|
| |
|
virtue of this Act or any rules applicable to the |
| |
relevant person by virtue of section 9 of this Act; |
| |
(c) | a complaint that the relevant person has acted in |
| |
contravention of section 41 of the 1974 Act or |
| |
paragraph 9(2) of this Schedule or of any |
| 5 |
conditions subject to which a permission has been |
| |
granted under that section or for the purposes of |
| |
paragraph 9(2) of this Schedule; |
| |
(d) | a complaint that the relevant person has knowingly |
| |
acted in contravention of an order under section |
| 10 |
43(2) of the 1974 Act or of any conditions subject to |
| |
which a permission has been granted under such |
| |
| |
105 | In paragraph 17 of that Schedule (procedure on applications and |
| |
| 15 |
(a) | for “(7)” substitute “(9)”, |
| |
| |
(i) | omit “11(1), 15(2) or”, |
| |
(ii) | omit “13(3) or”, and |
| |
(iii) | after “16(1)” insert “or (1A)”, and |
| 20 |
(c) | in paragraph (c) after “body” insert “or, in the case of a complaint as |
| |
is mentioned in paragraph 16(1A), to a manager or employee of such |
| |
| |
106 | In paragraph 18 of that Schedule (powers of Tribunal with respect to |
| |
| 25 |
(a) | in sub-paragraph (1) after “this Schedule” insert “(other than |
| |
| |
(b) | in paragraph (b) of that sub-paragraph for “section 34 of the 1974 |
| |
Act” substitute “any requirement imposed by or by virtue of this |
| |
| 30 |
(c) | omit paragraph (d) of that sub-paragraph and the “or” immediately |
| |
| |
(d) | in sub-paragraph (2) omit “not exceeding £3,000”, and |
| |
(e) | omit sub-paragraphs (3) and (4). |
| |
107 | After that paragraph insert— |
| 35 |
“18A (1) | Where, on the hearing of any complaint made to it under |
| |
paragraph 16(1A) of this Schedule, the Tribunal is satisfied that a |
| |
manager or employee of a recognised body— |
| |
(a) | has been convicted as mentioned in paragraph (a) of |
| |
| 40 |
(b) | has failed to comply with any requirement imposed by or |
| |
by virtue of this Act or any rules applicable to the relevant |
| |
person by virtue of section 9 of this Act, or |
| |
(c) | has acted as mentioned in paragraph (c) or (d) of |
| |
| 45 |
| the Tribunal may, if it thinks fit, make one or more of the orders |
| |
referred to in sub-paragraph (2). |
| |
| |
|
| |
|
| |
|
(a) | an order directing the payment by the relevant person of a |
| |
penalty to be forfeited to Her Majesty; |
| |
(b) | an order requiring the Society to consider taking such steps |
| |
as the Tribunal may specify in relation to the relevant |
| |
| 5 |
(c) | if the person is not a solicitor, an order which states one or |
| |
more of the matters mentioned in sub-paragraph (3); |
| |
(d) | an order requiring the Society to refer to an appropriate |
| |
regulator any matter relating to the conduct of the relevant |
| |
| 10 |
(3) | The matters referred to in sub-paragraph (2)(c) are— |
| |
(a) | that as from the specified date— |
| |
(i) | no solicitor or employee of a solicitor shall employ |
| |
or remunerate, in connection with the practice |
| |
carried on by that solicitor, the person with respect |
| 15 |
to whom the order is made, and |
| |
(ii) | no recognised body, or manager or employee of |
| |
such a body, shall employ or remunerate that |
| |
person, in connection with the business of the |
| |
| 20 |
| except in accordance with a Society permission; |
| |
(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 |
| 25 |
| |
(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 |
| 30 |
| |
(4) | For this purpose a person has an interest in a body if the person |
| |
has an interest in the body within the meaning of Part 5 the Legal |
| |
Services Act 2007 (see sections 72 and 109 of that Act). |
| |
(5) | Subsections (1) to (1C), (3) and (4) of section 44 of the 1974 Act |
| 35 |
(offences in connection with orders under section 43(2) of that Act) |
| |
apply in relation to an order under sub-paragraph (2)(c) as they |
| |
apply in relation to an order under section 43(2) of that Act, except |
| |
that references in those subsections to provision within section |
| |
43(2)(a), (b) or (c) of that Act are to be read as references to |
| 40 |
provision within sub-paragraph (3)(a), (b) or (c). |
| |
(6) | Section 44(2) of the 1974 Act, paragraph 16(1)(d) and (1A)(d) of |
| |
this Schedule and paragraph 15(3A) of Schedule 14 to the Courts |
| |
and Legal Services Act 1990 apply in relation to an order under |
| |
sub-paragraph (2)(c) as they apply in relation to an order under |
| 45 |
section 43(2) of the 1974 Act. |
| |
(7) | For the purposes of sub-paragraph (2)(d) an “appropriate |
| |
regulator” in relation to the relevant person means— |
| |
(a) | if the person is an authorised person in relation to a |
| |
reserved legal activity for the purposes of the Legal |
| 50 |
|
| |
|
| |
|
Services Act 2007, any relevant approved regulator (within |
| |
the meaning of that Act) in relation to that person, and |
| |
(b) | if the person carries on activities which are not reserved |
| |
legal activities, any body which regulates the carrying on |
| |
of such activities by the person.” |
| 5 |
108 | In paragraph 20 of that Schedule (powers of Tribunal in respect of legal aid |
| |
complaints), in sub-paragraph (1)— |
| |
(a) | for “an officer” substitute “a manager”, |
| |
(b) | for “director” substitute “manager”, and |
| |
(c) | for “legal aid work” substitute “providing representation funded by |
| 10 |
the Legal Services Commission as part of the Criminal Defence |
| |
| |
| and omit sub-paragraph (2). |
| |
109 | In paragraph 21 of that Schedule (revocation of recognition by reason of |
| |
| 15 |
(a) | in sub-paragraph (1), in paragraph (a) for “director” substitute |
| |
| |
(b) | in paragraph (b) of that sub-paragraph for “director” (in both places) |
| |
| |
(c) | in paragraph (c) of that sub-paragraph for “director” (in both places) |
| 20 |
| |
(d) | in sub-paragraph (3) for “director” (in both places) substitute |
| |
| |
(e) | after that sub-paragraph insert— |
| |
“(4) | The reference in paragraph (c) of sub-paragraph (1) to a |
| 25 |
person employed by a recognised body includes a |
| |
reference to a person who was so employed at the time of |
| |
the conduct leading to the making of the order referred to |
| |
| |
110 | In paragraph 23 (orders as to remuneration for non-contentious business)— |
| 30 |
(a) | the existing provision becomes sub-paragraph (1) of that paragraph, |
| |
(b) | in that sub-paragraph for “regulating (in accordance with paragraph |
| |
22)” substitute “prescribing (by virtue of paragraph 22) general |
| |
principles to be applied when determining”, |
| |
(c) | in that sub-paragraph for paragraph (b) substitute— |
| 35 |
“(b) | in paragraph (d), the reference to the solicitor or |
| |
any employee of the solicitor who is an authorised |
| |
person were a reference to any manager or |
| |
employee of the recognised body who is an |
| |
| 40 |
(d) | after that sub-paragraph insert— |
| |
“(2) | In this paragraph “authorised person” means a person |
| |
who is an authorised person in relation to an activity |
| |
which is a reserved legal activity, within the meaning of |
| |
the Legal Services Act 2007 (see section 18 of that Act).” |
| 45 |
111 | For paragraph 24 of that Schedule (effect of contentious business |
| |
|
| |
|
| |
|
| |
“24 (1) | This paragraph applies in relation to a contentious business |
| |
agreement made between a recognised body and a client. |
| |
(2) | A provision in the agreement that the body shall not be liable for |
| |
the negligence of any of its managers or employees shall be void if |
| 5 |
the client is a natural person who, in entering that agreement, is |
| |
acting for purposes which are outside his trade, business or |
| |
| |
(3) | A provision in the agreement that the body shall be relieved from |
| |
any responsibility to which it would otherwise be subject in the |
| 10 |
course of carrying on its business as a recognised body shall be |
| |
| |
(4) | A provision in the agreement that any manager of the body shall |
| |
be relieved from any responsibility to which the manager would |
| |
otherwise be subject in the course of the carrying on by the body |
| 15 |
of its business as a recognised body shall be void.” |
| |
112 | In paragraph 25 of that Schedule (effect of supervening incapacity on |
| |
contentious business agreements)— |
| |
(a) | for sub-paragraph (1)(b) substitute— |
| |
“(b) | a relevant insolvency event occurs in relation to the |
| 20 |
| |
(b) | in sub-paragraphs (2) and (3)— |
| |
(i) | for “taxation” (in each place) substitute “assessment”, and |
| |
(ii) | for “taxing officer” (in each place) substitute “costs officer”, |
| |
(c) | in sub-paragraph (3) for “any officer” substitute “any manager”, and |
| 25 |
(d) | after that sub-paragraph insert— |
| |
“(4) | For the purposes of this paragraph a relevant insolvency |
| |
event occurs in relation to a recognised body if— |
| |
(a) | a resolution for a voluntary winding-up of the |
| |
body is passed without a declaration of solvency |
| 30 |
under section 89 of the Insolvency Act 1986; |
| |
(b) | the body enters administration within the meaning |
| |
of paragraph 1(2)(b) of Schedule B1 to that Act; |
| |
(c) | an administrative receiver within the meaning of |
| |
section 251 of that Act is appointed; |
| 35 |
(d) | a meeting of creditors is held in relation to the body |
| |
under section 95 of that Act (creditors’ meeting |
| |
which has the effect of converting a members’ |
| |
voluntary winding up into a creditors’ voluntary |
| |
| 40 |
(e) | an order for the winding up of the body is made.” |
| |
113 | In paragraph 26 of that Schedule (taxations with respect to contentious |
| |
| |
(a) | in the paragraph heading for “Taxations” substitute “Assessments”, |
| |
(b) | the existing paragraph becomes sub-paragraph (1) and in that sub- |
| 45 |
| |
(i) | for “taxation” substitute “assessment”, |
| |
(ii) | for “taxing officer” substitute “costs officer”, |
| |
|
| |
|
| |
|
(iii) | after “the body” (in the second place) insert “or any manager |
| |
or employee of the body”, and |
| |
(iv) | for “any solicitor, being an officer” substitute “any authorised |
| |
person, being a manager”, and |
| |
(c) | after that sub-paragraph insert— |
| 5 |
“(2) | In this paragraph “authorised person” means an |
| |
authorised person, in relation to an activity which is a |
| |
reserved legal activity, within the meaning of the Legal |
| |
| |
114 | In paragraph 28 (power of court to order recognised body to pay over |
| 10 |
clients’ money) after “client” (in the third place) insert “or any manager or |
| |
employee of such a body”. |
| |
115 | For paragraph 29 of that Schedule (actions to recover costs) substitute— |
| |
“29 (1) | Subsection (2A) of section 69 of the 1974 Act shall have effect in |
| |
relation to a bill of costs delivered by a recognised body as if for |
| 15 |
paragraphs (a) and (b) there were substituted— |
| |
“(a) | signed on behalf of the recognised body by any manager or |
| |
employee of the body authorised by it to do so, or |
| |
(b) | enclosed in, or accompanied by, a letter which is so signed |
| |
| 20 |
(2) | Subsection (2E) of that section shall have effect in relation to such |
| |
a bill as if for “the solicitor” there were substituted “the recognised |
| |
| |
116 | In paragraph 30 (power of Society to inspect files relating to certain |
| |
proceedings), for paragraph (b) substitute— |
| 25 |
“(b) | for the appointment of an administrative receiver within |
| |
the meaning of section 251 of the Insolvency Act 1986; or”. |
| |
117 | In paragraph 31 of that Schedule (bank accounts)— |
| |
| |
(b) | after “bank” insert “or building society”. |
| 30 |
118 | After that paragraph insert— |
| |
“31A | Where rules made under section 32(1) of the 1974 Act are applied |
| |
to managers or employees in accordance with section 9(2)(fb) of |
| |
this Act, section 85 of the 1974 Act shall apply in relation to a |
| |
manager or employee to whom the rules are applied who keeps an |
| 35 |
account with a bank or building society in pursuance of any such |
| |
rules as it applies in relation to a solicitor who keeps such an |
| |
account in pursuance of rules under section 32.” |
| |
119 (1) | Paragraph 32 of that Schedule (intervention by Society) is amended as |
| |
| 40 |
(2) | In sub-paragraph (1)(a)— |
| |
(a) | for “Council are” substitute “Society is”, |
| |
(b) | after “recognised body” insert “or a manager of such a body”, and |
| |
(c) | for “it” substitute “the body or manager”. |
| |
(3) | Omit sub-paragraph (1)(b). |
| 45 |
|
| |
|
| |
|
(4) | For sub-paragraph (1)(c) substitute— |
| |
“(c) | a relevant insolvency event occurs in relation to a |
| |
| |
(5) | In sub-paragraph (1)(d)— |
| |
(a) | for “Council have” substitute “Society has”, |
| 5 |
(b) | for “officer” substitute “manager”, and |
| |
(c) | for “that body’s” to the end substitute— |
| |
“(i) | that body’s business, |
| |
(ii) | any trust of which that body is or was a |
| |
| 10 |
(iii) | any trust of which the manager or |
| |
employee is or was a trustee in his capacity |
| |
as such a manager or employee, or |
| |
(iv) | the business of another body in which the |
| |
manager or employee is or was a manager |
| 15 |
or employee or the practice (or former |
| |
practice) of the manager or employee; or”. |
| |
(6) | After sub-paragraph (1)(d) insert— |
| |
“(e) | the Society is satisfied that it is necessary to exercise the |
| |
powers conferred by Part 2 of Schedule 1 to the 1974 Act |
| 20 |
(or any of them) in relation to a recognised body to |
| |
| |
(i) | the interests of clients (or former or potential |
| |
clients) of the recognised body, |
| |
(ii) | the interests of the beneficiaries of any trust of |
| 25 |
which the recognised body is or was a trustee, or |
| |
(iii) | the interests of the beneficiaries of any trust of |
| |
which a person who is or was a manager or |
| |
employee of the recognised body is or was a trustee |
| |
in that person’s capacity as such a manager or |
| 30 |
| |
(7) | After sub-paragraph (1) insert— |
| |
“(1A) | For the purposes of this paragraph a relevant insolvency event |
| |
occurs in relation to a recognised body if— |
| |
(a) | a resolution for a voluntary winding-up of the body is |
| 35 |
passed without a declaration of solvency under section 89 |
| |
of the Insolvency Act 1986; |
| |
(b) | the body enters administration within the meaning of |
| |
paragraph 1(2)(b) of Schedule B1 to that Act; |
| |
(c) | an administrative receiver within the meaning of section |
| 40 |
251 of that Act is appointed; |
| |
(d) | a meeting of creditors is held in relation to the body under |
| |
section 95 of that Act (creditors’ meeting which has the |
| |
effect of converting a members’ voluntary winding up into |
| |
a creditors’ voluntary winding up); |
| 45 |
(e) | an order for the winding up of the body is made.” |
| |
(8) | Omit sub-paragraph (2). |
| |
120 | For paragraph 33 of that Schedule (further grounds for intervention)— |
| |
|
| |
|
| |
|
(a) | for paragraph (a) substitute— |
| |
“(a) | the Society is satisfied that there has been undue |
| |
| |
(i) | on the part of a recognised body in |
| |
connection with any matter in which it is or |
| 5 |
was acting on behalf of a client or with any |
| |
trust of which it is or was a trustee, or |
| |
(ii) | on the part of a person who is or was a |
| |
manager or employee of a recognised body |
| |
in connection with any trust of which the |
| 10 |
manager or employee is or was a trustee in |
| |
his capacity as such a manager or |
| |
| |
(b) | in paragraph (c) for “Council regard” substitute “Society regards”. |
| |
121 | In paragraph 34 of that Schedule (powers of intervention on revocation of |
| 15 |
recognition etc), in sub-paragraph (1) omit “corporate” (in both places). |
| |
122 | In paragraph 35 of that Schedule (provision relating to the application of |
| |
Part 2 of Schedule 1 to the Solicitors Act 1974)— |
| |
(a) | in paragraph (a) omit “corporate”, and |
| |
(b) | omit “and” at the end of paragraph (b) and after paragraph (c) |
| 20 |
| |
“(d) | paragraph 6(2)(a) of that Schedule is to be |
| |
construed as including a reference to sums of |
| |
money held by or on behalf of the recognised body |
| |
in connection with any trust of which a person who |
| 25 |
is or was a manager of the recognised body is or |
| |
was a trustee in his capacity as such a manager; |
| |
(e) | paragraph 9 of that Schedule is to be construed— |
| |
(i) | as if sub-paragraph (1) included a reference |
| |
to documents in the possession or under the |
| 30 |
control of the recognised body in |
| |
connection with any trust of which a person |
| |
who is or was a manager or employee of the |
| |
recognised body is or was a trustee in his |
| |
capacity as such a manager or employee, |
| 35 |
| |
(ii) | as applying to such a manager or employee |
| |
and documents and property in his |
| |
possession or under his control in |
| |
connection with such a trust as it applies to |
| 40 |
a solicitor and documents and property in |
| |
the possession or under the control of the |
| |
| |
(f) | paragraph 11(1) of that Schedule is to be construed |
| |
as including a power for the Society to apply to the |
| 45 |
High Court for an order for the appointment of a |
| |
new trustee to a trust in substitution for a person |
| |
who is a trustee, in his capacity as a manager or |
| |
employee of the recognised body; and |
| |
(g) | paragraph 13A of that Schedule is to be read as if |
| 50 |
the references to a former partner were |
| |
| |
|
| |
|