Accountant in Bankruptcy spend on external legal advice: FOI release

Information requested

The total spend, broken down by financial or calendar year, on external legal advice since April 1, 2020. (i.e. 2020/21, 2021/22, 2022/23 to date)

1a) Please break this down by the list of associated cases or disputes, and their individual cost.

1b) If possible, please provide the final settlement or damages or other court mandated payment cost for any cases during which external legal advice was sought. If it is not possible to link each case to a settlement agreement, please provide the total cost of the settlements or payments.

Response

I enclose a copy of some of the information you requested.
Question 1
The answer is shown below

Year	Total (£)
2020/21	25,407.84
2021/22	21,968.04
2022/23	13,384.80 (To 30/11/22)

The information given in the table above has been collated from information held on our finance system for invoices that are categorised as legal advice. There may be other occasions where advice has been obtained but has not been specifically categorised as advice as other work has also been undertaken. 

Under section 12 of FOISA public authorities are not required to comply with a request for information if the authority estimates that the cost of complying would exceed the upper cost limit, which is currently set at £600 by Regulations made under section 12.

The time it would take to manually query each invoice for the relevant information has been estimated and multiplied by the total number of invoices received in the specified date ranges.

The number of invoices that would require to be checked was 1,176 * x 20 minutes per invoice = 393 hours x £25 per hour = £98,800.00.
*2020/21 - 485 invoices
2021/22 - 424 invoices
2022/23 - 267 invoices

You may, however, wish to consider reducing the scope of your request in order that the costs can be brought below £600. For example, you could specify a specific date period you are interested in, as this would allow us to limit the searches that would require to be conducted. However, due to the amount of time required to check each invoice, we may be unable to provide meaningful data below the cost limit as we would only be able to search 72 cases. You may also find it helpful to look at the Scottish Information Commissioner’s ‘Tips for requesting information under FOI and the EIRs’ on his website at: http://www.itspublicknowledge.info/YourRights/Tipsforrequesters.aspx.

Question 1a)
Legal advice may be obtained by the Accountant in Bankruptcy (AiB) for the following reasons:
1. The general functions relating to section 200 (Supervisory functions of the Accountant in Bankruptcy) of the Bankruptcy (Scotland) Act 2016 [The Bankruptcy Act] or functions relating to regulations produced by Scottish Ministers for the Debt Arrangement Scheme;

(ii) the functions relating to the administration of a bankruptcy where AiB is appointed as trustee.
The answer is shown below:

Topic of advice (2020 / 2021)

Legal advice regarding wet signatures on documents

General legal advice, trust deed.

The information given in the table above relates to point (i) above.

The information given in the table above has been collated from information held on our finance system for invoices that are categorised as legal advice. There may be other occasions where advice has been obtained but has not been specifically categorised as advice as other work has also been undertaken.

Under section 12 of FOISA public authorities are not required to comply with a request for information if the authority estimates that the cost of complying would exceed the upper cost limit, which is currently set at £600 by Regulations made under section 12.

The time it would take to manually query each invoice for the relevant information has been estimated and multiplied by the total number of invoices received in the specified date ranges.

The number of invoices that would require to be checked was 278 * x 20 minutes per invoice = 92 hours x £25 per hour = £2,300.00.
*2020/21 - 119 invoices
2021/22 - 107 invoices 
2022/23 - 52 invoices

You may, however, wish to consider reducing the scope of your request in order that the costs can be brought below £600. For example, you could specify a specific date period you are interested in, as this would allow us to limit the searches that would require to be conducted. You may also find it helpful to look at the Scottish Information Commissioner’s ‘Tips for requesting information under FOI and the EIRs’ on his website at: http://www.itspublicknowledge.info/YourRights/Tipsforrequesters.aspx.

While our aim is to provide information whenever possible, in this instance we are unable to provide some of the information you have requested because exemptions under sections 26(a) and 33(1)(b) of FOISA applies to your request. 

An exemption under section 26(a) of FOISA (disclosure prohibited by an enactment) applies to your request in relation to point (ii) above because section 210(1) of the Bankruptcy (Scotland) Act 2016 [the Bankruptcy Act] prohibits the disclosure of this
information as it states only an interested party is allowed to view a sederunt book.

Information relating to the reason for legal advice would not be contained within a sederunt book produced for a bankruptcy case. The costs relating to any legal advice would be contained within the accounts, which are held within the sederunt book. However, you would not be considered an interested party and therefore this information is exempt.

This exemption is not subject to the ‘public interest test’, so we are not required to consider if the public interest in disclosing the information outweighs the public interest in applying the exemption.

An exemption under section 33(1)(b) of FOISA (commercial interests) applies to the costs relating to point (i) above. This exemption applies because disclosure of this particular information would, or would be likely to, prejudice substantially the commercial interests of our contracted supplier as disclosing this information would be likely to give their competitors an advantage in future similar tendering exercises, which would substantially prejudice their ability to submit competitive tenders and so could significantly harm their commercial business,

This exemption is subject to the ‘public interest test’. Therefore, taking account of all the circumstances of this case, we have considered if the public interest in disclosing the information outweighs the public interest in applying the exemption. We have found that, on balance, the public interest lies in favour of upholding the exemption. We recognise that there is a public interest in disclosing information as part of open and transparent government, and to help account for the expenditure of public money. However, there is a greater public interest in protecting the commercial interests of companies which tender for Accountant in Bankruptcy contracts, to ensure that we are always able to obtain the best value for public money. 

Question 1b)
In relation to point (i) for question 1a) no final settlement, damages or other court mandated payment has been received. 

While our aim is to provide information whenever possible, in this instance we are unable to provide some of the information you have requested because an exemption under section 26(a) FOISA applies to your request.

An exemption under section 26(a) of FOISA (disclosure prohibited by an enactment) applies to your request because section 210(1) of the Bankruptcy Act prohibits the disclosure of this information.

Information relating to final settlement, damages or other court mandated payment would be contained within the accounts which are held within the sederunt book. Section 210(1) of the Bankruptcy Act only allows interested parties to the view the sederunt book relating to a case and you would not be considered an interested party.

This exemption is not subject to the ‘public interest test’, so we are not required to consider if the public interest in disclosing the information outweighs the public interest in applying the exemption.

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