Commentary on Sections Accountant of Court and Depute Accountant
80.Section 38 makes provision for the appointment of the Accountant of Court. The power to appoint the Accountant is already vested in the Scottish Courts and Tribunals Service (SCTS) under section 25 of the Administration of Justice (Scotland) Act 1933. Subsection (1) requires that the person appointed to the office of Accountant by SCTS must be appropriately qualified or experienced in law and accounting. Subsection (2) places a duty on the Scottish Ministers to periodically review that criteria and, if appropriate, change it by regulations, subject to the affirmative procedure.
81.Subsection (4) prevents the Accountant from holding any other office, unless express provision is made elsewhere in legislation in relation to a particular office which allows the Accountant to hold that office in addition to the office of Accountant. Subsection (5) makes provision for the SCTS to pay the Accountant for performing the role of Accountant and makes clear that payment from SCTS is the only payment that the Accountant is entitled to for carrying out the role of Accountant.
82.Subsection (6) requires the Accountant to charge fees for the Accountant’s activities under the Act, and subsection (7) makes clear that those fees must cover any outlays which the Accountant reasonably incurs in carrying out those activities, and are to be paid from the factory estate. The exception to this is fees charged under section 46, which relates to the Accountant complying with requests to provide information or allow access to documents to persons with an interest in the factory estate. In those cases, the fee is to be paid by the person making the request. Subsection (8) requires the Accountant to account, in the manner directed by SCTS, for any sums received by the Accountant other than remuneration. Subsection (9) allows the Accountant to waive the right to recover any fee that the Accountant considers that they are unlikely to be able to recover.
83.Section 39(1) establishes a power for SCTS to appoint a Depute Accountant on terms and conditions determined by SCTS. In practice, a Depute Accountant is already appointed by SCTS, and this provision creates a statutory basis for that appointment. Subsection (2) applies the same requirements to any person appointed to the role as apply to persons appointed to the role of the Accountant – they must be appropriately qualified in law and accounting, while subsection (3) places the same duty on the Scottish Ministers to review the criteria, and the power to change it by regulations, subject to the affirmative procedure, if appropriate. Subsection (5) provides that the role of the Depute Accountant is to carry out the role of Accountant when the Accountant is unable to do so, and makes clear that during any such period the Depute Accountant is to act and be treated as if they were the Accountant.
84.Section 40(1) sets out the general function of the Accountant, which is to supervise the performance by all judicial factors of the functions conferred on those judicial factors, however the functions were conferred. The Accountant must also seek to ensure that judicial factors perform their functions in accordance with any applicable legal requirements and guidance. Subsection (2) allows the Accountant to issue instructions to a particular judicial factor as to how that judicial factor is to carry out their functions.