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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.

16.4 Public interest test

A trustee should be satisfied it is in the public interest to impose a BRO on a debtor.

The public interest will vary from case to case and the trustee must consider the particular circumstances of each case when applying the test. If one of the following public interest criteria applies an application should be submitted to the BAI team.

Act as a deterrent:

  • would the planned action deter a potential wrong-doer from doing the same thing if the outcome was publicised?
  • afford protection to business and consumers from potential future losses or damage?
  • reduce the possibility of future losses/damage?

Consideration should also be given to determining:

  • at the time of the event, without the benefit of hindsight, why was the behaviour (un)reasonable?
  • would BRO action observe the human rights of the debtor and the justice and equity of proceedings?
  • are proceedings possible in a timely manner within the framework of the Act?
  • do the circumstances of the individual and the seriousness of the facts make action just and equitable?
  • would the planned action look reasonable to the average person on the street and/or to business?
  • is there likely to be any negative impact of the planned action?
  • is there more than 50% likelihood of success?
  • effectively apply the public purse?
  • does the case overall merit public expenditure?
  • does the likelihood of success and the ultimate result justify continued investment?
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