Whilst in practice it is still relatively rare for directors to face personal liability – its potential should not be ignored. Examples of where personal liability may arise include the following:

Fraudulent/Wrongful Trading

Under the Insolvency Act 1986:

A director is liable for trading for a fraudulent purpose or for money or property that has been misapplied and may be liable for debts of a liquidated company if the director knew or ought to have concluded that there was no reasonable prospect of the company

Are you a charity? Are you aware of the changes which are coming into force as of 1 April 2024?

As from 1 April 2024, various elements of the Charities (Regulation and Administration) (Scotland) Act 2023 will be coming into force and will include:

• OSCRs increased inquiry powers;
• OSCR being able to remove charities that fail to submit accounts and fail to communicate with OSCR; and
• OSCR refusing a charitable application where there is no clear connection to Scotland.

 A brief summary of these

Scots Law has always had problems in providing creditors with fixed security (i.e. a security ranking prior to all other claims) over assets other than land. Examples include:

• Security over physical assets such as vehicles, plant machinery and stock (corporeal movables).
• Security over intangible assets such as intellectual property rights and shares (incorporeal movables).
• Security over obligations by third parties to the borrower - primarily, through trade credit (claims).

That is because:

a) Physical assets can only be secured if they are in the creditor’s

The Charities (Regulation and Administration) (Scotland) Bill is designed to provide a series of practical improvements to problems which have arisen since the coming into force of the Charities and Trustee Investment (Scotland) Act 2005.

Key changes are:

Information held by OSCR

A criticism often been levelled at Scottish charity legislation is the paucity of publicly available information on the OSCR website. The Bill proposes to remedy this by requiring OSCR to make publicly available:

a) Statements of accounts for all charities together with independent

A Trust is an unincorporated entity set up to hold property to be used solely for charitable purposes.  Just how do you go about establishing a charitable trust? 

The main characteristics of a Trust are as follows:

1.         It is simple to set up

2.         The Trust Deed (which is the governing document of the Trust) will identify the individuals who are the trustees responsible for the control and management of the Trust and its assets. The powers and duties of the Trust are set

What are the letterhead requirements for companies and charities? Could you as an individual and/or the company/charity face possible prosecution and a fine of up to £1,000 with further fines of £100 per day being imposed?

Under the Companies Act 2006, a company registered with Companies House must include their company's registered name (as it appears on the company's certificate of incorporation) in all its business letters, order forms and websites, whether in hard copy or electronic, including:

• Notices and other official publications business

Charities may be aware that Office of the Scottish Charity Regulator (OSCR) are asking all charities to report Notifiable Events. Whilst there is no legal requirement to report an event, OSCR are keen to encourage charities to report to them when there has been a significant event which may or may not have a negative impact on an individual charity or the wider charity sector.

Types of notifiable events can be as follows:-

• Fraud and theft
• Significant financial loss
• Incidents of abuse or mistreatment of

You may be aware of the Office of the Scottish Charity Regulator (OSCR) updates that involved a request for all charities to report Notifiable Events. Whilst there is no legal requirement to report an event, OSCR are keen to encourage charities to report to them when there has been a significant event which may or may not have a negative impact on an individual charity or the wider charity sector.

Types of notifiable events can be as follows:-

• Fraud and theft
• Substantial financial loss
• Incidents

The Community Empowerment (Scotland) Bill proposes amending Part 2 of the Land Reform (Scotland) Act 2003 which will enable certain bodies to buy abandoned or neglected land and to make such land work for the benefit of the community.

The Bill will allow communities to identify any public sector land or buildings that they feel they could make better use of with a view to strengthening community participation, community empowerment and encouraging community development.

There will also be new duties for community planning so that

A Trust is an unincorporated entity set up to hold property to be used solely for charitable purposes. So what is a Scottish charitable trust?

The main characteristics of a Scottish charitable trust are as follows:

1.  It is simple to set up.

2.  The Trust Deed (which is the governing document of the Trust) will identify the individuals who are the trustees responsible for the control and management of the Trust and its assets. The powers and duties of the Trust are set out

The Office of the Scottish Charity Regulator (OSCR) has the power to apply the charity test as defined in the Charities and Trustee Investment (Scotland) Act 2005 to review the charitable status of charities listed on the register. Does your organisation pass the charity test?

The five functions of OSCR as specified in law are to:

1. decide which bodies are?charities
2. keep an accurate Register?of charities
3. encourage, monitor and?facilitate compliance
4. identify and investigate apparent misconduct
5. inform and advise Scottish?Ministers

To maintain charitable status, charities must continue

The Office of the Scottish Charity Regulator (OSCR) were made aware of reports in the press about an alleged high value severance package agreed by the charity trustees of Glasgow East Regeneration Agency for the charity's Chief Executive when he was made redundant. What are the duties of charity trustees in Scotland?

OSCR's regulatory functions are set out in the Charities and Trustee Investment (Scotland) Act 2005 (the Act) and include the requirements to encourage, facilitate and monitor compliance by charities and to identify and

The case of Glasgow Rent Deposit & Support Scheme against Glasgow City Council and Ypeople (decided on 6 December 2012) highlights the court's reluctance to delay a contract award because of an alleged breach of the procurement regulations where this would be detrimental to the public interest.

GCC tendered for a service providing increased access to housing for the homeless and specifically the provision of a deposit guarantee scheme and temporary furnished accommodation. The pursuer raised the action and asked that the decision to award

Using Procurement to deliver Living Wage - public bodies are increasingly under pressure to get the most out of their procurement processes, including addressing social and economic challenges.

The Scottish Living Wage Campaign aims to ensure that all employers in the public, private and voluntary sectors pay their workers no less than the Scottish Living Wage.

• The living wage is higher than the national minimum wage,
• It is set at a level that the Campaign considers to be the minimum income that households need to

As at 1 November 2012, the Charities Restricted Funds Re-organisation (Scotland) Regulations 2012 came into effect. Do you know what a restricted fund is and what it means for your charitable organisation?

The Regulations define 'restricted fund' as property (including money) given to a charity for a specific purpose and in respect of which conditions have been imposed as to its use?.

Examples as provided by the Office of the Scottish Charity Regulator (OSCR) of such restricted funds are:-

• A charity receiving a sum of

HMRC published for consultation the draft regulations for The Gift Aid Small Donations Scheme (GASDS). Consultation will end on 5 December 2012.

It is intended that under the scheme all qualifying charities and community amateur sports clubs (CASCs) will be able to claim a top-up payment which is equivalent to Gift Aid on small cash donations totalling up to £5,000 per year, without the need for individual Gift Aid declarations.

The present system of Gift Aid is a simple way for your charity to increase

What are Procurement Contract Award Notice Requirements? Registered Social Landlords (RSLs) and other public bodies must go through a legally compliant procurement process prior to awarding a contract for works, supplies or services. This process is set down in the Public Contracts (Scotland) Regulations 2012. It is easy for public bodies to get caught up ensuring that the selection process is compliant and forget that, once this process is complete and the successful party has been identified, the method of informing interested parties of the

The Government has opened a consultation on their proposed Community Empowerment and Renewal Bill. It is an open consultation and the Bill will be drafted in light of the responses received.

Current Law

Currently a rural community with a population of less than 10,000 can register an interest in a piece of land and be given the first opportunity to buy it if it comes up for sale; as long as the community is able to demonstrate:-

• community support for the purchase; and
• positive economic,

We are often asked by charities: what legal status do volunteers have? And how they should be recruited? It's increasingly common for school leavers and the unemployed to undertake volunteering to boost their CVs.

Although volunteers aren't covered by discrimination legislation it's sensible to adopt the same recruitment practices as paid employees, including a robust paper trail documenting every decision made in the process:

• from shortlisting;
• to interview notes; and
• the offer.

Decisions should be recorded clearly and in an objective manner to minimise disputes

Have you considered if it is time to reorganise your charity's constitution? Does your charity's constitution enable the charity trustees to:

- make changes to keep it relevant or,

- whether it is so outdated that the charity can no longer be true to its original spirit.

Charities with an outdated constitution may find that they are unable to make proper use of their charitable funds.

Registered charities must seek the prior consent of OSCR before making the following fundamental changes:-

1. Changing the charity's name