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Chamber and committees

Official Report: search what was said in Parliament

The Official Report is a written record of public meetings of the Parliament and committees.  

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Dates of parliamentary sessions
  1. Session 1: 12 May 1999 to 31 March 2003
  2. Session 2: 7 May 2003 to 2 April 2007
  3. Session 3: 9 May 2007 to 22 March 2011
  4. Session 4: 11 May 2011 to 23 March 2016
  5. Session 5: 12 May 2016 to 5 May 2021
  6. Current session: 12 May 2021 to 2 May 2025
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Displaying 1386 contributions

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Delegated Powers and Law Reform Committee

Judicial Factors (Scotland) Bill: Stage 1

Meeting date: 7 May 2024

Siobhian Brown

A judicial factor is a person who is appointed by the court, and I consider that there must be a formal process for bringing the office to an end. That would protect both the missing person who has returned and the judicial factor, who may be a family member. It is important that the formerly missing person can take over the management of their estate as quickly as possible, but it is also important that the actings of the judicial factor can be scrutinised and that they can be discharged of liability.

The bill provides an administrative process, overseen by the Accountant of Court, for the termination of the judicial factory. In most cases, that process would be used. Alternatively, the bill also provides persons “with an interest” with a route to

“apply to the court for distribution”

of the factory estate.

Delegated Powers and Law Reform Committee

Judicial Factors (Scotland) Bill: Stage 1

Meeting date: 7 May 2024

Siobhian Brown

That point has been raised with regard to missing persons. At this moment, our answer is no, but we are happy to consider it.

Delegated Powers and Law Reform Committee

Judicial Factors (Scotland) Bill: Stage 1

Meeting date: 7 May 2024

Siobhian Brown

Section 34 of the bill and the accompanying explanatory notes make it clear that the effect of the discharge is that

“the judicial factor is no longer ... accountable”

for what has taken place during the course of the judicial factory. As such, once the judicial factor is discharged, the Accountant of Court would not be able to investigate or report any misconduct under section 38. The SLC report is clear that, once the factor leaves office, that should

“end any obligation ... to account further to the estate or those representing it.”

To do otherwise would run the real risk of discouraging individuals from taking on the role, which was a point that the Accountant of Court made in her evidence to the committee last week.

Importantly, there are safeguards in place. Judicial factors are supervised by the Accountant of Court and are required to regularly submit accounts and report to her on the management of the estate. Before a judicial factor can be discharged, the accountant has to audit the final accounts and be satisfied that everything is in order.

Further, section 34 makes it absolutely clear that discharge has no effect on criminal liability. Both criminal liability and any civil liability that is connected to it continue after the discharge, which means that a judicial factor can still be held accountable, for example, if they have committed fraud in the course of the judicial factory.

Delegated Powers and Law Reform Committee

Judicial Factors (Scotland) Bill: Stage 1

Meeting date: 7 May 2024

Siobhian Brown

I am happy to take that away, and we will definitely consider it.

Delegated Powers and Law Reform Committee

Judicial Factors (Scotland) Bill: Stage 1

Meeting date: 7 May 2024

Siobhian Brown

Absolutely. We will take that away and consider it.

Delegated Powers and Law Reform Committee

Judicial Factors (Scotland) Bill: Stage 1

Meeting date: 7 May 2024

Siobhian Brown

That is fine.

Delegated Powers and Law Reform Committee

Judicial Factors (Scotland) Bill: Stage 1

Meeting date: 7 May 2024

Siobhian Brown

I do not see any difficulties with the report on serious misconduct by a solicitor acting as a judicial factor being sent to the Law Society, because my understanding is that, if there was a complaint, it would be sent to the Law Society in the first instance and then to the SLCC.

The Law Society advised my officials that, under the provisions of bill, if the accountant were to report serious misconduct by a solicitor, the Law Society would pass that on to the SLCC as a matter of practice, and there is nothing in the bill that would prevent the accountant from sending a copy of the report to the SLCC as well.

However, I will consider the matter further to see whether what would happen in practice could be more accurately reflected in the bill.

Delegated Powers and Law Reform Committee

Judicial Factors (Scotland) Bill: Stage 1

Meeting date: 7 May 2024

Siobhian Brown

Currently, if someone has a complaint against a judicial factor, they can raise that directly with the judicial factor or with the Accountant of Court, given the accountant’s supervisory role. That will continue under the bill, with the accountant being required to investigate any concerns in relation to judicial factors acting.

The bill also gives the accountant a power to issue directions to the judicial factor and, further, if the accountant concludes that there has been serious misconduct or material failure, they must refer the matter to the court to be dealt with. Most judicial factors are members of a regulated profession, and that is another way for complaints to be heard.

The committee has heard from a number of stakeholders, and there does not seem to be any support for a new complaints procedure to be set out in the bill. I consider the current approach to be a practical and sensible way to deal with complaints at the moment.

Does Michael Paparakis want to add anything?

Delegated Powers and Law Reform Committee

Judicial Factors (Scotland) Bill: Stage 1

Meeting date: 7 May 2024

Siobhian Brown

Yes. The Regulation of Legal Services (Scotland) Bill team is working on amendments with the Law Society and other MSPs to address that concern. I am comfortable that that bill will address the specific issue.

Delegated Powers and Law Reform Committee

Judicial Factors (Scotland) Bill: Stage 1

Meeting date: 7 May 2024

Siobhian Brown

I note that we recently hosted Lady Paton, who came here with people from all over the UK to show them around the Parliament. They were really impressed that we had the committee, which enables scrutiny of the proposals that are put forward. That is positive.