Part 1

Appointment of judicial factor

Appointment of judicial factor

Appointment of judicial factor
1
1
The court may, on the application of an interested person (“the applicant”), appoint a judicial factor on an estate if the court considers that the conditions for appointment set out in section 4 are satisfied.
2
Where an application is made for the appointment of a judicial factor under subsection (1), the applicant must intimate the application without delay to every person who, so far as the applicant is able to ascertain after reasonable enquiry, has an interest in the estate.
3
The court may appoint a judicial factor on an estate in the course of proceedings connected to that estate—
a
either—
i
at its own instance, or
ii
on the motion of a party who is an interested person, and
b
if the court considers that the conditions for appointment set out in section 4 are satisfied.
4
Where the court is minded to appoint a judicial factor under subsection (3)(a)(i), the clerk of court must, before the appointment is made, intimate that fact without delay to every person who the court considers has an interest in the estate.
5
Where a motion is made for the appointment of a judicial factor under subsection (3)(a)(ii), the party making the motion must intimate the motion without delay to every person who—
a
so far as the party is able to ascertain after reasonable enquiry, has an interest in the estate, and
b
has not been notified of the motion by virtue of any applicable rules of court.
6
The court may dispense with the requirement to intimate a matter, in whole or in part—
a
under subsection (2) or (5) on cause shown,
b
under subsection (4) where the court considers such dispensation to be appropriate.
7
In this section and in section 3, “interested person” means any person who the court is satisfied has an interest in the appointing of a judicial factor on the estate to which the application relates.
8
In this Act, “the court” means—
a
the Court of Session,
b
the sheriff—
i
of a sheriffdom in which a part comprising at least one fifth of the value of the estate is situated,
ii
of a sheriffdom in which the applicant, or any person with an interest in the estate, is habitually resident,
iii
where the application relates to the estate of a person other than an individual, of a sheriffdom in which the person’s registered office is situated or in which the person has a place of business,
iv
where none of sub-paragraph (i) to (iii) applies, of the sheriffdom of Lothian and Borders sitting at Edinburgh.

Appointment of judicial factor: charities
2
1
Where an application is made under section 1(1) for the appointment of a judicial factor on the estate of a charity, the applicant must without delay—
a
intimate the application to the Office of the Scottish Charity Regulator (“OSCR”) (unless the applicant is OSCR), and
b
give notice that an application has been made to the general public by way of advertisement.
2
Where the court is minded under section 1(3)(a)(i) to appoint a judicial factor on the estate of a charity, the clerk of court must, before the appointment is made and without delay—
a
intimate that fact to OSCR, and
b
give notice of that fact to the general public by way of advertisement.
3
Where a motion is made under section 1(3)(a)(ii) for the appointment of a judicial factor on the estate of a charity, the party making the motion must without delay—
a
intimate the motion to OSCR (unless that party is OSCR), and
b
give notice that a motion has been made to the general public by way of advertisement.
4
The court may dispense with the requirement to give notice—
a
under subsection (1)(b) or (3)(b) on cause shown,
b
under subsection (2)(b) where the court considers such dispensation to be appropriate.

Interim judicial factor

Interim judicial factor
3
1
The court may appoint an interim judicial factor on an estate if it considers it necessary or expedient to do so, pending the determination of—
a
an application for appointment under section 1(1), at its own instance or on the motion of the applicant,
b
a motion for appointment under section 1(3)(a)(ii), at its own instance or on the motion of a party who is an interested person.
2
The provisions of this Act apply in relation to an interim judicial factor appointed under subsection (1) as they apply to a judicial factor, except and to the extent that—
a
the context requires otherwise,
b
the court, when appointing the interim judicial factor, specifies otherwise.
3
The Accountant must keep under review the progress of any interim judicial factory.

Conditions and qualification for appointment

Conditions for appointment of judicial factor
4
1
The conditions for appointment of a judicial factor are—
a
there is an estate which—
i
requires to be managed, or
ii
in relation to which actings are required, and
b
at least one of the following applies—
i
it is not possible, practicable or sensible for that management or those actings to be carried out by the person who would ordinarily be responsible for carrying them out,
ii
it would be to the advantage of the estate for a judicial factor to be appointed to carry out that management or those actings.
2
In this section, “actings” includes such actions as may be required to hold, administer, or protect an estate for the benefit of persons with an interest in it.

Qualification for appointment as judicial factor
5
1
A person may be appointed as a judicial factor only if the person is—
a
an individual,
b
of full legal capacity, and
c
in the opinion of the court to which it falls to make the appointment, a suitable person to hold the office.
2
A person domiciled outside of Scotland, who is appointed as a judicial factor under this Act, prorogates the jurisdiction of the Scottish courts by accepting the appointment.

Caution

Finding of caution
6
1
The court, when appointing a person as a judicial factor, may require the person to find caution for the performance of that person’s functions as judicial factor.
2
The court may impose a requirement under subsection (1) only where it considers that exceptional circumstances make it reasonable to do so.
3
The Accountant—
a
must specify the amount of caution to be found, and
b
may at any time while the judicial factory subsists—
i
require the person to find new, or additional, caution, or
ii
authorise a reduction in the amount of caution to be found.

Intimation and recording of notice of appointment

Intimation and recording of notice of appointment
7
1
Where a judicial factor is appointed, the clerk of court must, as soon as reasonably practicable after the date on which the interlocutor containing the order for the appointment of the judicial factor (“the appointing interlocutor”) is pronounced—
a
intimate the appointment to the Accountant, and
b
subject to subsection (2), send the notice of appointment to the Keeper of the Register of Inhibitions (“the Keeper”) for recording in that register.
2
Where the court has imposed a requirement to find caution, the clerk of court must not send the notice to the Keeper under subsection (1)(b) unless the Accountant has confirmed that the requirement has been satisfied.
3
Notice under subsection (1)(b) must specify an address at which service of documents may be effected on the judicial factor.
4
The judicial factor must, without delay—
a
re-send the notice of appointment to the Keeper for re-recording in the Register of Inhibitions at the expiry of the period of 5 years after the date on which the notice of appointment was recorded, and at the expiry of each subsequent period of 5 years, until such time as the appointment has been recalled, and
b
notify the Accountant on each occasion that such re-recording is effected.
5
Any fee payable by virtue of subsection (1)(b) or (4)(a) is to be met from the factory estate.

Review of appropriateness of recording in the Register of Inhibitions
8
1
The Scottish Ministers—
a
must from time to time review the continuing appropriateness of recording of notices of appointment of judicial factors in the Register of Inhibitions, and
b
may by regulations specify that such notices are to be recorded or registered instead in—
i
an existing register,
ii
a register of judicial factories.
2
Where regulations under subsection (1) specify that notices are to be recorded or registered in an existing register, the regulations must make such provision as is necessary to allow the register to be used for the recording or registration of notices of appointment of judicial factors.
3
Where regulations under subsection (1) specify that notices are to be recorded or registered in a register of judicial factories, the regulations—
a
must establish a register of judicial factories,
b
may confer the duty of maintaining the register on a person,
c
may specify—
i
the manner in which the register is to be kept,
ii
the information which the register is to contain,
d
may make provision about—
i
the extent to which the information in the register is to be made available to the public,
ii
the circumstances in which certain information contained in the register can be withheld from the public,
iii
any fees payable in relation to the register,
iv
such other matters as the Scottish Ministers consider appropriate.
4
Regulations under subsection (1)—
a
may make incidental, supplementary, consequential, transitional, transitory or saving provision,
b
may modify any enactment (including this Act),
c
are subject to the affirmative procedure.

Vesting of estate in judicial factor

Vesting of estate in judicial factor
9
1
The whole estate on which a judicial factor is appointed vests in the judicial factor (in that person’s capacity as judicial factor)—
a
on the date on which the appointing interlocutor is pronounced (“the appointment date”), or
b
where the court has imposed a requirement to find caution, on the date on which the Accountant confirms to the court and the judicial factor in writing that the requirement has been satisfied.
2
Subsection (3) applies where a judicial factor is appointed on the estate of a solicitor under section 41 of the Solicitors (Scotland) Act 1980.
3
Unless the court specifies otherwise when appointing the judicial factor, the estate vesting under subsection (1) includes all property held by the solicitor in a fiduciary capacity, including—
a
sums at the credit of any client account, or
b
property held other than in the solicitor’s professional capacity.

Warrant to intromit with estate

Warrant to intromit with estate
10
1
The clerk of court must issue to the judicial factor a certified copy of the appointing interlocutor without delay following the appointment date.
2
The certified copy is the judicial factor’s warrant to intromit with the estate to which the appointment relates.
3
Where the court has imposed a requirement to find caution, the clerk of court must not issue a certified copy under subsection (1) unless the Accountant has confirmed that the requirement has been satisfied.

Remuneration and reimbursement of judicial factor

Remuneration and reimbursement of judicial factor
11
1
A judicial factor may be remunerated from the factory estate for carrying out the functions of judicial factor.
2
The Accountant must—
a
after such consultation as appears to the Accountant to be appropriate, fix rates for the remuneration of judicial factors,
b
after consultation with each judicial factor, determine the frequency with which that judicial factor is to be remunerated.
3
Different rates may be fixed—
a
for different kinds of work,
b
for different circumstances,
c
in relation to interim judicial factors.
4
The Accountant must review the rates fixed under subsection (2)(a)—
a
before the expiry of the period of 1 year beginning with the date on which they are fixed, and
b
thereafter, from time to time (but in each case no later than the expiry of the period of 1 year beginning with the date of the previous review).
5
The Accountant may fix a rate of remuneration for a particular judicial factor other than by virtue of subsections (2) to (4).
6
A judicial factor may appeal to the court which appointed the judicial factor in respect of—
a
the amount of the remuneration paid to the judicial factor,
b
a determination of the Accountant under subsection (2)(b).
7
The decision of the court in an appeal to it under subsection (6) is final and is conclusive against both the Accountant and the judicial factor.
8
A judicial factor may be reimbursed for any outlays reasonably incurred in the carrying out of the functions of judicial factor—
a
from the factory estate,
b
as and when those outlays are incurred.

Guidance about the appointment of judicial factors on the estates of missing persons

Guidance about the appointment of judicial factors on the estates of missing persons
12
1
The Scottish Ministers must issue guidance about the appointment of judicial factors on the estates of missing persons under section 1.
2
The Scottish Ministers may review and revise guidance issued under subsection (1).
3
The Scottish Ministers must, as soon as practicable after issuing—
a
guidance under subsection (1),
b
revised guidance under subsection (2),
publish the guidance in such manner as they consider appropriate (which may include the guidance being published as part of another document).
S. 1 not in force at Royal Assent, see s. 54(2)
S. 2 not in force at Royal Assent, see s. 54(2)
S. 3 not in force at Royal Assent, see s. 54(2)
S. 4 not in force at Royal Assent, see s. 54(2)
S. 5 not in force at Royal Assent, see s. 54(2)
S. 6 not in force at Royal Assent, see s. 54(2)
S. 7 not in force at Royal Assent, see s. 54(2)
S. 8 not in force at Royal Assent, see s. 54(2)
S. 9 not in force at Royal Assent, see s. 54(2)
S. 10 not in force at Royal Assent, see s. 54(2)
S. 11 not in force at Royal Assent, see s. 54(2)
S. 12 not in force at Royal Assent, see s. 54(2)