Chamber and committees

Section 34 of the bill and the accompanying explanatory notes make it clear that the effect of the discharge is that

“the judicial factor is no longer ... accountable”

for what has taken place during the course of the judicial factory. As such, once the judicial factor is discharged, the Accountant of Court would not be able to investigate or report any misconduct under section 38. The SLC report is clear that, once the factor leaves office, that should

“end any obligation ... to account further to the estate or those representing it.”

To do otherwise would run the real risk of discouraging individuals from taking on the role, which was a point that the Accountant of Court made in her evidence to the committee last week.

Importantly, there are safeguards in place. Judicial factors are supervised by the Accountant of Court and are required to regularly submit accounts and report to her on the management of the estate. Before a judicial factor can be discharged, the accountant has to audit the final accounts and be satisfied that everything is in order.

Further, section 34 makes it absolutely clear that discharge has no effect on criminal liability. Both criminal liability and any civil liability that is connected to it continue after the discharge, which means that a judicial factor can still be held accountable, for example, if they have committed fraud in the course of the judicial factory.

I am happy to take that away, and we will definitely consider it.

Absolutely. We will take that away and consider it.

That is fine.

I do not see any difficulties with the report on serious misconduct by a solicitor acting as a judicial factor being sent to the Law Society, because my understanding is that, if there was a complaint, it would be sent to the Law Society in the first instance and then to the SLCC.

The Law Society advised my officials that, under the provisions of bill, if the accountant were to report serious misconduct by a solicitor, the Law Society would pass that on to the SLCC as a matter of practice, and there is nothing in the bill that would prevent the accountant from sending a copy of the report to the SLCC as well.

However, I will consider the matter further to see whether what would happen in practice could be more accurately reflected in the bill.

Currently, if someone has a complaint against a judicial factor, they can raise that directly with the judicial factor or with the Accountant of Court, given the accountant’s supervisory role. That will continue under the bill, with the accountant being required to investigate any concerns in relation to judicial factors acting.

The bill also gives the accountant a power to issue directions to the judicial factor and, further, if the accountant concludes that there has been serious misconduct or material failure, they must refer the matter to the court to be dealt with. Most judicial factors are members of a regulated profession, and that is another way for complaints to be heard.

The committee has heard from a number of stakeholders, and there does not seem to be any support for a new complaints procedure to be set out in the bill. I consider the current approach to be a practical and sensible way to deal with complaints at the moment.

Does Michael Paparakis want to add anything?

Yes. The Regulation of Legal Services (Scotland) Bill team is working on amendments with the Law Society and other MSPs to address that concern. I am comfortable that that bill will address the specific issue.

I note that we recently hosted Lady Paton, who came here with people from all over the UK to show them around the Parliament. They were really impressed that we had the committee, which enables scrutiny of the proposals that are put forward. That is positive.

We are at the early stages of the process, so the exact drafting approach has not yet been agreed. However, the aim is to ensure that a judicial factor who is appointed to an estate can exercise their functions in relation to the whole of the estate, regardless of where in the United Kingdom the property is situated, and ensure that the relevant property is appropriately managed. As such, it is intended that the section 104 order will extend some of the provisions in the bill to the whole of the United Kingdom, including provisions on the vesting of property in a judicial factor, the ingathering of property, a judicial factor’s functions and information sharing.

The intention is also to explore the application of the requirement to comply with the information requests to bodies that are excluded under the bill, such as UK Government departments and bodies with other reserved functions. Officials have made initial contact with relevant UK Government departments about seeking a section 104 order. Those discussions have been positive thus far, and we will continue to have them as the bill progresses.

Yes—we would include those. The average timescale in relation to section 104 orders at the moment is 12 to 18 months.