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Current projects

Judicial Factors

Commissioner
Patrick Layden QC TD

Team members
Mrs Gillian Swanson, Project Manager
Mr Laurence Diver, Legal Assistant

In terms of Item No 3 of our Eighth Programme of Law Reform, we are reviewing the legislation relating to judicial factors. This is a short term project. A judicial factor is an officer appointed by the court to collect, hold and administer property in certain circumstances; for example, there may be a dispute regarding the property, there may be no one else to administer it or there may be alleged maladministration of it.

The passage of time has shown that the role and purpose of this office is neither clearly defined nor well understood, perhaps partly due to the fact that since the Judicial Factors Acts of the late 19th Century there has been no primary legislation pertaining specifically to judicial factory.

We have spent some time meeting with the Accountant of Court, representatives of the Office of the Scottish Charity Regulator and practitioners experienced in this field. The clear view that is emerging is that the existing legislation neither reflects what happens in practice nor addresses the concerns of those who come into contact with this office. Some of the issues which have been mentioned are:

• The procedure for appointment requires to be streamlined.
• Bonds of caution – these can be difficult to obtain and are seen as outdated.
• Functions, powers and duties require to be clarified and modernised.
• The required style of accounting has been criticised as old-fashioned and onerous.
• The procedure for formal discharge is expensive and time consuming.

Our aim is to examine the existing law with a view to clarifying and simplifying it. We have in mind to develop proposals to replace the existing legislation relating to judicial factory with provisions relevant to those dealing with this office in the 21st Century.

Unfortunately, due to the need to give priority to other projects, work on judicial factors had to be put on hold for a considerable period of time. Work has recently begun again and we hope to be able to publish a discussion paper in spring 2010.

For more information, please contact: gillian.swanson@scotlawcom.gov.uk

Page last updated: 12 February 2010