Section 41 Appointment of judicial factor.C1

Scotland

Where the Council, in exercise of any power conferred on them by F1rules 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 F2or an ~~F3incorporated practice~~ authorised legal business, and, on consideration of the report of the investigation, the Council are satisfied—

(a)

that the solicitor F4or, as the case may be, the ~~F5incorporated practice~~ authorised legal business has failed. . . F6 to comply with the provisions of those rules, and

(b)

that, F7, 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 F8; or

(c)

that, in the case of an ~~F9incorporated practice~~ authorised legal business, 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 F10or, as the case may be, of the ~~F11incorporated practice~~ authorised legal business; and the Court, on consideration of the said report and after giving the solicitor F12or, as the case may be, the ~~incorporated practice~~ authorised legal business an opportunity of being heard, may appoint a judicial factor on F13such estate, or do otherwise as seems proper to it.

Annotations

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 in s. 41 substituted (1.7.2026 for specified purposes) by Regulation of Legal Services (Scotland) Act 2025 (asp 8), s. 103(3), sch. 1 para. 20(2); S.S.I. 2026/96, reg. 2(3)(4), sch. 2
F4: Words inserted by Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 (c. 73, SIF 76:2), s. 56, Sch. 1 Pt. I para. 19(b)
F5: Words in s. 41(a) substituted (1.7.2026 for specified purposes) by Regulation of Legal Services (Scotland) Act 2025 (asp 8), s. 103(3), sch. 1 para. 20(3); S.S.I. 2026/96, reg. 2(3)(4), sch. 2
F6: Words repealed by Solicitors (Scotland) Act 1988 (c. 42, SIF 76:2), s. 6(1)(2), Sch. 1 para. 13, Sch. 2
F7: Words substituted by Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 (c. 73, SIF 76:2), s. 56, Sch. 1 Pt. I para. 19(c)
F8: 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)
F9: Words in s. 41(c) substituted (1.7.2026 for specified purposes) by Regulation of Legal Services (Scotland) Act 2025 (asp 8), s. 103(3), sch. 1 para. 20(4); S.S.I. 2026/96, reg. 2(3)(4), sch. 2
F10: Words inserted by Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 (c. 73, SIF 76:2), s. 56, Sch. 1 Pt. I para. 19(e)
F11: Words in s. 41 substituted (1.7.2026 for specified purposes) by Regulation of Legal Services (Scotland) Act 2025 (asp 8), s. 103(3), sch. 1 para. 20(5); S.S.I. 2026/96, reg. 2(3)(4), sch. 2
F12: Words inserted by Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 (c. 73, SIF 76:2), s. 56, Sch. 1 Pt. I para. 19(f)
F13: 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

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