-SQA-SCOTTISH QUALIFICATIONS AUTHORITY HIGHER NATIONAL UNIT SPECIFICATION GENERAL INFORMATION JUNE

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1 -SQA-SCOTTISH QUALIFICATIONS AUTHORITY HIGHER NATIONAL UNIT SPECIFICATION GENERAL INFORMATION -Unit number Unit title- -Superclass category- -Date of publication- (month and year) -Originating centre for unit- BANKRUPTCY AND DILIGENCE EC JUNE 1998 SQA DESCRIPTION- GENERAL COMPETENCE FOR UNIT: Explaining and applying the Scots Law of bankruptcy and diligence to enforce various types of court orders and contractual obligations. OUTCOMES: 1. describe and apply the law of Bankruptcy in Scotland; 2. explain the appropriate forms of diligence used in relation to moveable property; 3. explain the appropriate forms of diligence used in relation to heritable property; 4. explain the procedure under Scots Law for the recognition and enforcement of non Scottish judgements. CREDIT VALUE: 1 HN Credit ACCESS STATEMENT: Access to this unit is at the discretion of the centre. However, candidates should normally have successfully completed the HN Unit Scottish Legal System or obtained a similar qualification or have similar relevant experience

2 Additional copies of this unit can be obtained from: The Committee and Administration Unit, SQA, Hanover House, 24 Douglas Street, Glasgow G2 7NQ, (Tel: ). At the time of publication the cost is 1.50 per unit (minimum order 5.00). 2

3 HIGHER NATIONAL UNIT SPECIFICATION STATEMENT OF STANDARDS Unit number: Unit title: BANKRUPTCY AND DILIGENCE Acceptable performance in this Unit will be the satisfactory achievement of the standards set out in this part of the specification. All sections of the statement of standards are mandatory and cannot be altered without reference to SQA. OUTCOME 1. DESCRIBE AND APPLY THE LAW OF BANKRUPTCY IN SCOTLAND PERFORMANCE CRITERIA The Scots law of Bankruptcy is described clearly and concisely. The law of Bankruptcy is applied clearly and concisely to a given situation. RANGE STATEMENT Bankruptcy: absolute insolvency; sequestration; Petitions therefor and recall; Interim and Permanent Trustees; The Accountant in Bankruptcy; Duties of Trustees and Debtors; Discharge of Trustees and Debtors. EVIDENCE REQUIREMENTS Written and/or oral evidence which indicates that the candidate can fulfil all the performance criteria. OUTCOME 2. EXPLAIN THE APPROPRIATE FORMS OF DILIGENCE USED IN RELATION TO MOVEABLE PROPERTY PERFORMANCE CRITERIA The powers and duties of Sheriff Officers and Messengers at Arms are explained correctly. The distinction between poinding and warrant sales, diligence against earnings and diligence against bank accounts is explained correctly. 3

4 (c) The distinction between Time to Pay Orders and Time to Pay Directions is explained correctly. RANGE STATEMENT The range for this outcome is fully expressed in the performance criteria. EVIDENCE REQUIREMENTS Written and/or oral evidence which indicates that the candidate can fulfil all the performance criteria. OUTCOME 3. EXPLAIN THE APPROPRIATE FORMS OF DILIGENCE USED IN RELATION TO HERITABLE PROPERTY PERFORMANCE CRITERIA (c) The function of the Registers of Inhibitions and Adjudications is explained correctly. The nature and effect of an Inhibition and the procedure for creation and discharge thereof is explained correctly. The nature and effect of Adjudication and the procedure for creation and discharge thereof is explained correctly. RANGE STATEMENT The range for this outcome is fully expressed in the performance criteria. EVIDENCE REQUIREMENTS Written and/or oral evidence which indicates that the candidate can fulfil all the performance criteria. 4

5 OUTCOME 4. EXPLAIN THE PROCEDURE UNDER SCOTS LAW FOR THE RECOGNITION AND ENFORCEMENT OF NON SCOTTISH JUDGEMENTS PERFORMANCE CRITERIA The reciprocal functions of the Scottish courts in relation to United Kingdom non matrimonial civil judgements is explained correctly. The reciprocal function of the Scottish courts in relation to foreign non matrimonial civil judgements is explained correctly. RANGE STATEMENT The range for this outcome is fully expressed in the performance criteria. EVIDENCE REQUIREMENTS Written and/or oral evidence which indicates that the candidate can fulfil all the performance criteria. MERIT STATEMENT: To gain a pass in this unit, a candidate must meet the standards set out in the outcomes, performance criteria, range statements and evidence requirements. To achieve a merit in this unit, a candidate must demonstrate a superior or more sophisticated level of performance. In this unit this might be shown in the following ways: (c) recognising legal issues in complex situations; demonstrating breadth of knowledge of the relevant law; demonstrating clarity in the application of legal principles. ASSESSMENT In order to achieve this unit, candidates are required to present sufficient evidence that they have met all the performance criteria for each outcome within the range specified. Details of these requirements are given for each outcome. The assessment instruments used should follow the general guidance offered by the Scottish Qualifications Authority (SQA) assessment model and an integrative approach to assessment is encouraged. (See references at the end of support notes). 5

6 Accurate records should be made of the assessment instruments used showing how evidence is generated for each outcome and giving marking schemes and/or checklists, etc. Records of candidates achievements should be kept. These records will be available for external verification. SPECIAL NEEDS Proposals to modify outcomes, range statements or agreed assessment arrangements should be discussed in the first place with the external verifier. Copyright SQA 1998 Please note that this publication may be reproduced in whole or in part for educational purposes provided that: (i) (ii) no profit is derived from the reproduction; if reproduced in part, the source is acknowledged. 6

7 HIGHER NATIONAL UNIT SPECIFICATION SUPPORT NOTES Unit number: Unit title: BANKRUPTCY AND DILIGENCE SUPPORT NOTES: This part of the unit specification is offered as guidance. None of the sections of the support notes is mandatory. NOTIONAL DESIGN LENGTH: SQA allocates a notional design length to a unit on the basis of time estimated for achievement of the stated standards by a candidate whose starting point is as described in the access statement. The notional design length for this unit is 40 hours. The use of notional design length for programme design and timetabling is advisory only. PURPOSE This unit is designed to widen the candidate s knowledge of the procedures for enforcement of judgements and the Scots law of bankruptcy. CONTENT/CONTEXT Corresponding to Outcomes 1-3: 1. The principal current legislation is contained in the Bankruptcy (Scotland) Acts 1985 and Conditions for sequestration, including definition of apparent insolvency, petitions by debtor and qualification of creditors; registration of sequestration. Interim procedures; debtor s list of assets and liabilities. Statutory meetings; modified procedure under 1993 Act; recall of sequestration award. Role, powers and duties of permanent trustee; Vesting; gratuitous alienation and unfair preferences; ingathering and distribution of debtor s Estate; discharge of debtor. Duties of bankrupt including disqualifications. 2. The principal current legislation is contained in the Debtors (Scotland) (Act) Importance of distinction between heritable and moveable property, real and personal diligence; effects of diligence, nexus and litigiosity. 7

8 Personal diligence; poinding, goods poindable at common law and under statute; days of charge, execution and expiry of charge; execution of poinding, time limits, effect and procedure; valuation and redemption of poinded goods; reports to, and supervision by Sheriff; release and recall of poinding; warrant sale, location and procedure; report, distribution of proceeds; expenses. Types of arrestment, against debtor s property or in hands of third party; arrestment in execution, to found jurisdiction or on the dependence; types of assets, including debtor s goods, earnings, shares, bank and building society accounts, other funds in hands of third parties; service and effect of arrestment; recall of arrestment, including grounds and procedure; expenses. Diligence against earnings, 1987 Act including earnings arrestment, nature and effect; current maintenance arrestment, operation and termination thereof; conjoined arrestment orders, effect and operation thereof including scale of deductions. Limited scope of imprisonment for civil debt. 3. Real diligence; types of Inhibition - following decree, on dependence or document of debt; effect of inhibition, acquirenda and acquisita, effect on standard securities and floating charges; procedures for creation, bill and letters; warrant to inhibit, personal registers; discharge and recall of inhibition, payment of debt, procedural ineptitude, oppression; assignation of inhibitions. Adjudication against heritable property; effect of adjudication, completion of title; the legal ; creditors rights normally exclude power of sale; poinding of the ground. 4. The current law is mainly contained in the Civil Jurisdiction and Judgements Act APPROACHES TO GENERATING EVIDENCE Candidates should be encouraged to regularly study Law Reports and current professional journal (e.g. Scots Law Times, Current Law, Greens Weekly Digest) quality newspapers such as the Times, Scotsman and Herald and CD-Rom and electronic databases such as Lexis or Lawtel to note topical material relevant to the Course. The internet is an extremely useful source of relevant legal material. ASSESSMENT PROCEDURES Assessors are encouraged to use mythical case study material based on real life previously decided cases. REFERENCES 1. Guide to unit writing, SQA, 1993 (Code: A018). 2. Guide to assessment, SQA, 1993 (Code: B005). 3. Guide to certification, SQA, 1996 (Code: F025). 4. Notes for unit writers, SQA, 1995 (Code: A041). 8

9 For details of other SQA publications, please contact staff in the Sales and Despatch section (Tel: ) who can supply you with a copy of the publication list (Code: X037). Copyright SQA 1998 Please note that this publication may be reproduced in whole or in part for educational purposes provided that: (i) (ii) no profit is derived from the reproduction; if reproduced in part, the source is acknowledged. 9