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Lord Goodhart: That may be the case, but I would like to see it in the Bill. There is nothing in the wording of the amendments that would create a problem for the enforcement authority in getting an order covering associated property if the circumstances required it.
The noble and learned Lord also referred to Clause 275(3), which obliges the trustee to,
- "pay an amount to the person who holds the associated property"
- "the court may make the following provision if . . . the court thinks it just and equitable to do so".
I believe that amendments of the kind I am seeking provide for the interests of the enforcement authority. They specify that if it is necessary to sell the associated property or make it subject to a receiving order so as to be able to realise in the long run the recoverable property at a proper market value, the order can cover the associated property. Therefore I see nothing which damages the proper interests of the enforcement authority.
I accept that the difference between the noble and learned Lord the Attorney-General and myself in this matter is not wide. I shall examine the issue and consider whether we need to return to it. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
9.15 p.m.
Lord Bassam of Brighton moved Amendment No. 214A:
- After Clause 255, insert the following new clause—
The noble Lord said: This is a set of technical amendments. Amendment No. 214A provides for the registration of interim receiving orders in the Land
Amendments Nos. 220D, 220E, 223C and 223D are designed to ensure that interim and final recovery orders are properly registered under Scottish procedure.
As presently drafted, Clause 263(1)(c) requires the interim receiver in civil recovery cases to register an interim administration order in the register of inhibitions and adjudications. There are, however, no further provisions which make it clear what is the effect of such registration.
Amendments Nos. 220D and 220E therefore set out a detailed scheme in relation to the registering of interim administration orders. In effect, it gives public notice that the property in question is subject to an interim administration order and places an inhibition on any dealing in respect of the property until such time as the Court of Session determines the outcome of the case.
Amendments Nos. 223C and 223D make similar provision for Scotland in respect of recovery orders. Clause 271(3)(b) currently places a responsibility on the trustee for civil recovery in Scotland to register the recovery order in the register of inhibitions and adjudications if it is considered necessary. The intention is to give a clear public notice that the recoverable property now vests in the trustee and inhibits anyone else from dealing with the property.
On further consideration, it is thought to be more appropriate for the clerk of the Court of Session rather than the trustee to register the order. That follows the procedure set out in the Bankruptcy (Scotland) Act 1985. Amendment No. 223C therefore removes the responsibility from the trustee and Amendment No. 223D places it on the clerk of the court. I beg to move.
On Question, amendment agreed to.
Schedule 3 [Powers of interim receiver or administrator]:
Lord Kingsland moved Amendment No. 215:
The noble Lord said: This is another amendment inspired by the Law Society of Scotland. It ensures that the interim receiver or administrator cannot,
As the Committee is aware, Article 8 of the European Convention on Human Rights enshrines the right to privacy. The doctrine of legal professional privilege protects the relationship between a solicitor and his or her client. In order to preserve that relationship, we believe that provision should be made on the face of the Bill to the effect that the powers discharged by the interim receiver or administrator under paragraph 3 of Schedule 3 will not extend to the disclosure of information subject to legal privilege.
The amendment also provides for a definition of legal privilege which is consistent with that given in Clause 406 of the Bill. I beg to move.
Lord Bassam of Brighton: I do not know whether it is because the noble Lord, Lord Kingsland, has got the wording right on this occasion, but I have some goodish news for him on this amendment. Because of concerns raised in Committee in the other place, we amended the schedule to make explicit that the duty to disclose information imposed by paragraph 2 of the schedule should not impinge on information subject to legal professional privilege.
The amendment raises a similar concern in respect of paragraph 3 of the schedule. As the noble Lord knows, that paragraph provides that the court may authorise the interim receiver or administrator to enter, search, copy, photograph or record anything which is described in the interim receiving or administration order, or to seize evidence in pursuance of the order.
It is our intention that these powers should respect legal privilege. We will need to reflect on some of the points made by the noble Lord in his entirely convincing peroration and consider whether the current drafting of paragraph 3 secures our policy. In the light of those kind comments, perhaps the noble Lord will feel able to withdraw his amendment.
Lord Kingsland: I hasten to do so. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 257 [Supervision of interim receiver and variation of order]:
Lord Bassam of Brighton moved Amendment No. 215A:
The noble Lord said: Amendments Nos. 215A to 215D are intended to put beyond any reasonable doubt that all persons with an interest in the supervision or variation of an interim receiving order have rights to make an application to the court or to be heard as appropriate. Amendments Nos. 220F to 220J do the same for the Scottish provisions on interim administration orders.
Amendments Nos. 220A and 220B will ensure that where there are other legal proceedings taking place in relation to the same property to which an interim receiving order applies, all parties to both sets of proceedings will have a right to be heard before the court makes a decision. Amendment No. 223A does exactly the same for Scotland.
It was always our intention to ensure that all those with an interest in a court's consideration of an interim receiving order or an interim administration order should have the right to be heard. Having looked again at the provisions in Clauses 257 and 259 and their Scottish equivalents, we were not convinced that we had got this quite right. It is for that simple reason that we have brought forward these amendments. I beg to move.
On Question, amendment agreed to.
"REGISTRATION
(1) The registration Acts—
(a) apply in relation to interim receiving orders as they apply in relation to orders which affect land and are made by the court for the purpose of enforcing judgements or recognisances,
(b) apply in relation to applications for interim receiving orders as they apply in relation to other pending land actions.
(2) The registration Acts are—
(a) the Land Registration Act 1925 (c. 21),
(b) the Land Charges Act 1972 (c. 61), and
(c) the Land Registration Act 2002 (c. 9).
(3) But no notice may be entered in the register of title under the Land Registration Act 2002 (c. 9) in respect of an interim receiving order.
(4) A person applying for an interim receiving order must be treated for the purposes of section 57 of the Land Registration Act 1925 (c. 21) (inhibitions) as a person interested in relation to any registered land to which—
(a) the application relates, or
(b) a restraint order made in pursuance of the application relates."
Page 269, line 30, at end insert—
"( ) The order shall not permit the interim receiver or administrator to search for, inspect, copy, photograph, make a record of, take possession of or remove items subject to legal privilege.
( ) In this section, "items subject to legal privilege" means—
(a) communications between a professional legal adviser and his client; or
(b) communications made in connection with or in contemplation of legal proceedings for the purposes of these proceedings,
being communications which would in legal proceedings be protected from disclosure by virtue of any rule of law relating to confidentiality of communications items subject to legal privilege."
"search for, inspect, copy, photograph, make a record of, take possession of or remove items subject to legal privilege".
The noble Earl, Lord Mar and Kellie, might like to note that, on this occasion, the amendment utilises the verb "shall" and not "must".
Page 151, line 13, leave out "the respondent and any other" and insert "any party to the proceedings and any"
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