Moveable Transactions (Scotland) Act 2023 fee proposals consultation

1. The Scottish Parliament passed the Moveable Transactions (Scotland) Act 2023 (“the Act”) on 4 May 2023, with it receiving Royal Assent on 13 June 2023. This consultation contains details of the proposed statutory fee structure for the operation of the two new registers proposed by the Act and of the basis on which these are proposed. Views are sought on all of these proposals.

2. The Act reforms and modernises Scots law to make it easier for businesses and individuals to assign claims or raise finance using moveable property. Moveable property can include tangible things such as vehicles, livestock and machinery as well as intangible things such as intellectual property (patents, royalties etc.).

3. The Act provides for the creation of two new registers, the Register of Assignations (“RoA”) and the Register of Statutory Pledges (“RSP”).

4. The operation of both new registers will simplify and facilitate moveable transactions in Scotland:

• the ownership of debts and other obligations will be able to be transferred by registering the assignation in the RoA rather than by giving notice (intimation) to the debtor (although intimation will remain available); and
• physical moveable property, intellectual property and financial assets will be able to be used as security for loans by registering a Statutory Pledge in the RSP, removing the current need to transfer either possession of, or title to, the property to the creditor.

5. It is proposed that the two new registers will go live in Spring 2025.

6. The Act provides for both the RoA and RSP to be under the management and control of the Keeper of the Registers of Scotland (“the Keeper”).

7. Registers of Scotland (“RoS”) is a Scottish public body headed by the Keeper, who is a non-ministerial office-holder in the Scottish Administration and the Chief Executive of RoS. RoS' functions are to maintain the public registers for which the Keeper is statutorily responsible and make the information they contain publicly available.

8. Further information on how RoS operates is set out in its framework document.

9. RoS’ income is generated from charging fees for both statutory and non-statutory activity. Statutory activity is set out in legislation, primarily registering deeds and writs, but also includes provision of copies and extracts of registrations. Non-statutory activity includes the provision of information services and products based on the data held in the registers.

10. The Act contains a number of provisions requiring a fee to be paid to the Keeper on the occasion of certain events:

• upon making an application for registration in either register;
• upon making a correction application in the RSP under either S.96(1) or S.98(6));
• upon searching the record in either register; and
• upon requesting an Extract of an entry in either register.

11. The Act does not set out the fees that are to be charged for these events. The setting of all fees affecting any register under the management and control of the Keeper is a matter for Scottish Ministers. It is intended that Scottish Ministers will set the fees for the two new registers by Fees Order under the powers in S.110 of the Land Registration etc. (Scotland) Act 2012(“the LR Act 2012”), amending The Registers of Scotland (Fees) Order 2014 (as amended) (the 2014 Fees Order).

12. All responses received by the end of the consultation period will be considered by Scottish Ministers ahead of the Fees Order being laid before the Scottish Parliament. The Fees Order will come into force simultaneously with the two new registers going live.

Proposed Statutory Fee Structure

Cost-Neutral Registers

13. The Scottish Public Finance Manual sets out that the standard approach for setting charges and fees is full cost recovery (including services provided by one public sector organisation to another). It normally means recovering 3.5% return on capital.

14. Accordingly, fees for registration and searching events in the new registers must be set at such levels so as to allow full cost recovery of expected annual operational running costs from annual registration and search fee income received by RoS.

Operational Running Costs

15. It is expected that the two new registers will be online and automatic, with little need for manual intervention from RoS staff.

16. RoS estimate the joint operational running cost for the two new registers to be around £900,000 to £950,000 per annum.

17. RoS anticipate that these operational running costs will remain at broadly the same level on an ongoing basis but with increases to take account of inflation as time passes. RoS also consider that the largely automated nature of the registers should mean that changes in volume of applications should not impact on ongoing running costs.

Volume of Registration/Searches

18. A determination of the volume of registrations in, and searches of, the two new registers is an essential factor in determining the fees that will require to be charged in order to permit full recovery of operating costs and so render those registers cost-neutral. The Financial Memorandum that accompanied the Moveable Transactions (Scotland) Bill on introduction stated that fees would be set after soundings were taken from stakeholders on the likely usage of the registers.

19. RoS has engaged in detailed user research with a range of stakeholders, industry experts and academics, supplemented by a September 2021 UK Finance survey of potential usage and a similar September 2023 RoS survey, to estimate, as accurately as such research is able to allow, the expected annual use of the registers.

20. This research indicates that an annual volume of registration of 17,000 to 34,000 can be expected by end year 3. This is higher than the volume (5,000 to 15,000) predicted by the Scottish Law Commission in their Business Regulatory Impact Assessment (BRIA) that accompanied their 2017 draft Bill and is based on stakeholder concerns over accidental/unintended extinction of registered Statutory Pledges resulting from the acquiescence provisions of S.52 of the Act. Those concerns indicate that multiple registrations will be required for each Statutory Pledge constitutive document.

21. Additionally, this research indicates that there will be an average of 3 searches carried out for each registration.

Proposed Fee Regime

22. The fee regime now proposed by Scottish Ministers is in line with that originally proposed in the BRIA, with proposed registration fees being comparable with the lowest fees set for registration in the Land Register of Scotland. In setting the registration fees at this low rate, it is hoped that in addition to operating on a cost recovery basis, use of the new registers will be encouraged from the outset.

23. Where the Act provides for a fee to be charged for RSP correction, the Financial Memorandum identified an expectation that that fee would likely mirror the fee for registration in the register which is the subject of the correction application.

24. Scottish Ministers now consider that, in order to encourage correction behaviours, the fee for RSP correction should be lower than that for registration. This will reduce the potential for register inaccuracy due to extinguished entries still appearing on the register and avoid the potentially prejudicing effect of such extinguished Statutory Pledges on their granters, improving the utility and reliability of the register in the process.

25. Search fees for the RoA and RSP will mirror the ScotLIS search fee for the Keeper’s other registers at the date that both new registers go live.

26. Similarly, the fee for Extracts will mirror the modest fee charged for Extracts from all of the Keeper’s other extractable registers.

27. VAT will be applied to the proposed fees in line with the 2014 Fees Order, where applicable.

28. The following fees are therefore proposed:

Fees for Registration

29. Registration in the RoA will be limited to the sole instance of registration of an Assignation document (S.23(1)). Registration in the RSP will be slightly wider in scope, with registration being possible for both a Statutory Pledge document (S.86(1)) or an Amendment of a Statutory Pledge document which adds an additional asset(s) to the encumbered property and/or increases the extent of the financial obligation (S.88(1)).

• To register an Assignation document in the RoA – £80
• Where an Assignation document assigns different claims to different assignees - £80 for each claim for which registration is applied for.
• To register a Statutory Pledge document or an Amendment of Statutory Pledge document in the RSP – £80.
• Where a Statutory Pledge document creates more than one Statutory Pledge - £80 for each Statutory Pledge for which registration is applied for.
• Where an Amendment of Statutory Pledge document amends more than one RSP Record entry - £80 for each RSP Record entry amended.

Fees for Correction

30. The two new registers feature contrastingly different correction regimes.

31. Being a snapshot, “moment in time” register of assignation documents, there will be much less scope for supervening inaccuracies (inaccuracies which arise after initial registration) affecting the RoA.

32. An entry in the Assignations Record will be inaccurate where:

• the information included in an entry in the Record is inaccurate or incomplete;
• an entry in the Record does not include a copy of the assignation document;
• an entry in the Record does include a copy of the Assignation document but the copy is invalid; or
• an entry in the Record has been incorrectly removed from that Record.

33. Correction of the RoA will only be possible where either the courts determine that a Record entry is inaccurate and directs the Keeper to correct that entry (S.29(1)) or where the Keeper becomes aware of a manifest inaccuracy in the Record (S.29(2)), such as a typographical error, neither of which will incur a fee. Accordingly:

• For correction of the RoA under section 29(1) (correction by Court Direction) - £0.
• For correction of the RoA under section 29(2) (manifest inaccuracy correction by Keeper) - £0.

34. Contrastingly, as the RSP will be a register of rights, which rights will be able to be assigned, varied, discharged etc., there will be the need to provide for the correction of supervening inaccuracies affecting the RSP.

35. The Act provides for such events which legally take place off-register to be dealt with via correction, rather than registration, by providing that an entry in the RSP Record will be inaccurate where that Record entry misstates what the position is, in law or in fact, in relation to a Statutory Pledge.

36. To facilitate this, the correction regime for the RSP will feature four separate threads:

• For correction of the RSP under S.96(1) (correction by secured creditor) - £20 per record corrected.
• For correction of the RSP under S.98(6) (correction by correction demand) - £20 per record corrected.
• For correction of the RSP under S.100(1) (correction by court direction) - £0.
• For correction of the RSP under S.100(2) (manifest inaccuracy correction by the Keeper) - £0.

37. It will be possible for a secured creditor, when applying to register an Amendment of a Statutory Pledge in order to add an additional asset to the encumbered property and/or increase the extent of the financial obligation, to also correct the Record entry for that Statutory Pledge, for instance, to correct an error in the provider’s name or to remove an asset from the encumbered property.

38. Under the fee regime proposed, Amendment of a Statutory Pledge under S.88(1), being a registrable event, would attract a fee. Similarly, correction by a secured creditor under S.96(1) would also attract a fee (note that a secured creditor will not be able to use the S.98(6) correction demand approach and that both the S.100(1) court direction and S.100(2) manifest inaccuracy correction approaches will not attract a fee).

39. It is proposed, however, that an applicant for registration should not have to pay a separate correction fee for correcting an entry in the Record whilst carrying out a registration event affecting that entry. To do so would be to discourage secured creditors from maintaining the accuracy of the register. Accordingly:

• Where an applicant for registration of an Amendment of a Statutory Pledge under S.88(1) also corrects the Record under S.96(1) (correction by secured creditor) - £80 for each entry affected.

Rejections

40. It is proposed that the approach to rejection of both RoA and RSP registration applications and for the rejection of those RSP corrections for which the Act provides for a fee to be charged should mirror that approach currently taken by RoS for Land Register registration applications rejected under S.21(3) of the LR Act 2012) – in other words, no fee should be charged for such a rejection. Accordingly:

• Where an application for registration is rejected under either S.23(4) (Assignation), S.86(3) (Statutory Pledge) or S.88(3) (Amendment of Statutory Pledge), or any combination of same, the fee will be £0.
• Where an application for correction is rejected under either S.96(3) (correction by secured creditor) or S.99(2) (correction by correction demand), the fee will be £0.

Fees for Searches

41. It is proposed that the fees for searching either of the RoA or RSP through the Registers of Scotland online system (including a nil return) will mirror the ScotLIS search fee for the Keeper’s other registers as at the date that both new registers go live, which fee is currently £3 and is subject to review.

Fees for Extracts

42. It is proposed that the approach to charging for Extracts of Record entries of either the RoA or RSP should closely mirror that approach taken for the charging for Extracts of all of the Keeper’s other extractable registers by the 2014 Fees Order. Accordingly:

• Extract of an entry, or part of an entry, in the RoA or RSP Record - £35.
• Extract of an entry, or part of an entry, or of a document, or part of a document, from the RoA or RSP Archive Record - £35.

Fees for Plain Copies

43. The Act makes no provision for either the provision of, or the charging of a fee for, plain copies of either entries or documents for the RoA or RSP.

44. The 2014 Fees Order makes provision for a fee to be charged for a plain copy of recorded deeds in all of the Keeper’s searchable records. Additionally, in respect of the Land Register, the 2014 Fees Order makes provision for a fee to be charged for a plain copy of a Title Sheet, part of a Title Sheet and Title Plan, as well as for a document or part of a document in the Application Record or Archive Record.

45. Whilst entries and documents will be available to view as part of the online search fee for either register, RoS recognise the utility that the provision of plain copies has for some customers and stakeholders alike. Accordingly, it is proposed that a similar service be provided by the Keeper for the RoA and RSP and that the following fees should be charged for that service:

• Plain copy of an entry, or part of an entry, in the RoA or RSP Record - £25.
• Plain copy of an entry, or part of an entry, or of a document, or part of a document, from the RoA or RSP Archive Record - £25.
• Plain copy of a document issued at date of application for registration - £20.

Miscellaneous Fees

46. The 2014 Fees Order provides for an applicant to make a request for inspection of a register in respect of one entry (including response) for all of those registers under the management and control of the Keeper, with the exception of the Land Register and Sasine Register, and for a fee to be charged for this service. It is proposed that this service should be extended to the RoA and RSP. Accordingly:

• Request for inspection of one entry (including response) in either the RoA or RSP Record - £30.

Power to Vary Fees Between Fees Orders

47. Section 110(1)(c) of the LR Act 2012 enables the Keeper to vary, within limits, the fees charged for registration, recording, access to, and information made available from, for all of those registers under her management and control in between Fees Orders, with such limitations and conditions as Scottish Ministers may impose, as is specified by Fees Order.

48. It is proposed that this power should apply equally to the Keeper’s management and control of the RoA and RSP as to her other registers and that this power should therefore be expressed as plus or minus a maximum of £10 in the Fees Order.

49. This power would enable the Keeper to respond quickly to dramatic changes to the market or unexpected consequences from the Act, allowing her to take necessary action to either prevent or mitigate against incurring material damage to her financial position as a result of her operation of the two new registers or to reduce fees in response to significantly higher than expected volumes of registration.

50. This power would only be used after consulting with Scottish Ministers and with the provision of three months’ notice to customers. Accordingly:

• The Keeper will have the power to vary RoA and RSP fees between Fees Orders, up to a maximum of £10.

Footnotes

1. By The Registers of Scotland (Voluntary Registration, Amendment of Fees, etc.) Order 2015) and The Registers of Scotland (Fees) Amendment Order 2021) (the 2014 Fees Order) ↩
2. At paragraph 43.↩
3. At paragraph 62.↩