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
71

(2)
The rules may, among other things—
(a)
provide for the OLC to reduce or waive a charge in a particular case;
(b)
set different charges for different stages of the proceedings on a
complaint;
(c)
provide for charges to be refunded in specified circumstances;
5
(d)
provide that if the whole or any part of a charge is not paid by the time
by which it is required to be paid under the rules, the unpaid balance
from time to time carries interest at the rate specified in, or determined
in accordance with, the rules.
(3)
Any charge which is owed to the OLC by virtue of rules made under this
10
section may be recovered as a debt due to the OLC.
Determinations under the scheme
137
Determination of complaints
(1)
A complaint is to be determined under the ombudsman scheme by reference
to what is, in the opinion of the ombudsman making the determination, fair
15
and reasonable in all the circumstances of the case.
(2)
The determination may contain one or more of the following—
(a)
a direction that the respondent make an apology to the complainant;
(b)
a direction that—
(i)
the fees to which the respondent is entitled in respect of the
20
services to which the complaint relates (“the fees”) are limited
to such amount as may be specified in the direction, and
(ii)
the respondent comply, or secure compliance, with such one or
more of the permitted requirements as appear to the
ombudsman to be necessary in order for effect to be given to the
25
direction under sub-paragraph (i);
(c)
a direction that the respondent pay compensation to the complainant of
such an amount as is specified in the direction in respect of any loss
which has been suffered by, or any inconvenience or distress which has
been caused to, the complainant as a result of any matter connected
30
with the complaint;
(d)
a direction that the respondent secure the rectification, at the expense
of the respondent, of any such error, omission or other deficiency
arising in connection with the matter in question as the direction may
specify;
35
(e)
a direction that the respondent take, at the expense of the respondent,
such other action in the interests of the complainant as the direction
may specify.
(3)
For the purposes of subsection (2)(b) “the permitted requirements” are—
(a)
that the whole or part of any amount already paid by or on behalf of the
40
complainant in respect of the fees be refunded;
(b)
that the whole or part of the fees be remitted;
(c)
that the right to recover the fees be waived, whether wholly or to any
specified extent.
(4)
Where—
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(a)
a direction is made under subsection (2)(b) 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
(b)
a direction is made under subsection (2)(c),

the direction may also provide for the amount payable under the direction to
5
carry interest from a time specified in or determined in accordance with the
direction, at the rate specified in or determined in accordance with scheme
rules.
(5)
The power of the ombudsman to make a direction under subsection (2) is not
confined to cases where the complainant may have a cause of action against the
10
respondent for negligence.
138
Limitation on value of directions under the ombudsman scheme
(1)
Where a determination is made under the ombudsman scheme in respect of a
complaint, the total value of directions under section 137(2)(c) to (e) contained
in the determination must not exceed £20,000.
15
(2)
For this purpose the total value of such directions is the aggregate of—
(a)
the amount of any compensation specified in a direction under
subsection (2)(c) of section 137, and
(b)
the amount of any expenses reasonably incurred by the respondent
when complying with a direction under subsection (2)(d) or (e) of that
20
section.
(3)
For the purposes of determining that total value, any interest payable on an
amount within subsection (2)(a) of this section, by virtue of section 137(4), is to
be ignored.
139
Alteration of limit
25
(1)
The Lord Chancellor may by order amend section 138(1) in accordance with a
recommendation made by an interested body under subsection (2).
(2)
An interested body may, at any time, recommend to the Lord Chancellor that
section 138(1) should be amended so as to substitute the amount specified in
the recommendation for the amount for the time being specified in that
30
provision.
(3)
An interested body must, if requested to do so by the Lord Chancellor,
consider whether or not it is appropriate to make a recommendation under
subsection (2).
(4)
An interested body must, before making a recommendation under subsection
35
(2)—
(a)
publish a draft of the proposed recommendation,
(b)
invite representations regarding the proposed recommendation, and
(c)
consider any such representations which are made.
(5)
Where the Lord Chancellor receives a recommendation under subsection (2),
40
the Lord Chancellor must consider whether to follow the recommendation.
(6)
If the Lord Chancellor decides not to follow the recommendation, the Lord
Chancellor must publish a notice to that effect which includes the Lord
Chancellor’s reasons for the decision.

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(7)
In this section “interested body” means—
(a)
the OLC,
(b)
the Board, or
(c)
the Consumer Panel.
140
Acceptance or rejection of determination
5
(1)
When an ombudsman has determined a complaint the ombudsman must
prepare a written statement of the determination.
(2)
The statement must—
(a)
give the ombudsman’s reasons for the determination,
(b)
be signed by the ombudsman, and
10
(c)
require the complainant to notify the ombudsman, before a time
specified in the statement (“the specified time”), whether the
complainant accepts or rejects the determination.
(3)
The ombudsman must give a copy of the statement to—
(a)
the complainant,
15
(b)
the respondent, and
(c)
any relevant authorising body in relation to the respondent.
(4)
If the complainant notifies the ombudsman that the determination is accepted
by the complainant, it is binding on the respondent and the complainant and
is final.
20
(5)
If, by the specified time, the complainant has not notified the ombudsman of
the complainant’s acceptance or rejection of the determination, the
complainant is to be treated as having rejected it.
(6)
But if—
(a)
the complainant notifies the ombudsman after the specified time that
25
the determination is accepted by the complainant,
(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,
30

the determination is treated as if it had never been rejected by virtue of
subsection (5).
(7)
The ombudsman must give notice of the outcome to—
(a)
the complainant,
(b)
the respondent, and
35
(c)
any relevant authorising body in relation to the respondent.
(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.
40
(10)
Such a certificate purporting to be signed by an ombudsman is to be taken to
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

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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.
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
5
ombudsman scheme,
(b)
one or more directions are made under section 137(2), and
(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
10
the whole or part of any amount already paid by or on behalf of the
complainant in respect of the fees be refunded, or
(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
15
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),
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
20
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
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
25
complainant’s consent.
(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.
30
(7)
In this section “court” means the High Court or a county court.
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
35
relation to any activity which is a reserved legal activity, the OLC must make
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
40
report to the ombudsman the action which has been or is to be taken by it in
response to the report under subsection (2) and the reasons for that action
being taken.

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(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—
(a)
that there has been a serious failure by the relevant authorising body to
discharge its regulatory functions, or
5
(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.
Reporting misconduct
10
143
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
15
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
20
(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
25
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
30
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.
35
Co-operation with investigations
144
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.
40
(2)
The regulatory arrangements of an approved regulator must make provision
requiring the approved regulator to disclose to persons within subsection (3)

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information of such description as may be specified in the arrangements, in
such circumstances as may be so specified.
(3)
The persons are—
(a)
the OLC;
(b)
an ombudsman;
5
(c)
a member of the OLC’s staff appointed under paragraph 13 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
10
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
15
scheme.
(6)
The Board must publish any requirements specified by it under subsection (4).
(7)
The OLC must—
(a)
before publishing under section 205(2) a draft of rules it proposes to
make under subsection (1), consult each approved regulator to which
20
the proposed rules apply, and
(b)
when seeking the Board’s consent to such rules under section 155,
identify any objections made by an approved regulator to the rules and
not withdrawn.
(8)
An approved regulator must—
25
(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.
30
(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.
35
145
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
40
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
45
that subsection.

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(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
(b)
in relation to the Board in its capacity as a licensing authority, means a
5
person licensed by the Board under Part 5.
146
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
ombudsman, in connection with the investigation, consideration or
10
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—
(a)
states that the ombudsman is of that opinion, and
15
(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
being taken.
20
(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
(3), or any failure to comply with such a requirement, considers—
25
(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,
30

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
147
Information and documents
35
(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
(b)
to provide information, or information of a description, specified in the
40
notice.
(2)
A notice under subsection (1) may require the information or documents to be
provided or produced—