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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.

14.3 Discharge of trustee

When a trustee has completed their administration of the debtor’s estate, and the Debtor Contribution Order has been completed or quashed (see section 8.7), the trustee may apply to The Accountant for a certificate of discharge under section 148(1)(b) of the Act.

14.3.1 Actions of the trustee

The trustee must check the documents held in the electronic Sederunt Book on BASYS. Any missing documents should be uploaded. A list of the documents contained in the Sederunt Book can be found at Appendix P.

The trustee must notify the debtor and all known creditors of the application for discharge and inform them:

  • the Sederunt Book is available for inspection on request to AiB
  • of the effect of the grant of the discharge of the trustee
  • any written representations relating to the application may be made to the BAI team within 14 days after such notification

14.3.2 Application to the Accountant

An application for discharge should be made using the template trustee discharge report and provide information on the following:

  • confirmation all assets have been realised or abandoned or transferred back to the debtor. When assets have been abandoned reasons should be provided if not already done
  • the date the debtor was discharged
  • the date the Debtor Contribution Order has been completed or brought to an end
  • all invoices payable to AiB have been settled
  • the appeal period for the final account has been passed and no appeal(s) has been lodged
  • all account audit observations for any account have been answered
  • the date the circular advising the debtor and creditors of the intention of the trustee to seek discharge was issued
  • all Sederunt book documents have been uploaded to BASYS or provided to AiB

The trustee must deposit any unclaimed dividends and unapplied balances in accordance with section 148(2) of the Act.

14.3.3 Actions of the BAI team

Upon the expiry of the 14 day period the BAI team will:

  • consider the information provided by the trustee and if appropriate request further information and/or evidence to be provided within 21 days of the request
  • consider any representations received with the specified timescale

The BAI team will withdraw the application for discharge if:

  • the trustee has not completed all the required obligations
  • any requested information was not received within the specified timescale

14.3.4 Actions of the Accountant

The Accountant will discharge the trustee if:

  • the trustee has completed all the required obligations
  • representations have not been received to the suggest discharge should not be granted

The Accountant will not discharge the trustee if:

  • the trustee has not completed all the required obligations
  • representations have been received to the suggest discharge should not be granted

The BAI team will notify the decision to:

  • the trustee
  • the debtor
  • any creditor who has made representation

The decision to grant, or not grant discharge, will not take effect before the end of the period of 14 days beginning with the day the BAI team notifies the decision.

After the expiry of the 14 day period, or following the outcome of a review and/or appeal, the Accountant will, if appropriate:

  • make the entry on the Register of Insolvencies
  • place a copy of the certificate of discharge in the electronic Sederunt Book

14.3.5 Discharge of trustee - review and appeal

An application can be made by the trustee, the debtor or any creditor who made representation to the BAI team to the Accountant’s independent review team for a review of a decision made by the Accountant to grant or refuse discharge of the trustee.

An application must be received before the expiry of 14 days from the date the decision was made by the Accountant.

The team must take into consideration any submissions made by any interested party before the expiry of 21 days from the date the application.

The outcome of the review to confirm, revoke or amend the decision, determination or requirement must be made before the expiry of 28 days from the date the application for review was made.

Any person entitled to request a review may appeal the review decision to the sheriff before the expiry of 14 days from the date the review decision, determination or requirement was made.

The sheriff’s decision is final.

14.3.6 Effect of discharge of the trustee

The discharge will have the following effect:

  • discharge the trustee from all liability (other than any liability arising from fraud) to the debtor and the creditors
  • in respect of any act or omission in exercising their function under the Act

The granting of a certificate of discharge to a trustee will cover and include:

  • when the trustee was also interim trustee, their acting as such, in accordance with section 148(7) of the Act
  • where a trustee has died, to the trustee’s executor or where a trustee has resigned office or been removed from office, in accordance with section 149(9) of the Act
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