Compensation Bill [HL]

House of Commons

Session 2005 - 06
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Other Bills before Parliament

Compensation Bill [HL]

Compensation Bill [HL]
Part 2 — Claims Management Services
1

NOTE: The words marked in bold type were inserted by the Lords to avoid
questions of privilege.
A
Bill
To
Specify certain factors that may be taken into account by a court determining a
claim in negligence or breach of statutory duty; and to make provision for the
regulation of claims management services.
Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and
consent of the Lords Spiritual and Temporal, and Commons, in this present
Parliament assembled, and by the authority of the same, as follows:—
Part 1
Standard of care
1
Deterrent effect of potential liability
A court considering a claim in negligence or breach of statutory duty may, in
determining whether the defendant should have taken particular steps to meet
5
a standard of care (whether by taking precautions against a risk or otherwise),
have regard to whether a requirement to take those steps might—
(a)
prevent a desirable activity from being undertaken at all, to a particular
extent or in a particular way, or
(b)
discourage persons from undertaking functions in connection with a
10
desirable activity.
2
Apologies, offers of treatment or other redress
An apology, an offer of treatment or other redress, shall not of itself amount to
an admission of negligence or breach of statutory duty.
Part 2
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Claims Management Services
3
Provision of regulated claims management services
(1)
A person may not provide regulated claims management services unless—

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Compensation Bill [HL]
Part 2 — Claims Management Services
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(a)
he is an authorised person,
(b)
he is an exempt person,
(c)
the requirement for authorisation has been waived in relation to him in
accordance with regulations under section 8, or
(d)
he is an individual acting otherwise than in the course of a business.
5
(2)
In this Part—
(a)
“authorised person” means a person authorised by the Regulator under
section 4(1)(a),
(b)
“claims management services” means advice or other services in
relation to the making of a claim,
10
(c)
“claim” means a claim for compensation, restitution, repayment or any
other remedy or relief in respect of loss or damage or in respect of an
obligation, whether the claim is made or could be made—
(i)
by way of legal proceedings,
(ii)
in accordance with a scheme of regulation (whether voluntary
15
or compulsory), or
(iii)
in pursuance of a voluntary undertaking,
(d)
“exempt person” has the meaning given by section 5(5), and
(e)
services are regulated if they are—
(i)
of a kind prescribed by order of the Secretary of State, or
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(ii)
provided in cases or circumstances of a kind prescribed by
order of the Secretary of State.
(3)
For the purposes of this section—
(a)
a reference to the provision of services includes, in particular, a
reference to—
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(i)
the provision of financial services or assistance,
(ii)
the provision of services by way of or in relation to legal
representation,
(iii)
referring or introducing one person to another, and
(iv)
making inquiries, and
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(b)
a person does not provide claims management services by reason only
of giving, or preparing to give, evidence (whether or not expert
evidence).
(4)
For the purposes of subsection (1)(d) an individual acts in the course of a
business if, in particular—
35
(a)
he acts in the course of an employment, or
(b)
he otherwise receives or hopes to receive money or money’s worth as a
result of his action.
4
The Regulator
(1)
The Secretary of State may by order designate a person (“the Regulator”)—
40
(a)
to authorise persons to provide regulated claims management services,
(b)
to regulate the conduct of authorised persons, and
(c)
to exercise such other functions as are conferred on the Regulator by or
under this Part.
(2)
The Secretary of State may designate a person only if satisfied that the person—
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(a)
is competent to perform the functions of the Regulator,

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(b)
will make arrangements to avoid any conflict of interest between the
person’s functions as Regulator and any other functions, and
(c)
will promote the interests of persons using regulated claims
management services (including, in particular, by—
(i)
setting and monitoring standards of competence and
5
professional conduct for persons providing regulated claims
management services,
(ii)
promoting good practice by persons providing regulated claims
management services, in particular in relation to the provision
of information about charges and other matters to persons
10
using or considering using the services,
(iii)
promoting practices likely to facilitate competition between
different providers of regulated claims management services,
and
(iv)
ensuring that arrangements are made for the protection of
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persons using regulated claims management services
(including arrangements for the handling of complaints about
the conduct of authorised persons)).
(3)
If the Secretary of State thinks that no existing person (whether an individual
or a body corporate or unincorporate) is suitable for designation under
20
subsection (1), he may by order establish a person for the purpose of being
designated.
(4)
The Regulator shall—
(a)
comply with any directions given to him by the Secretary of State;
(b)
have regard to any guidance given to him by the Secretary of State;
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(c)
have regard to any code of practice issued to him by the Secretary of
State;
(d)
try to meet any targets set for him by the Secretary of State;
(e)
provide the Secretary of State with any report or information requested
(but this paragraph does not require or permit disclosure of
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information in contravention of any other enactment).
(5)
The Secretary of State shall lay before Parliament any code of practice issued
by him to the Regulator.
(6)
The Secretary of State may pay grants to the Regulator (which may be on terms
or conditions, including terms and conditions as to repayment with or without
35
interest).
(7)
A reference in this Part to the Regulator includes a reference to a person acting
on behalf of the Regulator or with his authority.
(8)
The Secretary of State may by order revoke a person’s designation under
subsection (1).
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(9)
While no person is designated under subsection (1) the Secretary of State shall
exercise functions of the Regulator.
(10)
The Secretary of State may by order transfer (whether for a period of time
specified in the order or otherwise) a function of the Regulator to the Secretary
of State.
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5
Exemptions
(1)
The Secretary of State may by order provide that section 3(1) shall not prevent
the provision of regulated claims management services by a person who is a
member of a specified body.
(2)
The Secretary of State may by order provide that section 3(1) shall not prevent
5
the provision of regulated claims management services—
(a)
by a specified person or class of person,
(b)
in specified circumstances, or
(c)
by a specified person or class of person in specified circumstances.
(3)
Provision by virtue of subsection (1) or (2) may be expressed to have effect
10
subject to compliance with specified conditions.
(4)
Section 3(1) shall not prevent the provision of regulated claims management
services by a person who is established or appointed by virtue of an enactment.
(5)
For the purposes of this Part a person is “exempt” if, or in so far as, section 3(1)
does not, by virtue of this section, prevent him from providing regulated
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claims management services.
6
Enforcement: offence
(1)
A person commits an offence if he contravenes section 3(1).
(2)
A person who is guilty of an offence under subsection (1) shall be liable—
(a)
on conviction on indictment—
20
(i)
to imprisonment for a term not exceeding two years,
(ii)
to a fine, or
(iii)
to both, or
(b)
on summary conviction—
(i)
to imprisonment for a term not exceeding 51 weeks,
25
(ii)
to a fine not exceeding level 5 on the standard scale, or
(iii)
to both.
(3)
Until the commencement of section 281(4) and (5) of the Criminal Justice Act
2003 (c. 44) (51 week maximum term of sentences) the reference in subsection
(3)(b)(i) above to 51 weeks shall have effect as if it were a reference to six
30
months.
7
Enforcement: the Regulator
(1)
The Regulator may apply to the court for an injunction restraining a person
from providing regulated claims management services if he is not—
(a)
an authorised person,
35
(b)
an exempt person, or
(c)
the subject of a waiver in accordance with regulations under section 8.
(2)
In subsection (1) “the court” means the High Court or a county court.
(3)
The Regulator may—
(a)
investigate whether an offence has been committed under this Part;
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(b)
institute criminal proceedings in respect of an offence under this Part.

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(4)
For the purpose of investigating whether an offence has been committed under
this Part the Regulator may require the provision of information or documents.
(5)
On an application by the Regulator a judge of the High Court, Circuit judge or
justice of the peace may issue a warrant authorising the Regulator to enter and
search premises on which a person conducts or is alleged to conduct regulated
5
claims management business, for the purposes of investigating whether an
offence has been committed under this Part.
(6)
The Regulator may take copies of written or electronic records found on a
search by virtue of subsection (5) for a purpose specified in subsection (3)(a) or
(b).
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(7)
In subsections (4) to (6) a reference to the Regulator includes a reference to a
person authorised by him in writing.
(8)
The Secretary of State shall make regulations—
(a)
specifying matters of which a judge or justice of the peace must be
satisfied, or to which he must have regard, before issuing a warrant
15
under subsection (5), and
(b)
regulating the exercise of a power under or by virtue of subsection (4)
or (5) (whether by restricting the circumstances in which a power may
be exercised, by specifying conditions to be complied with in the
exercise of a power, or otherwise).
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8
Regulations
(1)
The Secretary of State shall make regulations about—
(a)
authorisations under section 4(1);
(b)
the functions of the Regulator.
(2)
The Schedule specifies particular provision that may be made by the
25
regulations.
(3)
Transitional provision of regulations under this section may, in particular,
make provision about the extent to which functions under this Part or under
the regulations may be exercised in respect of matters arising before the
commencement of a provision made by or by virtue of this Part.
30
9
Obstructing the Regulator
(1)
A person commits an offence if without reasonable excuse he obstructs the
Regulator in the exercise of a power—
(a)
under section 7(4) to (6), or
(b)
by virtue of paragraph 14 of the Schedule.
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(2)
A person who is guilty of an offence under subsection (1) shall be liable on
summary conviction to a fine not exceeding level 5 on the standard scale.
10
Pretending to be authorised, &c.
(1)
A person commits an offence if he falsely holds himself out as being—
(a)
an authorised person,
40
(b)
an exempt person, or
(c)
the subject of a waiver in accordance with regulations under section 8.

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(2)
A person commits an offence if—
(a)
he offers to provide regulated claims management services, and
(b)
provision by him of those services would constitute an offence under
this Part.
(3)
For the purposes of subsection (2) a person offers to provide services if he—
5
(a)
makes an offer to a particular person or class of person,
(b)
makes arrangements for an advertisement in which he offers to provide
services, or
(c)
makes arrangements for an advertisement in which he is described or
presented as competent to provide services.
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(4)
A person who is guilty of an offence under subsection (1) or (2) shall be liable—
(a)
on conviction on indictment—
(i)
to imprisonment for a term not exceeding two years,
(ii)
to a fine, or
(iii)
to both, or
15
(b)
on summary conviction—
(i)
to imprisonment for a term not exceeding 51 weeks,
(ii)
to a fine not exceeding level 5 on the standard scale, or
(iii)
to both.
(5)
Where a person commits an offence under this section by causing material to
20
be displayed or made accessible, he shall be treated as committing the offence
on each day during any part of which the material is displayed or made
accessible.
(6)
Until the commencement of section 281(4) and (5) of the Criminal Justice Act
2003 (c. 44) (51 week maximum term of sentences) the reference in subsection
25
(4)(b)(i) above to 51 weeks shall have effect as if it were a reference to six
months.
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The Claims Management Services Tribunal
(1)
There shall be a tribunal to be known as the Claims Management Services
Tribunal.
30
(2)
The Tribunal shall be constituted as follows—
(a)
members of the Financial Services and Markets Tribunal shall also be
members of the Claims Management Services Tribunal,
(b)
the President of the Financial Services and Markets Tribunal shall also
act as President of the Claims Management Services Tribunal,
35
(c)
the Deputy President of the Financial Services and Markets Tribunal
shall also act as Deputy President of the Claims Management Services
Tribunal, and
(d)
the panel of chairmen of the Financial Services and Markets Tribunal
shall also be the panel of chairmen of the Claims Management Services
40
Tribunal.
(3)
An appeal or reference to the Tribunal shall be heard by a member of the panel
of chairmen—
(a)
selected in accordance with arrangements made by the President, and
(b)
sitting alone or, in accordance with those arrangements, with one or
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two members of the lay panel;

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and a chairman who sits with one other member shall have a casting vote.
(4)
The Lord Chancellor may make rules about the proceedings of the Tribunal;
and the rules—
(a)
shall include provision about timing of references and appeals,
(b)
shall include provision for the suspension of decisions of the Regulator
5
while an appeal could be brought or is pending,
(c)
shall include provision about the making of interim orders,
(d)
shall enable the Tribunal to suspend or further suspend (wholly or
partly) the effect of a decision of the Regulator,
(e)
shall permit the Regulator to apply for the termination of the
10
suspension of a decision of his,
(f)
may include provision about evidence,
(g)
may include provision about any other matter of a kind for which rules
under section 132 of the Financial Services and Markets Act 2000 (c. 8)
(the Financial Services and Markets Tribunal) may make provision,
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(h)
may include transitional, consequential or incidental provision,
(i)
may make provision generally or only for specified cases or
circumstances,
(j)
may make different provision for different cases or circumstances,
(k)
shall be made by statutory instrument, and
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(l)
shall be subject to annulment in pursuance of a resolution of either
House of Parliament.
(5)
The following provisions of Schedule 13 to the Financial Services and Markets
Act 2000 shall have effect, with any necessary modifications, in relation to the
Claims Management Services Tribunal—
25
(a)
paragraph 5 (remuneration and allowances),
(b)
paragraph 6 (staff),
(c)
paragraph 7(3) and (4) (composition),
(d)
paragraph 8 (sittings),
(e)
paragraph 10 (practice directions),
30
(f)
paragraph 11 (evidence), and
(g)
paragraph 12(1) to (3) (decisions).
(6)
In Part 1 of Schedule 1 to the Tribunals and Inquiries Act 1992 (c. 53) (tribunals
under supervision of Council) insert at the appropriate place—

“Claims management services
The Claims Management Services

35

Tribunal established by the

Compensation Act 2006.”

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Appeals and references to Tribunal
(1)
A person may appeal to the Claims Management Services Tribunal if the
Regulator—
40
(a)
refuses the person’s application for authorisation,
(b)
grants the person authorisation on terms or subject to conditions,
(c)
imposes conditions on the person’s authorisation,
(d)
suspends the person’s authorisation, or