Commentary on Sections Misconduct or failure of judicial factor
85.Section 41 makes provision for the Accountant to take actions where the Accountant has reason to believe that there is, or has been, misconduct, failure to discharge duties, or failure to comply with an instruction from the Accountant, on the part of a judicial factor. Such belief on the part of the Accountant may, for example, arise as a result of a report being made to the Accountant by a third party in relation to the conduct of the judicial factor.
86.Subsection (2) requires the Accountant to make investigations and allow the judicial factor to make representations about the suspected misconduct or failure. Subsections (3) and (4) provide that if, following that process, the Accountant is of the view that there has been serious misconduct or material failure, the Accountant is required to report that misconduct or failure to the court, and to any professional body of which the judicial factor is a member, or another body which has responsibility for dealing with complaints made in relation to members of that professional body. For example, if the judicial factor is a Scottish solicitor, the Accountant would be required to report the matter to the Scottish Legal Complaints Commission. The Accountant has discretion to determine what constitutes serious misconduct or material failure in the case of a particular judicial factor but this may include, for example, failing to comply with an instruction of the Accountant under section 40(2) without good reason.
87.Subsections (5) and (6) set out what happens when a matter is reported to the court under subsection (4). The court is required to allow the judicial factor the opportunity to make representations on the matter, and thereafter the court is empowered to dispose of the matter in any manner that the court considers appropriate. Subsection (6)(a) makes clear that a disposal by the court is final, meaning that there is no right of appeal against the court’s decision by either the Accountant or the judicial factor. Paragraph (b) provides that any right any person has to seek legal recovery of loss they have suffered as a result of the misconduct or failure of the judicial factor is retained, and that right is not affected by disposal by the court under this section.
88.Section 41 will cease to apply in relation to judicial factors when they are discharged.