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

A petition for recall to the court is presented under section 29 of the Act and the procedure to be followed by the sheriff is laid down in section 30 of the Act.

The petition cannot be presented if the only ground is that the debtor has paid, or is able to pay, their debts in full unless the bankruptcy was awarded following a petition to court by a qualified creditor(s) and includes the ground that the debtor was not apparently insolvent. 

Section 29(4) of the Act requires the recall petitioner to serve notice and a copy of the petition upon:

• the debtor
• any person who was a petitioner for bankruptcy
• the trustee
• the Accountant

The notice should state the recipient may lodge answers at the court within 14 days of service.

2.5.1 Actions of AiB upon receipt of the petition

This function is carried out by the Bankruptcy and Decision (BAD) team on behalf of the Accountant.

Upon receipt the BAD team must enter particulars of the petition for recall on the Register of Insolvencies. This replaces the requirement to advertise a recall petition in the Edinburgh Gazette.

2.5.2 Actions of the trustee

In the opinion of the Accountant the trustee has a duty to the general body of creditors to consider and represent their interests. Also in the trustee’s capacity as an officer of the court they should ensure the court has all relevant information before it when it considers the petition.

While under no statutory obligations to do so the trustee may wish to consider advising the whole body of creditors of the circumstances and of their right to lodge answers individually.

2.5.3 Actions of the court

The sheriff may order such intimation of the petition as they consider necessary.

A sheriff may recall the award if satisfied:

• after considering the circumstances of the case, including prior to the award, it is appropriate to do so
• the majority of the creditors reside in a country other than Scotland and the estate should be administered in that country
• another award of bankruptcy as defined by section 17(8) of the Act has been granted
• the debtor has paid their debts in full

On or before recalling the bankruptcy, the sheriff:

• must make provision of payment of the outlays and remuneration of the trustee
• may make provision for the payment of a petitioning creditors expenses
• may make provision in relation to the expenses of the petition for recall
• may make any other order as they consider necessary or reasonable

If the sheriff does not grant recall:

• the bankruptcy is to continue but is to be subject to such conditions as the sheriff thinks fit
• they may make an order in relation to the expenses of the petition for recall

The sheriff clerk must send:

• a copy of any interim or final order to the trustee and AiB
• a certified copy of any order to the Keeper of the Register of Inhibitions and Adjudications

2.5.4 Actions of AiB on receipt of a recall interlocutor

The BAD team will register the details of the interlocutor in the Register of Insolvencies.

When ordered, the Bankruptcy Accounts team will issue a determination of the trustee’s fees and outlays.

The date of recall will also be the date of the trustee discharge. The trustee should ensure all relevant documents are uploaded to the electronic Sederunt Book on BASYS.