|
| |
|
(a) | who is disqualified from practising as a solicitor by |
| |
reason of one of the facts mentioned in section |
| |
41(1)(a), (b) or (c) of the 1974 Act (name struck off |
| |
the roll, suspension etc), or |
| |
(b) | in respect of whom there is a direction in force |
| 5 |
under section 47(2)(g) of that Act (prohibition on |
| |
| |
(4) | Permission granted for the purposes of sub-paragraph (2) |
| |
may be granted for such period and subject to such |
| |
conditions as the Society thinks fit. |
| 10 |
(5) | A person aggrieved by the refusal of the Society to grant |
| |
permission under sub-paragraph (4), or by any conditions |
| |
attached by the Society to the grant of any such permission |
| |
may appeal to the High Court which may— |
| |
(a) | confirm the refusal or the conditions, as the case |
| 15 |
| |
(b) | grant a permission under this paragraph for such |
| |
period and subject to such conditions as it thinks |
| |
| |
(6) | In relation to an appeal under sub-paragraph (5) the High |
| 20 |
Court may make such order as it thinks fit as to payment |
| |
| |
(7) | The decision of the High Court on an appeal under sub- |
| |
| |
92 | In paragraph 10 of that Schedule (failure to disclose striking off or |
| 25 |
| |
(a) | the existing paragraph becomes sub-paragraph (1) of that paragraph, |
| |
(b) | in that sub-paragraph after “recognised body” insert “(or any |
| |
manager or employee of such a body)”, and |
| |
(c) | after that sub-paragraph insert— |
| 30 |
“(2) | It is an offence for a person (“P”) to whom sub-paragraph |
| |
| |
(a) | to seek or accept from any person an interest in a |
| |
recognised body, without previously informing |
| |
that person (and, if different, the recognised body) |
| 35 |
that P is a person to whom that sub-paragraph |
| |
| |
(b) | to seek or accept a position as a manager of a |
| |
recognised body, without previously informing |
| |
that body that P is such a person. |
| 40 |
(3) | This sub-paragraph applies to a person— |
| |
(a) | who is disqualified from practising as a solicitor by |
| |
reason of one of the facts mentioned in section |
| |
41(1)(a), (b) or (c) of the 1974 Act (name struck off |
| |
the roll, suspension etc), or |
| 45 |
(b) | in respect of whom there is a direction in force |
| |
under section 47(2)(g) of that Act (prohibition on |
| |
| |
|
| |
|
| |
|
(4) | A person guilty of an offence under sub-paragraph (2) is |
| |
liable on summary conviction to a fine not exceeding level |
| |
| |
(5) | Subsection (2) of section 42 of the 1974 Act applies in |
| |
relation to an offence under sub-paragraph (2) as it applies |
| 5 |
in relation to an offence under that section. |
| |
(6) | For the purposes of sub-paragraph (2)(a) a person seeks or |
| |
accepts an interest in a recognised body if the person seeks |
| |
or accepts an interest which if it were obtained by the |
| |
person would result in the person having an interest in |
| 10 |
shares in that body within the meaning of Part 5 of the |
| |
Legal Services Act 2007 (see sections 72 and 109 of that |
| |
| |
93 | Omit paragraph 11 of that Schedule (control of employment of persons |
| |
convicted of offences of dishonesty and certain other persons). |
| 15 |
94 | Omit paragraph 12 of that Schedule (offences in connection with orders |
| |
under section 43(2) of the 1974 Act). |
| |
95 | Omit paragraph 13 of that Schedule (redress for inadequate professional |
| |
| |
96 | For paragraph 14 of that Schedule (examination of files) substitute— |
| 20 |
“Information about suitability for recognition |
| |
14 (1) | The Society may give a notice under this paragraph if it is satisfied |
| |
that it is necessary to do so for the purpose of investigating |
| |
whether a recognised body continues to be suitable to be |
| |
recognised under section 9. |
| 25 |
(2) | A notice under this paragraph is a notice which requires a person |
| |
within sub-paragraph (3)— |
| |
(a) | to provide information, or information of a description, |
| |
specified in the notice, or |
| |
(b) | to produce documents, or documents of a description, |
| 30 |
| |
| |
| |
(b) | an employee or manager of the recognised body; |
| |
(c) | a person who has an interest in shares in the recognised |
| 35 |
body (within the meaning of the Legal Services Act 2007 |
| |
(see sections 72 and 109 of that Act)). |
| |
(4) | For the purposes of this paragraph, section 44B(4) to (7) of the 1974 |
| |
| |
(a) | in relation to a notice under this paragraph as if it were a |
| 40 |
notice under section 44B of that Act, and |
| |
(b) | in relation to a person given a notice under this paragraph |
| |
as if that person were a person given a notice under that |
| |
| |
|
| |
|
| |
|
| and references in subsections (6) and (7) of that section to powers |
| |
conferred by that section are to be read as references to powers |
| |
conferred by this paragraph. |
| |
(5) | Section 44BA of the 1974 Act (power to require explanation of |
| |
document or information) applies in relation to a notice under this |
| 5 |
paragraph and the person to whom such a notice is given as it |
| |
applies in relation to a notice under section 44B of the 1974 Act and |
| |
the person to whom such a notice is given. |
| |
(6) | Subsection (1) of section 44BC of that Act (falsification of |
| |
documents etc) applies in relation to an investigation of the kind |
| 10 |
mentioned in sub-paragraph (1) as it applies in relation to the |
| |
investigations mentioned in that subsection, and subsections (2), |
| |
(4) and (5) of that section apply accordingly. |
| |
(7) | Subsection (3) of that section (provision of false information etc) |
| |
applies in relation to a requirement imposed under this paragraph |
| 15 |
as it applies in relation to a requirement imposed by section 44B of |
| |
that Act, and subsections (4) and (5) of that section apply |
| |
| |
97 | For paragraph 14A of that Schedule (payment of costs of investigations) |
| |
| 20 |
“Power to charge for costs of investigation |
| |
14A (1) | The Society may make regulations prescribing charges to be paid |
| |
to the Society by recognised bodies who are the subject of a |
| |
discipline investigation. |
| |
(2) | A discipline investigation is an investigation carried out by the |
| 25 |
Society into a failure or apprehended failure by a recognised body |
| |
to comply with any requirement imposed by or by virtue of this |
| |
Act or any rules applicable to it by virtue of section 9. |
| |
(3) | Regulations under this paragraph may— |
| |
(a) | make different provision for different cases or purposes; |
| 30 |
(b) | provide for the whole or part of a charge payable under the |
| |
regulations to be repaid in such circumstances as may be |
| |
prescribed by the regulations. |
| |
(4) | Any charge which a recognised body is required to pay under |
| |
regulations under this paragraph is recoverable by the Society as |
| 35 |
a debt due to the Society from the recognised body. |
| |
(5) | This paragraph applies in relation to a manager or employee of a |
| |
recognised body as it applies in relation to a recognised body.” |
| |
98 | In paragraph 16 of that Schedule (complaints to Tribunal with respect to |
| |
| 40 |
(a) | in sub-paragraph (1), in paragraph (a) omit “in the United |
| |
| |
(b) | in paragraph (b) of that sub-paragraph for “section 34 of the 1974 |
| |
Act” substitute “any requirement imposed by or by virtue of this |
| |
| 45 |
|
| |
|
| |
|
(c) | for paragraph (c) of that sub-paragraph substitute— |
| |
“(c) | a complaint that the body has acted in |
| |
contravention of section 41 of the 1974 Act or |
| |
paragraph 9(2) of this Schedule or of any |
| |
conditions subject to which a permission has been |
| 5 |
granted under section 41 of that Act or that |
| |
paragraph of this Schedule; or”, and |
| |
(d) | after that sub-paragraph insert— |
| |
“(1A) | The Tribunal shall have jurisdiction to hear and determine |
| |
any of the following complaints made to it under this |
| 10 |
paragraph with respect to a manager or employee of a |
| |
recognised body (“the relevant person”)— |
| |
(a) | a complaint that the relevant person has been |
| |
convicted by any court of a criminal offence which |
| |
renders that person unsuitable to be a manager or |
| 15 |
employee (or both) of a recognised body; |
| |
(b) | a complaint that the relevant person has failed to |
| |
comply with any requirement imposed by or by |
| |
virtue of this Act or any rules applicable to the |
| |
relevant person by virtue of section 9 of this Act; |
| 20 |
(c) | a complaint that the relevant person has acted in |
| |
contravention of section 41 of the 1974 Act or |
| |
paragraph 9(2) of this Schedule or of any |
| |
conditions subject to which a permission has been |
| |
granted under that section or for the purposes of |
| 25 |
paragraph 9(2) of this Schedule; |
| |
(d) | a complaint that the relevant person has knowingly |
| |
acted in contravention of an order under section |
| |
43(2) of the 1974 Act or of any conditions subject to |
| |
which a permission has been granted under such |
| 30 |
| |
99 | In paragraph 17 of that Schedule (procedure on applications and |
| |
| |
(a) | for “(7)” substitute “(9)”, |
| |
| 35 |
(i) | omit “11(1), 15(2) or”, |
| |
(ii) | omit “13(3) or”, and |
| |
(iii) | after “16(1)” insert “or (1A)”, and |
| |
(c) | in paragraph (c) after “body” insert “or, in the case of a complaint as |
| |
is mentioned in paragraph 16(1A), to a manager or employee of such |
| 40 |
| |
100 | In paragraph 18 of that Schedule (powers of Tribunal with respect to |
| |
| |
(a) | in sub-paragraph (1) after “this Schedule” insert “(other than |
| |
| 45 |
(b) | in paragraph (b) of that sub-paragraph for “section 34 of the 1974 |
| |
Act” substitute “any requirement imposed by or by virtue of this |
| |
| |
(c) | omit paragraph (d) of that sub-paragraph and the “or” immediately |
| |
| 50 |
|
| |
|
| |
|
(d) | in sub-paragraph (2) omit “not exceeding £3,000”, and |
| |
(e) | omit sub-paragraphs (3) and (4). |
| |
101 | After that paragraph insert— |
| |
“18A (1) | Where, on the hearing of any complaint made to it under |
| |
paragraph 16(1A) of this Schedule, the Tribunal is satisfied that a |
| 5 |
manager or employee of a recognised body— |
| |
(a) | has been convicted as mentioned in paragraph (a) of |
| |
| |
(b) | has failed to comply with any requirement imposed by or |
| |
by virtue of this Act or any rules applicable to the relevant |
| 10 |
person by virtue of section 9 of this Act, or |
| |
(c) | has acted as mentioned in paragraph (c) or (d) of |
| |
| |
| the Tribunal may, if it thinks fit, make one or more of the orders |
| |
referred to in sub-paragraph (2). |
| 15 |
| |
(a) | an order directing the payment by the relevant person of a |
| |
penalty to be forfeited to Her Majesty; |
| |
(b) | an order requiring the Society to consider taking such steps |
| |
as the Tribunal may specify in relation to the relevant |
| 20 |
| |
(c) | if the person is not a solicitor, an order which states one or |
| |
more of the matters mentioned in sub-paragraph (3); |
| |
(d) | an order requiring the Society to refer to an appropriate |
| |
regulator any matter relating to the conduct of the relevant |
| 25 |
| |
(3) | The matters referred to in sub-paragraph (2)(c) are— |
| |
(a) | that as from the specified date— |
| |
(i) | no solicitor shall employ or remunerate, in |
| |
connection with his practice as a solicitor, the |
| 30 |
person with respect to whom the order is made, |
| |
| |
(ii) | no recognised body, or manager or employee of |
| |
such a body, shall employ or remunerate that |
| |
person, in connection with the business of the |
| 35 |
| |
| except in accordance with a Society permission; |
| |
(b) | that as from the specified date no recognised body or |
| |
manager or employee of such a body shall, except in |
| |
accordance with a Society permission, permit the person |
| 40 |
with respect to whom the order is made to be a manager of |
| |
| |
(c) | that as from the specified date no recognised body or |
| |
manager or employee of such a body shall, except in |
| |
accordance with a Society permission, permit the person |
| 45 |
with respect to whom the order is made to have an interest |
| |
| |
(4) | Subsections (1) to (1C), (3) and (4) of section 44 of the 1974 Act |
| |
(offences in connection with orders under section 43(2) of that Act) |
| |
|
| |
|
| |
|
apply in relation to an order under sub-paragraph (2)(c) as they |
| |
apply in relation to an order under section 43(2) of that Act, except |
| |
that references in those subsections to provision within section |
| |
43(2)(a), (b) or (c) of that Act are to be read as references to |
| |
provision within sub-paragraph (3)(a), (b) or (c). |
| 5 |
(5) | Section 44(2) of the 1974 Act, paragraph 16(1)(d) and (1A)(d) of |
| |
this Schedule and paragraph 15(3A) of Schedule 14 to the Courts |
| |
and Legal Services Act 1990 apply in relation to an order under |
| |
sub-paragraph (2)(c) as they apply in relation to an order under |
| |
section 43(2) of the 1974 Act. |
| 10 |
(6) | For the purposes of sub-paragraph (2)(d) an “appropriate |
| |
regulator” in relation to the relevant person means— |
| |
(a) | if the person is an authorised person in relation to a |
| |
reserved legal activity for the purposes of the Legal |
| |
Services Act 2007, any relevant approved regulator (within |
| 15 |
the meaning of that Act) in relation to that person, and |
| |
(b) | if the person carries on activities which are not reserved |
| |
legal activities, any body which regulates the carrying on |
| |
of such activities by the person.” |
| |
102 | In paragraph 20 of that Schedule (powers of Tribunal in respect of legal aid |
| 20 |
complaints), in sub-paragraph (1)— |
| |
(a) | for “an officer” substitute “a manager”, |
| |
(b) | for “director” substitute “manager”, and |
| |
(c) | for “legal aid work” substitute “providing representation funded by |
| |
the Legal Services Commission as part of the Criminal Defence |
| 25 |
| |
| and omit sub-paragraph (2). |
| |
103 | In paragraph 21 of that Schedule (revocation of recognition by reason of |
| |
| |
(a) | in sub-paragraph (1), in paragraph (a) for “director” substitute |
| 30 |
| |
(b) | in paragraph (b) of that sub-paragraph for “director” (in both places) |
| |
| |
(c) | in paragraph (c) of that sub-paragraph for “director” (in both places) |
| |
| 35 |
(d) | in sub-paragraph (3) for “director” (in both places) substitute |
| |
| |
(e) | after that sub-paragraph insert— |
| |
“(4) | The reference in paragraph (c) of sub-paragraph (1) to a |
| |
person employed by a recognised body includes a |
| 40 |
reference to a person who was so employed at the time of |
| |
the conduct leading to the making of the order referred to |
| |
| |
104 | In paragraph 23 (orders as to remuneration for non-contentious business)— |
| |
(a) | the existing provision becomes sub-paragraph (1) of that paragraph, |
| 45 |
(b) | in that sub-paragraph for “regulating (in accordance with paragraph |
| |
22)” substitute “prescribing (by virtue of paragraph 22) general |
| |
principles to be applied when determining”, |
| |
|
| |
|
| |
|
(c) | in that sub-paragraph for paragraph (b) substitute— |
| |
“(b) | in paragraph (d), the reference to the solicitor were |
| |
a reference to any manager or employee of the |
| |
recognised body who is an authorised person.”, |
| |
| 5 |
(d) | after that sub-paragraph insert— |
| |
“(2) | In this paragraph “authorised person” means a person |
| |
who is an authorised person in relation to an activity |
| |
which is a reserved legal activity, within the meaning of |
| |
the Legal Services Act 2007 (see section 18 of that Act).” |
| 10 |
105 | For paragraph 24 of that Schedule (effect of contentious business |
| |
| |
“24 (1) | This paragraph applies in relation to a contentious business |
| |
agreement made between a recognised body and a client. |
| |
(2) | A provision in the agreement that the body shall not be liable for |
| 15 |
the negligence of any of its managers or employees shall be void if |
| |
the client is a natural person who, in entering that agreement, is |
| |
acting for purposes which are outside his trade, business or |
| |
| |
(3) | A provision in the agreement that the body shall be relieved from |
| 20 |
any responsibility to which it would otherwise be subject in the |
| |
course of carrying on its business as a recognised body shall be |
| |
| |
106 | In paragraph 25 of that Schedule (effect of supervening incapacity on |
| |
contentious business agreements)— |
| 25 |
(a) | for sub-paragraph (1)(b) substitute— |
| |
“(b) | a relevant insolvency event occurs in relation to the |
| |
| |
(b) | in sub-paragraphs (2) and (3)— |
| |
(i) | for “taxation” (in each place) substitute “assessment”, and |
| 30 |
(ii) | for “taxing officer” (in each place) substitute “costs officer”, |
| |
(c) | in sub-paragraph (3) for “any officer” substitute “any manager”, and |
| |
(d) | after that sub-paragraph insert— |
| |
“(4) | For the purposes of this paragraph a relevant insolvency |
| |
event occurs in relation to a recognised body if— |
| 35 |
(a) | a resolution for a voluntary winding-up of the |
| |
body is passed without a declaration of solvency |
| |
under section 89 of the Insolvency Act 1986; |
| |
(b) | the body enters administration within the meaning |
| |
of paragraph 1(2)(b) of Schedule B1 to that Act; |
| 40 |
(c) | an administrative receiver within the meaning of |
| |
section 251 of that Act is appointed; |
| |
(d) | a meeting of creditors is held in relation to the body |
| |
under section 95 of that Act (creditors’ meeting |
| |
which has the effect of converting a members’ |
| 45 |
voluntary winding up into a creditors’ voluntary |
| |
| |
(e) | an order for the winding up of the body is made.” |
| |
|
| |
|