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Notes for Guidance - Protected Trust Deeds - Bankruptcy (Scotland) Act 2016

This guidance describes the general functions of Accountant in Bankruptcy and trustees in relation to their responsibilities regarding protected trust deeds (PTDs) which were granted on or after 30 November 2016

8.2 AiB directions

AiB has the authority under sections 179, 184A(6) and 184C(10) of the Act to issue directions to the trustee under a PTD, as to how they should conduct the administration of the PTD.

This power of direction is wide and can cover a direction to the trustee to do anything or desist from doing something in respect of the conduct of the administration of a PTD. Generally, AiB will ensure that a direction is not issued unless it deems the action required is in the interests of the trustee, debtor or creditors.

A direction will be intimated in writing to the trustee. The trustee should copy the intimation to the debtor and all known creditors.

AiB may also copy the direction to the trustee’s RPB or the Insolvency Service Complaints Gateway, if it considers the direction supports any complaint that AiB may have about the trustee’s behaviour.

If a trustee receives a direction from the Accountant they must either; appeal the direction, within 21 days of the direction being issued, or comply with the direction within 30 days of its receipt. Section 188(1)(c) and 179(4) of the Act refer.

The Accountant may report a trustee to a sheriff, if the trustee fails, without reasonable excuse, as determined by the Accountant, to comply with a direction she has issued. A sheriff may censure the trustee or make any such order as the sheriff considers is appropriate in the circumstances.

There is a right of appeal to a sheriff against a direction. However, a debtor or creditor must be able to satisfy the sheriff that they have a pecuniary interest in the outcome of the appeal. The form of appeal is prescribed in the Act of Sederunt (Sheriff Court Bankruptcy Rules) 2008. A sheriff may order intimation of any other party and may order such further procedure as they deem appropriate.

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