Chamber and committees

I consider that an additional power that would allow judicial factors to seek directions from the court is not necessary, given the nature of the office and the fact that there are other options available.

Judicial factors accept offers on the understanding that they are there to use their judgment, take professional advice where appropriate and make decisions in relation to the estate. If they have any doubts as to whether they have the necessary powers to take a particular course of action, they can apply to the court for additional powers under section 11 of the bill. That can be done at any time after the initial appointment.

While the court directions might be useful in respect of trust estates and executries, that is because there is no equivalent to the Accountant of Court, and the only option is to go to court. Judicial factors, on the other hand, are supervised by the Accountant of Court, and if they are unsure about what they should or can do, they should consult the Accountant of Court and agree on a way forward. As such, I do not think that we need to add another route for directions, in particular as that would add a significant cost to the factory estate, given that seeking directions from the court comes with court fees and legal expenses. Before the committee reaches any conclusion on the issue, however, I urge you to seek the views of the Lord President in that regard.

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.

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

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.

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

Absolutely. We will take that away and consider it.

That is fine.

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.

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?

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.