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Notes for Guidance - Bankruptcy (Scotland) Act 2016 (as amended)

This guidance describes the general functions of Accountant in Bankruptcy, interim trustees, trustees and commissioners in relation to their responsibilities regarding bankruptcies which started on or after 30 November 2016.

11. Examination of the debtor

This section refers to Part 9 of the Act, sections 118 to 121.

If the debtor continues to refuse to co-operate the trustee should consider the actions below. If they still fail to comply with the sheriff’s order they can be prosecuted and if found guilty can be fined or imprisoned by the court.

A trustee must consider the potential benefits to the administration of the bankruptcy before considering an examination. It is recommended they are only considered when all other methods of obtaining information have failed due to the cost and resource implications of arranging and conducting these hearings.

The trustee can request the debtor, the debtor’s spouse or civil partner, or any other person who can give information relating to the debtor’s assets, business or financial affairs attend a meeting to provide the information as required.

The debtor must be notified of their legal obligation to co-operate and advised of the consequences if they fail to:

  • provide a complete and accurate statement of their assets, income or liabilities
  • fails to attend an interview
  • fails to provide any information or documents

Before considering taking court action against the debtor the trustee should instruct sheriff officers to personally serve a formal demand for the required information and/or documents. Personal service of the documents ensures the debtor has no defence that they were unaware of both their legal obligation to co-operate, that failure to do so is committing an offence, that they be made subject to a BRO or their discharge from bankruptcy may not be granted.

If the debtor does not co-co-operate the trustee can apply to the sheriff under section 215 of the Act requesting an order that the debtor comply. If the debtor fails to comply they will be guilty of an offence and be liable on summary conviction to a fine, imprisonment or both.

If they still do not provide the information or attend the meeting they should be informed, in writing, that the trustee believes they have failed to co- operate and if they continue in this way:

  • they are committing an offence and may be made subject to a BRO and/or reported to the Procurator Fiscal
  • their discharge can be delayed until the Accountant is satisfied they have co-operated and provided the trustee with all the required information and documents to allow the trustee to carry out their duties under the Act

The Accountant believes it is reasonable to consider a debtor has failed to co-operate if they have been made aware of their obligations and have failed to provide information or documents which have been requested at least three times by the trustee with at least one such request having been made to the debtor by recorded or registered delivery.

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