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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.

16. Bankruptcy Restriction Orders

This section refers to Part 13 of the Act, sections 155 to 161.

A Bankruptcy Restrictions Order (BRO) can be made following a debtor’s unacceptable behaviour either before or during the period of their bankruptcy. A BRO is a means to impose conditions on a debtor’s activities. A BRO can be made for period between 2 and 15 years. It shall come into force when it is made and shall cease to have effect on the date specified in the Order.

This role is carried out by the Bankruptcy Administration and Investigations (BAI) team on behalf of the Accountant.

Section 50 of the Act requires a trustee to report a debtor to the Accountant if they believe there are reasonable grounds to believe the debtor’s behaviour is of a kind defined under Section 156 of the Act, that would result in the Accountant, or a sheriff, making a BRO.

An application can only be made before a debtor is discharged from their bankruptcy, unless a sheriff grants permission for a late BRO application. The Accountant will only consider this type of application to a sheriff if there is very good reason to do so.

To provide the BAI team with sufficient time to make a decision on an application and/or prepare a case and application to a sheriff for a BRO/interim BRO the completed application should be submitted no later than eight months after the date of award. Later submissions will only be considered if there are strong grounds i.e. new information becomes available and it is in the public interest to pursue a BRO.

A report made under these circumstances shall be absolutely privileged under the Act and details should not be disclosed. It is expected there may be cases when a BRO application is made when a Suspected Offence Report should also be submitted to the Crown Office as that behaviour will relate to a criminal office and a BRO is a civil matter. See section 18.6 for further information.

If a trustee is unsure if a debtor’s behaviour could merit a BRO they should contact the BAI team to discuss the case.

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