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Legal Services Bill [HL]


Legal Services Bill [HL]
Part 6 — Legal Complaints

65

 

126     

Pre-commencement acts and omissions

(1)   

For the purposes of section 125 a person is to be regarded as an authorised

person in relation to an activity which is a reserved legal activity, at a time

before section 122 comes into force, if the person was at that time—

(a)   

a person of the kind mentioned in paragraph 2(4) of Schedule 15,

5

(b)   

a body recognised under section 9 or 32 of the Administration of Justice

Act 1985 (c. 61) (recognised bodies),

(c)   

a legal partnership, a conveyancing partnership, a patent attorney body

or a trade mark body.

(2)   

In this section—

10

“conveyancing partnership” has the meaning given by paragraph 11(5) of

Schedule 5;

“legal partnership” has the meaning given by paragraph 7(4) of that

Schedule;

“patent attorney body” has the meaning given by paragraph 13(7) of that

15

Schedule;

“trade mark body” has the meaning given by paragraph 15(7) of that

Schedule.

127     

Orders under section 125

(1)   

An interested body may, at any time, recommend to the Secretary of State that

20

the Secretary of State make an order under section 125(3)(b), (4)(d) or (5)(c).

(2)   

An interested body must, if requested to do so by the Secretary of State,

consider whether or not it is appropriate to make a recommendation under

subsection (1).

(3)   

An interested body must, before making a recommendation under subsection

25

(1)—

(a)   

publish a draft of the proposed recommendation,

(b)   

invite representations regarding the proposed recommendation, and

(c)   

consider any such representations which are made.

(4)   

Where the Secretary of State receives a recommendation under subsection (1),

30

the Secretary of State must consider whether to follow the recommendation.

(5)   

If the Secretary of State decides not to follow the recommendation, the

Secretary of State must publish a notice to that effect which includes the

Secretary of State’s reasons for the decision.

(6)   

In this section “interested body” means—

35

(a)   

the OLC,

(b)   

the Board, or

(c)   

the Consumer Panel.

128     

Acts and omissions by employees etc

(1)   

For the purposes of this Part and the ombudsman scheme, any act or omission

40

by a person in the course of the person’s employment is to be treated as also an

act or omission by the person’s employer, whether or not it was done with the

employer’s knowledge or approval.

 
 

Legal Services Bill [HL]
Part 6 — Legal Complaints

66

 

(2)   

For the purposes of this Part and the ombudsman scheme, any act or omission

by a partner in a partnership in the course of carrying on, in the usual way,

business of the kind carried on by the partnership is to be treated as also an act

or omission by the partnership.

(3)   

But subsection (2) does not apply if the partner had no authority to act for the

5

partnership and the person purporting to rely on that subsection knew, at the

time of the act or omission, that the partner had no such authority.

129     

Continuity of complaints

(1)   

The ability of a person to make a complaint about an act or omission of a

partnership or other unincorporated body is not affected by any change in the

10

membership of the partnership or body.

(2)   

Scheme rules must make provision determining the circumstances in which,

for the purposes of the ombudsman scheme, an act or omission of a person

(“A”) is, where A ceases to exist and another person (“B”) succeeds to the whole

or substantially the whole of the business of A, to be treated as an act or

15

omission of B.

(3)   

Rules under subsection (2) must, in relation to cases where an act or omission

of A is treated as an act or omission of B, make provision about the treatment

of complaints under the ombudsman scheme which are outstanding against A

at the time A ceases to exist.

20

(4)   

Scheme rules may make provision conferring rights on persons specified in the

rules to continue a complaint made by a person who has died or is otherwise

unable to act.

130     

Operation of the ombudsman scheme

(1)   

Scheme rules must set out the procedure for—

25

(a)   

the making of complaints under the ombudsman scheme, and

(b)   

the investigation, consideration and determination of complaints by an

ombudsman.

(2)   

Scheme rules—

(a)   

must provide that a complaint is to be entertained under the

30

ombudsman scheme only if the complainant has made the complaint

under that scheme before the applicable time limit (determined in

accordance with the scheme rules) has expired, and

(b)   

may provide that an ombudsman may extend that time limit in

specified circumstances.

35

(3)   

Scheme rules made under subsection (1) may (among other things) make

provision—

(a)   

for the whole or part of a complaint to be dismissed, in specified

circumstances, without consideration of its merits;

(b)   

for the reference of a complaint, in specified circumstances and with the

40

consent of the complainant, to another body with a view to it being

determined by that body instead of by an ombudsman;

(c)   

for a person who, at the relevant time (within the meaning of section

125(7)) was an authorised person in relation to an activity to be treated

in specified circumstances, for the purposes of the scheme and this Part,

45

as if that person were a co-respondent in relation to a complaint;

 
 

Legal Services Bill [HL]
Part 6 — Legal Complaints

67

 

(d)   

about the evidence which may be required or admitted and the extent

to which it should be oral or written;

(e)   

for requiring parties to the complaint to attend to give evidence and

produce documents, and for authorising the administration of oaths by

ombudsmen;

5

(f)   

about the matters which are to be taken into account in determining

whether an act or omission was fair and reasonable;

(g)   

for an ombudsman, in such circumstances as may be specified, to

award expenses to persons in connection with attendance at a hearing

before an ombudsman;

10

(h)   

for an ombudsman to award costs against the respondent in favour of

the complainant;

(i)   

for an ombudsman to award costs against the complainant or the

respondent in favour of the OLC for the purpose of providing a

contribution to resources deployed in dealing with the complaint, if in

15

the ombudsman’s opinion—

(i)   

the person against whom the costs are awarded acted

improperly or unreasonably in relation to the complaint, or

(ii)   

that person was responsible for an unreasonable delay;

(j)   

for the purpose of facilitating the settlement of a complaint with the

20

agreement of the parties to it;

(k)   

for specified persons to be notified of complaints, determinations and

directions under the ombudsman scheme.

(4)   

The circumstances specified under subsection (3)(a) may include the

following—

25

(a)   

the ombudsman considers the complaint or part to be frivolous or

vexatious or totally without merit;

(b)   

the ombudsman considers that the complaint or part would be better

dealt with under another ombudsman scheme, by arbitration or by

other legal proceedings;

30

(c)   

the ombudsman considers that there has been undue delay in the

making of the complaint or part, or the provision of evidence to support

it;

(d)   

the ombudsman is satisfied that the matter which is the subject of the

complaint or part has previously been dealt with under another

35

ombudsman scheme, by arbitration or by other legal proceedings;

(e)   

the ombudsman considers that there are other compelling reasons why

it is inappropriate for the complaint or part to be dealt with under the

ombudsman scheme.

(5)   

No person may be required by scheme rules—

40

(a)   

to provide any information or give any evidence which that person

could not be compelled to provide or give in evidence in civil

proceedings before the High Court, or

(b)   

to produce any document which that person could not be compelled to

produce in such proceedings.

45

(6)   

Scheme rules may authorise an ombudsman making an award of costs in

accordance with rules within subsection (3)(h) or (i) to order that the amount

payable under the award bears interest, from a time specified in or determined

in accordance with the order, at a rate specified in or determined in accordance

with the rules.

50

 
 

Legal Services Bill [HL]
Part 6 — Legal Complaints

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(7)   

An amount due under an award made in favour of a person by virtue of

provision made under subsection (3)(g), (h) or (i) is recoverable as a debt due

to that person.

(8)   

In this section—

“party”, in relation to a complaint, means—

5

(a)   

the complainant,

(b)   

the respondent, and

(c)   

any other person who in accordance with scheme rules is to be

regarded as a party to the complaint;

“specified” means specified in scheme rules.

10

131     

Delegation of an ombudsman’s functions

(1)   

An ombudsman may delegate to a member of the OLC’s staff appointed under

paragraph 11 of Schedule 15

(a)   

any function of the ombudsman in relation to the making, investigation

or consideration (but not determination) of a complaint;

15

(b)   

any other function conferred on the ombudsman by or by virtue of this

Part, other than the functions of the Chief Ombudsman within

subsection (2).

(2)   

Those functions are—

(a)   

the Chief Ombudsman’s power to consent to the appointment of an

20

assistant ombudsman under section 119, and

(b)   

the duties imposed on the Chief Ombudsman by section 120 (Chief

Ombudsman’s report).

132     

Notification requirements

(1)   

This section applies where a complaint—

25

(a)   

is excluded from the jurisdiction of the ombudsman scheme under

section 123, or by virtue of scheme rules made under section 124;

(b)   

is dismissed, or referred to another body, by virtue of scheme rules;

(c)   

is settled, withdrawn or abandoned (or treated as withdrawn or

abandoned by virtue of scheme rules).

30

(2)   

The ombudsman must notify—

(a)   

the complainant;

(b)   

the respondent;

(c)   

any relevant authorising body, in relation to the respondent, notified of

the complaint in accordance with rules within section 130(3)(k),

35

   

and, in a case within subsection (1)(a) or (b), must give reasons for the

exclusion, dismissal or referral.

133     

Charges payable by respondents

(1)   

Scheme rules must require respondents, in relation to complaints under the

ombudsman scheme, to pay to the OLC such charges as may be specified in the

40

rules.

(2)   

The rules may, among other things—

(a)   

provide for the OLC to reduce or waive a charge in a particular case;

 
 

Legal Services Bill [HL]
Part 6 — Legal Complaints

69

 

(b)   

set different charges for different stages of the proceedings on a

complaint;

(c)   

provide for charges to be refunded in specified circumstances;

(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

5

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

section may be recovered as a debt due to the OLC.

Determinations under the scheme

10

134     

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

and reasonable in all the circumstances of the case.

(2)   

The determination may contain one or more of the following—

15

(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

services to which the complaint relates (“the fees”) are limited

to such amount as may be specified in the direction, and

20

(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

direction under sub-paragraph (i);

(c)   

a direction that the respondent pay compensation to the complainant of

25

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

with the complaint;

(d)   

a direction that the respondent secure the rectification, at the expense

30

of the respondent, of any such error, omission or other deficiency

arising in connection with the matter in question as the direction may

specify;

(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

35

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

complainant in respect of the fees be refunded;

(b)   

that the whole or part of the fees be remitted;

40

(c)   

that the right to recover the fees be waived, whether wholly or to any

specified extent.

(4)   

Where—

(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

45

complainant in respect of the fees be refunded, or

 
 

Legal Services Bill [HL]
Part 6 — Legal Complaints

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(b)   

a direction is made under subsection (2)(c),

   

the direction may also provide for the amount payable under the direction to

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

(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

respondent for negligence.

135     

Limitation on value of directions under the ombudsman scheme

(1)   

Where a determination is made under the ombudsman scheme in respect of a

10

complaint, the total value of directions under section 134(2)(c) to (e) contained

in the determination must not exceed £20,000.

(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 134, and

15

(b)   

the amount of any expenses reasonably incurred by the respondent

when complying with a direction under subsection (2)(d) or (e) of that

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 134(4), is to

20

be ignored.

136     

Alteration of limit

(1)   

The Secretary of State may by order amend section 135(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 Secretary of State that

25

section 135(1) should be amended so as to substitute the amount specified in

the recommendation for the amount for the time being specified in that

provision.

(3)   

An interested body must, if requested to do so by the Secretary of State,

consider whether or not it is appropriate to make a recommendation under

30

subsection (2).

(4)   

An interested body must, before making a recommendation under subsection

(2)—

(a)   

publish a draft of the proposed recommendation,

(b)   

invite representations regarding the proposed recommendation, and

35

(c)   

consider any such representations which are made.

(5)   

Where the Secretary of State receives a recommendation under subsection (2),

the Secretary of State must consider whether to follow the recommendation.

(6)   

If the Secretary of State decides not to follow the recommendation, the

Secretary of State must publish a notice to that effect which includes the

40

Secretary of State’s reasons for the decision.

(7)   

In this section “interested body” means—

(a)   

the OLC,

 
 

Legal Services Bill [HL]
Part 6 — Legal Complaints

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(b)   

the Board, or

(c)   

the Consumer Panel.

137     

Acceptance or rejection of determination

(1)   

When an ombudsman has determined a complaint the ombudsman must

prepare a written statement of the determination.

5

(2)   

The statement must—

(a)   

give the ombudsman’s reasons for the determination,

(b)   

be signed by the ombudsman, and

(c)   

require the complainant to notify the ombudsman, before a time

specified in the statement (“the specified time”), whether the

10

complainant accepts or rejects the determination.

(3)   

The ombudsman must give a copy of the statement to—

(a)   

the complainant,

(b)   

the respondent, and

(c)   

any relevant authorising body in relation to the respondent.

15

(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.

(5)   

If, by the specified time, the complainant has not notified the ombudsman of

the complainant’s acceptance or rejection of the determination, the

20

complainant is to be treated as having rejected it.

(6)   

But if—

(a)   

the complainant notifies the ombudsman after the specified time that

the determination is accepted by the complainant,

(b)   

the complainant has not previously notified the ombudsman of the

25

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,

   

the determination is treated as if it had never been rejected by virtue of

subsection (5).

30

(7)   

The ombudsman must give notice of the outcome to—

(a)   

the complainant,

(b)   

the respondent, and

(c)   

any relevant authorising body in relation to the respondent.

(8)   

Where a determination is rejected by virtue of subsection (5), that notice must

35

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.

(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.

40

(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

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.

 
 

 
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