Act of Sederunt (Rules of the Court of Session Amendment No. 7) (Judicial Factors) 1997

‘Application for appointment of judicial factor

61.2—(1) An application for the appointment of a judicial factor shall be made by petition.

(2) An application under section 9(5)(a) of the Act of 1995 (application by Accountant of Court for appointment of judicial factor to administer certain property of a child) shall be made by petition in Form 61.2; and Chapter 14 shall not apply as respects any such petition.

(3) A petition in Form 61.2 shall, after being lodged in the Petition Department and recorded in the Petitions Register but without appearing in the Motion Roll, be presented to the Lord Ordinary in court or in chambers; and he may—

(a) forthwith make the appointment sought; or

(b) make an order—

(i) for such intimation, service and advertisement of the petition as he considers appropriate; and

(ii) for a hearing, on such date as he may specify, as respects the petition.

(4) Without prejudice to the generality of paragraph (3)(b)(i), any order under that paragraph as to intimation may specify that Rule 16.4 shall not apply and that the Accountant of Court shall make intimation by post in such manner as the Lord Ordinary thinks fit.

(5) In rule 61.5 (intimation and service)—

(a) in paragraph (1), after the word ‘Court’ insert ‘(except where the petition is in Form 61.2)’; and

(b) at the end add—

“(4) After a petition for the appointment of a judicial factor is lodged in the Petition Department, the Clerk of Session in that department may (whether or not any order is made, or is competent, under rule 14.5(1)(a)) provide any interested party with details of the petition.”.

(6) In rule 61.13 (applications to encroach on capital)—

(a) for paragraph (3) substitute—

“(3) On receipt of such an application, the Accountant of Court—

(a) may, if the proposed encroachment does not exceed 5% of the capital value of the estate as at the date when application is first made under paragraph (1), consent to the application subject to such conditions as he thinks fit to impose; and

(b) if he is unable, or declines, to consent under sub-paragraph (a), shall—

(i) ordain the judicial factor to intimate, in accordance with paragraphs (5) and (6), the making of the application; or

(ii) ordain him to apply by note to the Lord Ordinary for special powers.”;

(b) in paragraph (5)—

“(i) for the words ‘(3)(a)’ substitute ‘(3)(b)(i)’; and

(ii) in sub-paragraph (b), at the end add ‘(other than a petitioner using Form 61.2)”; and

(c) in each of paragraphs (6) and (7), for the words ‘(3)(a)’ substitute ‘(3)(b)(i)’.

(7) In rule 61.14(3) (applications under section 2(3) of the Trusts (Scotland) Act 1961), for sub-paragraph (b) substitute—

“(b) any person who petitioned for the judicial factor to be appointed (except where the petition was in Form 61.2);”.