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Official Report: search what was said in Parliament

The Official Report is a written record of public meetings of the Parliament and committees.  

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Dates of parliamentary sessions
  1. Session 1: 12 May 1999 to 31 March 2003
  2. Session 2: 7 May 2003 to 2 April 2007
  3. Session 3: 9 May 2007 to 22 March 2011
  4. Session 4: 11 May 2011 to 23 March 2016
  5. Session 5: 12 May 2016 to 5 May 2021
  6. Current session: 12 May 2021 to 4 April 2025
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Displaying 502 contributions

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Delegated Powers and Law Reform Committee

Judicial Factors (Scotland) Bill: Stage 1

Meeting date: 16 April 2024

Oliver Mundell

Academics from the University of Aberdeen and Abertay University, as well as R3, all said that the fiduciary nature of the judicial factor’s duties needed to be spelled out explicitly in legislation. Professor Grier also thought that a clear statement was needed as to the legal remedies if there were a breach of those duties. Does the commission have a view on that?

Delegated Powers and Law Reform Committee

Judicial Factors (Scotland) Bill: Stage 1

Meeting date: 16 April 2024

Oliver Mundell

That is why we were asking whether it should be in the bill that they have the—

Delegated Powers and Law Reform Committee

Judicial Factors (Scotland) Bill: Stage 1

Meeting date: 16 April 2024

Oliver Mundell

For example, a factor who is put in place might also be thinking about the organisation’s reputation. It might be that, in strict financial terms, they could get a better return on investment by going with option 1, whereas option 2 might produce a lower short-term return but would be more consistent with the organisation’s values and wider public image. I guess that we were thinking about such a scenario in relation to trusts and succession.

Delegated Powers and Law Reform Committee

Judicial Factors (Scotland) Bill: Stage 1

Meeting date: 16 April 2024

Oliver Mundell

That is helpful—thank you.

Delegated Powers and Law Reform Committee

Judicial Factors (Scotland) Bill: Stage 1

Meeting date: 16 April 2024

Oliver Mundell

Part 2 of the bill proposes various powers and duties for a judicial factor. In response to the committee’s call for views, the Faculty of Advocates said that it would be desirable to give the judicial factor the additional

“power to seek directions from the appointing court”,

which could be used, for example, in the event of a dispute or uncertainty about what steps the factor should take. Would the commission like to comment on that as a policy idea?

10:45  

Delegated Powers and Law Reform Committee

Judicial Factors (Scotland) Bill: Stage 1

Meeting date: 16 April 2024

Oliver Mundell

So you would not think it appropriate in this case.

Delegated Powers and Law Reform Committee

Judicial Factors (Scotland) Bill: Stage 1

Meeting date: 16 April 2024

Oliver Mundell

Thank you.

Delegated Powers and Law Reform Committee

Judicial Factors (Scotland) Bill: Stage 1

Meeting date: 16 April 2024

Oliver Mundell

Thank you. In response to the committee’s call for views, the Law Society made the opposite challenge and thought that the bill’s requirements in section 15, on the duty to make a management plan, and section 16, on the duty to submit accounts to the Accountant of Court—I hope that my notes are right on this—were more prescriptive than those of the commission’s draft bill. Is the bill more prescriptive than the commission had in mind?

Delegated Powers and Law Reform Committee

Judicial Factors (Scotland) Bill: Stage 1

Meeting date: 16 April 2024

Oliver Mundell

My question follows on from what you said before. You said that although it does not happen all the time, the Law Society has to step in, or put a judicial factor in place, regrettably often. In the light of the McClure case and others, is there a conflict between the Law Society regulating the work of solicitors and it putting a factor in place to take over when something goes wrong? Was that considered in how the bill was drafted?

The bill seeks to consolidate the law, but there are still other pieces of legislation on the statute book that provide the power to appoint a judicial factor in specific circumstances. Was any thought given to bringing all that into this bill? Why did you not do that? As a result of that, are there still situations in which the responsibility for appointing a judicial factor is not as clear as it could be?

Delegated Powers and Law Reform Committee

Judicial Factors (Scotland) Bill: Stage 1

Meeting date: 16 April 2024

Oliver Mundell

You could have modified them.