Chapter 61 - Judicial factors - Part I - General provisions
Application and interpretation of this chapter
61.1 .-(1) This chapter applies to an application for the appointment of a judicial factor, and to a judicial factor appointed by the court.
(2) In this chapter, unless the context otherwise requires-
"the Act of 1849" means the Judicial Factors Act 1849( a );
"the Act of 1995" means the Children (Scotland) Act 1995( b ); and
"judicial factor" includes a curator bonis , a factor loco absentis , a factor on trust or other estates, and a guardian.
Application for appointment of judicial factor
61.2 .-(1) An application for the appointment of a judicial factor shall be made by petition.
(2) An application under section 9(5)(a) of the Act of 1995 (application by Accountant of Court for appointment of judicial factor to administer certain property of a child) shall be made by petition in Form 61.2; and chapter 14 shall not apply as respect any such petition.
(3) A petition in Form 61.2 shall, after being lodged in the Petition Department and recorded in the Petitions Register but without appearing in the Motion Roll, be presented to the Lord Ordinary in court or in chambers, and he may-
(a) forthwith make the appointment sought; or
(b) make an order-
(i) for such intimation, service and advertisement of the petition as he considers appropriate; and
(ii) for a hearing, on such date as he may specify, as respects the petition.
(4) Without prejudice to the generality of paragraph (3)(b)(i), any order under that paragraph as to intimation may specify that rule 16.4 shall not apply and that the Accountant of Court shall make intimation by post in such manner as the Lord Ordinary thinks fit.
Crave to dispense with service on incapax
61.3 . Where, in a petition for the appointment of a curator bonis to an incapax, dispensation of service on the incapax is craved on the ground that such service would be injurious to the health of the incapax, two medical certificates to that effect shall be lodged in process.
Incidental applications
61.4 . Unless otherwise provided in this chapter, an incidental application to the court in a petition for the appointment of a judicial factor shall be made by note.
( a ) 1849 c.51
( b ) 1995 c.36.
Intimation and service
61.5 .-(1) The order for intimation and service under rule 14.5 (first order in petitions) in a petition or note relating to a judicial factory shall include a requirement for intimation to the Accountant of Court (except where the petition is in Form 61.2 ) by first class recorded delivery post of the petition or note, as the case may be, and any production lodged with the petition or note.
(2) The Lord Ordinary may order publication of an advertisement of the petition in Form 61.5-A in the case of a petition for the appointment of a judicial factor or in Form 61.5-B in the case of a petition for the discharge of a judicial factor.
(3) Where publication of an advertisement has been made under paragraph (2), there shall be lodged in process-
(a) a copy of the newspaper or other publication containing the advertisement; or
(b) a certificate of publication by the publisher stating the date of publication and the text of the advertisement.
(4) After a petition for the appointment of a judicial factor is lodged in the Petition Department, the Clerk of Session in that department may (whether or not any order is made, or is competent, under rule 14.5(1)(a)) provide any interested party with details of the petition.
Documents for Accountant of Court
61.6 .-(1) A person who lodges any document in a cause relating to a judicial factory (other than a petition for appointment of a judicial factor) shall send a copy of that document to the Accountant of Court.
(2) The clerk of session in the Petition Department shall transmit to the Accountant of Court any part of a process in a cause relating to a judicial factory as the Accountant of Court may request unless such part of the process is, at the time of request, required by the court.
Accountant of Court to send information on prior application
61.7 . The Accountant of Court, on receiving intimation of a petition for the appointment of a judicial factor, shall report any information he may possess which he considers may be of use to the court in disposing of the petition.
Transmission of process to Accountant of Court to find caution
61.8 . The clerk of session in the Petition Department shall, on the appointment of the judicial factor being made by the court, transmit the process of the petition to the Accountant of Court for the fixing and finding of caution.
Finding caution
61.9 .-(1) The appointment of a person as a judicial factor shall be subject to his finding caution; and the interlocutor appointing a judicial factor shall ordain him to find caution.
(2) The court may, on cause shown, on a motion made before the expiry of the period for finding caution specified by virtue of rule 33.3 (orders to find caution or other security), allow further time for finding caution.
(3) The Accountant of Court shall, on receiving the process in a petition for the appointment of a judicial factor transmitted to him under rule 61.8, fix the caution to be found by the judicial factor.
(4) Where the Accountant of Court considers that any caution fixed by the court under section 27 of the Act of 1849( a ) (amount of caution limited by court), should be increased-
(a) the Accountant of Court may increase the amount unless the judicial factor requires him to report to the court;
(b) where the judicial factor requires him to report to the court, the Accountant of Court shall do so; and
(c) on the report mentioned in sub-paragraph (b) being received, the cause shall be put out on the By Order Roll before the Lord Ordinary to determine the amount of caution.
(5) A bond of caution or other security offered by a judicial factor shall be delivered to the Accountant of Court; and rule 33.4(3) (lodging of bond of caution in process) and rule 33.7(1) (Deputy Principal Clerk to satisfy himself that the bond of caution or other security is in proper form) shall not apply.
(6) Except in relation to paragraph (7), where caution has been found to the satisfaction of the Accountant of Court, he shall endorse and sign, on the interlocutor sheet of the process appointing the judicial factor, a certificate stating that caution has been found, the amount of caution and the date of the certificate.
(7) During the subsistence of a judicial factory, the Accountant of Court may, at any time-
(a) require the judicial factor to increase the amount of, or find new or additional, caution; or
(b) authorise the judicial factor to reduce the amount of existing caution.
Issue of official certified copy interlocutor
61.10 . An official certified copy of the interlocutor appointing a judicial factor shall not be issued by a clerk of session without a certificate having been endorsed on the interlocutor sheet in accordance with rule 61.9(6).
Judicial factor's title to act
61.11 . A judicial factor shall not be entitled to act until he has received the official certified copy of the interlocutor appointing him.
Remission or modification of penal interest
61.12 . The Accountant of Court may, if satisfied that the circumstances justify it, remit or modify any interest incurred by a judicial factor under section 5(1) of the Act of 1849( b ) (interest incurred for failure by factor to lodge money in bank etc.).
Applications to encroach on capital
61.13 .- (1) Where the income from the estate of a ward is insufficient for the maintenance of the ward, the judicial factor may apply to the Accountant of Court for his consent to encroach on the capital of the estate for the purpose of maintaining the ward.
( a ) Section 27 was amended by the age of Legal Capacity (Scotland) Act 1991 (c.50), Schedule 1, paragraph 10.
( b ) Section 5 was amended by the Law Reform (Miscellaneous Provisions) (Scotland) Act 1980 (c.55), section 7 and by the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 (c.40), Schedule 8, paragraph 21(1)(a).
(2) An application under paragraph (1) shall be made by letter and shall be supported by such information as the Accountant of Court may require.
(3) On receipt of such an application, the Accountant of Court-
(a) may, if the proposed encroachment does not exceed 5% of the capital value of the estate as at the date when application is first made under paragraph (1), consent to the application subject to such conditions as he thinks fit to impose; and
(b) if he is unable, or declines to consent under sub-paragraph (a), shall-
(i) ordain the judicial factor to intimate, in accordance with paragraphs (5) and (6), the making of the application; or
(ii) ordain him to apply by note to the Lord Ordinary for special powers.
(4) A person to whom intimation is given in accordance with paragraphs (5) and (6) may object to the application by-
(a) lodging an objection in writing with the Accountant of Court; and
(b) sending a copy of his objection to the judicial factor within 28 days after the date on which intimation was given to him.
(5) The persons to whom intimation under paragraph (3)(b)(i) is to be given are-
(a) any cautioner of the judicial factor;
(b) any petitioner for the appointment of the judicial factor (other than a petitioner using Form 61.2);
(c) the ward, unless the circumstances of the ward are such as would warrant dispensing with service on him of a petition for the appointment of a judicial factor on his estate;
(d) the persons on whom the petition for appointment of the judicial factor was served and whose whereabouts are known to the judicial factor; and
(e) all other persons who have an interest in the estate and whose identity and whereabouts are known to the judicial factor.
(6) The intimation under paragraph (3)(b)(i) shall include-
(a) a copy of the letter of application; and
(b) a notice setting out-
(i) the right of the person receiving the notice to object to the application in the manner provided in paragraph (4); and
(ii) that, in the absence of any such objection, the Accountant of Court may consent to the application.
(7) The judicial factor shall, on giving intimation under paragraph (3)(b)(i), send to the Accountant of Court a certificate of intimation in Form 16.7 with a copy of the notice sent attached to it; and rule 16.7(2) (attaching certificate of intimation to principal writ or lodging it in process) shall not apply.
(8) Where no objections have been lodged under paragraph (4), the Accountant of Court may, on the expiry of the period for lodging objections-
(a) consent to the application subject to such conditions as he thinks fit; or
(b) require the judicial factor to apply to the court for special powers.
(9) Where any objection has been lodged under paragraph (4), the judicial factor shall, on expiry of the period for lodging objections, apply to the court for special powers.
Applications under section 2(3) of the Trusts (Scotland) Act 1961
61.14 .- (1) An application under section 2(3) of the Trusts (Scotland) Act 1961( a ) to the Accountant of Court for his consent to the doing of an act to which that section applies shall be made by letter and shall be supported by such information as the Accountant of Court may require.
(2) Any person to whom intimation requires to be given in accordance with paragraph (3) may object to the application by lodging any objection with the Accountant of Court, and sending a copy of it to the judicial factor, within 28 days after the date on which the intimation was given.
(3) On the date on which he makes the application referred to in paragraph (1), the judicial factor shall intimate the application to-
(a) any cautioner of the judicial factor;
(b) any person who petitioned for the judicial factor to be appointed (except where the petitioner was in Form 61.2);
(c) the ward, unless the circumstances of the ward are such that would warrant dispensing with service on him of a petition for the appointment of a judicial factor on his estate;
(d) the persons upon whom the application for appointment of the judicial factor was served and whose whereabouts are known to the judicial factor; and
(e) all other persons who have an interest in the estate and whose identity and whereabouts are known to the judicial factor.
(4) The intimation to be given under paragraph (3) shall include-
(a) a copy of the letter of application, and
(b) a notice setting out-
(i) the right of the person receiving the notice to object to the application in the manner provided in paragraph (2); and
(ii) that, in the absence of any such objection, the Accountant of Court may consent to the application.
(5) The judicial factor shall, on giving intimation under paragraph (3), send to the Accountant of Court a certificate of intimation in Form 16.7 with a copy of the notice required under paragraph (4) attached to it; and rule 16.7(2) (attaching certificate of intimation to principal writ or lodging it in process) shall not apply.
Applications for special powers or authority under section 5 of the Trusts (Scotland) Act 1921
61.15 .- (1) This rule applies to an application by a judicial factor-
(a) for special powers at common law or under section 7 of the Act of 1849( b ); or
(b) under section 5 of the Trusts (Scotland) Act 1921( c ) (application for authority to do an act at variance with terms or purposes of the judicial factory).
(2) An application may be made-
(a) in the petition for the appointment of the judicial factor; or
(b) by note in the process of that petition.
( a ) 1961 c.57; sub-section (3) was inserted by the Law Reform (Miscellaneous Provisions) (Scotland) Act 1980 (c.55), section 8.
( b ) Section 7 was amended by the Mental Health (Scotland) Act 1960 (c.61), Schedule 4.
( c ) 1921 c.58.
(3) Before making an application, the judicial factor shall apply to the Accountant of Court for an opinion by lodging with him a report explaining why the special powers or authority are necessary and concluding with a statement of the precise powers he seeks.
(4) The Accountant of Court shall, after making any necessary inquiry, send his written opinion to the judicial factor.
(5) The judicial factor shall lodge in process his report to, and the opinion of, the Accountant of Court.
(6) The judicial factor shall send to the Accountant of Court a copy of the interlocutor disposing of the application within 2 days after the date of the interlocutor.
(7) An application by a judicial factor for special powers under this rule shall not be made before he has received an official certified copy of the interlocutor appointing him.
(8) An application by a judicial factor in respect of special powers sought in the petition for his appointment shall be made by him by motion.
