Judicial Factors (Scotland) Act 2025

Prospective

Part 5 S Accountant of court

Accountant of Court and Depute Accountant S

38 Accountant of Court: appointment, remuneration and fees S

(1) The Scottish Courts and Tribunals Service (“the SCTS”) may appoint a person to the office of Accountant of Court only if the person is, in the opinion of the SCTS, appropriately qualified or experienced in law and accounting.

(2) The Scottish Ministers—

(a) must from time to time review the criteria to be taken into account by the SCTS in appointing a person to the office of Accountant of Court under subsection (1),

(b) may, by regulations, change the criteria if the Scottish Ministers consider it appropriate to do so.

(3) Regulations under subsection (2)—

(a) may modify any enactment (including this Act),

(b) are subject to the affirmative procedure.

(4) Except as provided by any other enactment, the Accountant may not hold any other office.

(5) The SCTS may pay the Accountant such remuneration as the SCTS determines for carrying out the role of Accountant, and the Accountant is not entitled to receive any other remuneration in relation to the carrying out of that role.

(6) The Accountant must charge a fee for anything done by the Accountant in connection with the Accountant’s functions under this Act.

(7) Fees charged under subsection (6) must—

(a) be sufficient to cover any outlays reasonably incurred by the Accountant in connection with the Accountant’s functions under this Act,

(b) other than fees charged under section 46(2), be met from the factory estate.

(8) Any sum received by the Accountant other than as remuneration, including any sum received by virtue of subsection (6), is to be accounted for in such manner as the SCTS may direct.

(9) The Accountant may waive the right to recover a particular fee charged by virtue of subsection (6) if satisfied that it is unlikely to be recovered.

Commencement Information

I1 S. 38 not in force at Royal Assent, see s. 54(2)

39 Depute Accountant S

(1) The SCTS may appoint a Depute Accountant to carry out the functions of the Accountant during any period when the Accountant is unable to do so, on such terms and conditions as the SCTS may determine.

(2) A person may be appointed to the office of Depute Accountant only if the person is, in the opinion of the SCTS, appropriately qualified or experienced in law and accounting.

(3) The Scottish Ministers—

(a) must from time to time review the criteria to be taken into account by the SCTS in appointing a person to the office of Depute Accountant under subsection (1),

(b) may, by regulations, change the criteria if the Scottish Ministers consider it appropriate to do so.

(4) Regulations under subsection (3)—

(a) may modify any enactment (including this Act),

(b) are subject to the affirmative procedure.

(5) During the period mentioned in subsection (1)—

(a) the functions of the Accountant are to be carried out instead by the Depute Accountant,

(b) anything that falls to be done in relation to the Accountant falls instead to be done in relation to the Depute Accountant.

Commencement Information

I2 S. 39 not in force at Royal Assent, see s. 54(2)

General function of Accountant of Court S

40 General function of Accountant of Court S

(1) The Accountant must—

(a) supervise the performance by judicial factors of the functions conferred on them by—

(i) this Act,

(ii) any other enactment,

(iii) any rule of law,

(b) seek to ensure that judicial factors observe such legal requirements and guidance as affect that performance.

(2) The Accountant may instruct a judicial factor as to the manner in which that person is to carry out the functions of judicial factor.

Commencement Information

I3 S. 40 not in force at Royal Assent, see s. 54(2)

Misconduct or failure of judicial factor S

41 Misconduct or failure of judicial factor S

(1) Subsection (2) applies where the Accountant has reason to believe that a judicial factor—

(a) has engaged, or is engaging, in misconduct,

(b) has failed, or is failing, to discharge a duty, or

(c) has failed, or is failing, to comply with an instruction given under section 40(2).

(2) The Accountant must—

(a) make such inquiries into the matter as the Accountant considers appropriate,

(b) give the judicial factor an opportunity to make representations in relation to the matter.

(3) Subsection (4) applies where, having made inquiries under subsection (2), the Accountant is satisfied that there is, or has been, serious misconduct or material failure on the part of the judicial factor.

(4) The Accountant must report the misconduct or failure—

(a) to the court which appointed the judicial factor, and

(b) if the judicial factor is a member of a professional body—

(i) to that body, or

(ii) where another person deals with complaints made in relation to members of that professional body (whether by virtue of enactment or administrative arrangements to that effect), to that person.

(5) A court which receives a report under subsection (4)(a)—

(a) must give the judicial factor an opportunity to make representations before it disposes of the matter,

(b) may dispose of the matter in whatever manner it considers appropriate.

(6) A disposal by the court under subsection (5)(b)—

(a) is final and is conclusive against both the Accountant and the judicial factor,

(b) does not affect any right which any other person may have in respect of loss consequent upon the judicial factor’s—

(i) misconduct,

(ii) failure to discharge a duty, or

(iii) failure to comply with an instruction under section 40(2).

Commencement Information

I4 S. 41 not in force at Royal Assent, see s. 54(2)

Power of Accountant to require information S

42 Power of Accountant to require information S

(1) The Accountant may serve written notice on the judicial factor or any other person requesting that the judicial factor or other person, as the case may be, provide such information specified in the notice as the Accountant reasonably considers relevant to the Accountant’s functions under this Act.

(2) A person who receives notice under subsection (1), other than a person mentioned in subsection (3), must comply with the notice without delay.

(3) That person is—

(a) a body to which paragraph 3 (reserved bodies) of Part III of schedule 5 of the Scotland Act 1998 applies,

(b) a Minister of the Crown,

(c) a department of the Government of the United Kingdom, or

(d) a public body operating wholly in relation to a reserved matter within the meaning of the Scotland Act 1998.

(4) A person who, having received notice under subsection (1), directs the Accountant without delay to means by which the information can be obtained (either or both)—

(a) under any other enactment,

(b) free of charge,

is to be treated as having complied with the notice.

(5) A person complying with notice under subsection (1) may charge the Accountant a fee for supplying the information if that person is entitled under any other enactment to charge a fee for supplying the relevant information.

(6) Nothing in this section authorises the making of a disclosure that contravenes the data protection legislation (but in determining whether a disclosure would do so, the provision made in this Act enabling or requiring the disclosure of information is to be taken into account).

(7) In this section, “data protection legislation” has the meaning given by section 3(9) of the Data Protection Act 2018.

Commencement Information

I5 S. 42 not in force at Royal Assent, see s. 54(2)

Audit by Accountant S

43 Audit by Accountant S

(1) Where the Accountant receives accounts prepared by a judicial factor by virtue of this Act the Accountant must audit the accounts in accordance with this section.

(2) In auditing accounts prepared by a judicial factor the Accountant may—

(a) examine such further information in relation to the accounts as the Accountant considers appropriate,

(b) if the Accountant considers it necessary or expedient to do, remit the accounts for auditing to such duly qualified persons as the Accountant may select.

(3) Where the Accountant remits the accounts for auditing, the Accountant—

(a) must supervise the audit,

(b) retains responsibility for the accuracy of the audit.

(4) When an audit is complete, the Accountant must set out the results in a report and send a copy of the report to the judicial factor.

(5) If in the course of the audit the Accountant or the person to whom the accounts have been remitted (as the case may be)—

(a) comes to the view that some aspect of the accounts requires to be explained, then the judicial factor must be given an opportunity to provide the explanation before the audit is completed, or

(b) makes any correction to the accounts, then the Accountant (or the person), on being required to do so by the judicial factor, must explain the correction and the reason for making it.

(6) Any costs incurred in remitting the accounts to a person under subsection (2)(b) are to be met from the factory estate.

Commencement Information

I6 S. 43 not in force at Royal Assent, see s. 54(2)

44 Audit by Accountant: objection and appeal S

(1) Subject to subsections (2) to (5)—

(a) an audit completed in accordance with section 43,

(b) the accounts to which the audit relates, and

(c) the report on the results of the audit,

are conclusive.

(2) The judicial factor to whom the report relates may lodge a written objection to the report with the Accountant within the period of 21 days beginning on the day on which the judicial factor receives the report.

(3) The Accountant must consider any objection lodged under subsection (2) and, following that consideration, may—

(a) amend the results and report of the audit in order to take account of matters raised in the objection, or

(b) dismiss the objection.

(4) Where the Accountant dismisses an objection under subsection (3)(b) the judicial factor may require the Accountant to refer the objection for determination by the court which appointed the judicial factor.

(5) The determination of the court in relation to an objection referred under subsection (4) is final and is conclusive against both the Accountant and the judicial factor.

Commencement Information

I7 S. 44 not in force at Royal Assent, see s. 54(2)

Annual review S

45 Annual review S

(1) As soon as reasonably practicable following the expiry of each reporting year, the Accountant must publish a review of the Accountant’s activities in relation to the relevant judicial factories in the relevant reporting year.

(2) The Scottish Ministers must, by regulations, prescribe—

(a) the manner in which the review is to be published,

(b) information which must be contained in the review, and

(c) the definition of “reporting year” for the purposes of subsection (1).

(3) The review may contain such other information as the Accountant considers appropriate.

(4) Regulations under subsection (2) are subject to the negative procedure.

(5) In this section, “relevant judicial factories” means each judicial factory which subsists at any time during the reporting year, irrespective of whether they came into being before or after the coming into force of this section.

Commencement Information

I8 S. 45 not in force at Royal Assent, see s. 54(2)

Inspection of records held by Accountant S

46 Inspection of records held by Accountant S

(1) When a person with an interest in a factory estate so requests, the Accountant must, on cause shown—

(a) make any documents mentioned in subsection (4) available for inspection by that person,

(b) provide that person with certified copies of any documents mentioned in subsection (4).

(2) The Accountant must charge a fee for the making available of documents or the provision of copies under subsection (1).

(3) Copies provided under subsection (1)(b) have the same evidential status as the original documents.

(4) The documents are, in relation to a factory estate—

(a) the management plan,

(b) the inventory,

(c) the balance sheet,

(d) the annual accounts,

(e) the audit report.

Commencement Information

I9 S. 46 not in force at Royal Assent, see s. 54(2)

Inconsistency in judgement or practice S

47 Inconsistency in judgement or practice S

(1) This section applies where it appears to the Accountant that—

(a) there is inconsistency in judgement or practice in relation to judicial factors in proceedings in the sheriff courts, and

(b) it is important to put an end to that inconsistency.

(2) The Accountant must submit a report to the Lord President of the Court of Session—

(a) setting out the details of the inconsistency and the matter to which it relates,

(b) proposing a rule of practice in relation to that matter.

(3) The Lord President must consider the report and take such action as the Lord President thinks appropriate.

Commencement Information

I10 S. 47 not in force at Royal Assent, see s. 54(2)

Right of judicial factor to require determination as regards decision of Accountant S

48 Right of judicial factor to require determination as regards decision of Accountant S

(1) A judicial factor may apply to the court which appointed the judicial factor for a determination as regards any decision of the Accountant which relates to the judicial factory.

(2) But subsection (1) does not apply in relation to—

(a) a decision under section 44(3)(b) to dismiss an objection lodged in relation to an audit by the Accountant, or

(b) a decision by virtue of which an appeal is competent under section 11(6).

(3) The determination of the court in relation to a decision referred to it under subsection (1) is final and is conclusive against both the Accountant and the judicial factor.

Commencement Information

I11 S. 48 not in force at Royal Assent, see s. 54(2)