place before that act, the old system continues to apply.

However, these processes don't involve registration. This means the Keeper can't know which Act applies to which sequestration. This means that the responsibility for deciding whether to use a 2016 Act form or a 1985 Act form rests with the applicant.

Key point: registration officers do not need to check if a 1985 Act or 2016 Act form should have been used.

Registration checks

However, registration officers can continue to carry out the usual checks on the content of forms. This will ensure that all the necessary information has been provided so that the minute in the ROI can be completed as usual. In essence there is no change to process, but officers will start to notice references to statutory provisions in the forms changes as time goes on.

New forms

Form 9: Notice of Award of Sequestration to the Keeper of the Registers of Scotland

Form 15: Notice of Abandonment (AiB is not trustee)

Form 16: Notice of Abandonment (AiB is trustee)

Form A: Memorandum of Renewal

Form B: Memorandum of Renewal for (re)appointed trustee

This form is specifically for use when a trustee is appointed or reappointed when new assets of the debtor are discovered after the trustee is discharged. Under the 1985 Act, such trustees had to use the usual Memorandum of Renewal, and this sometimes made it difficult to add all the necessary details.

Form C: Form of Notice of Inhibition by trustee under trust deed

Form D; Form of Notice of Recall of Inhibition by trustee under trust deed

This now contains space for more details about the date of recording of the Form C, and also clearly states that the prior notice has been recalled.

Form 7: Conversion of protected trust deed into bankruptcy