Commentary on Sections Intimation and recording of notice of appointment
17.Section 7 requires the clerk of a court which appoints a judicial factor to notify the Accountant of the appointment, and to arrange for notice of the appointment to be recorded in the Register of Inhibitions(2). Under subsection (3), the notice must include an address at which documents can be served on the judicial factor. Both the notification and the recording must be done as soon as reasonably practicable after the court has issued its order or decision (in the form of an interlocutor) confirming the appointment of the judicial factor. However, under subsection (2), if the court has required the judicial factor to find caution under section 6, then the clerk of court is not to send the notice for recording until the Accountant has confirmed that caution has been found.
18.Subsection (4) then provides that, if the judicial factory lasts for 5 years or longer, the judicial factor must re-record the appointment in the Register of Inhibitions 5 years after the original recording, and confirm to the Accountant when this has been done. This obligation repeats every 5 years for the duration of the judicial factory. Subsection (5) provides that all fees for recording or re-rerecording in the Register of Inhibitions are to be paid from the factory estate.
19.Section 8(1) places a requirement on the Scottish Ministers to periodically review the appropriateness of the recording of notices of appointment of judicial factors in the Register of Inhibitions. If the outcome of such a review is that another register would be more appropriate, then the Scottish Ministers may make regulations which change the requirement to record such notices in the Register of Inhibitions, and which specify which register is to be used instead. This can either be a register which already exists, or a bespoke register specifically for judicial factories. Any such regulations are subject to the affirmative procedure.
20.Subsection (2) provides that if the Scottish Ministers make regulations which specify that notices are to be registered in an existing register, then the regulations must also make the legal provision necessary for that register to be used.
21.Subsection (3) provides that if the Scottish Ministers make regulations which specify that a bespoke register specifically for judicial factories is to be used, then the regulations must establish such a register, and may provide for another person, such as the Accountant, to be responsible for its maintenance. Subsection (3) then goes on to set out further detail which may be included in such regulations.