Legal Services Bill [HL]

House of Commons

Session 2006 - 07
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Other Bills before Parliament

Legal Services Bill [HL]

Legal Services Bill [HL]
Part 6 — Legal Complaints
74

(b)
the complainant has not previously notified the ombudsman of the
complainant’s rejection of the determination, and
(c)
the ombudsman is satisfied that such conditions as may be prescribed
by the scheme rules for the purposes of this subsection are satisfied,

the determination is treated as if it had never been rejected by virtue of
5
subsection (5).
(7)
The ombudsman must give notice of the outcome to—
(a)
the complainant,
(b)
the respondent, and
(c)
any relevant authorising body in relation to the respondent.
10
(8)
Where a determination is rejected by virtue of subsection (5), that notice must
contain a general description of the effect of subsection (6).
(9)
A copy of the determination on which appears a certificate signed by an
ombudsman is evidence that the determination was made under the scheme.
(10)
Such a certificate purporting to be signed by an ombudsman is to be taken to
15
have been duly signed unless the contrary is shown.
(11)
Neither the complainant nor the respondent, in relation to a complaint, may
institute or continue legal proceedings in respect of a matter which was the
subject of a complaint, after the time when a determination by an ombudsman
of the complaint becomes binding and final in accordance with this section.
20
141
Enforcement by complainant of directions under section 137
(1)
This section applies where—
(a)
a determination is made in respect of a complaint under the
ombudsman scheme,
(b)
one or more directions are made under section 137(2), and
25
(c)
the determination is final by virtue of section 140(4).
(2)
An amount payable in accordance with—
(a)
a direction under subsection (2)(b) of section 137 which requires that
the whole or part of any amount already paid by or on behalf of the
complainant in respect of the fees be refunded, or
30
(b)
a direction under subsection (2)(c) of that section,

including any interest payable by virtue of subsection (4) of that section, is
recoverable, if a court so orders on the application of the complainant or an
ombudsman, as if it were payable under an order of that court.
(3)
If the respondent fails to comply with any other direction under section 137(2),
35
the complainant or an ombudsman may make an application to the court
under this subsection.
(4)
If, on an application under subsection (3), the court decides that the respondent
has failed to comply with the direction in question, it may order the respondent
to take such steps as the court directs for securing that the direction is complied
40
with.
(5)
An ombudsman may make an application under subsection (2) or (3) only in
such circumstances as may be specified in scheme rules, and with the
complainant’s consent.

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(6)
If the court makes an order under subsection (2) on the application of an
ombudsman, the ombudsman may in such circumstances as may be specified
in scheme rules and with the complainant’s consent recover the amount
mentioned in that subsection on behalf of the complainant.
(7)
In this section “court” means the High Court or a county court.
5
142
Reporting court orders made against authorised persons
(1)
Where a court makes an order under section 141, it must give the OLC notice
to that effect.
(2)
Where the order is made against a person who is an authorised person in
relation to any activity which is a reserved legal activity, the OLC must make
10
arrangements to ensure that an ombudsman gives to each relevant authorising
body, in relation to that person, a report which states that the order has been
made.
(3)
A report under subsection (2) may require the relevant authorising body to
report to the ombudsman the action which has been or is to be taken by it in
15
response to the report under subsection (2) and the reasons for that action
being taken.
(4)
If an ombudsman, having regard to any report produced by the relevant
authorising body in compliance with a requirement imposed under subsection
(3), or any failure to comply with such a requirement, considers—
20
(a)
that there has been a serious failure by the relevant authorising body to
discharge its regulatory functions, or
(b)
if such a requirement has been imposed on the body on more than one
occasion, that the relevant authorising body has persistently failed
adequately to discharge its regulatory functions,
25

the ombudsman may make a report to that effect to the Board.
143
Handling of complaints by approved regulator
(1)
The Board may direct that complaints within the jurisdiction of the
ombudsman scheme and of such description as are specified in the direction
shall be determined by an approved regulator instead of an ombudsman.
30
(2)
The Board may by further direction vary or withdraw a direction given under
subsection (1).
(3)
Before giving a direction under this section, the Board must consult—
(a)
the OLC,
(b)
the approved regulator concerned, and
35
(c)
such other persons as the Board considers it reasonable to consult.
(4)
If the Board gives a direction under this section, it must—
(a)
give a copy to the OLC, the Lord Chancellor, the approved regulator
concerned, and any person consulted under subsection (3)(c), and
(b)
publish the direction in the way it thinks fit.
40
(5)
A direction under this section may include—
(a)
transitional provision in relation to complaints already being dealt with
under the ombudsman scheme or by an approved regulator, and

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Part 6 — Legal Complaints
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(b)
incidental, supplemental or consequential provision, including
provision applying a provision of, or made under, this Part, with or
without modifications, to the determination of a complaint by an
approved regulator.
Reporting misconduct
5
144
Reporting possible misconduct to approved regulators
(1)
This section applies where—
(a)
an ombudsman is dealing, or has dealt, with a complaint under the
ombudsman scheme, and
(b)
the ombudsman is of the opinion that the conduct of the respondent or
10
any other person in relation to any matter connected with the
complaint is such that a relevant authorising body in relation to that
person should consider whether to take action against that person.
(2)
The ombudsman must give the relevant authorising body a report which—
(a)
states that the ombudsman is of that opinion, and
15
(b)
gives details of that conduct.
(3)
A report under subsection (2) may require the relevant authorising body to
report to the ombudsman the action which has been or is to be taken by it in
response to the report and the reasons for that action being taken.
(4)
The duty imposed by subsection (2) is not affected by the withdrawal or
20
abandonment of the complaint.
(5)
If an ombudsman, having regard to any report produced by the relevant
authorising body in compliance with a requirement imposed under subsection
(3), or any failure to comply with such a requirement, considers—
(a)
that there has been a serious failure by the relevant authorising body to
25
discharge its regulatory functions, or
(b)
if such a requirement has been imposed on the body on more than one
occasion, that the relevant authorising body has persistently failed
adequately to discharge its regulatory functions,

the ombudsman may make a report to that effect to the Board.
30
Co-operation with investigations
145
Duties to share information
(1)
Scheme rules must make provision requiring persons within subsection (3) to
disclose to an approved regulator information of such description as may be
specified in the rules, in such circumstances as may be so specified.
35
(2)
The regulatory arrangements of an approved regulator must make provision
requiring the approved regulator to disclose to persons within subsection (3)
information of such description as may be specified in the arrangements, in
such circumstances as may be so specified.
(3)
The persons are—
40
(a)
the OLC;
(b)
an ombudsman;

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Part 6 — Legal Complaints
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(c)
a member of the OLC’s staff appointed under paragraph 11 of Schedule
15.
(4)
Provision made under subsection (1) or (2) must satisfy such requirements as
the Board may, from time to time, specify.
(5)
In specifying requirements under subsection (4) the Board must have regard to
5
the need to ensure that, so far as reasonably practicable—
(a)
duplication of investigations is avoided;
(b)
the OLC assists approved regulators to carry out their regulatory
functions, and approved regulators assist with the investigation,
consideration and determination of complaints under the ombudsman
10
scheme.
(6)
The Board must publish any requirements specified by it under subsection (4).
(7)
The OLC must—
(a)
before publishing under section 206(2) a draft of rules it proposes to
make under subsection (1), consult each approved regulator to which
15
the proposed rules apply, and
(b)
when seeking the Board’s consent to such rules under section 156,
identify any objections made by an approved regulator to the rules and
not withdrawn.
(8)
An approved regulator must—
20
(a)
consult the OLC before making provisions in its regulatory
arrangements of the kind mentioned in subsection (2), and
(b)
where an application is made for the Board’s approval of such
provisions, identify any objections made by the OLC to the provisions
and not withdrawn.
25
(9)
This section applies to the Board in its capacity as a licensing authority and
licensing rules made by the Board as it applies to an approved regulator and
its regulatory arrangements; and for this purpose the reference in subsection
(5)(b) to “regulatory functions” is to be read as a reference to the Board’s
functions under its licensing rules.
30
146
Duties of authorised persons to co-operate with investigations
(1)
The regulatory arrangements of an approved regulator, and licensing rules
made by the Board in its capacity as a licensing authority, must make—
(a)
provision requiring each relevant authorised person to give
ombudsmen all such assistance requested by them, in connection with
35
the investigation, consideration or determination of complaints under
the ombudsman scheme, as that person is reasonably able to give, and
(b)
provision for the enforcement of that requirement.
(2)
The provision made for the purposes of subsection (1) must satisfy such
requirements as the Board may, from time to time, specify for the purposes of
40
that subsection.
(3)
The Board must publish any requirements specified by it under subsection (2).
(4)
In this section “relevant authorised person”—
(a)
in relation to an approved regulator, has the same meaning as in section
112, and
45

Legal Services Bill [HL]
Part 6 — Legal Complaints
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(b)
in relation to the Board in its capacity as a licensing authority, means a
person licensed by the Board under Part 5.
147
Reporting failures to co-operate with an investigation to approved regulators
(1)
This section applies where an ombudsman is of the opinion that an authorised
person has failed to give an ombudsman all such assistance requested by the
5
ombudsman, in connection with the investigation, consideration or
determination of a complaint under the ombudsman scheme, as that person is
reasonably able to give.
(2)
The ombudsman must give each relevant authorising body, in relation to that
person, a report which—
10
(a)
states that the ombudsman is of that opinion, and
(b)
gives details of the failure.
(3)
A report under subsection (2) may require the relevant authorising body to
report to the ombudsman the action which has been or is to be taken by it in
response to the report under that subsection and the reasons for that action
15
being taken.
(4)
The duty imposed by subsection (2) is not affected by the withdrawal or
abandonment of the complaint.
(5)
If an ombudsman, having regard to any report produced by the relevant
authorising body in compliance with a requirement imposed under subsection
20
(3), or any failure to comply with such a requirement, considers—
(a)
that there has been a serious failure by the relevant authorising body to
discharge its regulatory functions, or
(b)
if such a requirement has been imposed on the body on more than one
occasion, that the relevant authorising body has persistently failed
25
adequately to discharge its regulatory functions,

the ombudsman may make a report to that effect to the Board.
(6)
In this section “authorised person” means an authorised person in relation to
any activity which is a reserved legal activity.
Information
30
148
Information and documents
(1)
An ombudsman may, by notice, require a party to a complaint under the
ombudsman scheme—
(a)
to produce documents, or documents of a description, specified in the
notice, or
35
(b)
to provide information, or information of a description, specified in the
notice.
(2)
A notice under subsection (1) may require the information or documents to be
provided or produced—
(a)
before the end of such reasonable period as may be specified in the
40
notice, and
(b)
in the case of information, in such manner or form as may be so
specified.

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(3)
This section applies only to information and documents the provision or
production of which the ombudsman considers necessary for the
determination of the complaint.
(4)
An ombudsman may—
(a)
take copies of or extracts from a document produced under this section,
5
and
(b)
require the person producing the document to provide an explanation
of it.
(5)
If a person who is required under this section to produce a document fails to
do so, an ombudsman may require that person to state, to the best of that
10
person’s knowledge and belief, where the document is.
(6)
No person may be required under this section—
(a)
to provide any information which that person could not be compelled
to provide or give in evidence in civil proceedings before the High
Court, or
15
(b)
to produce any document which that person could not be compelled to
produce in such proceedings.
(7)
In this section “party”, in relation to a complaint, means—
(a)
the complainant;
(b)
the respondent;
20
(c)
any other person who in accordance with the scheme rules is to be
regarded as a party to the complaint.
149
Reporting failures to provide information or produce documents
(1)
This section applies where an ombudsman is of the opinion that an authorised
person has failed to comply with a requirement imposed under section 148(1).
25
(2)
The ombudsman must give each relevant authorising body, in relation to that
person, a report which—
(a)
states that the ombudsman is of that opinion, and
(b)
gives details of the failure.
(3)
A report under subsection (2) may require the relevant authorising body to
30
report to the ombudsman the action which has been or is to be taken by it in
response to the report under that subsection and the reasons for that action
being taken.
(4)
The duty imposed by subsection (2) is not affected by the withdrawal or
abandonment of the complaint in relation to which the requirement was
35
imposed under section 148(1).
(5)
If an ombudsman, having regard to any report produced by the relevant
authorising body in compliance with a requirement imposed under subsection
(3), or any failure to comply with such a requirement, considers—
(a)
that there has been a serious failure by the relevant authorising body to
40
discharge its regulatory functions, or
(b)
if such a requirement has been imposed on the body on more than one
occasion, that the relevant authorising body has persistently failed
adequately to discharge its regulatory functions,

the ombudsman may make a report to that effect to the Board.
45

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(6)
In this section “authorised person” means an authorised person in relation to
any activity which is a reserved legal activity.
150
Enforcement of requirements to provide information or produce documents
(1)
This section applies where an ombudsman is of the opinion that a person (“the
defaulter”) has failed to comply with a requirement imposed under section
5
148(1).
(2)
The ombudsman may certify the defaulter’s failure to comply with the
requirement to the court.
(3)
Where an ombudsman certifies a failure to the court under subsection (2), the
court may enquire into the case.
10
(4)
If the court is satisfied that the defaulter has failed without reasonable excuse
to comply with the requirement, it may deal with—
(a)
the defaulter, and
(b)
in the case of a body, any manager of the body,

as if that person were in contempt.
15
(5)
Subsection (6) applies in a case where the defaulter is an authorised person in
relation to any activity which is a reserved legal activity.
(6)
The ombudsman (“the enforcing ombudsman”) may not certify the defaulter’s
failure to the court until a report by that or another ombudsman has been made
as required by section 149(2) and the enforcing ombudsman is satisfied—
20
(a)
that each relevant authorising body to whom such a report was made
has been given a reasonable opportunity to take action in respect of the
defaulter’s failure, and
(b)
that the defaulter has continued to fail to provide the information or
produce the documents to which the requirement under section 148
25
related.
(7)
In this section “court” means the High Court.
151
Reports of investigations
(1)
The OLC may, if it considers it appropriate to do so in any particular case,
publish a report of the investigation, consideration and determination of a
30
complaint made under the ombudsman scheme.
(2)
A report under subsection (1) must not (unless the complainant consents)—
(a)
mention the name of the complainant, or
(b)
include any particulars which, in the opinion of the OLC, are likely to
identify the complainant.
35
152
Restricted information
(1)
Except as provided by section 153, restricted information must not be
disclosed—
(a)
by a restricted person, or
(b)
by any person who receives the information directly or indirectly from
40
a restricted person.
(2)
In this section and section 153—