Wednesday, December 22, 2010

‘Law unto themselves’ Judicial Factors to be modernised as Scottish Law Commission reviews ‘Victorian’ Scots laws on court appointed administrators

SLCThe Scottish Law Commission’s latest consultation on the work of Judicial Factors. THE SCOTTISH LAW COMMISSION has announced a consultation with the aims of modernising yet another part of Scotland’s ‘Victorian’ justice system, the one hundred year old plus legislation of the Judicial Factors (Scotland) Act 1889 which governs Judicial Factors, who are more often than not solicitors or accountants appointed by the court to ‘look after’ or to gather in & distribute property belonging to someone else, living or more usually dead, in cases such as where disputes rage between beneficiaries & executors over the progress of a deceased’s estate being wound up, or if someone died without leaving a will.

The Scottish Law Commission’s announcement described the legislation relating to Judicial Factors as being “extremely old and is no longer fit for purpose”. The role & duties of Judicial Factors are featured in many well used if antiquated & sometimes heavily abused pieces of legislation such as the Trusts Act (Scotland) 1921.

Judicial Factors fees for their work, particularly when brought in to deal with a will have been known to be almost limitless, and near impossible to challenge in terms of regulation when things go wrong, therefore it is certainly in the interests of consumers there is as much public input into this consultation as possible, rather than simply allowing the legal & accountancy professions & their regulators to play the usual game with reforms being mostly directed in their members favour, rather than consumers and the public, who, in quite a few cases over the years, have been extremely ill served by Judicial Factors.

Indeed in certain cases, where allegations or evidence of corruption on the part of solicitors & accountants who have themselves mishandled, fleeced or plundered the estates of dead clients has been made by families & beneficiaries, the appointment of a Judicial Factor has sometimes been used as a threat against beneficiaries, accompanied with a letter from a solicitor reminding anyone the fees of appointing a Judicial Factor and the subsequent costs of their work may well make mincemeat of any assets left in the estate after the solicitor & accountant have helped themselves.

Law Society of Scotland & ICASUnsurprisingly the Law Society of Scotland & Institute of Chartered Accountants hardly ever take action on complaints against members appointed as Judicial Factors. Given the self regulating Law Society of Scotland & Institute of Chartered Accountants of Scotland stand by, ever eager to whitewash any complaints which may impugn their members reputations, it is often the case solicitors or accountants who are alleged to have plundered deceased client’s estates are almost never brought to justice for their misdeeds after a Judicial Factor has been appointed.

Two options for reform of Judicial Factors are are being put forward by the Scottish Law Commission, although more proposals of reform of the regulatory framework which govern their duties would have been welcome in a more consumer protection oriented society as we are now supposed to be.

The first proposal is to keep the existing structure but to modernise it and make it more efficient by means such as updating the powers and duties of judicial factors as well as the procedure by which they are discharged.

The second option proposes a new public official, the Official Judicial Factor, who would carry out all judicial factory work unless the court wished to appoint someone else. An existing public official would become the Official Judicial Factor so that the functions would be part of the functions of an existing public office. Costs would generally be recovered from the property being managed.

Patrick Layden QC, the lead Commissioner for this project, said: “The office of judicial factor is a useful institution which needs to be brought up to date. If it were properly modernised, it could be very helpful in a wide range of situations, from looking after the property of people who cannot do it themselves to taking charge of assets confiscated under the Proceeds of Crime legislation."

Mr Layden continued : "We would welcome comments on this Discussion Paper. The Discussion Paper is available on the Commission’s website at http://www.scotlawcom.gov.uk/ and comments on the proposals are welcome by 15 April 2011. The Commission would also be grateful for suggestions as to an appropriate alternative for the name “judicial factor”.

The Scottish Law Commission’s discussion paper on their proposals to reform Judicial Factors can be downloaded here : Discussion Paper on Judicial Factors (DP 146). The Commission state they would be most grateful to receive comments on our proposals, or any part of them, by 15 April 2011. Where possible, we would prefer the electronic submission of comments, for example by using the electronic response form, and more information if required is available from gillian.swanson@scotlawcom.gsi.gov.uk.

Where there's a will there's a crook - Sunday Mail November 28 2010Judicial Factor was appointed to wind up Valerie Macadam’s (now Valerie Penny) law firm in 2003 after embezzlement of £130K client finds was detected. A classic example somewhat related to recent events, of a Judicial Factor being appointed to wind up a law firm came after breaches of accounts rules and discrepancies in client accounts were uncovered during an inspection by the Society of law firm Macadams SSC in 2003, owned by the then Valerie Macadam, who was jailed in 2008 for three years for embezzling £130,000 of client funds. However, Valerie Macadam recently returned to fame with a new name, Valerie Penny, after being exposed by a Sunday Mail newspaper investigation into her new ‘will writing’ company, which I reported on, here : Former lawyer jailed for stealing clients £130K returns to run will-writing business as Law Society protects its own will rip-off solicitors

It should be noted while there are cases of complaints regarding the work of Judicial Factors with it coming as little surprise very few are ever resolved, equally the work of Judicial Factors can sometimes be invaluable, if pricey, when appointed in roles such as administration of a charity when allegations of fraud or misconduct emerge.

Equally, not all Judicial Factors appointed to handle the estates of deceased persons mishandle their work, however, as the circumstances of some appointments of Judicial Factors can leave much to be desired, it is well past time for a review and inquiry into the laws which permit their office & work, along with how they are regulated and how the affected persons can challenge their activities should the need arise.

Currently, the supervision of the work undertaken by Judicial Factors falls to The Accountant of Court, who is an Officer of Court appointed to :

  • supervise the actings of individuals appointed by the Courts as Judicial Factors or Administrators to manage estates under the Judicial Factors Act 1849 and the Proceeds of Crime (Scotland) Act 1995
  • administer or supervise the administration of property belonging to children under the age of 16 years as required by the Children (Scotland) Act 1995
  • administer Child Trust Fund accounts where there is no person who has parental responsibilities for a child under the age of 16 where the child is in care and accommodated in Scotland, all in terms of the Child Trust Fund Act 2004
  • manage funds consigned with the Accountant of Court in accordance with a Court of Session interlocutor or in the process of liquidation proceedings.

Perhaps an extra layer of independent scrutiny may be required, especially when the Judicial Factor turns out to be a solicitor or indeed any person who is a member of a self regulating profession such as an accountant.

While the Scottish Government have a track record of not always paying attention to consultations carried out by the Scottish Law Commission, I would encourage readers to participate in this consultation, to ensure all aspects of the one hundred year old laws which relate to Judicial Factors be looked at and brought into line with our times. Its in your interests as consumers and members of the public to do so.

24 comments:

  1. hmmm you are such a hive of information as ever Mr Cherbi

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  2. "The second option proposes a new public official, the Official Judicial Factor, who would carry out all judicial factory work unless the court wished to appoint someone else. An existing public official would become the Official Judicial Factor so that the functions would be part of the functions of an existing public office. Costs would generally be recovered from the property being managed."

    I hope it doesn't go the way of the Accountant In Bankruptcy which is about as crooked as it gets when trying to complain about what they get up to!

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  3. Another good scandal EXPOSED involving the legal profession.FANTASTIC!IT WARMS MY DAY!

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  4. looks like Val Macadam/Penny's latest clients might be in need of another judicial factor !

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  5. This sounds like one of those tucked away rackets which lawyers specialise in - god knows how much has been fleeced from the dead under this Judicial Factor guise millions probably.

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  6. As a solicitor who has fought the appointment of a JF of behalf of a client and won I completely agree with your point of view and the SLC's consultation.

    I look forward to reading the consultation responses when they are published.

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  7. I'm sure the Scots Law Commission will be chuffed with your headline lol

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  8. A license to steal by the sounds of it.

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  9. I think you might have a problem getting non lawyer participation in the consultation simply because most people out of collective ignorance when it comes to the legal system will never have heard of the term "judicial factor" let alone understand what they do.
    You've made good attempt though so lets see what happens.

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  10. Peter do you anything about Martin John Carey of Scullions Solicitors in Hamilton ?

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  11. Anonymous said...

    Another good scandal EXPOSED involving the legal profession.FANTASTIC!IT WARMS MY DAY.


    Aye me too, cheers me up these rascals getting a pasting.

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  12. Anonymous said...

    A license to steal by the sounds of it.

    22 December 2010 17:22

    Yes.I can just imagine how much a court appointed lawyer handling a will would cost!
    Would there be anything left for anyone else?
    I DOUBT IT!

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  13. Anonymous said...
    I think you might have a problem getting non lawyer participation in the consultation simply because most people out of collective ignorance when it comes to the legal system will never have heard of the term "judicial factor" let alone understand what they do.
    You've made good attempt though so lets see what happens.

    22 December 2010 18:51


    Oh yes its all about keeping us in the dark so we have to use lawyers to do it ?

    Roll on democracy coming to Scotland's Banana Republic justice system !

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  14. Good example using the Macadam story .I found it in google she'd been jailed and had a judicial factor appointed to deal with the mess she left her clients in.

    I wonder how many clients were actually helped on their way..

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  15. Anonymous said...

    Peter do you anything about Martin John Carey of Scullions Solicitors in Hamilton ?

    MARTIN JOHN CAREY, formerly of Alexander & Martin, Solicitors, Falkirk and now of Scullion & Company, Solicitors, 5 Church Street, Hamilton

    See link

    http://www.ssdt.org.uk/findings/finding_item.asp?LTfindingID=293

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  16. I know someone who is currently going through hell with a Judicial Factor ..I will ask them to contact you with their own version of events maybe you can he lp them.

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  17. Having read your post and some of the comments these judicial factors sound as crooked as the rest of the legal profession.
    Anyway just because some lawyer or accountant is appointed by a court doesn't mean he will be any more honest than the rest,especially with there being even less regulation of what they get up to.

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  18. http://www.scotland-judiciary.org.uk/1/0/Home

    Judicial complaints

    The Lord President and the sheriffs principal will consider any complaint about the personal conduct of judicial office holders, SELF REGULATION AGAIN but cannot deal with complaints about judicial decisions or the way in which cases have been handled. The usual way to challenge a decision is to appeal. If you are considering appealing a judicial decision, we would recommend that you obtain legal advice. You can obtain such advice from a solicitor or the Citizens Advice Bureau. LEGAL ADVICE ABOUT HOW TO EXPOSE A CROOKED SHERIFF?

    If you would like to complain about the personal conduct of a judge or a sheriff principal whether inside or outside of the court you should write to:

    The Rt Hon Lord Hamilton, The Lord President
    1A Parliament Square
    Edinburgh
    EH1 1RQ

    Complain to the Law Society and a Douglas Mill deals with the complaint, result, a cover up.

    Complain about a Judicial Officer, does Lord Hamilton do the same as Mr Mill? Really Arthur old boy this self regulation is simply legal dictatorship. Too much of a conflict of interest.

    Judicial offers not accountable in law, where is the democracy in that?

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  19. A wonderful expose of these legal criminals at work.

    I hope anyone using or having to deal with these judicial factors now take the time to check their work and see if everything is in order.

    Have a good Christmas Peter Your blog always cheers me up when I see politicians lawyers or bankers getting away with crookery !

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  20. Another example of the self regulating Law Society of Scotland 'keeping it in the family'.

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  21. To the earlier comment who said no one understands the term "Judicial Factor" I certainly do understand what they do or perhaps now what they shouldnt be doing.

    I thank god we have a free press with journalists such as Peter willing to tell us what is really going on in the justice system.

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  22. Good example using the Macadam story .I found it in google she'd been jailed and had a judicial factor appointed to deal with the mess she left her clients in.

    I wonder how many clients were actually helped on their way..

    22 December 2010 23:09

    not many I bet!

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  23. Kenny MacAskill always did say he would protect lawyers at any cost against anyone who wasn’t a lawyer …

    At any cost. How can this man claim he stands for justice? He is a Douglas Mill.

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  24. Just come across this one Peter; and comment - the idea of the Accountant of Court's office "supervising" Judicial Factors, is perhaps too strong. That office is mainly a bureaucratic check. Arithmetic is checked, accounts are required to be lodged etc., but any insightful oversight is easily discouraged or deflected by the fact that the JF officeholder is a Professional Practitioner, whilst the staffers at the Accountant of Court's office are only lowly Civil Servants without such qualifications. When the lawyer asserts 'the law says this and applies thus' who is a lowly government clerk to gainsay the professional. What happened to this issue? Regards J, Ed.

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