|
| |
|
(4) | The notice conditions referred to in sub-paragraph (2)(d) are— |
| |
(a) | that the licensing authority has given the licensed body a notice |
| |
inviting it to give an explanation within such period (of not less than |
| |
8 days) following the giving of the notice as may be specified in it; |
| |
(b) | that the licensed body has failed within that period to give an |
| 5 |
explanation which the licensing authority regards as satisfactory; |
| |
| |
(c) | that the licensing authority gives notice of the failure to the licensed |
| |
body and (at the same time or later) notice that this Schedule applies |
| |
in its case by virtue of sub-paragraph (2)(d). |
| 10 |
(5) | Where this Schedule applies in relation to a licensed body by virtue of sub- |
| |
paragraph (1)(a) it continues to apply after the body’s licence has been |
| |
revoked or has otherwise ceased to have effect. |
| |
(6) | For the purposes of this Schedule “licensed body” includes— |
| |
(a) | a body whose licence is suspended; |
| 15 |
(b) | a body to whom this Schedule continues to apply by virtue of sub- |
| |
| |
(c) | except in this paragraph, a body whose licence has ceased to have |
| |
effect as mentioned in sub-paragraph (1)(b). |
| |
Money: prohibition on payment |
| 20 |
2 (1) | The licensing authority may apply to the High Court for an order under sub- |
| |
paragraph (2), and the High Court may make the order if it thinks fit. |
| |
(2) | The order is that a person holding money on behalf of the licensed body may |
| |
not make any payment of the money, except with the leave of the court. |
| |
(3) | An order under sub-paragraph (2) may take effect in relation to a person— |
| 25 |
(a) | whether or not the person is named in the order; |
| |
(b) | however the money is held; |
| |
(c) | whether the money was received before or after the order was made. |
| |
(4) | But an order under sub-paragraph (2) does not take effect in relation to a |
| |
person until the licensing authority— |
| 30 |
(a) | has given the person a copy of the order, and |
| |
(b) | (in the case of a bank or other financial institution) has indicated the |
| |
branches at which it believes money to which the order relates is |
| |
| |
(5) | A person is not to be treated as having disobeyed an order under sub- |
| 35 |
paragraph (2) by making a payment of money if the court is satisfied that the |
| |
| |
(a) | exercised due diligence to ascertain whether it was money to which |
| |
| |
(b) | failed to ascertain that the order related to it. |
| 40 |
Money etc: vesting in licensing authority |
| |
3 (1) | The sums of money to which this paragraph applies, and the right to recover |
| |
or receive them, vest in the licensing authority if the licensing authority |
| |
decides that they should do so. |
| |
|
| |
|
| |
|
(2) | This paragraph applies to all sums of money held by or on behalf of the |
| |
licensed body in connection with— |
| |
(a) | its activities as a licensed body, |
| |
(b) | any trust of which it is or was a trustee, or |
| |
(c) | any trust of which a person who is or was a manager or employee of |
| 5 |
the licensed body is or was a trustee in that person’s capacity as such |
| |
| |
(3) | Sub-paragraph (1) applies whether the sums were received by the person |
| |
holding them before or after the licensing authority’s decision. |
| |
(4) | Those sums and that right are held by the licensing authority— |
| 10 |
(a) | on trust to exercise the powers conferred by this Schedule in relation |
| |
| |
(b) | subject to that and to rules under paragraph 6, on trust for the |
| |
persons beneficially entitled. |
| |
(5) | The licensing authority must give the licensed body, and any other person |
| 15 |
in possession of sums of money to which this paragraph applies— |
| |
(a) | a copy of the licensing authority’s decision, and |
| |
(b) | a notice prohibiting the payment out of those sums. |
| |
(6) | A person to whom a notice under sub-paragraph (5) is given may apply to |
| |
the High Court for an order directing the licensing authority to withdraw |
| 20 |
| |
(7) | An application under sub-paragraph (6) must be made within 8 days of the |
| |
licensing authority giving the person notice under sub-paragraph (5). |
| |
(8) | The person must give not less than 48 hours notice of any application under |
| |
| 25 |
(a) | to the licensing authority, and |
| |
(b) | if the notice under sub-paragraph (5) gives the name of a solicitor |
| |
instructed by the licensing authority, to that solicitor. |
| |
(9) | If the court makes the order, it may make any other order it thinks fit with |
| |
| 30 |
(10) | It is an offence for a person to whom a notice has been given under sub- |
| |
paragraph (5) to pay out sums of money at a time when such payment is |
| |
prohibited by the notice. |
| |
(11) | A person who is guilty of an offence under sub-paragraph (10) is liable on |
| |
summary conviction to a fine not exceeding level 3 on the standard scale. |
| 35 |
4 (1) | Any rights to which this paragraph applies shall vest in the licensing |
| |
authority if the licensing authority decides that they should do so. |
| |
(2) | This paragraph applies to any right to recover or receive debts due to the |
| |
licensed body in connection with its business. |
| |
(3) | Any sums recovered by the licensing authority by virtue of the exercise of |
| 40 |
rights vested under sub-paragraph (1) vest in the licensing authority and are |
| |
| |
(a) | on trust to exercise the powers conferred by this Schedule in relation |
| |
| |
|
| |
|
| |
|
(b) | subject to that and to rules under paragraph 6, on trust for the |
| |
persons beneficially entitled. |
| |
(4) | The licensing authority must give the licensed body, and any other person |
| |
who owes a debt to which the order applies a copy of the licensing |
| |
| 5 |
5 (1) | If the licensing authority takes possession of any sum of money to which |
| |
paragraph 3 applies or by virtue of paragraph 4, it must pay it into a special |
| |
account in the name of the licensing authority or a person nominated on its |
| |
| |
(2) | A person nominated under sub-paragraph (1) holds that sum— |
| 10 |
(a) | on trust to permit the licensing authority to exercise the powers |
| |
conferred by this Schedule in relation to it, and |
| |
(b) | subject to that and rules under paragraph 6, on trust for the persons |
| |
| |
(3) | A bank or other financial institution at which a special account is kept is |
| 15 |
under no obligation to ascertain whether it is being dealt with properly. |
| |
6 (1) | The licensing authority may make rules governing its treatment of sums |
| |
vested in it under paragraph 3 or 4(3). |
| |
(2) | The rules may, in particular, make provision in respect of cases where the |
| |
licensing authority, having taken such steps to do so as are reasonable in all |
| 20 |
the circumstances of the case, is unable to trace the person or persons |
| |
beneficially entitled to any sum vested in the licensing authority under |
| |
paragraph 3 or 4(3) (including provision which requires amounts to be paid |
| |
into or out of any fund maintained by the licensing authority in connection |
| |
with its compensation arrangements). |
| 25 |
| |
7 (1) | The licensing authority may apply to the High Court for an order requiring |
| |
a person to give the licensing authority— |
| |
(a) | information about any money held by the person on behalf of the |
| |
licensed body, and the accounts in which it is held, or |
| 30 |
(b) | information relevant to identifying any money held by the licensed |
| |
body or by another person on its behalf. |
| |
(2) | The High Court may make the order if it is satisfied that there is reason to |
| |
| |
(a) | in a case within sub-paragraph (1)(a), that the person holds money |
| 35 |
on behalf of the licensed body, and |
| |
(b) | in a case within sub-paragraph (1)(b), that the person has the |
| |
| |
(3) | This paragraph is without prejudice to paragraphs 2 to 6. |
| |
Notice to produce or deliver documents |
| 40 |
8 (1) | The licensing authority may give notice to the licensed body requiring it to |
| |
produce or deliver all documents in its possession or under its control in |
| |
| |
(a) | its activities as a licensed body, |
| |
|
| |
|
| |
|
(b) | any trust of which it is or was a trustee, or |
| |
(c) | any trust of which a person who is or was a manager or employee of |
| |
the licensed body is or was a trustee in that person’s capacity as such |
| |
| |
(2) | The notice may require the documents to be produced— |
| 5 |
(a) | to any person appointed by the licensing authority; |
| |
(b) | at a time and place to be fixed by the licensing authority. |
| |
(3) | The person appointed by the licensing authority may take possession of any |
| |
such documents on behalf of the licensing authority. |
| |
(4) | It is an offence for a person having possession of such documents to refuse, |
| 10 |
neglect or otherwise fail to comply with a notice under sub-paragraph (1). |
| |
(5) | Sub-paragraph (4) does not apply where an application has been made to the |
| |
High Court under paragraph 9(1)(a). |
| |
(6) | A person who is guilty of an offence under sub-paragraph (4) is liable on |
| |
summary conviction to a fine not exceeding level 3 on the standard scale. |
| 15 |
Order to produce or deliver documents |
| |
9 (1) | The High Court may, on the application of the licensing authority, make an |
| |
order for production or delivery— |
| |
(a) | in relation to a person required to produce documents under |
| |
paragraph 8 and the documents the person was required to produce; |
| 20 |
(b) | if it is satisfied that there is reason to suspect that documents in |
| |
relation to which the powers in paragraph 8 are exercisable have |
| |
come into the possession or under the control of some person other |
| |
than the licensed body, in relation to that person and those |
| |
| 25 |
(2) | An order for production or delivery is an order— |
| |
(a) | requiring a person to produce or deliver documents to any person |
| |
appointed by the licensing authority, at a time and place specified in |
| |
| |
(b) | authorising the appointed person to take possession of the |
| 30 |
documents on behalf of the licensing authority. |
| |
(3) | The court may, on the application of the licensing authority, authorise a |
| |
person appointed by the licensing authority to enter any premises (using |
| |
such force as is reasonably necessary) to search for and take possession of— |
| |
(a) | any documents to which an order for production or delivery relates; |
| 35 |
| |
(i) | in the possession of or under the control of the licensed body, |
| |
| |
(ii) | in the case of an order under sub-paragraph (1)(b), which was |
| |
in the possession or under the control of that body and has |
| 40 |
come into the possession or under the control of the person in |
| |
respect of whom the order is made, |
| |
| which the licensing authority reasonably requires for the purpose of |
| |
accessing information contained in any such documents, |
| |
| and to use property obtained under paragraph (b) for that purpose. |
| 45 |
|
| |
|
| |
|
(4) | It may do so on making the order for production or delivery, or at any later |
| |
| |
Taking possession of documents etc under notice or order |
| |
10 (1) | This paragraph applies where the licensing authority takes possession of |
| |
documents or any other property under paragraph 8 or 9. |
| 5 |
(2) | On taking possession, it must give a notice to— |
| |
(a) | the licensed body, and |
| |
(b) | any other person from whom the documents or property were |
| |
received or from whose possession they were taken. |
| |
(3) | The notice must state that possession has been taken and specify the date on |
| 10 |
which possession was taken. |
| |
(4) | A person to whom a notice under sub-paragraph (2) is given may apply to |
| |
the High Court for an order directing the licensing authority to deliver the |
| |
documents or other property to such person as the applicant requires. |
| |
(5) | An application under sub-paragraph (4) must be made within 8 days of the |
| 15 |
licensing authority giving the person notice under sub-paragraph (2). |
| |
(6) | The person must give not less than 48 hours notice of the application— |
| |
(a) | to the licensing authority, and |
| |
(b) | if the notice under sub-paragraph (2) gives the name of a solicitor |
| |
instructed by the licensing authority, to that solicitor. |
| 20 |
(7) | The court may make any order it thinks fit. |
| |
Mail and other forms of communication |
| |
11 (1) | The High Court, on the application of the licensing authority, may from time |
| |
to time make a communications redirection order. |
| |
(2) | A communications redirection order is an order that specified |
| 25 |
communications to the licensed body are to be directed, in accordance with |
| |
the order, to the licensing authority or any person appointed by the licensing |
| |
| |
(3) | For the purposes of this paragraph— |
| |
(a) | “specified communications” means communications of such |
| 30 |
description as are specified in the order; |
| |
(b) | the descriptions of communications which may be so specified |
| |
| |
(i) | communications in the form of a postal packet; |
| |
(ii) | electronic communications; |
| 35 |
(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 licensing |
| |
authority or the person appointed by the licensing authority may take |
| 40 |
possession or receipt of the communications redirected in accordance with |
| |
| |
|
| |
|
| |
|
(6) | Where a communications redirection order is made the licensing authority |
| |
must pay to the designated payee the like charges (if any) as would have |
| |
been payable for the redirection of the communications to which the order |
| |
relates if the addressee— |
| |
(a) | had permanently ceased to occupy or use the premises or other |
| 5 |
destination of the communications, and |
| |
(b) | had applied to the designated payee to redirect the communications |
| |
as mentioned in the order. |
| |
(7) | For this purpose “the designated payee” means— |
| |
(a) | in the case of an order relating to postal packets, the postal operator |
| 10 |
| |
(b) | in any other case, the person specified in the order as the designated |
| |
| |
(8) | The High Court may, on the application of the licensing authority, authorise |
| |
the licensing authority, or a person appointed by it, to take such steps as may |
| 15 |
be specified in the order in relation to any website purporting to be or have |
| |
been maintained by or on behalf of the licensed body, if the High Court is |
| |
satisfied that the taking of those steps is necessary to protect the public |
| |
interest or the interests of clients (or potential or former clients) of the |
| |
| 20 |
(9) | In this paragraph “postal operator” and “postal packet” have the meaning |
| |
given by section 125(1) of the Postal Services Act 2000 (c. 26). |
| |
(10) | This paragraph does not apply where the powers conferred by this Part of |
| |
this Schedule are exercisable by virtue of paragraph 1(2)(d). |
| |
Use of documents in licensing authority’s possession |
| 25 |
12 (1) | The licensing authority may apply to the High Court for an order as to the |
| |
disposal or destruction of any document or other property in its possession |
| |
by virtue of paragraph 8, 9 or 11. |
| |
(2) | The court may make any order it thinks fit. |
| |
13 (1) | The licensing authority may take copies of or extracts from any documents |
| 30 |
in its possession by virtue of paragraph 8, 9 or 11. |
| |
(2) | If the licensing authority proposes to deliver such documents to any person, |
| |
it may make the delivery conditional on the person giving a reasonable |
| |
undertaking to supply copies or extracts to the licensing authority. |
| |
(3) | Sub-paragraphs (1) and (2) are subject to any order made by the court under |
| 35 |
| |
| |
14 (1) | If the licensed body is a trustee of any trust, the licensing authority may |
| |
apply to the High Court for an order for the appointment of a new trustee in |
| |
| 40 |
(2) | If a person who is a manager or employee of the licensed body is a trustee of |
| |
any trust in that person’s capacity as such a manager or employee, the |
| |
licensing authority may apply to the High Court for an order for the |
| |
appointment of a new trustee in substitution for that person. |
| |
|
| |
|
| |
|
(3) | The Trustee Act 1925 (c. 19) has effect in relation to an appointment of a new |
| |
trustee under this paragraph as it has effect in relation to an appointment |
| |
under section 41 of that Act. |
| |
General powers of licensing authority |
| |
15 | The powers conferred by this Schedule in relation to sums of money, |
| 5 |
documents or other property may be exercised despite any lien on them or |
| |
right to their possession. |
| |
16 | The licensing authority may do all things which are reasonably necessary to |
| |
facilitate the exercise of its powers under this Schedule. |
| |
Licensing authority’s costs |
| 10 |
17 (1) | Any costs incurred by the licensing authority for the purposes of this |
| |
Schedule (including the costs of any person exercising powers under this |
| |
Schedule on behalf of the licensing authority)— |
| |
(a) | are to be paid by the licensed body, and |
| |
(b) | may be recovered from the licensed body as a debt owing to the |
| 15 |
| |
(2) | Sub-paragraph (1) is subject to any order for payment of costs that may be |
| |
made on an application to the court under this Schedule. |
| |
18 (1) | The High Court, on the application of the licensing authority, may order a |
| |
liable party to pay a specified proportion of the costs mentioned in |
| 20 |
| |
(2) | For this purpose a “liable party” means— |
| |
(a) | if the licensed body is a partnership, any former partner in the |
| |
| |
(b) | in any other case, any manager or former manager of the licensed |
| 25 |
| |
(3) | The High Court may make an order under this paragraph in respect of a |
| |
liable party only if it is satisfied that the conduct (or any part of the conduct) |
| |
by reason of which this Schedule applies was conduct carried on with the |
| |
consent or connivance of, or was attributable to any neglect on the part of, |
| 30 |
| |
(4) | In this paragraph “specified” means specified in the order made by the High |
| |
| |
| |
| |
The Office for Legal Complaints |
| 35 |
| |
1 (1) | The OLC is to consist of the following members— |
| |
(a) | a chairman appointed by the Board with the approval of the Lord |
| |
| |
|
| |
|