Chamber and committees

Section 9(5) allows the Accountant of Court to fix a different rate of remuneration for

“a particular interim judicial factor”.

In its written evidence, the Faculty of Advocates queried why that discretion was restricted to interim judicial factors and did not apply to permanent judicial factors. The policy behind section 9 is to provide flexibility for the fixing of rates of remuneration to allow for variations in particular circumstances or when unusual duties are imposed on a particular judicial factor. Having considered the faculty’s evidence, I agree that the discretion conferred by the bill in that respect should be extended to apply to permanent judicial factors. That is what amendment 11 provides for.

I move amendment 11.

Amendment 11 agreed to.

Section 9, as amended, agreed to.

After section 9

Sections 12 and 39 of the bill confer powers on judicial factors and on the Accountant of Court to request information in relation to factory estates from persons and bodies. That might include, for example, requests being made to banks for financial information relating to an estate.

During stage 1, some stakeholders expressed concern regarding the provisions in sections 12(7) and 39(6), which set out that sections 12 and 39 do not authorise disclosures that contravene data protection legislation. The concerns were echoed by the committee, with the committee recommending that the Scottish Government consider clarifying the provisions further in the bill or removing them.

In the light of those concerns, I have given further consideration to the provisions and have lodged amendments 16 and 36, which adjust sections 12(7) and 39(6) to provide further clarification on the interplay with data protection legislation. The amendments make clear that, where the holder of information is considering whether a disclosure would contravene data protection legislation, they must take into account the provisions in the bill that authorise or require disclosure.

I move amendment 16.

Amendment 16 agreed to.

Section 12, as amended, agreed to.

Section 13—Ingathering

Amendment 17 moved—[Siobhian Brown]—and agreed to.

Section 13, as amended, agreed to.

Sections 14 to 25 agreed to.

Section 26—Validity of certain transactions by judicial factor appointed on trust estate

Amendment 18 moved—[Siobhian Brown]—and agreed to.

Section 26, as amended, agreed to.

Section 27—Approval of judicial factor’s scheme for distribution of factory estate

Amendments 19 to 21 moved—[Siobhian Brown]—and agreed to.

Under section 38(4)(b), if the judicial factor is a member of any professional body, the Accountant of Court is required to report to that professional body any serious misconduct or material failure by the judicial factor. The committee considered that provision in its stage 1 report, and I indicated that I would bring forward an amendment so that the bill better reflects how complaints against members of certain professional bodies are currently handled.

Amendments 34 and 35 make clear that, if arrangements are in place for a body other than the professional body to deal with complaints, the accountant must report the serious misconduct or material failure to that other body. For example, if the judicial factor is a solicitor, the effect of the amendment is to require the accountant’s referral to be made to the Scottish Legal Complaints Commission rather than the Law Society of Scotland.

I move amendment 34.

In its written evidence, the Faculty of Advocates suggested that, when the requirement to find caution is imposed by the court, the appointment of the judicial factor and the vesting of the estate and standard powers in the judicial factor should be postponed until after caution is found. I consider that it is sensible that registration of the appointment and vesting of the estate and standard powers do not take place until the accountant has confirmed that the requirement to find caution has been satisfied. That is what amendments 6, 7, 9, 10 and 13 provide for.

That ties in with section 8(3), which ensures that, when the court requires a caution to be found, the judicial factor does not receive a certified copy of the interlocutor and, thus, is not able to deal with the property until the accountant confirms that the requirement to find caution has been satisfied.

I ask members to support all my amendments in the group.

I move amendment 6.

Amendment 6 agreed to.

Amendment 7 moved—[Siobhian Brown]—and agreed to.

Section 6, as amended, agreed to.

After section 6

Earlier this year, when responding to the committee’s stage 1 report, I set out my views on lodging an amendment to make it clear that it is competent to appoint a judicial factor over the estate of a missing person. During the stage 1 debate, it was clear that that was one of the issues about which many MSPs felt strongly. I have listened to those views and have considered whether more can be done to balance them with the wider policy regarding the circumstances in which the appointment of a judicial factor can be sought.

The committee’s recommendation is clear that a reference to missing people could be added in such a way to make it clear that the bill may be used by people who seek to manage the estate of a missing person. The committee knows my concerns about amending section 3, but my amendment 12 implements the recommendation while ensuring that the wider policy in the bill is not undermined.

Amendment 12 imposes a requirement on the Scottish ministers to produce guidance about the appointment of a judicial factor, under section 1, for the estates of missing people. As such, it makes it clear that the families of missing persons can use the bill.

I move amendment 12.

Section 27 makes provision in relation to formulation of a scheme for distribution of the factory estate by a judicial factor. Where a person with an interest lodges an objection to the scheme prepared by the judicial factor, the Accountant of Court is required to refer the objection to the court. Under section 27(9) the court’s options are to either reject the objection and order distribution in line with the scheme prepared by the judicial factor, or to instruct the judicial factor to distribute the estate as the court thinks fit.

The Sheriffs and Summary Sheriffs Association suggested that a further option should be available to the court—namely, to make such other order as the court considers appropriate. Although it is anticipated that, in most cases, the court will order distribution of the estate, I consider that there might be circumstances where other orders, such as continuation of the judicial factory, may be appropriate. Amendment 22 adds further flexibility to section 27 by allowing the court to respond to the particular circumstances of a case.

I move amendment 22.

Amendment 22 agreed to.

Section 27, as amended, agreed to.

Section 28—Application for distribution of factory estate

Amendment 23 moved—[Siobhian Brown]—and agreed to.

Section 28, as amended, agreed to.

Section 29—Termination, recall and discharge after distribution of factory estate

Amendment 24 moved—[Siobhian Brown]—and agreed to.

Section 29, as amended, agreed to.

Section 30—Duty of Accountant to apply for appointment of replacement where judicial factor has died or ceased to perform duties

Section 30 requires the Accountant of Court to apply for the appointment of a replacement judicial factor where the original factor dies or ceases to perform duties, where the Accountant of Court considers that the purpose for which the original factor was appointed still exists and that no application for replacement has been lodged by anyone else.

I have considered the provision further, however, and the bill does not set out what should happen when the original factor dies or ceases to perform their duties and the purpose for which they were appointed no longer exists, but some actions are still required to bring the judicial factory to an end. I consider that, in such circumstances, the judicial factory should be formally terminated following the processes under the bill and, where appropriate, the original factor discharged. Although that is not likely to be a common occurrence, amendment 25 is a sensible precaution to ensure that judicial factories are brought to a proper end and to avoid any doubts that might arise in such cases.

Amendments 26, 27 and 29 are all consequential amendments to reflect the addition of the new section 30(3A).

I move amendment 25.

Amendment 25 agreed to.

Amendments 26 and 27 moved—[Siobhian Brown]—and agreed to.

Section 30, as amended, agreed to.

Section 31—Resignation and applications for recall and discharge in other circumstances

Amendment 28 moved—[Siobhian Brown]—and agreed to.

Section 31, as amended, agreed to.

Section 32—Inventory and balance sheet where replacement judicial factor appointed

Amendment 29 moved—[Siobhian Brown]—and agreed to.

Section 32, as amended, agreed to.

Section 33—Termination of judicial factory where insufficient funds

Amendment 30 moved—[Siobhian Brown]—and agreed to.

Section 33, as amended, agreed to.

Section 34—Ending of judicial factor’s accountability on discharge

Amendment 31 moved—[Siobhian Brown]—and agreed to.

Section 34, as amended, agreed to.

Section 35—Accountant of Court: appointment, remuneration and fees

The committee’s stage 1 report considered the criteria that a person must meet to be appointed as an Accountant of Court, and the committee concluded that what the bill provides for is sufficient. The committee did, however, recommend that Scottish ministers periodically review the Accountant of Court’s qualifications and that they should have the flexibility to amend the qualification requirements by way of secondary legislation. Amendment 32 makes the recommended changes and any regulations under the provision would be subject to the affirmative procedure.

Section 36(2) of the bill imposes the same criteria on the person who is appointed as a depute accountant as those that are imposed on the person who is appointed as the accountant under section 35(1). Amendment 33 therefore makes the same provision for reviewing the criteria for the depute accountant as amendment 32 does for the accountant. That ensures that both the accountant’s and the depute accountant’s qualifications are subject to review and can be amended if needed.

I move amendment 32.

Amendment 32 agreed to.

Section 35, as amended, agreed to.

Section 36—Depute Accountant

Amendment 33 moved—[Siobhian Brown]—and agreed to.

Section 36, as amended, agreed to.

Section 37 agreed to.

Section 38—Misconduct or failure of judicial factor

I am happy to have moved my amendment.

Amendment 34 agreed to.

Amendment 35 moved—[Siobhian Brown]—and agreed to.

Section 38, as amended, agreed to.

Section 39—Power of Accountant to require information

Amendment 36 moved—[Siobhian Brown]—and agreed to.

Section 39, as amended, agreed to.

Sections 40 to 42 agreed to.

Section 43—Inspection of records held by Accountant

Amendment 37 moved—[Siobhian Brown]—and agreed to.

Section 43, as amended, agreed to.

Section 44 agreed to.

Section 45—Right of judicial factor to require determination as regards decision of Accountant

Amendment 38 moved—[Siobhian Brown]—and agreed to.

Section 45, as amended, agreed to.

Sections 46 to 49 agreed to.

Schedule 2—Modification of enactments

Amendments 39 to 42 moved—[Siobhian Brown]—and agreed to.

Schedule 2, as amended, agreed to.

Schedule 3 agreed to.

Sections 50 to 52 agreed to.

Long title agreed to.

Section 1(5)(b) of the bill contains rules as to when a particular sheriff court has jurisdiction. Where an application relates to the estate of a person other than an individual, such as a company, the sheriff court of the sheriffdom in which the person has a place of business has jurisdiction.

In its written evidence, the centre for Scots law at the University of Aberdeen suggested that a non-natural person’s registered office should be included as an additional category. I consider that to be a sensible suggestion, given that a registered office can generally be relied upon to establish jurisdiction in certain actions in relation to companies. Therefore, amendment 3 makes that change.

Amendment 39 makes it clear that the sheriff court and the Court of Session have concurrent jurisdiction to hear applications for the appointment of a judicial factor, irrespective of the value of the estate in question.

In its written evidence, the Faculty of Advocates highlighted the fact that the bill did not expressly address the question of jurisdiction of the sheriff court under section 39 of the Courts Reform (Scotland) Act 2014, and I agree that it would be helpful for the bill to make the position clear.

I move amendment 3.

Amendment 3 agreed to.

Section 1, as amended, agreed to.

After section 1

Amendment 4 moved—[Siobhian Brown]—and agreed to.

Sections 2 to 5 agreed to.

Section 6—Intimation and registration of notice of appointment