Solicitors (Scotland) Act 1980

41 Appointment of judicial factor. S

Where the Council, in exercise of any power conferred on them by [F1 rules made by virtue of section 34(1D) or] the accounts rules, have caused an investigation to be made of the books, accounts and other documents of a solicitor [F2 or an incorporated practice], and, on consideration of the report of the investigation, the Council are satisfied—

(a) that the solicitor [F3 or, as the case may be, the incorporated practice] has failed. . . F4 to comply with the provisions of those rules, and

(b) that, [F5 , in the case of a solicitor, in connection with his practice as such], either—

(i) his liabilities exceed his assets in the business, or

(ii) his books, accounts and other documents are in such a condition that it is not reasonably practicable to ascertain definitely whether his liabilities exceed his assets, or

(iii) there is reasonable ground for apprehending that a claim on the Guarantee Fund may arise [F6 ; or

(c) that, in the case of an incorporated practice, either—

(i) its liabilities exceed its assets, or

(ii) its books, accounts and other documents are in such a condition that it is not reasonably practicable to ascertain definitely whether its liabilities exceed its assets, or

(iii) there is reasonable ground for apprehending that a claim on the guarantee fund may arise].

the Council may apply to the Court for the appointment of a judicial factor on the estate of the solicitor [F7 or, as the case may be, of the incorporated practice]; and the Court, on consideration of the said report and after giving the solicitor [F8 or, as the case may be, the incorporated practice] an opportunity of being heard, may appoint a judicial factor on [F9 such] estate, or do otherwise as seems proper to it.

Textual Amendments

F1 Words in s. 41 inserted (10.1.2019) by The Money Laundering and Terrorist Financing (Miscellaneous Amendments) Regulations 2018 (S.I. 2018/1337), regs. 1(2), 6(5)

F2 Words inserted by Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 (c. 73, SIF 76:2), s. 56, Sch. 1 Pt. I para. 19(a)

F3 Words inserted by Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 (c. 73, SIF 76:2), s. 56, Sch. 1 Pt. I para. 19(b)

F4 Words repealed by Solicitors (Scotland) Act 1988 (c. 42, SIF 76:2), s. 6(1)(2), Sch. 1 para. 13, Sch. 2

F5 Words substituted by Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 (c. 73, SIF 76:2), s. 56, Sch. 1 Pt. I para. 19(c)

F6 S. 41(c) inserted by Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 (c. 73, SIF 76:2), s. 56, Sch. 1 Pt. I para. 19(d)

F7 Words inserted by Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 (c. 73, SIF 76:2), s. 56, Sch. 1 Pt. I para. 19(e)

F8 Words inserted by Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 (c. 73, SIF 76:2), s. 56, Sch. 1 Pt. I para. 19(f)

F9 Words substituted by Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 (c. 73, SIF 76:2), s. 56, Sch. 1 Pt. I para. 19(g)

Modifications etc. (not altering text)

C1 S. 41 applied (with modifications) (1.10.2004) by The Solicitors (Scotland) Act 1980 (Foreign Lawyers and Multi-national Practices) Regulations (S.S.I. 2004/383), {reg. 13}