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Legal Services Bill [HL]


Legal Services Bill [HL]
Part 6 — Legal Complaints

72

 

138     

Enforcement by complainant of directions under section 134

(1)   

This section applies where—

(a)   

a determination is made in respect of a complaint under the

ombudsman scheme,

(b)   

one or more directions are made under section 134(2), and

5

(c)   

the determination is final by virtue of section 137(4).

(2)   

An amount payable in accordance with—

(a)   

a direction under subsection (2)(b) of section 134 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

10

(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, as if it

were payable under an order of that court.

(3)   

If the respondent fails to comply with any other direction under section 134(2),

15

the complainant may make an application to the court under this subsection.

(4)   

If, on an application under subsection (3), the court decides that the respondent

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.

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(5)   

In this section “court” means the High Court or the county court.

139     

Reporting court orders made against authorised persons

(1)   

Where a court makes an order under section 138, it must give the OLC notice

to that effect.

(2)   

Where the order is made against a person who is an authorised person in

25

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

30

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.

(4)   

If an ombudsman, having regard to any report produced by the relevant

authorising body in compliance with a requirement imposed under subsection

35

(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

(b)   

if such a requirement has been imposed on the body on more than one

occasion, that the relevant authorising body has persistently failed

40

adequately to discharge its regulatory functions,

   

the ombudsman may make a report to that effect to the Board.

 
 

Legal Services Bill [HL]
Part 6 — Legal Complaints

73

 

Reporting misconduct

140     

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

5

(b)   

the ombudsman is of the opinion that the conduct of the respondent or

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—

10

(a)   

states that the ombudsman is of that opinion, and

(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.

15

(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—

20

(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,

25

   

the ombudsman may make a report to that effect to the Board.

Co-operation with investigations

141     

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

30

specified in the rules, in such circumstances as may be so specified.

(2)   

The regulatory arrangements of an approved regulator must make provision

requiring the approved regulator to disclose to persons within subsection (3)

information of such description as may be specified in the arrangements, in

such circumstances as may be so specified.

35

(3)   

The persons are—

(a)   

the OLC;

(b)   

an ombudsman;

(c)   

a member of the OLC’s staff appointed under paragraph 11 of Schedule

15.

40

(4)   

Provision made under subsection (1) or (2) must satisfy such requirements as

the Board may, from time to time, specify.

 
 

Legal Services Bill [HL]
Part 6 — Legal Complaints

74

 

(5)   

In specifying requirements under subsection (4) the Board must have regard

to—

(a)   

the need to ensure that duplication of investigations is avoided so far as

practicable;

(b)   

the desirability of the OLC assisting approved regulators to carry out

5

their regulatory functions, and of approved regulators assisting with

the investigation, consideration and determination of complaints

under the ombudsman scheme.

(6)   

The Board must publish any requirements specified by it under subsection (4).

(7)   

This section applies to the Board in its capacity as a licensing authority and

10

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.

142     

Duties of authorised persons to co-operate with investigations

15

(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

the investigation, consideration or determination of complaints under

20

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

that subsection.

25

(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

109, and

(b)   

in relation to the Board in its capacity as a licensing authority, means a

30

person licensed by the Board under Part 5.

143     

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

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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

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(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.

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Legal Services Bill [HL]
Part 6 — Legal Complaints

75

 

(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—

5

(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,

10

   

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

144     

Information and documents

15

(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

20

notice.

(2)   

A notice under subsection (1) may require the information or documents to be

provided or produced—

(a)   

before the end of such reasonable period as may be specified in the

notice, and

25

(b)   

in the case of information, in such manner or form as may be so

specified.

(3)   

This section applies only to information and documents the provision or

production of which the ombudsman considers necessary for the

determination of the complaint.

30

(4)   

An ombudsman may—

(a)   

take copies of or extracts from a document produced under this section,

and

(b)   

require the person producing the document to provide an explanation

of it.

35

(5)   

If a person who is required under this section to produce a document fails to

do so, an ombudsman may require that person to state, to the best of that

person’s knowledge and belief, where the document is.

(6)   

No person may be required under this section—

(a)   

to provide any information which that person could not be compelled

40

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.

 
 

Legal Services Bill [HL]
Part 6 — Legal Complaints

76

 

(7)   

In this section “party”, in relation to a complaint, means—

(a)   

the complainant;

(b)   

the respondent;

(c)   

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

regarded as a party to the complaint.

5

145     

Reporting failures to provide information or produce documents

(1)   

This section applies where an ombudsman is of the opinion that an authorised

person has failed to comply with a requirement imposed under section 144(1).

(2)   

The ombudsman must give each relevant authorising body, in relation to that

person, a report which—

10

(a)   

states that the ombudsman is of that opinion, and

(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

15

being taken.

(4)   

The duty imposed by subsection (2) is not affected by the withdrawal or

abandonment of the complaint in relation to which the requirement was

imposed under section 144(1).

(5)   

If an ombudsman, having regard to any report produced by the relevant

20

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

(b)   

if such a requirement has been imposed on the body on more than one

25

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.

(6)   

In this section “authorised person” means an authorised person in relation to

any activity which is a reserved legal activity.

30

146     

Enforcement of requirements to provide information or produce documents

(1)   

This section applies where an ombudsman is of the opinion that a person (“the

defaulter”) has failed to comply with a requirement imposed under section

144(1).

(2)   

The ombudsman may certify the defaulter’s failure to comply with the

35

requirement to the court.

(3)   

Where an ombudsman certifies a failure to the court under subsection (2), the

court may enquire into the case.

(4)   

If the court is satisfied that the defaulter has failed without reasonable excuse

to comply with the requirement, it may deal with—

40

(a)   

the defaulter, and

(b)   

in the case of a body, any manager of the body,

   

as if that person were in contempt.

 
 

Legal Services Bill [HL]
Part 6 — Legal Complaints

77

 

(5)   

Subsection (6) applies in a case where the defaulter is an authorised person in

relation to any activity which is a reserved legal activity.

(6)   

The ombudsman (“the enforcing ombudsman”) may not certify the defaulter’s

failure to the court until a report by that or another ombudsman has been made

as required by section 145(2) and the enforcing ombudsman is satisfied—

5

(a)   

that each relevant authorising body to whom such a report was made

has been given a reasonable opportunity to take action in respect of the

defaulter’s failure, and

(b)   

that the defaulter has continued to fail to provide the information or

produce the documents to which the requirement under section 144

10

related.

(7)   

In this section “court” means the High Court.

147     

Reports of investigations

(1)   

The OLC may, if it considers it appropriate to do so in any particular case,

publish a report of the investigation, consideration and determination of a

15

complaint made under the ombudsman scheme.

(2)   

A report under subsection (1) must not (unless the complainant consents)—

(a)   

mention the name of the complainant, or

(b)   

include any particulars which, in the opinion of the OLC, are likely to

identify the complainant.

20

148     

Restricted information

(1)   

Except as provided by section 149, restricted information must not be

disclosed—

(a)   

by a restricted person, or

(b)   

by any person who receives the information directly or indirectly from

25

a restricted person.

(2)   

In this section and section 149

“restricted information” means information (other than excluded

information) which is obtained by a restricted person in the course of,

or for the purposes of, an investigation into a complaint made under

30

the ombudsman scheme (including information obtained for the

purposes of deciding whether to begin such an investigation or in

connection with the settlement of a complaint);

“restricted person” means—

(a)   

the OLC,

35

(b)   

an ombudsman, or

(c)   

a person who exercises functions delegated under paragraph 19

of Schedule 15.

(3)   

For the purposes of subsection (2) “excluded information” means—

(a)   

information which is in the form of a summary or collection of

40

information so framed as not to enable information relating to any

particular person to be ascertained from it;

(b)   

information which at the time of the disclosure is or has already been

made available to the public from other sources;

 
 

Legal Services Bill [HL]
Part 6 — Legal Complaints

78

 

(c)   

information which was obtained more than 70 years before the date of

the disclosure.

149     

Disclosure of restricted information

(1)   

A restricted person may disclose restricted information to another restricted

person.

5

(2)   

Restricted information may be disclosed for the purposes of the investigation

in the course of which, or for the purposes of which, it was obtained.

(3)   

Section 148 also does not preclude the disclosure of restricted information—

(a)   

in a report made under—

(i)   

section 140(2) (report of possible misconduct to approved

10

regulators),

(ii)   

section 143(2) (report of failure to co-operate with

investigation),

(iii)   

section 145 (reporting failures to provide information or

produce documents), or

15

(iv)   

section 147 (reports of investigations),

(b)   

for the purposes of enabling or assisting the Board to exercise any of its

functions,

(c)   

to an approved regulator for the purposes of enabling or assisting the

approved regulator to exercise any of its regulatory functions,

20

(d)   

with the consent of the person to whom it relates and (if different) the

person from whom the restricted person obtained it,

(e)   

for the purposes of an inquiry with a view to the taking of any criminal

proceedings or for the purposes of any such proceedings,

(f)   

where the disclosure is required by or by virtue of any provision made

25

by or under this Act or any other enactment or other rule of law,

(g)   

to such persons as may be prescribed by order made by the Secretary of

State for such purposes as may be so prescribed.

(4)   

Subsections (2) and (3) are subject to subsection (5).

(5)   

The Secretary of State may by order prevent the disclosure of restricted

30

information by virtue of subsection (2) or (3) in such circumstances, or for such

purposes, as may be prescribed in the order.

150     

Data protection

In section 31 of the Data Protection Act 1998 (c. 29) (regulatory activity), after

subsection (4B) (inserted by section 163) insert—

35

“(4C)   

Personal data processed for the purposes of the function of considering

a complaint under the scheme established under Part 6 of the Legal

Services Act 2007 (legal complaints) are exempt from the subject

information provisions in any case to the extent to which the

application of those provisions to the data would be likely to prejudice

40

the proper discharge of the function.”

 
 

 
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