|
| |
|
(d) | for the making of grants in respect of a compensation claim |
| |
before it is finally determined; |
| |
(e) | for a grant to be made by way of loan in such circumstances |
| |
and on such terms as may be prescribed in, or determined in |
| |
accordance with, the rules; |
| 5 |
(f) | for a grant to be made by way of making good a deficiency in |
| |
monies held in trust by the Society under paragraph 6 or 6A |
| |
| |
(g) | as to the minimum and maximum grants payable in respect |
| |
of a compensation claim (or a claim of a prescribed |
| 10 |
| |
(h) | for the Society to be subrogated, to such extent as may be |
| |
prescribed, to any rights and remedies of a person to whom a |
| |
grant is made in relation to the loss in respect of which the |
| |
| 15 |
(3) | The circumstances which may be prescribed by virtue of subsection |
| |
(2)(a) include in particular— |
| |
(a) | the nature of the loss; |
| |
(b) | in a case within subsection (1)(a) or (b), the nature of the act |
| |
| 20 |
(4) | For the purposes of subsection (2)(f), there is a deficiency if the |
| |
monies mentioned in that subsection are insufficient to satisfy the |
| |
claims of all persons with a beneficial interest in the monies. |
| |
(5) | The Society may prepare and publish guidance as to the criteria it |
| |
will apply in deciding whether to make a grant in respect of a |
| 25 |
compensation claim, or any part of a compensation claim. |
| |
(6) | Where the Society decides— |
| |
(a) | not to make a grant in respect of a compensation claim or any |
| |
part of a compensation claim, or |
| |
(b) | to make a grant of less than the amount claimed, |
| 30 |
| it must give reasons for its decision. |
| |
(7) | Rules under subsection (1) which are not regulatory arrangements |
| |
within the meaning of the Legal Services Act 2007 are to be treated as |
| |
such arrangements for the purposes of that Act. |
| |
| 35 |
“compensation claim” means a claim for the Society to make a |
| |
grant of the kind mentioned in subsection (1); |
| |
“prescribed” means prescribed in rules under subsection (1). |
| |
| |
(1) | Compensation rules may require or authorise the Society to establish |
| 40 |
or maintain a fund or funds (“compensation funds”) for the purpose |
| |
of making grants in respect of compensation claims. |
| |
(2) | Compensation rules may require solicitors, or solicitors of a |
| |
description prescribed in the rules, to make contributions to |
| |
compensation funds of such amounts, at such times and in such |
| 45 |
circumstances, as may be prescribed in or determined in accordance |
| |
| |
|
| |
|
| |
|
(3) | Any amount payable by virtue of such a requirement may be |
| |
recovered as a debt due to the Society. |
| |
(4) | Subsection (2) does not apply to a solicitor who is a Crown |
| |
| |
(5) | The Society may invest any money which forms part of a |
| 5 |
compensation fund in any investments in which trustees may invest |
| |
under the general power of investment in section 3 of the Trustee Act |
| |
2000 (as restricted by sections 4 and 5 of that Act). |
| |
(6) | The Society may insure with authorised insurers, in relation to |
| |
compensation funds, for such purposes and on such terms as it |
| 10 |
| |
(7) | The Society may, in such circumstances and subject to such |
| |
conditions as may be prescribed in or determined in accordance with |
| |
| |
(a) | borrow for the purposes of a compensation fund; |
| 15 |
(b) | charge investments which form part of a compensation fund |
| |
as security for borrowing by the Society for the purposes of |
| |
| |
(8) | A compensation fund may be applied by the Society for the purposes |
| |
mentioned in subsection (9) (in addition to the making of grants in |
| 20 |
respect of compensation claims). |
| |
| |
(a) | payment of premiums on insurance policies effected under |
| |
| |
(b) | repayment of money borrowed by the Society for the |
| 25 |
purposes of the fund and payment of interest on any money |
| |
| |
(c) | payment of any other costs, charges or expenses incurred by |
| |
the Society in establishing, maintaining, protecting |
| |
administering or applying the fund; |
| 30 |
(d) | payment of any costs, charges or expenses incurred by the |
| |
Society in exercising its powers under Part 2 of Schedule 1; |
| |
(e) | payment of any costs or damages incurred by the Society, its |
| |
employees or agents as a result of proceedings against it or |
| |
them for any act or omission of its or theirs in good faith and |
| 35 |
in the exercise or purported exercise of such powers. |
| |
| |
“compensation claim” has the same meaning as in section 36; |
| |
“compensation fund” has the meaning given by subsection (1); |
| |
“compensation rules” means rules under section 36(1).” |
| 40 |
38 | In section 37 (professional indemnity)— |
| |
(a) | in subsection (1) for “Council, with the concurrence of the Master of |
| |
the Rolls,” substitute “Society”, and |
| |
(b) | in subsection (3)(h)— |
| |
(i) | for “Council” substitute “Society”, |
| 45 |
(ii) | for “they consider” substitute “it considers”, and |
| |
(iii) | after “being” insert “, or have been,”. |
| |
|
| |
|
| |
|
39 | Omit section 37A (redress for inadequate professional services). |
| |
40 | Omit section 40 (solicitor not to commence or defend actions while in |
| |
| |
41 (1) | Section 41 (employment by solicitor of person struck off or suspended) is |
| |
| 5 |
(2) | After subsection (1A) insert— |
| |
| |
(a) | a solicitor (“the employed solicitor”) is employed by another |
| |
solicitor in accordance with a written permission granted |
| |
| 10 |
(b) | the employed solicitor is disqualified from practising as a |
| |
solicitor by reason of a fact mentioned in subsection (1)(b) or |
| |
| |
| section 20(1) does not apply in relation to anything done by the |
| |
employed solicitor in the course of that employment.” |
| 15 |
| |
(a) | for “Master of the Rolls who” substitute “High Court which”, and |
| |
(b) | in paragraph (b) for “he” substitute “it”. |
| |
(4) | In subsection (4) for “shall” to the end substitute “may— |
| |
(a) | order that his name be struck off the roll, |
| 20 |
(b) | order that he be suspended from practice for such period as |
| |
the Tribunal or court thinks fit, or |
| |
(c) | make such other order in the matter as it thinks fit.” |
| |
(5) | After that subsection insert— |
| |
“(4A) | In relation to an appeal under subsection (3) the High Court may |
| 25 |
make such order as it thinks fit as to payment of costs. |
| |
(4B) | The decision of the High Court on an appeal under subsection (3) |
| |
| |
| |
42 (1) | Section 43 (control of solicitors’ employees and consultants) is amended as |
| 30 |
| |
(2) | For subsections (1), (1A) and (2) substitute— |
| |
“(1) | Where a person who is or was involved in a legal practice but is not |
| |
| |
(a) | has been convicted of a criminal offence which is such that in |
| 35 |
the opinion of the Society it would be undesirable for the |
| |
person to be involved in a legal practice in one or more of the |
| |
ways mentioned in subsection (1A), or |
| |
(b) | has, in the opinion of the Society, occasioned or been a party |
| |
to, with or without the connivance of a solicitor, an act or |
| 40 |
default in relation to a legal practice which involved conduct |
| |
on his part of such a nature that in the opinion of the Society |
| |
it would be undesirable for him to be involved in a legal |
| |
practice in one or more of the ways mentioned in subsection |
| |
| 45 |
|
| |
|
| |
|
| the Society may either make, or make an application to the Tribunal |
| |
for it to make, an order under subsection (2) with respect to that |
| |
| |
(1A) | A person is involved in a legal practice for the purposes of this |
| |
| 5 |
(a) | is employed or remunerated by a solicitor in connection with |
| |
the solicitor’s practice; |
| |
(b) | is undertaking work in the name of, or under the direction or |
| |
supervision of, a solicitor; |
| |
(c) | is employed or remunerated by a recognised body; |
| 10 |
(d) | is employed or remunerated by a manager or employee of a |
| |
recognised body in connection with that body’s business; |
| |
(e) | is a manager of a recognised body; |
| |
(f) | has or intends to acquire an interest in such a body. |
| |
(2) | An order made by the Society or the Tribunal under this subsection |
| 15 |
is an order which states one or more of the following— |
| |
(a) | that as from the specified date— |
| |
(i) | no solicitor shall employ or remunerate, in connection |
| |
with his practice as a solicitor, the person with respect |
| |
to whom the order is made, |
| 20 |
(ii) | no employee of a solicitor shall employ or |
| |
remunerate, in connection with the solicitor’s |
| |
practice, the person with respect to whom the order is |
| |
| |
(iii) | no recognised body shall employ or remunerate that |
| 25 |
| |
(iv) | no manager or employee of a recognised body shall |
| |
employ or remunerate that person in connection with |
| |
the business of that body, |
| |
| except in accordance with a Society permission; |
| 30 |
(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 with |
| |
respect to whom the order is made to be a manager of the |
| |
| 35 |
(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 with |
| |
respect to whom the order is made to have an interest in the |
| |
| 40 |
(2A) | The Society may make regulations prescribing charges to be paid to |
| |
the Society by persons who are the subject of an investigation by the |
| |
Society as to whether there are grounds for the Society— |
| |
(a) | to make an order under subsection (2), or |
| |
(b) | to make an application to the Tribunal for it to make such an |
| 45 |
| |
(2B) | Regulations under subsection (2A) may— |
| |
(a) | make different provision for different cases or purposes; |
| |
|
| |
|
| |
|
(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. |
| |
(2C) | Any charge which a person is required to pay under regulations |
| |
under subsection (2A) is recoverable by the Society as a debt due to |
| 5 |
the Society from the person.” |
| |
(3) | In subsection (5) omit— |
| |
(a) | “by any solicitor”, and |
| |
(b) | the words from “but” to the end. |
| |
(4) | After that subsection insert— |
| 10 |
| |
“manager”, in relation to a recognised body, has the same |
| |
meaning as it has in relation to a body in the Legal Services |
| |
Act 2007 (see section 207 of that Act); |
| |
“recognised body” means a body recognised under section 9 of |
| 15 |
the Administration of Justice Act 1985; |
| |
“specified date” means such date as may be specified in the |
| |
| |
“Society permission” means permission in writing granted by |
| |
the Society for such period and subject to such conditions as |
| 20 |
the Society may think fit to specify in the permission. |
| |
(5B) | A person has an interest in a recognised body for the purposes of this |
| |
section if the person has an interest in that body within the meaning |
| |
of Part 5 of the Legal Services Act 2007 (see sections 72 and 109 of that |
| |
| 25 |
43 | In section 44 (offences in connection with orders under section 43(2))— |
| |
(a) | for subsection (1) substitute— |
| |
“(1) | It is an offence for a person in respect of whom there is in |
| |
force an order under section 43(2) which contains provision |
| |
| 30 |
(a) | to seek or accept any employment or remuneration |
| |
from a solicitor, or an employee of a solicitor, in |
| |
connection with the practice carried on by that |
| |
solicitor without previously informing the solicitor or |
| |
| 35 |
(b) | to seek or accept any employment or remuneration |
| |
from a recognised body, or a manager or employee of |
| |
a recognised body, in connection with that body’s |
| |
business, without previously informing the body, or |
| |
manager or employee, of the order. |
| 40 |
(1A) | It is an offence for a person in respect of whom there is in |
| |
force an order under section 43(2) which contains provision |
| |
within section 43(2)(b) to seek or accept a position as a |
| |
manager of a recognised body, without previously informing |
| |
| 45 |
(1B) | It is an offence for a person in respect of whom there is in |
| |
force an order under section 43(2) which contains provision |
| |
within section 43(2)(c) to seek or accept an interest in a |
| |
|
| |
|
| |
|
recognised body from any person, without previously |
| |
informing that person and (if different) the recognised body |
| |
| |
(1C) | A person guilty of an offence under subsection (1), (1A) or |
| |
(1B) is liable on summary conviction to a fine not exceeding |
| 5 |
level 3 on the standard scale.”, |
| |
(b) | in subsection (2) for “the employment of that person” substitute “the |
| |
taking of any action”, and |
| |
(c) | after subsection (4) insert— |
| |
| 10 |
“manager” has the same meaning as in section 43; |
| |
“recognised body” means a body recognised under |
| |
section 9 of the Administration of Justice Act 1985; |
| |
| and for the purposes of subsection (1B) a person seeks or |
| |
accepts an interest in a recognised body if the person seeks or |
| 15 |
accepts an interest which if it were obtained by the person |
| |
would result in the person having an interest in that body |
| |
within the meaning of Part 5 of the Legal Services Act 2007 |
| |
(see sections 72 and 109 of that Act).” |
| |
44 | For section 44B (examination of files) substitute— |
| 20 |
“44B | Provision of information and documents by solicitors etc |
| |
(1) | The Society may by notice require a person to whom this section |
| |
| |
(a) | to provide information, or information of a description, |
| |
specified in the notice, or |
| 25 |
(b) | produce documents, or documents of a description, specified |
| |
| |
(2) | This section applies to— |
| |
| |
(b) | an employee of a solicitor; |
| 30 |
| |
(d) | an employee or manager of, or a person with an interest in, a |
| |
| |
(3) | The Society may give a notice under this section only if it is satisfied |
| |
that it is necessary to do so for the purpose of investigating— |
| 35 |
(a) | whether there has been professional misconduct by a |
| |
| |
(b) | whether a solicitor, or an employee of a solicitor, has failed to |
| |
comply with any requirements imposed by or by virtue of |
| |
this Act or any rules made by the Society; |
| 40 |
(c) | whether a recognised body, or any of its managers or |
| |
employees has failed to comply with any requirement |
| |
imposed by or by virtue of the Administration of Justice Act |
| |
1985 or any rules made by the Society and applicable to the |
| |
body, manager or employee by virtue of section 9 of that Act; |
| 45 |
(d) | whether there are grounds for making, or making an |
| |
application to the Tribunal for it to make, an order under |
| |
|
| |
|
| |
|
section 43(2) with respect to a person who is or was involved |
| |
in a legal practice (within the meaning of section 43(1A)). |
| |
(4) | A notice under this section— |
| |
(a) | may specify the time and place at which, and manner and |
| |
form in which, the information is to be provided or document |
| 5 |
| |
(b) | must specify the period within which the information is to be |
| |
provided or the document produced; |
| |
(c) | may require the information to be provided or document to |
| |
be produced to the Society or to a person specified in the |
| 10 |
| |
(5) | The Society may pay to any person such reasonable costs as may be |
| |
incurred by that person in connection with the provision of any |
| |
information, or production of any document, by that person |
| |
pursuant to a notice under this section. |
| 15 |
(6) | Paragraphs 9(3) and (4) and 13, 15 and 16 of Schedule 1 apply in |
| |
relation to the powers to obtain information conferred by this |
| |
section, but for this purpose— |
| |
(a) | paragraph 9 of that Schedule has effect as if— |
| |
(i) | in sub-paragraph (3) for “such documents” there were |
| 20 |
substituted “information to which a notice given to |
| |
him under section 44B applies”, |
| |
(ii) | in that sub-paragraph for “sub-paragraph (1)” there |
| |
were substituted “the notice”, |
| |
(iii) | in sub-paragraph (4) for “produce” (in the first place) |
| 25 |
to the end there were substituted “provide |
| |
information pursuant to a notice under section 44B to |
| |
provide the information to any person appointed by |
| |
the Society at such time and place as may be specified |
| |
| 30 |
(b) | the reference to the solicitor or his personal representative in |
| |
paragraph 13 of that Schedule is to be construed as a |
| |
reference to the person to whom the notice was given under |
| |
| |
(7) | Paragraphs 9 (other than sub-paragraphs (1) and (3)), 12, 13, 15 and |
| 35 |
16 of Schedule 1 apply in relation to the powers to obtain documents |
| |
conferred by this section as they apply in relation to the powers |
| |
conferred by paragraph 9(1) of that Schedule, except that for this |
| |
| |
(a) | any reference in paragraph 9 of that Schedule to a person |
| 40 |
appointed, or to a requirement, under sub-paragraph (1) of |
| |
that paragraph is to be construed as a reference to a person |
| |
appointed, or to a requirement to produce documents, under |
| |
| |
(b) | any reference in that paragraph to any such documents as are |
| 45 |
mentioned in paragraph 9(1) of that Schedule is to be |
| |
construed as a reference to any documents to which a notice |
| |
under this section applies, |
| |
(c) | the references to the solicitor or his firm in paragraph 9(5) and |
| |
(6) of that Schedule, and the reference to the solicitor or |
| 50 |
personal representative in paragraph 9(7) of that Schedule, |
| |
|
| |
|