Judicial factors
Commissioner
Patrick Layden QC TD
Team members
Gillian Swanson, Project Manager
Andrew Blain, Legal Assistant
A judicial factor is someone appointed by the court to look after or to ingather and distribute property belonging to someone else. Anyone can be appointed as a judicial factor although the majority taking up the role tend to be accountants or solicitors. The appointment can be made in a variety of circumstances such as where it appears that there has been misconduct in the management of a charity, where the liabilities of a solicitor appear to exceed his or her assets, where someone dies without leaving a will and nobody is prepared to act as executor, or where someone is missing and the court has granted decree to the effect that the person has died. The legislation relating to judicial factors is extremely old and is no longer fit for purpose.
Our Discussion Paper on Judicial Factors (DP 146) was published at the end of 2010, together with an accompanying news release. The Discussion Paper invited views on updating the way in which a Judicial Factor's functions are carried out. Two options were put forward in the Discussion Paper:
The first was to keep the existing structure but to modernise it and make it more efficient by means such as updating the powers and duties of judicial factors as well as the procedure by which they are discharged.
The second option proposed a new public official, the Official Judicial Factor, who would carry out all judicial factory work unless the court wished to appoint someone else. An existing public official would become the Official Judicial Factor so that the functions would be part of the functions of an existing public office. Costs would generally be recovered from the property being managed.
Having analysed the responses to the Discussion Paper, we are currently working towards the production of a report and draft Bill.
For more information, please contact: gillian.swanson@scotlawcom.gsi.gov.uk.