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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.

11.1 Private examination

When the debtor or other person fails to attend, or fails to answer relevant questions, the trustee may apply to the sheriff for an order requiring the debtor or person to appear before the sheriff for private examination under section 118 (4) of the Act.

The sheriff is given a discretion whether to grant an application for private examination.

11.1.1 Actions of the trustee

Intimation of a private examination should be given to the debtor and a copy uploaded to BASYS, together with a certificate of posting.

Penalties are provided for non-compliance with the sheriff’s order under Section 118(7) of the Act.

11.1.2 Conduct of the examination

The conduct of the examination, although not held in open court, is taken on oath by the debtor or other person and is regulated by section 121 of the Act. The examination can be conducted by the trustee or a solicitor appointed by the trustee.

When there is to be a private examination of a third party the debtor is permitted to question that third party as to any matter relating to the debtor’s assets or their business or financial affairs under section 121(2) of the Act.

A copy of the record of the private examination must be uploaded to BASYS under section 121(7) of the Act. 

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