Hansard

I agree that the provisions are important. At this particular time I cannot give Martin Whitfield a definite timescale, but I will be happy to write to him to keep him updated on progress on that.

Just as important is that my stage 2 amendment also made it clear that it is competent to appoint a judicial factor to the estate of a missing person.

The bill also addresses other important issues. I will briefly remind members about some of its key provisions and what they are intended to achieve.

There is always a question as to whether the person who seeks a remedy from the court has a sufficient interest to justify raising legal proceedings. Under the current law, the usual rule is that the applicant must have an interest in the property over which the appointment is sought. The bill widens the scope in respect of people who may competently raise court proceedings, because it might be possible that a party might have an interest not in the property but in its maintenance. For example, if disrepair of one semi-detached property begins to have an effect on the other half of the building, the owner of that other half might be concerned about possible damage to their property. The bill gives the court flexibility to allow for a judicial factor to be appointed in such circumstances, where appropriate.

Currently, there is uncertainty as to what powers a judicial factor has by virtue of their appointment. When a judicial factor is appointed, the court will often provide in its decision that they are appointed with the “usual powers”. What the “usual powers” are in a particular case will depend on the purpose for which the factor has been appointed. That can lead to uncertainty for both judicial factors and the third parties who deal with them, and has resulted in some factors being reluctant to carry out certain actions. That uncertainty has led to litigation, which has often taken the form of a request to the court for additional powers, with the consequence being that the expense of such litigation is paid from the factory estate. The bill provides clarity by setting out that a judicial factor will have

“all of the powers of a natural person beneficially entitled”

to the property—which will be readily understood as empowering the factor to do everything that an owner of an estate could personally do.

At present, a judicial factory may be terminated by way of a formal court procedure or, in limited circumstances, by way of the less formal procedure of an administrative discharge. A judicial discharge comes with a level of formality that is not required in all circumstances, and the expense of such a discharge is paid from the factory estate. An administrative procedure enables matters to be brought to a conclusion more economically than a case in which an application is lodged with the court. The bill ensures that the procedure for administrative discharge is extended to all types of judicial factories.

The bill also makes clearer the role of the Accountant of Court in supervising judicial factors and the work that they undertake.

The bill will introduce a statutory framework that sets out clearly the essential features of the office of judicial factor and the broad parameters within which it should operate. It will be of benefit to all who are involved in any capacity in judicial factories.

I move,

That the Parliament agrees that the Judicial Factors (Scotland) Bill be passed.