|
| |
|
(5) | In paragraph 6 (vesting of sums in Council)— |
| |
(a) | in sub-paragraph (1) after “thereto” insert “and to rules under |
| |
| |
(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 |
| |
| 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 |
| |
(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 |
| |
(b) | has information which is relevant to identifying any |
| |
money held by or on behalf of the licensed conveyancer or |
| |
| |
| 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)— |
| |
|
| |
|
| |
|
(i) | after “possession” insert “or under the control”, and |
| |
(ii) | for “to which the complaint relates” substitute “of which the |
| |
| |
(c) | in sub-paragraph (3) after “possession” insert “or control”, |
| |
(d) | in sub-paragraph (5) after “possession” insert “or are under the |
| 5 |
| |
(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 |
| |
(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 |
| |
| |
| which the Council reasonably requires for the |
| 25 |
purpose of accessing information contained in such |
| |
| |
| and to use property obtained under paragraph (b) for that |
| |
| |
(h) | in sub-paragraph (7) after “documents” insert “or other property”, |
| 30 |
(i) | in sub-paragraph (8) after “documents” insert “or other property”, |
| |
| |
(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 |
| |
(i) | communications in the form of a postal packet; |
| |
|
| |
|
| |
|
(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 |
| |
| |
(6) | Where a communications redirection order is made the Council |
| |
| 10 |
(a) | in the case of an order relating to postal packets, the postal |
| |
| |
(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. |
| |
| |
“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 |
| |
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 |
| |
| |
|
| |
|
| |
|
(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 |
| |
| |
32 (1) | Schedule 6 (bodies recognised under section 32: supplementary provisions) |
| |
| |
| 15 |
(a) | omit “corporate” (in both places), and |
| |
(b) | in sub-paragraph (2) omit— |
| |
(i) | “or complaint” (in both places), and |
| |
| |
(3) | In paragraph 2 (disciplinary control of recognised bodies) after “24” insert “, |
| 20 |
| |
| |
(a) | in sub-paragraph (1), in paragraph (a)(i) omit “by any court in the |
| |
| |
(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 |
| |
| |
(c) | in that sub-paragraph omit— |
| |
| 35 |
(ii) | from “with a view” to the end, and |
| |
(d) | after sub-paragraph (1) insert— |
| |
“(1A) | After making such an investigation, the Investigating |
| |
| |
(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.” |
| |
|
| |
|
| |
|
(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 |
| |
| |
| the Committee may make an order directing the payment by the |
| |
recognised body, manager or employee of a penalty to be forfeited |
| |
| 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— |
| |
| |
(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 |
| |
| 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 |
| |
| |
(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 |
| |
| |
(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 |
| |
(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 |
| |
(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 |
| |
|
| |
|
| |
|
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 |
| |
| |
(a) | in sub-paragraph (1) after “allegation” insert “within paragraph |
| |
| |
(b) | in that sub-paragraph, after paragraph (b) insert “, or |
| 15 |
(c) | has failed to comply with any such |
| |
condition as is mentioned in |
| |
| |
(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- |
| |
| 35 |
| |
(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— |
| |
|
| |
|
| |
|
(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 |
| |
| |
| |
(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). |
| |
| 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 |
| |
| 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 |
| |
(b) | the body to whose recognition the proceedings |
| |
| |
(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.” |
| |
|
| |
|