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Legal Services Bill [HL]


Legal Services Bill [HL]
Schedule 17 — Licensed conveyancing
Part 1 — Administration of Justice Act 1985 (c. 61)

299

 

      (5)  

In paragraph 6 (vesting of sums in Council)—

(a)   

in sub-paragraph (1) after “thereto” insert “and to rules under

paragraph 6B”, and

(b)   

in sub-paragraph (2)(a) after “practice” insert “or former practice or

with any trust of which he is or was a trustee”.

5

      (6)  

After paragraph 6 insert—

“6A   (1)  

Without prejudice to paragraph 5, if the Council passes a

resolution to the effect that any rights to which this paragraph

applies shall vest in the Council, those rights shall vest

accordingly.

10

      (2)  

This paragraph applies to any right to recover or receive debts due

to the licensed conveyancer or his firm in connection with his

practice or former practice.

      (3)  

Any sums recovered by the Council by virtue of the exercise of

rights vested under sub-paragraph (1) shall vest in the Council

15

and shall be held by it on trust to exercise in relation to them the

powers conferred by this Part of this Schedule and, subject to those

powers and to rules under paragraph 6B, upon trust for the

persons beneficially entitled to them.

      (4)  

The Council shall serve on the licensed conveyancer or his firm,

20

and any person who owes a debt to which the order applies a

certified copy of the Council’s resolution.

6B    (1)  

The Council may make rules governing its treatment of sums

vested in it under paragraph 6 or 6A(3).

      (2)  

The rules may, in particular, make provision in respect of cases

25

where the Council, having taken such steps to do so as are

reasonable in all the circumstances of the case, is unable to trace

the person or persons beneficially entitled to any sum vested in the

Council under paragraph 6 or 6A(3) (including provision which

requires amounts to be paid into or out of a fund maintained

30

under section 21).”

      (7)  

In paragraph 7(1) (holding of sums vested in Council) after “thereto” insert

“and to rules under paragraph 6B”.

      (8)  

In paragraph 8 for “holds money” to the end substitute—

“(a)   

holds money on behalf of the licensed conveyancer or his

35

firm, or

(b)   

has information which is relevant to identifying any

money held by or on behalf of the licensed conveyancer or

his firm,

           

the court may require that person to give the Council information

40

as to any such money and the accounts in which it is held.”

      (9)  

In paragraph 9 (documents)—

(a)   

in sub-paragraph (1)(a)—

(i)   

after “possession” insert “or under the control”, and

(ii)   

after “practice” insert “or former practice or with any trust of

45

which the licensed conveyancer is or was a trustee”,

(b)   

in sub-paragraph (1)(b)—

 

 

Legal Services Bill [HL]
Schedule 17 — Licensed conveyancing
Part 1 — Administration of Justice Act 1985 (c. 61)

300

 

(i)   

after “possession” insert “or under the control”, and

(ii)   

for “to which the complaint relates” substitute “of which the

Council is satisfied”,

(c)   

in sub-paragraph (3) after “possession” insert “or control”,

(d)   

in sub-paragraph (5) after “possession” insert “or are under the

5

control”,

(e)   

after that sub-paragraph insert—

   “(5A)  

In the case of a document which consists of information

which is stored in electronic form, the requirement

imposed by a notice under sub-paragraph (1) or an order

10

under sub-paragraph (4) or (5), is a requirement to produce

or deliver the information in a form in which it is legible or

from which it can readily be produced in a legible form.”,

(f)   

in sub-paragraph (6) after “possession of” insert “(a)”,

(g)   

at the end of that sub-paragraph insert—

15

“(b)   

any property—

(i)   

in the possession or under the control of the

licensed conveyancer or his firm, or

(ii)   

in the case of an order under sub-paragraph

(5), which was in the possession or under

20

the control of such a person and has come

into the possession or under the control of

the person in respect of whom the order is

made,

   

which the Council reasonably requires for the

25

purpose of accessing information contained in such

documents,

           

and to use property obtained under paragraph (b) for that

purpose.”,

(h)   

in sub-paragraph (7) after “documents” insert “or other property”,

30

(i)   

in sub-paragraph (8) after “documents” insert “or other property”,

and

(j)   

in sub-paragraph (10) after “documents” insert “or other property”.

     (10)  

For paragraph 10 (mail) substitute—

“Redirection of communications

35

10    (1)  

The High Court, on the application of the Council, may from time

to time make a communications redirection order.

      (2)  

A communications redirection order is an order that specified

communications to the licensed conveyancer or his firm are to be

directed, in accordance with the order, to the Council, or any

40

person appointed by the Council.

      (3)  

For the purposes of this paragraph—

(a)   

“specified communications” means communications of

such description as are specified in the order;

(b)   

the descriptions of communications which may be so

45

specified include—

(i)   

communications in the form of a postal packet;

 

 

Legal Services Bill [HL]
Schedule 17 — Licensed conveyancing
Part 1 — Administration of Justice Act 1985 (c. 61)

301

 

(ii)   

electronic communications;

(iii)   

communications by telephone.

      (4)  

A communications redirection order has effect for such time not

exceeding 18 months as is specified in the order.

      (5)  

Where a communications redirection order has effect, the Council

5

or the person appointed by the Council may take possession or

receipt of the communications redirected in accordance with the

order.

      (6)  

Where a communications redirection order is made the Council

must pay to—

10

(a)   

in the case of an order relating to postal packets, the postal

operator concerned, and

(b)   

in any other case, the person specified in the order,

           

the like charges (if any) as would have been payable for the

redirection of the communications to which the order relates if the

15

addressee had permanently ceased to occupy or use the premises

or other destination of the communications and had applied to the

postal operator or the specified person (as the case may be) to

redirect the communications to him as mentioned in the order.

      (7)  

The High Court may, on the application of the Council, authorise

20

the Council, or a person appointed by it, to take such steps as may

be specified in the order in relation to any website purporting to

be or have been maintained by or on behalf of the licensed

conveyancer or his firm if the High Court is satisfied that the

taking of those steps is necessary to protect the public interest or

25

the interests of clients (or potential or former clients) of the

licensed conveyancer or his firm.

      (8)  

In this paragraph—

“postal operator” has the meaning given by section 125(1) of

the Postal Services Act 2000;

30

“postal packet” has the meaning given by section 125(1) of the

Postal Services Act 2000.

      (9)  

This paragraph does not apply where the powers conferred by this

Part of this Schedule are exercisable by virtue of paragraph 3.”

     (11)  

After paragraph 10 insert—

35

“Trusts

10A   (1)  

If the licensed conveyancer or his personal representative is a

trustee of a trust, the Council may apply to the High Court for an

order for the appointment of a new trustee in substitution for him.

      (2)  

The Trustee Act 1925 has effect in relation to an appointment of a

40

new trustee under this paragraph as it has effect in relation to an

appointment under section 41 of that Act.”

     (12)  

In paragraph 11 (liens) for “and documents” substitute “, documents and

other property”.

 

 

Legal Services Bill [HL]
Schedule 17 — Licensed conveyancing
Part 1 — Administration of Justice Act 1985 (c. 61)

302

 

     (13)  

After paragraph 12 (costs) insert—

“12A  (1)  

The High Court, on the application of the Council, may order a

former partner of the licensed conveyancer to pay a specified

proportion of the costs mentioned in paragraph 12.

      (2)  

The High Court may make an order under this paragraph only if

5

it is satisfied that the conduct (or any part of the conduct) by

reason of which the powers conferred by this Part were exercisable

in relation to the licensed conveyancer was conduct carried on

with the consent or connivance of, or was attributable to any

neglect on the part of, the former partner.

10

      (3)  

In this paragraph “specified” means specified in the order made

by the High Court.”

32    (1)  

Schedule 6 (bodies recognised under section 32: supplementary provisions)

is amended as follows.

      (2)  

In paragraph 1—

15

(a)   

omit “corporate” (in both places), and

(b)   

in sub-paragraph (2) omit—

(i)   

“or complaint” (in both places), and

(ii)   

“or (b)”.

      (3)  

In paragraph 2 (disciplinary control of recognised bodies) after “24” insert “,

20

24A”.

      (4)  

In paragraph 3—

(a)   

in sub-paragraph (1), in paragraph (a)(i) omit “by any court in the

United Kingdom”,

(b)   

after paragraph (a) of that sub-paragraph insert—

25

“(aa)   

it is alleged that a manager or employee of a

recognised body who is not a licensed conveyancer

has failed to comply with any rules applicable to

him by virtue of section 32;

(ab)   

it is alleged that a recognised body (while a

30

recognised body) has failed to comply with a

condition subject to which its recognition has

effect.”,

(c)   

in that sub-paragraph omit—

(i)   

paragraph (b), and

35

(ii)   

from “with a view” to the end, and

(d)   

after sub-paragraph (1) insert—

   “(1A)  

After making such an investigation, the Investigating

Committee may—

(a)   

hear and determine the allegation, or

40

(b)   

refer the allegation to the Discipline and Appeals

Committee for hearing and determination by that

Committee under paragraph 4.

     (1B)  

The Council shall make rules as to the cases in which the

Investigating Committee may hear and determine an

45

allegation, and the cases in which they must refer an

allegation to the Discipline and Appeals Committee.”

 

 

Legal Services Bill [HL]
Schedule 17 — Licensed conveyancing
Part 1 — Administration of Justice Act 1985 (c. 61)

303

 

      (5)  

After paragraph 3 insert—

“3A   (1)  

Where, on hearing an allegation by virtue of paragraph 3(1A)(a),

the Investigating Committee are satisfied—

(a)   

in a case within paragraph 3(1)(a), that a recognised body

has failed to comply with any such rules as are mentioned

5

in sub-paragraph (ii) of that paragraph, or

(b)   

in a case within paragraph 3(1)(aa), that a manager or

employee has failed to comply with any such rules as are

mentioned in that paragraph, or

(c)   

in a case within paragraph 3(1)(ab), that a recognised body

10

has failed to comply with any condition mentioned in that

paragraph,

           

the Committee may make an order directing the payment by the

recognised body, manager or employee of a penalty to be forfeited

to Her Majesty.

15

      (2)  

In relation to proceedings before the Investigating Committee by

virtue of paragraph 3(1A)(a), the Committee may make such order

as they consider fit as to the payment of costs by—

(a)   

the Council;

(b)   

the recognised body, manager or employee against whom

20

the proceedings were brought;

(c)   

if the person on whose allegation the proceedings were

brought was heard (in person, or through a representative)

by the Committee in the course of the proceedings, that

person.

25

      (3)  

In sub-paragraph (2), for the purposes of paragraph (a) or (b) of

that sub-paragraph, the reference to costs includes costs incurred

in connection with a preliminary investigation of the allegation

under paragraph 3.

      (4)  

The amount of any penalty required to be paid under sub-

30

paragraph (1) may not exceed such amount as is prescribed by

rules made by the Council for the purposes of this sub-paragraph.

      (5)  

Paragraphs 1, 2(1) and (3) and 4 of Schedule 4 have effect in

relation to—

(a)   

proceedings for the hearing and determination of an

35

allegation by the Investigating Committee, as they have

effect in relation to proceedings before the Discipline and

Appeals Committee under section 26, and

(b)   

orders of the Investigating Committee, as they have effect

in relation to orders of the Discipline and Appeals

40

Committee.

      (6)  

A person against whom an order is made by the Investigating

Committee by virtue of sub-paragraph (1) may appeal to the

Discipline and Appeals Committee, and on any such appeal the

Discipline and Appeals Committee may make such order as they

45

think fit.

      (7)  

If an order is made by the Investigating Committee by virtue of

sub-paragraph (2), a person listed in paragraphs (a) to (c) of that

sub-paragraph may appeal to the Discipline and Appeals

 

 

Legal Services Bill [HL]
Schedule 17 — Licensed conveyancing
Part 1 — Administration of Justice Act 1985 (c. 61)

304

 

Committee, and on any such appeal the Discipline and Appeals

Committee may make such order as they think fit.

      (8)  

Where an order is made by the Discipline and Appeals Committee

under sub-paragraph (6) or (7)—

(a)   

a party to the appeal, or

5

(b)   

if not within paragraph (a), the Council,

           

may appeal against the order to the High Court.

      (9)  

On an appeal under sub-paragraph (8) the High Court may make

such order as it thinks fit.

     (10)  

The decision of the High Court on an appeal under sub-paragraph

10

(8) shall be final.”

      (6)  

In paragraph 4—

(a)   

in sub-paragraph (1) after “allegation” insert “within paragraph

3(1)(a) or (ab)”,

(b)   

in that sub-paragraph, after paragraph (b) insert “, or

15

(c)   

has failed to comply with any such

condition as is mentioned in

paragraph 3(1)(ab),”,

(c)   

in sub-paragraph (2), in paragraph (b), for “£3,000” substitute “such

amount as may be prescribed by rules made by the Council for the

20

purposes of this sub-paragraph”,

(d)   

after paragraph (b) of that sub-paragraph insert—

“(ba)   

an order reprimanding that body;

(bb)   

an order that the recognition of that body under

section 32 is to have effect subject to such conditions

25

as may be specified in the order;”,

(e)   

omit paragraph (c) of that sub-paragraph,

(f)   

after that sub-paragraph insert—

   “(2A)  

Where on the hearing of any allegation within paragraph

3(1)(aa) the Discipline and Appeals Committee are

30

satisfied that a manager or employee has failed to comply

with any such rules as are mentioned in sub-paragraph (ii)

of that paragraph, the Committee may, if they think fit,

make one or more of the orders referred to in sub-

paragraph (2B).

35

     (2B)  

Those orders are—

(a)   

an order directing the payment by the manager or

employee of a penalty not exceeding such amount

as may be prescribed by rules made by the Council

for the purposes of this sub-paragraph;

40

(b)   

an order requiring the Council to consider taking

such steps as the Committee may specify in relation

to the manager or employee;

(c)   

an order requiring the Society to refer to an

appropriate regulator any matter relating to the

45

conduct of the manager or employee.

     (2C)  

For the purposes of sub-paragraph (2B)(c) an “appropriate

regulator” in relation to a manager or employee means—

 

 

Legal Services Bill [HL]
Schedule 17 — Licensed conveyancing
Part 1 — Administration of Justice Act 1985 (c. 61)

305

 

(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 the meaning of that Act) in

relation to that person, and

5

(b)   

if the person carries on activities which are not

reserved legal activities, any person who exercises

regulatory functions in relation to the carrying on

of such activities by the person.

     (2D)  

In relation to proceedings under this paragraph, the

10

Committee may make such order as they consider fit as to

the payment of costs by—

(a)   

the Council;

(b)   

the recognised body or manager or employee

against whom the proceedings were brought;

15

(c)   

if the person on whose allegation the proceedings

were brought was heard (in person, or through a

representative) by the Committee in the course of

the proceedings, that person.

     (2E)  

In sub-paragraph (2D), for the purposes of paragraph (a)

20

or (b) of that sub-paragraph, the reference to costs includes

costs incurred in connection with a preliminary

investigation of the allegation under paragraph 3.”, and

(g)   

omit sub-paragraphs (3), (3A) and (4).

      (7)  

In paragraph 5—

25

(a)   

in sub-paragraph (1)—

(i)   

after “26” insert “or paragraph 4”, and

(ii)   

for “director” (in each place) substitute “manager”,

(b)   

in sub-paragraph (3) for “director” (in both places) substitute

“manager”, and

30

(c)   

after sub-paragraph (3) insert—

    “(4)  

In relation to proceedings for the revocation of a

recognition under sub-paragraph (1), the Discipline and

Appeals Committee may make such order as they consider

fit as to the payment of costs by—

35

(a)   

the Council;

(b)   

the body to whose recognition the proceedings

relate.”.

      (8)  

In paragraph 6 (appeals against orders of the Committee)—

(a)   

in sub-paragraph (1)—

40

(i)   

for “body corporate” substitute “person”,

(ii)   

after “4(1)” insert “or (2A)”, and

(iii)   

for “5” substitute “5(1)”, and

(b)   

after that sub-paragraph insert—

   “(1A)  

Where an order is made by the Committee under

45

paragraph 4(2D) or 5(4) a person listed in that paragraph

may appeal to the High Court, and on any such appeal the

High Court may make such order as it thinks fit.”

 

 

 
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