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NOTE: The words marked in bold type were inserted by the Lords to avoid |
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Specify certain factors that may be taken into account by a court determining a |
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claim in negligence or breach of statutory duty; and to make provision for the |
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regulation of claims management services. |
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Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and |
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consent of the Lords Spiritual and Temporal, and Commons, in this present |
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Parliament assembled, and by the authority of the same, as follows:— |
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1 | Deterrent effect of potential liability |
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A court considering a claim in negligence or breach of statutory duty may, in |
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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), |
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have regard to whether a requirement to take those steps might— |
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(a) | prevent a desirable activity from being undertaken at all, to a particular |
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extent or in a particular way, or |
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(b) | discourage persons from undertaking functions in connection with a |
| 10 |
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2 | Apologies, offers of treatment or other redress |
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An apology, an offer of treatment or other redress, shall not of itself amount to |
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an admission of negligence or breach of statutory duty. |
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| 15 |
Claims Management Services |
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3 | Provision of regulated claims management services |
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(1) | A person may not provide regulated claims management services unless— |
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|
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|
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|
(a) | he is an authorised person, |
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(b) | he is an exempt person, |
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(c) | the requirement for authorisation has been waived in relation to him in |
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accordance with regulations under section 8, or |
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(d) | he is an individual acting otherwise than in the course of a business. |
| 5 |
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(a) | “authorised person” means a person authorised by the Regulator under |
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(b) | “claims management services” means advice or other services in |
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relation to the making of a claim, |
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(c) | “claim” means a claim for compensation, restitution, repayment or any |
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other remedy or relief in respect of loss or damage or in respect of an |
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obligation, whether the claim is made or could be made— |
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(i) | by way of legal proceedings, |
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(ii) | in accordance with a scheme of regulation (whether voluntary |
| 15 |
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(iii) | in pursuance of a voluntary undertaking, |
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(d) | “exempt person” has the meaning given by section 5(5), and |
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(e) | services are regulated if they are— |
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(i) | of a kind prescribed by order of the Secretary of State, or |
| 20 |
(ii) | provided in cases or circumstances of a kind prescribed by |
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order of the Secretary of State. |
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(3) | For the purposes of this section— |
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(a) | a reference to the provision of services includes, in particular, a |
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(i) | the provision of financial services or assistance, |
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(ii) | the provision of services by way of or in relation to legal |
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(iii) | referring or introducing one person to another, and |
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(iv) | making inquiries, and |
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(b) | a person does not provide claims management services by reason only |
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of giving, or preparing to give, evidence (whether or not expert |
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(4) | For the purposes of subsection (1)(d) an individual acts in the course of a |
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business if, in particular— |
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(a) | he acts in the course of an employment, or |
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(b) | he otherwise receives or hopes to receive money or money’s worth as a |
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(1) | The Secretary of State may by order designate a person (“the Regulator”)— |
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(a) | to authorise persons to provide regulated claims management services, |
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(b) | to regulate the conduct of authorised persons, and |
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(c) | to exercise such other functions as are conferred on the Regulator by or |
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(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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|
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|
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(b) | will make arrangements to avoid any conflict of interest between the |
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person’s functions as Regulator and any other functions, and |
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(c) | will promote the interests of persons using regulated claims |
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management services (including, in particular, by— |
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(i) | setting and monitoring standards of competence and |
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professional conduct for persons providing regulated claims |
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(ii) | promoting good practice by persons providing regulated claims |
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management services, in particular in relation to the provision |
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of information about charges and other matters to persons |
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using or considering using the services, |
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(iii) | promoting practices likely to facilitate competition between |
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different providers of regulated claims management services, |
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(iv) | ensuring that arrangements are made for the protection of |
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persons using regulated claims management services |
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(including arrangements for the handling of complaints about |
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the conduct of authorised persons)). |
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(3) | If the Secretary of State thinks that no existing person (whether an individual |
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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 |
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(a) | comply with any directions given to him by the Secretary of State; |
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(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 |
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(d) | try to meet any targets set for him by the Secretary of State; |
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(e) | provide the Secretary of State with any report or information requested |
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(but this paragraph does not require or permit disclosure of |
| 30 |
information in contravention of any other enactment). |
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(5) | The Secretary of State shall lay before Parliament any code of practice issued |
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(6) | The Secretary of State may pay grants to the Regulator (which may be on terms |
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or conditions, including terms and conditions as to repayment with or without |
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(7) | A reference in this Part to the Regulator includes a reference to a person acting |
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on behalf of the Regulator or with his authority. |
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(8) | The Secretary of State may by order revoke a person’s designation under |
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(9) | While no person is designated under subsection (1) the Secretary of State shall |
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exercise functions of the Regulator. |
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(10) | The Secretary of State may by order transfer (whether for a period of time |
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specified in the order or otherwise) a function of the Regulator to the Secretary |
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|
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|
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|
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(1) | The Secretary of State may by order provide that section 3(1) shall not prevent |
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the provision of regulated claims management services by a person who is a |
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member of a specified body. |
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(2) | The Secretary of State may by order provide that section 3(1) shall not prevent |
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the provision of regulated claims management services— |
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(a) | by a specified person or class of person, |
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(b) | in specified circumstances, or |
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(c) | by a specified person or class of person in specified circumstances. |
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(3) | Provision by virtue of subsection (1) or (2) may be expressed to have effect |
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subject to compliance with specified conditions. |
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(4) | Section 3(1) shall not prevent the provision of regulated claims management |
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services by a person who is established or appointed by virtue of an enactment. |
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(5) | For the purposes of this Part a person is “exempt” if, or in so far as, section 3(1) |
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does not, by virtue of this section, prevent him from providing regulated |
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claims management services. |
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(1) | A person commits an offence if he contravenes section 3(1). |
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(2) | A person who is guilty of an offence under subsection (1) shall be liable— |
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(a) | on conviction on indictment— |
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(i) | to imprisonment for a term not exceeding two years, |
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(b) | on summary conviction— |
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(i) | to imprisonment for a term not exceeding 51 weeks, |
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(ii) | to a fine not exceeding level 5 on the standard scale, or |
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(3) | Until the commencement of section 281(4) and (5) of the Criminal Justice Act |
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2003 (c. 44) (51 week maximum term of sentences) the reference in subsection |
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(3)(b)(i) above to 51 weeks shall have effect as if it were a reference to six |
| 30 |
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7 | Enforcement: the Regulator |
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(1) | The Regulator may apply to the court for an injunction restraining a person |
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from providing regulated claims management services if he is not— |
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(a) | an authorised person, |
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(c) | the subject of a waiver in accordance with regulations under section 8. |
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(2) | In subsection (1) “the court” means the High Court or a county court. |
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(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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|
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|
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(4) | For the purpose of investigating whether an offence has been committed under |
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this Part the Regulator may require the provision of information or documents. |
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(5) | On an application by the Regulator a judge of the High Court, Circuit judge or |
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justice of the peace may issue a warrant authorising the Regulator to enter and |
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search premises on which a person conducts or is alleged to conduct regulated |
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claims management business, for the purposes of investigating whether an |
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offence has been committed under this Part. |
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(6) | The Regulator may take copies of written or electronic records found on a |
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search by virtue of subsection (5) for a purpose specified in subsection (3)(a) or |
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(7) | In subsections (4) to (6) a reference to the Regulator includes a reference to a |
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person authorised by him in writing. |
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(8) | The Secretary of State shall make regulations— |
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(a) | specifying matters of which a judge or justice of the peace must be |
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satisfied, or to which he must have regard, before issuing a warrant |
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under subsection (5), and |
| |
(b) | regulating the exercise of a power under or by virtue of subsection (4) |
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or (5) (whether by restricting the circumstances in which a power may |
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be exercised, by specifying conditions to be complied with in the |
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exercise of a power, or otherwise). |
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(1) | The Secretary of State shall make regulations about— |
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(a) | authorisations under section 4(1); |
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(b) | the functions of the Regulator. |
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(2) | The Schedule specifies particular provision that may be made by the |
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(3) | Transitional provision of regulations under this section may, in particular, |
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make provision about the extent to which functions under this Part or under |
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the regulations may be exercised in respect of matters arising before the |
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commencement of a provision made by or by virtue of this Part. |
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9 | Obstructing the Regulator |
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(1) | A person commits an offence if without reasonable excuse he obstructs the |
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Regulator in the exercise of a power— |
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(a) | under section 7(4) to (6), or |
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(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 |
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summary conviction to a fine not exceeding level 5 on the standard scale. |
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10 | Pretending to be authorised, &c. |
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(1) | A person commits an offence if he falsely holds himself out as being— |
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(a) | an authorised person, |
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(c) | the subject of a waiver in accordance with regulations under section 8. |
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|
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|
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(2) | A person commits an offence if— |
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(a) | he offers to provide regulated claims management services, and |
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(b) | provision by him of those services would constitute an offence under |
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(3) | For the purposes of subsection (2) a person offers to provide services if he— |
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(a) | makes an offer to a particular person or class of person, |
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(b) | makes arrangements for an advertisement in which he offers to provide |
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(c) | makes arrangements for an advertisement in which he is described or |
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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— |
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(a) | on conviction on indictment— |
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(i) | to imprisonment for a term not exceeding two years, |
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(b) | on summary conviction— |
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(i) | to imprisonment for a term not exceeding 51 weeks, |
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(ii) | to a fine not exceeding level 5 on the standard scale, or |
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(5) | Where a person commits an offence under this section by causing material to |
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be displayed or made accessible, he shall be treated as committing the offence |
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on each day during any part of which the material is displayed or made |
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(6) | Until the commencement of section 281(4) and (5) of the Criminal Justice Act |
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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 |
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11 | The Claims Management Services Tribunal |
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(1) | There shall be a tribunal to be known as the Claims Management Services |
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(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 |
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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 |
| |
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(d) | the panel of chairmen of the Financial Services and Markets Tribunal |
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shall also be the panel of chairmen of the Claims Management Services |
| 40 |
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(3) | An appeal or reference to the Tribunal shall be heard by a member of the panel |
| |
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(a) | selected in accordance with arrangements made by the President, and |
| |
(b) | sitting alone or, in accordance with those arrangements, with one or |
| 45 |
two members of the lay panel; |
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|
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|
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|
| and a chairman who sits with one other member shall have a casting vote. |
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(4) | The Lord Chancellor may make rules about the proceedings of the Tribunal; |
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(a) | shall include provision about timing of references and appeals, |
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(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, |
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(d) | shall enable the Tribunal to suspend or further suspend (wholly or |
| |
partly) the effect of a decision of the Regulator, |
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(e) | shall permit the Regulator to apply for the termination of the |
| 10 |
suspension of a decision of his, |
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(f) | may include provision about evidence, |
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(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, |
| 15 |
(h) | may include transitional, consequential or incidental provision, |
| |
(i) | may make provision generally or only for specified cases or |
| |
| |
(j) | may make different provision for different cases or circumstances, |
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(k) | shall be made by statutory instrument, and |
| 20 |
(l) | shall be subject to annulment in pursuance of a resolution of either |
| |
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(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), |
| |
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(c) | paragraph 7(3) and (4) (composition), |
| |
(d) | paragraph 8 (sittings), |
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(e) | paragraph 10 (practice directions), |
| 30 |
(f) | paragraph 11 (evidence), and |
| |
(g) | paragraph 12(1) to (3) (decisions). |
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(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 |
| | | | | | | |
|
12 | Appeals and references to Tribunal |
| |
(1) | A person may appeal to the Claims Management Services Tribunal if the |
| |
| 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 |
| |
|
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|