Kenneth Young

Under s.113 of the Bankruptcy (Scotland) Act 2016, a trustee in sequestration requires either relevant consent, or the authority of the sheriff to sell the family home. In this case, a defender wished to withdraw the consent given in written form because her circumstances had subsequently changed.

After hearing parties, the sheriff held that the word “consent” was used in its plain and ordinary meaning in s.113. The court considered that in the ordinary course of business and life, consent is capable of being withdrawn and there is no general rule of law which treats consent as binding and irrevocable. Further, there was nothing additional in the forms signed by the consentor which prevented that consent from being withdrawn.

The court did not accept that any special form is required to withdraw consent under s.113; all that is required is that it is communicated to the trustee. In this instance it was communicated in the pleadings of the case, which was sufficient. That was held to be consistent with there being no requirement in the Act for the consent itself to be provided in any special form.

The court heard argument on the purpose that Parliament had in enacting s.113. It was argued for the trustee that a power to withdraw consent could be misused by a Machiavellian consentor to frustrate a sale. However, the court recognised that there will be people who seek, for good reason, to withdraw consent (for example, to protect a young child or spouse from hardship).

The court reasoned that if consent could not be withdrawn then there would be no clear remedy for those people. However, it was recognised that there is an existing remedy for a trustee who finds himself dealing with a consentor who seeks to frustrate the sale. Such a trustee can, in those circumstances, seek the authority of the court to sell the family home or obtain vacant possession. The trustee’s motion for decree of removal was refused.