Judicial Factors (Scotland) Bill
A good number of Scottish Insolvency Practitioners have traditionally taken appointments as judicial Factors. They will therefore be interested to read the Judicial Factors (Scotland) Bill that was introduced to the Scottish Parliament on 5 December 2023 by Ministers.
Much of the Bill, if eventually passed, will simply reflect current practice. The current environment where the Accountant of Court regulates and approves the judicial factor’s decision making will continue. There will, however, be various places where procedure is simplified and clarified.
A number of points that practitioners will want to be aware of, include the following:-
- Whether or not a person is suitably qualified to be a judicial factor remains exclusively at the discretion of the Court. That seems likely to mean that Insolvency Practitioners, and occasionally Solicitors, will be those that are generally appointed;
- An inventory of estate, and separately a management plan, will need to be submitted to the Accountant of Court within 6 months of appointment;
- The estate vests in the judicial factor;
- Remuneration and accounting periods will be fixed by the Accountant of Court;
- There is the power as presently to require caution to be found by the Factor;
- Interestingly, it is explicit that typically (unless it involves claims against the Factor) the appointment of a Judicial Factor will not interrupt prescription in and of itself;
- The Judicial Factor will, in terms of the Bill, have power to require provision of information;
- It is worth quoting clause 18 of the Bill in full: “A judicial factor must enforce or defend any claim in relation to the factory estate providing that the judicial factor is satisfied that to do so would be reasonable and prudent in all of the circumstances. The judicial factor may consult the Accountant as to whether it would be reasonable and prudent to enforce or defend the claim in a particular case.” It seems clear therefore that before litigation is entered into it would be wise to discuss matters with the Accountant. This is of course what practically happens most of the time at present.
A long time has passed since the original Scottish Law Commission recommendations in relation to judicial factors, and updating of the Law is welcome. The Bill is required reading for anyone engaging in judicial factory work.
BBM Solicitors specialise in advising IP’s in both contentious and non-contentious matters (including transactional work). Contact: Eric Baijal (firstname.lastname@example.org).This briefing note is current as at 7 December 2023 and is our understanding of the position described at that date. Legal advice ought to be taken before relying on its terms (particularly to ensure the law has not changed).