Chamber and committees

That is all really helpful, thank you.

Section 5 of the bill covers caution. The policy argument for not requiring caution in all cases is that professionals who are appointed as factors will have their own professional indemnity insurance. In response to the commission’s consultation in 2010, the then Accountant of Court—I presume that it was not you at the time—

I was wondering about that. With a layperson, you do not have any background on their expertise or whether they might be at it. Is that point well covered in the bill?

We have to some degree been talking about judicial factors as if they were all queuing up outside the door, waiting to get a job. The Faculty of Advocates and the Summary Sheriffs Association have both suggested that section 23 be modified to deal with exceptional circumstances in which a judicial factor has acted unreasonably in a situation not covered by section 24 and that they should be found personally liable for legal costs in that circumstance.

The commission was not certain that the suggested modification was the correct approach to take, and it feared that judicial factors would become unduly preoccupied with their own potential risk of personal liability in such circumstances. Does anyone on the panel think that the commission’s position on the issue is the correct one to take, or that that would even be an issue at all?

That would mean that everyone would be working in conjunction with one another rather than battling against one another for decisions. That seems to be perfectly fair.

Section 17 of the bill covers the investment power for a judicial factor in respect of the estate. Would you be comfortable as a judicial factor making environmental, social and governance investments relating to the estate, or would you require an express statement in legislation that that is permitted?

Basically, it is about the necessity of the regulatory role, and people can depend on the fact that that will take place.

On that basis, once the court has made the decision on who the judicial factor should be, after looking into the background of the case and what it is about, what happens if someone disagrees? Is it possible for anyone to challenge that decision?

That seems perfectly sensible—somebody has to do it, do they not?

We understand that, when the court appoints a judicial factor in relation to a solicitor or a firm of solicitors under the Solicitors (Scotland) Act 1980, it is typically the Law Society’s in-house judicial factor who is appointed. In other words, it is the society’s director of interventions—that is you, Ms Grandison. However, the Faculty of Procurators of Caithness has suggested that the current system does not always work and that the judicial factor in such cases should always be wholly independent of the Law Society.

Ms Grandison, I think that you should answer this question first, and then anyone else on the panel who wants to comment is welcome to do so. Does the Law Society—or anyone else who wants to comment—believe that the current approach, with an in-house factor, is the correct one?

I will continue somewhat in that vein. In response to the committee’s call for views, the Faculty of Advocates said that it would be desirable to give judicial factors the additional power to seek directions from the appointing court. When the Scottish Law Commission gave evidence to the committee, it suggested that the possibility of seeking advice from the Accountant of Court, coupled with the opinion of requesting extra powers from the court under section 11, was all that would be required. Do you agree with the commission’s position, or do you see benefits to what the faculty is proposing? If you wish, you can explain your views with reference to practical examples of relevant situations.

Thank you.