Statutory Instruments
NORTHERN IRELAND
Made
2nd August 1989
Coming into Operation
3rd October 1989
At the Court at Buckingham Palace, the 2nd day of August 1989
Present,
The Queen’s Most Excellent Majesty in Council
Whereas a draft of this Order has been approved by a resolution of each House of Parliament:
Now, therefore, Her Majesty, in exercise of the powers conferred by paragraph 1 of Schedule 1 to the Northern Ireland Act 1974(1), and of all other powers enabling Her in that behalf, is pleased, by and with the advice of Her Privy Council, to order, and it is hereby ordered, as follows:—
1.—(1) This Order may be cited as the Solicitors (Amendment) (Northern Ireland) Order 1989.
(2) This Order shall come into operation on the expiration of two months from the day on which it is made.
2.—(1) The Interpretation Act (Northern Ireland) 1954(2) shall apply to Article 1 and the following provisions of this Order as it applies to a Measure of the Northern Ireland Assembly.
(2) In this Order “the Solicitors Order” means the Solicitors (Northern Ireland) Order 1976(3).
3. For Articles 8 and 9 of the Solicitors Order there shall be substituted—
8.—(1) The registrar shall continue to keep the roll in the form of an alphabetical list of all solicitors.
(2) The Society shall have the custody of the roll and of all documents relating thereto.
(3) The roll shall be kept in accordance with the provisions of this Order and of regulations and may be kept by means of a computer.
(4) If the roll is kept by means of a computer, the Society shall make any entry available for inspection in legible form during office hours, without payment, by any person who applies to inspect it.
(5) If the roll is not kept by means of a computer, any person may inspect it during office hours without payment.
(6) The Society, on the application of a solicitor, may cause his name to be removed from the roll.
(7) Regulations under paragraph (3) may—
(a)provide for the Society, at such intervals as may be specified in the regulations, to enquire of solicitors of any class so specified whether they wish to have their names retained on the roll;
(b)require solicitors of any such class, at such intervals as aforesaid, to pay to the Society a fee in respect of the retention of their names on the roll of such amount as may be prescribed;
(c)authorise the Society to remove from the roll the name of any solicitor who—
(i)fails to reply to any enquiry made in pursuance of sub-paragraph (a) or to pay any fee payable by virtue of sub-paragraph (b); or
(ii)replies to any such enquiry by indicating that he does not wish to have his name retained on the roll; and
(d)authorise the Society to remove from the roll the name of any solicitor who has died.
9.—(1) On production—
(a)of an admission of any person as a solicitor signed by the Lord Chief Justice; or
(b)of an order for the replacement on the roll of the name of a person whose name has been struck off it,
and on payment to the Society of such fee as may be prescribed, the registrar shall enter the name of that person on the roll.
(2) The Society, on the application of a former solicitor whose name is not on the roll because it has been removed from it, may cause his name to be entered on the roll on payment by him to the Society of such fee as may be prescribed.”.
4. In Article 10 of the Solicitors Order (register of practising solicitors)—
(a)in paragraph (2) the words from “and any person” onwards shall cease to have effect;
(b)after paragraph (2) there shall be inserted—
“(2A) The register may be kept by means of a computer.
(2B) If the register is kept by means of a computer, the Society shall make any entry available for inspection in legible form during office hours, without payment, by any person who applies to inspect it.
(2C) If the register is not kept by means of a computer, any person may inspect it during office hours without payment.”.
5. In Article 13(1) of the Solicitors Order (discretion of registrar to refuse certificate in special cases)—
(a)after sub-paragraph (c) there shall be inserted—
“(cc)where he applies for a practising certificate after a finding by the Tribunal on a complaint under Article 10(3) that he made a false statement material to an application for a previous practising certificate; or”;
(b)in sub-paragraph (d) for “of his suspension or his re-admission to” there shall be substituted “or termination of his suspension or the replacement of his name on”;
(c)after sub-paragraph (d) there shall be inserted—
“(dd)where, having had a practising certificate suspended under Article 15(2), he first applies for a practising certificate after the expiration of the suspended practising certificate; or”;
(d)after sub-paragraph (g) there shall be inserted—
“(gg)where he has been invited by the Society to satisfy them that he has complied with any regulationsmade under Article 6 in relation to education ortraining, and, having failed so to satisfy the Society,has been notified in writing by the Society that he has so failed;”;
(e)in sub-paragraph (h) for “affecting” there shall be substituted “relating to”; and
(f)after sub-paragraph (h) there shall be inserted—
“(hh)where, having been required by Article 35(1) to deliver an accountant’s report to the Society—
(a)he has not delivered that report within the period allowed by Article 35(2); or
(b)he has been invited by the Society to satisfy them that, in relation to any report delivered to the Society, he has complied with regulations made under Article 35, and, having failed so to satisfy the Society, has been notified in writing by the Society that he has so failed;”.
6. For Articles 14 to 17 of the Solicitors Order there shall be substituted—
14.—(1) A solicitor who has been refused a practising certificate under Article 13(3) may, within one month from the date onwhich notice of such refusal is served on him, apply to the Council to review the refusal; and on such application the Council may in their discretion direct the registrar—
(a)to grant or refuse the application;
(b)to issue—
(i)the certificate; or
(ii)the certificate and any subsequent practising certificate issued to the solicitor,
subject to such terms and conditions as the Council think fit.
(2) A solicitor aggrieved by a decision of the Council underparagraph (1) may, within one month from the date on whichnotice of that decision is served on him, appeal to the Lord Chief Justice who may—
(a)affirm the decision; or
(b)give to the registrar any direction which could have been given to him by the Council under paragraph (1).
(3) For the purposes of this Article a solicitor who has not received a practising certificate within three weeks after he appliedto the registrar for it or, as the case may be, applied to the Council to review the refusal of a practising certificate, shall be deemed to have received notice at the expiration of that period that the certificate has been refused.
14A.—(1) Subject to the provisions of this Article, the Council may in the case of any solicitor direct that—
(a)his practising certificate for the time being in force (his “current certificate”); or
(b)his current certificate and any subsequent practising certificate issued by the registrar to the solicitor,
shall have effect subject to such terms and conditions as the Council think fit.
(2) The power to give a direction under this Article in the case of any solicitor shall be exercisable by the Society at any time during the period for which his current certificate is in force if—
(a)in the event of an application for a practising certificate being made by him at that time, Article 13 would haveeffect in relation to him by reason of any such circumstances as are mentioned in sub-paragraph (e), (g), (h), (hh), (i) or (j) of paragraph (1) of that Article;
(b)he has entered into a composition with his creditors or a deed of arrangement for their benefit; or
(c)Schedule 1 applies in relation to him, by virtue of any provision of this Order.
(3) Subject to paragraph (4), the terms and conditions specified in a direction under this Article shall have effect as from the time when the solicitor concerned is notified of the Council’s decision to give the direction.
(4) The Council may, if they think fit, provide in a direction under this Article that the terms and conditions specified in the direction shall not have effect pending the hearing and determination of any appeal under paragraph (6).
(5) Where there is pending against any judgment, order or decree an appeal by a solicitor which, if successful, would result in paragraph (2) no longer being applicable to him, the Council shall not give a direction under this Article in his case so long as theappeal is pending, unless in the opinion of the Council the proceedings on that appeal have been unduly protracted by him or are unlikely to be successful.
(6) A solicitor aggrieved by a decision of the Council under paragraph (1) may, within one month from the date on which notice of that decision is served on him, appeal to the Lord Chief Justice who may—
(a)affirm or revoke the decision;
(b)give any direction which could have been given by the Council under paragraph (1).
15.—(1) The making of an order suspending a solicitor from practice and the adjudication of bankruptcy of a solicitor shall operate to suspend any practising certificate of that solicitor for the time being in force.
(2) Where, under any provision of this Order, Schedule 1 applies in relation to a solicitor, the Council may in their discretion suspend any practising certificate of that solicitor for the time being in force.
(3) For the purposes of this Order a practising certificate shall be deemed not to be in force at any time while it is suspended.
(4) A solicitor aggrieved by a decision of the Council under paragraph (2) suspending his practising certificate may, within one month from the date on which notice of that decision is served on him, appeal to the Lord Chief Justice who may—
(a)affirm or revoke the decision;
(b)direct that—
(i)the certificate; or
(ii)the certificate and any subsequent certificate issued by the registrar to the solicitor,
shall have effect subject to such terms and conditions as the Lord Chief Justice thinks fit.
(5) The registrar shall be entitled without payment of any fee to inspect the file of proceedings in bankruptcy relating to any solicitor against whom proceedings in bankruptcy have been taken and to be supplied with office copies of those proceedings on payment of the usual charges for the copies.
16.—(1) Subject to the provisions of this Article, the suspension of a practising certificate by virtue of Article 15 shall continue until the certificate expires.
(2) The suspension of a practising certificate by virtue of Article 15(1) by reason of an adjudication in bankruptcy shall terminate if—
(a)the adjudication is annulled; and
(b)an office copy of the order annulling the adjudication has been served on the Society.
(3) Where a solicitor’s practising certificate is suspended—
(a)by virtue of Article 15(1) by reason of his adjudication in bankruptcy;
(b)by virtue of Article 15(1) by reason of his suspension from practice and the period of his suspension from practice expires or is terminated under Article 51(1)(f) before the date of expiry of the certificate; or
(c)under Article 15(2),
the solicitor may at any time before the certificate expires (and, in the case of adjudication in bankruptcy, while the adjudicationremains unannulled) apply to the Council to terminate the suspension.
(4) On an application under paragraph (3) the Council may in their discretion—
(a)refuse the application;
(b)by order terminate the suspension; or
(c)by order terminate the suspension and direct that—
(i)the practising certificate of the solicitor; or
(ii)the practising certificate of the solicitor and any subsequent practising certificate issued by the registrar to the solicitor,
shall have effect subject to such terms and conditions as the Council think fit.
(5) Subject to paragraph (6), the terms and conditions specified in a direction under paragraph (4)(c) shall have effect as from the time when the solicitor concerned is notified of the Council’s decision to give the direction.
(6) The Council may, if they think fit, provide in a direction under paragraph (4)(c) that the terms and conditions specified in the direction shall not have effect pending the hearing and determination of any appeal under paragraph (7).
(7) A solicitor aggrieved by a decision of the Council under paragraph (4) may, within one month from the date on which notice of that decision is served on him, appeal to the Lord Chief Justice who may—
(a)affirm the decision; or
(b)make any order and give any direction which could have been made or given by the Council under paragraph (4).
(8) For the purposes of paragraph (7) a solicitor who has not received notification of the termination of the suspension of his practising certificate within three weeks after he made application for such termination shall be deemed to have received notice at the expiration of that period that the application has been refused.
(9) Where a solicitor’s practising certificate is suspended by virtue of Article 15(1) by reason of his suspension from practice and the suspension of his practising certificate is terminated under paragraph (4) or (7) without any direction mentioned in paragraph (4)(c) being made, then, notwithstanding Article 13(1)(d), that Article shall not thereafter have effect in relation to that solicitor by virtue of that suspension from practice.
17.—(1) Where a solicitor’s practising certificate is suspended the Society shall forthwith cause—
(a)notice of that suspension to be published in the Belfast Gazette;
(b)a note thereof to be entered against the name of the solicitor in the roll.
(2) Where the suspension of a practising certificate is terminated the Society shall forthwith—
(a)cause a note of that termination to be entered against the name of the solicitor in the roll; and
(b)if so requested in writing by the solicitor, cause notice thereof to be published in the Belfast Gazette.
17A.—(1) Where, in accordance with a direction given under Article 14, 14A, 15, 16 or this Article, a subsequent practising certificate is issued to a solicitor subject to any terms and conditions, the solicitor may, within one month from the date on which the certificate is issued, apply to the Council for the issue of the certificate free from those terms and conditions; and on such an application the Council may in their discretion—
(a)grant or refuse the application;
(b)direct the registrar to issue—
(i)the certificate; or
(ii)the certificate and any subsequent practising certificate issued to the solicitor,
subject to such other terms and conditions as the Council may think fit.
(2) A solicitor aggrieved by a decision of the Council under paragraph (1) may, within one month from the date on which notice of that decision is served on him, appeal to the Lord Chief Justice who may—
(a)affirm the decision; or
(b)give to the registrar any direction which could have been given to him by the Council under paragraph (1).
(3) For the purposes of this Article a solicitor who has not received a practising certificate free from terms and conditions within three weeks after he applied to the Council for it shall be deemed to have received notice at the expiration of that period that the application has been refused.
17B.—(1) Any power of the Council or the Lord Chief Justice under Article 14, 14A, 15, 16 or 17A to direct that a practising certificate shall have effect or shall be issued subject to terms and conditions, includes (without prejudice to the generality of that power) power to direct that the certificate shall have effect or shall be issued subject to terms and conditions—
(a)requiring the solicitor to take any specified steps that will in the opinion of the Council or the Lord Chief Justice (asthe case may be) be conducive to his carrying on an efficient practice as a solicitor; and
(b)notwithstanding that they may result in expenditure being incurred by the solicitor.
(2) If a solicitor contravenes any of the terms and conditions subject to which a practising certificate has effect or is issued in accordance with a direction under Article 14, 14A, 15, 16 or 17A any person may make a complaint in respect of the contravention to the Tribunal.”.
7. In Article 23 of the Solicitors Order (unqualified person not to prepare certain instruments, etc.)—
(a)in paragraph (1) for “paragraph (2)” there shall be substituted “paragraphs (2) and (2A)”;
(b)in paragraph (2)(e)—
(i)for “a landlord for whom such agent collects rent” there shall be substituted “any person”;
(ii)head (i) shall cease to have effect;
(c)after paragraph (2) there shall be inserted—
“(2A) Paragraph (1) also shall not apply to any act done by a person at the direction and under the supervision of another person if—
(a)that other person was at the time his employer, a partner of his employer or a fellow employee; and
(b)the act could have been done by that other person for or in expectation of any fee, gain or reward without committing an offence under this Article.”;
(d)in paragraph (3)—
(i)after “instrument” there shall be inserted
“includes a contract for the sale or other disposal of land within the meaning of paragraphs (a) to (f) of section 45(3) of the Interpretation Act (Northern Ireland) 1954(4), other than a contract to grant only—
(i)a tenancy not exceeding 3 years; or
(ii)a right to use land for cropping or grazing;
but”;
(ii)at the end of sub-paragraph (b) there shall be inserted “other than a contract that is included under the preceding provisions of this paragraph”;
(e)after paragraph (3) there shall be inserted—
“(4) The Department of Economic Development may institute proceedings for an offence under this Article.”.
8. In Article 24 of the Solicitors Order (preparation of papers for probate, etc.)—
(a)in paragraph (1) for the words from the beginning to “administration” there shall be substituted
“Subject to paragraph (1A), any unqualified person, not being a barrister-at-law or a duly certificated notary public, who, directly or indirectly, draws or prepares any papers on which to found or oppose—
(a)a grant of probate, or
(b)a grant of letters of administration,;”
(b)after paragraph (1) there shall be inserted—
“(1A) Paragraph (1) shall not apply to any act done by a person at the direction and under the supervision of another person if—
(a)that other person was at the time his employer, a partner of his employer or a fellow employee; and
(b)the act could have been done by that other person for or in expectation of any fee, gain or reward without committing an offence under this Article.”.
9.—(1) For Article 6 of the Solicitors Order (regulations as to the education, training, etc. of persons seeking admission as solicitors) there shall be substituted—
6.—(1) The Society may make regulations with respect to the education and training of persons seeking admission or who have been admitted as solicitors and (without prejudice to the generality of the foregoing) such regulations may prescribe—
(a)the education and training, whether by service under apprenticeship or otherwise, to be undergone by persons seeking admission as solicitors;
(b)the examinations or other tests to be undergone by persons seeking admission as solicitors;
(c)the qualifications, experience, conduct, duties and responsibilities of persons seeking admission as solicitors or solicitors providing apprenticeships (including the remuneration payable under such apprenticeships) under the regulations;
(d)the circumstances in which apprenticeships may be transferred or discharged or education or training of persons seeking admission as solicitors may be abridged, extended or terminated;
(e)the control and discipline of persons seeking admission as solicitors, including requirements to be imposed in consequence of contraventions of the regulations;
(f)the circumstances in which a person seeking admission as a solicitor may apply to the Society to waive the application of any provision of the regulations in his case or to review any decision taken by the Society in respect of him for the purposes of the regulations and the procedure for such applications;
(g)the education, training and examinations or other tests to be undergone by persons who have been admitted as solicitors;
(h)the charging and application by the Society of fees to be paid by persons undergoing education and training for the purposes of the regulations;
(i)such transitional and incidental matters as the society think necessary.
(2) Regulations under paragraph (1) may make the opinion, consent or approval of the Lord Chief Justice, or of any examining or other body or authority named in the regulations, or of the Society or the Council or any committee of the Council material for the purposes of any provision of the regulations.
(3) Subject to regulations made under paragraph (1)(f), on an application by a person seeking to be admitted as a solicitor, the Society may—
(a)waive the application of any provision of regulations under paragraph (1) to that person; or
(b)review any decision taken by the Society with respect to that person under those regulations.
(4) An applicant aggrieved by a decision of the Society under paragraph (3) may, after giving notice to the Society, appeal to the Lord Chief Justice; and on such appeal—
(a)the Society may appear and be heard; and
(b)the Lord Chief Justice may make such order (including an order for the payment of costs) as he thinks proper.”.
(2) In Article 26(2)(a) of the Solicitors Order (general power to make regulations as to professional practice, conduct and discipline of solicitors) the words from “not exceeding” to “solicitor” shall cease to have effect.
10.—(1) After Article 26 of the Solicitors Order there shall be inserted—
26A.—(1) The Society may make regulations—
(a)making provision as to the management and control by solicitors of bodies corporate carrying on businesses consisting of the provision of professional services such as are provided by individuals practising as solicitors;
(b)prescribing the circumstances in which such bodies may be recognised by the Council as being suitable bodies to undertake the provision of any such services;
(c)prescribing the conditions which (subject to any exceptions provided by the regulations) must at all times be satisfied by bodies corporate so recognised if they are to remain so recognised; and
(d)regulating the conduct of the affairs of such bodies.
(2) Regulations made by the Society may also make provision—
(a)for the manner and form in which applications for recognition under this Article are to be made, and for the payment of fees in connection with such applications;
(b)for regulating the names that may be used by recognised bodies;
(c)as to the period for which any recognition granted under this Article shall (subject to the provisions of this Part) remain in force;
(d)for the revocation of any such recognition on the grounds that it was granted as a result of any error or fraud;
(e)for the keeping by the registrar of a list containing the names and places of business of all bodies corporate which are for the time being recognised under this Article, and for the information contained in any such list to be available for inspection;
(f)for regulations made under any other provision of this Order to have effect in relation to recognised bodies with such additions, omissions or other modifications as appear to the Society to be necessary or expedient;
(g)for empowering the Council to take such steps as they consider necessary or expedient to ascertain whether or not any regulations applicable to recognised bodies by virtue of this Article are being complied with;
(h)for the manner of service on recognised bodies of documents authorised or required to be served on such bodies under this Part.
(3) Articles 19, 23(1) and 24(1) shall not apply to a recognised body.
(4) Article 23(1) or, as the case may be, Article 24(1) shall not apply to any act done by an officer or employee of a recognised body if—
(a)it was done by him at the direction and under the supervision of another person who was at the time an officer or employee of the body; and
(b)it could have been done by that other person for or in expectation of any fee, gain or reward without committing an offence under Article 23 or, as the case may be, under Article 24.
(5) References in Articles 25, 27 and 28 to an unqualified person shall not include references to a recognised body.
(6) A certificate signed by an officer of the Society and stating that any body corporate is or is not, or was or was not at any time, a recognised body shall, unless the contrary is proved, be evidence of the facts stated in the certificate; and a certificate purporting to be so signed shall be taken to have been so signed unless the contrary is proved.
(7) Schedule 1A (which makes provision with respect to the application of provisions of this Order to recognised bodies and with respect to other matters relating to such bodies) shall have effect.
(8) Subject to the provisions of Schedule 1A, the Department of Finance and Personnel may by order, made subject to negative resolution, provide for any enactment or instrument passed or made before the coming into operation of Article 10(1) of the Solicitors (Amendment) (Northern Ireland) Order 1989 and hav-ing effect in relation to solicitors to have effect in relation torecognised bodies with such additions, omissions or other modifications as appear to that Department to be necessary or expedient.
(9) In this Article “recognised body” means a body corporate for the time being recognised under this Article.
26B.—(1) A body corporate shall not describe itself or hold itself out as a body corporate for the time being recognised under Article 26A unless it is so recognised.
(2) Any body corporate which contravenes paragraph (1) shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding level 4 on the standard scale.”.
(2) The Schedule set out in Schedule 1 shall be inserted after Schedule 1 to the Solicitors Order as Schedule 1A.
11. In Article 31(1) of the Solicitors Order (control of employment by solicitor of certain persons) for sub-paragraphs (b) and (c) there shall be substituted—
“(b)it appears to the Society, in the course or as a result of any proceedings before the Tribunal, that a person who is or was an employee of a solicitor, but is not himself a solicitor, has been a party to any act or default of such solicitor which involved conduct on that person’s part of such a nature that in the opinion of the Society it would be undesirable for him to be employed by a solicitor in connection with his practice; or
(c)a person has had his name struck off a roll of solicitors in Great Britain or the Republic of Ireland or has been suspended from practice in Great Britain or the Republic of Ireland and his name remains so struck off or he remains so suspended,”.
12.—(1) In Article 32 of the Solicitors Order (winding-up practice of a deceased solicitor) for “as the Society may approve” there shall be substituted “, including terms as to remuneration, as may be fixed or approved by the Society”.
(2) In Article 39 of the Solicitors Order (control of deceased solicitor’s practice) after paragraph (1) there shall be inserted—
“(1A) Where a solicitor dies and—
(a)immediately before his death—
(i)he was practising as a sole solicitor; and
(ii)the provisions of Schedule 1 did not apply to him; and
(b)no appointment is made under Article 32 within three months from the date of his death,
the provisions of Schedule 1 shall, if the Council so resolve, apply with the necessary modifications to the personal representatives of that solicitor as they apply in relation to a solicitor in respect of whom the Council have passed a resolution under Article 36(1)(a).”.
13. In Article 35 of the Solicitors Order (accountants' reports)—
(a)in paragraph (2) for “specified in” there shall be substituted “for the purposes of”;
(b)after paragraph (5) there shall be inserted—
“(5A) Without prejudice to the generality of paragraph (5)(b), regulations under this Article may make provision requiring a solicitor in advance of delivering an accountant’s report to notify the Society of the period which is to be the accounting period for the purposes of that report in accordance with the preceding provisions of this Article.”.
14. In Article 36 of the Solicitors Order (powers of Council to deal with property in control of certain solicitors and other persons)—
(a)in paragraph (2)(d) for “three months” there shall be substituted “one month”;
(b)in paragraph (3) for sub-paragraph (a) there shall be substituted—
“(a)has failed to comply with—
(i)any provision respecting the keeping of accounts contained in regulations made under Article 33 or with any requirement made in pursuance of any such regulations for the production of books of account or other documents; or
(ii)the provisions of Article 35 or of any regulations made thereunder; and”;
(c)after paragraph (3) there shall be inserted—
“(4) Where, at any time, the Council are satisfied that the circumstances mentioned in Article 13(1)(g) or (h) have effect in relation to any solicitor, the Council may direct that the provisions of Schedule 1 shall apply in relation to that solicitor and the other persons mentioned in that Schedule.
(5) Where the Tribunal have made a recommendation to the Council under Article 51C in respect of any solicitor, the Council may direct that the provisions of Schedule 1 shall apply in relation to that solicitor and the other persons mentioned in that Schedule.”.
15. In Article 38 of the Solicitors Order (powers of Council on complaint of undue delay by solicitor) in paragraph (a) for the words from “a trust” to the end there shall be substituted “a controlled trust or in complying with an order of the Tribunal under Article 51(1)(j), (k) or (l) or (3) or Article 51A; and”.
16.—(1) After Article 41 of the Solicitors Order there shall be inserted—
41A.—(1) Where it appears to the Council that the professional services provided by a solicitor in connection with any matter in which he or his firm had been instructed by a client were in any respect not of the quality that could reasonably have been expected of him as a solicitor, then (subject to paragraph (3)), the Council may, if they think fit, do one or more of the following things, namely—
(a)determine that the costs to which the solicitor shall be entitled in respect of those services shall be limited to such amount as may be specified in their determination and direct the solicitor to comply, or to secure compliance, with such one or more requirements falling within paragraph (2) as appear to them to be necessary in order to give effect to their determination;
(b)direct the solicitor to take such steps for the completion of the said matter within such reasonable time as they may specify;
(c)direct the solicitor to secure the rectification, at the expense of the solicitor or his firm, of any such error, omission or other deficiency arising in connection with the said matter as they may specify;
(d)direct the solicitor to take, at the expense of the solicitor or his firm, such other action in the interests of the client as they may specify.
(2) The requirements referred to in paragraph (1)(a) are—
(a)a requirement to refund the whole or part of any amount already paid by or on behalf of the client in respect of thesolicitor’s costs in respect of his services in connection with the said matter;
(b)a requirement to remit the whole or part of those costs;
(c)a requirement to waive, whether wholly or to any specified extent, the right to recover those costs.
(3) The Council shall not exercise any of their powers under paragraph (1) unless they are satisfied that it would in all the circumstances be appropriate to do so; and in determining whether in any case it would be appropriate to exercise any of those powers the Council may have regard—
(a)to the existence of any remedy that could reasonably be expected to be available to the client in civil proceedings; and
(b)where proceedings seeking any such remedy have not been commenced by him, to whether it would be reasonable to expect him to commence such proceedings.
(4) Where the Council have given a direction under paragraph (1)(a) in order to give effect to a determination by them under that provision as to the costs of a solicitor in respect of any services provided by him, then—
(a)for the purposes of any taxation of a bill covering those costs the amount charged by the bill in respect of those costs shall be deemed to be limited to the amount specified in the Council’s determination; and
(b)where a bill covering those costs has not been taxed in accordance with sub-paragraph (a), the client shall, for the purposes of the recovery of those costs (by whatever means) and notwithstanding any enactment or agreement, be deemed to be liable to pay in respect of those costs only the amount specified in the Council’s determination.
(5) Where a bill covering those costs has been taxed in accordance with paragraph (4)(a), the Council’s direction under paragraph (1)(a) shall, so far as relating to those costs, cease to have effect.
(6) A solicitor aggrieved by a determination or direction of the Council under paragraph (1) may, within one month from the date on which notice of that determination or direction is served on him, appeal to the Lord Chief Justice who may—
(a)affirm or revoke the determination or direction; or
(b)make any other determination or direction which could have been made or given by the Council under paragraph (1).
(7) A direction of the Council under paragraph (1) shall take effect—
(a)where the solicitor does not appeal against the direction within the period mentioned in paragraph (6), on the expiration of that period; and
(b)where the solicitor appeals against the direction within that period, on the dismissal or withdrawal of the appeal;
and a direction given on any such appeal by the Lord Chief Justice shall take effect immediately.
(8) If a solicitor fails to comply with a direction given under this Article which has taken effect, any person may make a complaint in respect of that failure to the Tribunal; but no other proceedings whatever shall be brought in respect of it.
(9) The powers conferred on the Council by paragraph (1)(a) shall be exercisable in relation to a person notwithstanding that his name has been removed from or struck off the roll, and references to a solicitor in—
(a)the provisions of this Article so far as they relate to the exercise of those powers; and
(b)if a complaint is made to the Tribunal under paragraph (8), in Articles 46 and 51,
shall be construed accordingly.
(10) In paragraphs (1)(d) and (3)(a) “client”, in relation to any matter in which a solicitor or his firm has been instructed, includes any person on whose behalf the person who gave the instructions was acting.”.
(2) After the Article 41A inserted in the Solicitors Order by paragraph (1) there shall be inserted—
41B.—(1) Where the Council are satisfied that it is necessary to do so for the purpose of investigating any complaint made to the Society—
(a)alleging professional misconduct by a solicitor; or
(b)relating to the quality of any professional services provided by a solicitor,
the Society may give notice to the solicitor or his firm requiring the production or delivery to any person appointed by the Society, at a time and place to be fixed by the Society, of all documents in the possession of the solicitor or his firm in connection with the matters to which the complaint relates (whether or not they relate also to other matters).
(2) Paragraphs 2(2) to 8 and 17 to 21 of Schedule 1 shall apply in relation to the powers conferred by paragraph (1) as they apply in relation to the powers conferred by paragraph 2(1) of that Schedule, and accordingly in those provisions—
(a)any reference to a person appointed, or to a requirement, under paragraph 2(1) of that Schedule shall be construed as including a reference to a person appointed, or to a requirement, under paragraph (1); and
(b)any reference to any such documents as are mentioned in paragraph 2(1) of that Schedule shall be construed as including a reference to any such documents as are mentioned in paragraph (1).”.
17. In Article 42 of the Solicitors Order (lay observers)—
(a)in paragraph (1)—
(i)after “observers”) there shall be inserted “(a)”;
(ii)at the end there shall be added
“ and
(b)to examine any written allegation made by or on behalf of a member of the public concerning the Society’s treatment of a complaint about a solicitor or an employee of a solicitor made to the Society by that member of the public or on his behalf.;”
(b)after paragraph (5) there shall be inserted—
“(5A) Where it appears to a lay observer, in examining any such allegation as is mentioned in paragraph (1)(b)—
(a)that there arises out of the complaint in respect of which the allegation has been made both—
(i)a question as to the professional conduct of a solicitor, and
(ii)a question as to the quality of any professionalservices provided by him; and
(b)that it would be appropriate for the latter question to be considered by the Tribunal with a view to determining whether to exercise any of its powers under Article 51A in relation to the solicitor,
the lay observer may make an application to the Tribunal with respect to the solicitor.”;
(c)after paragraph (7) there shall be inserted—
“(8) The Head of the Department of Finance and Personnel shall lay a copy of any report made by a lay observer before the Assembly.”.
18. For Articles 43 to 47 of the Solicitors Order (Disciplinary Committee) there shall be substituted—
43.—(1) The Lord Chief Justice, after consultation with the Council, shall appoint a tribunal, to be known as the Solicitors Disciplinary Tribunal and consisting of—
(a)practising solicitors of not less than 10 years' standing (solicitor members); and
(b)persons who are neither solicitors nor members of the Bar of Northern Ireland (lay members).
(2) The members of the Tribunal shall elect one of the solicitor members to be the president of the Tribunal.
(3) The Department of Finance and Personnel shall pay to lay members such remuneration and other allowances (if any) as that Department may determine.
(4) The Lord Chief Justice, after consultation with the Council, may remove a member of, and may fill a vacancy in, the Tribunal.
(5) The Tribunal may, subject to paragraph (6), act notwithstanding one or more than one vacancy in their membership and any application or complaint made to, or other matter dealt with by or before, the Tribunal may be dealt with or disposed of notwithstanding any change in the membership of the Tribunal.
(6) For the purpose of hearing and determining applications and complaints the Tribunal shall be properly constituted if—
(a)at least 3 members are present; and
(b)at least 1 lay member is present; and
(c)the number of solicitor members present exceeds the number of lay members present; and
(d)the president or another solicitor member presides.
(7) Subject to the provisions of this Order and of any rules made under paragraph (8), the Tribunal may regulate their procedure in such manner as they may think fit.
(8) The Tribunal may, with the concurrence of the Lord Chief Justice, make rules regulating applications and complaints to the Tribunal and the hearing, conduct and determination of such applications and complaints and of inquiries held by the Tribunal.
(9) Without prejudice to the powers of the Tribunal under Article 51(1)(j) and (k), rules under paragraph (8) may make provision for the payment by any party to an application or complaint made to the Tribunal of the costs, or a contribution towards the costs, incurred by any other party or by the Tribunal in connection with that application or complaint.
(10) The Tribunal may appoint a secretary, who shall be a member of the Society but shall not be a member of the Tribunal.
(11) Except as provided by paragraph (3), the Society shall defray the costs incurred by the Tribunal, which shall include the amount of any remuneration which the Society may agree to pay to the person appointed as secretary.
44.—(1) The following applications and complaints shall be made to and heard by the Tribunal—
(a)an application by a solicitor who has been suspended from practice for an order terminating the suspension;
(b)an application by a person whose name has been struck off the roll for an order for the replacement of his name on the roll;
(c)an application by a solicitor who is restricted from practising on his own account, whether in partnership or otherwise, under an order made under Article 51(1)(c) or (4) for an order removing that restriction;
(d)an application by a solicitor who is excluded from legal aid work by an order made under Article 51B for an order terminating his exclusion;
(e)a complaint by the Society or any other person—
(i)that a solicitor has been guilty of professional misconduct or of other conduct tending to bring the solicitors' profession into disrepute; or
(ii)that a solicitor has contravened a provision of thisOrder or of any regulation or order made thereunder(including an order made by or on appeal from the Tribunal), or any term or condition subject to which any certificate has been issued, or any consent has been given, to him or his suspension has been terminated, by the Lord Chief Justice, the Council, the Society, the Tribunal or the High Court under any provision of this Order; or
(iii)that a solicitor has been convicted in Northern Ireland of a criminal offence tending to bring the solicitors' profession into disrepute, or has been convicted outside Northern Ireland of an offence of like character which if committed in Northern Ireland would be a criminal offence;
(f)a complaint requiring a solicitor to answer allegations contained in an affidavit;
(g)a complaint by the Society relating to the conduct of a solicitor in connection with—
(i)the giving of advice or assistance under Part II of the Legal Aid, Advice and Assistance (Northern Ireland) Order 1981(5); or
(ii)the provision of services for any person receiving legal aid under Part II or III of that Order (including the provision of any such services in the capacity of agent for that person’s solicitor); or
(h)any other application or complaint which is authorised to be made to the Tribunal under any other provision of this Order or under any other enactment.
(2) An application or complaint under paragraph (1) shall be in writing, shall be signed by the person making it and shall be sent to the Tribunal together with—
(a)an affidavit by that person setting forth the facts giving rise to the application or complaint; and
(b)the documents relied on in support of the application or complaint, or duly authenticated copies of those documents;
and the Tribunal shall take into consideration every such application or complaint together with such affidavit and documents as aforesaid.
(3) Where a judge of the Supreme Court, a county court judge or a resident magistrate reports to the Society any case where it appears to him that a solicitor is prima facie guilty of professional misconduct, the Society shall make a complaint to the Tribunal under paragraph (1) with respect to the solicitor.
45. Where an application is made under Article 44(1)(a), (b), (c) or (d), the Tribunal—
(a)shall inform the Society of the application; and
(b)shall hold an inquiry.
46.—(1) Where an application or a complaint is made under Article 44(1)(e), (f) or (h) by a person other than the Society or a lay observer, the Tribunal—
(a)if they decide that a prima facie case has not been shown, shall so notify the applicant or complainant and the solicitor and take no further action; or
(b)if they decide that a prima facie case has been shown shall serve on the solicitor—
(i)a copy of the application or complaint;
(ii)a copy of the affidavit;
(iii)copies or, at the discretion of the Tribunal, a list of the relevant documents; and
(iv)a notice requiring the solicitor to send to the Tribunal, within a specified period, an affidavit by him in answer to the application or complaint, together with anydocuments, or duly authenticated copies thereof, on which he may rely in support of his answer.
(2) Where an application or a complaint is made under Article 44(1)(e), (f), (g) or (h) by the Society or a lay observer, the Tribunal shall serve on the solicitor the documents mentioned in paragraph (1)(b)(i) to (iv).
(3) Where the notice mentioned in paragraph (1)(b)(iv) is served, any party to the application or complaint may inspect the documents furnished by any other party.
(4) After the expiration of the period specified in such notice, the Tribunal shall consider such (if any) affidavit and documents as have been furnished by the solicitor and—
(a)if they decide that there is no cause for further inquiry shall so notify the applicant or complainant and the solicitor and shall take no further action; or
(b)if they decide that there is cause for inquiry, shall hold an inquiry.
(5) Where an applicant or complainant or a solicitor against whom an application or complaint is made has been notified under paragraph (1)(a) or paragraph (4)(a), the Tribunal shall, if so required in writing by the complainant or the solicitor, make a formal order embodying their decision.”.
19.—(1) For Article 51 of the Solicitors Order there shall be substituted—
51.—(1) Where the Tribunal hold an inquiry, they may make an order providing for one or more than one of the following—
(a)the dismissal of the application or complaint;
(b)the admonishing of the solicitor and, if they think fit, the imposing on him of a fine not exceeding £3,000 to be paid to and applied for the purposes of the Society;
(c)the restricting of the solicitor from practising on his own account, whether in partnership or otherwise;
(d)the removal of a restriction on the solicitor from practising on his own account, whether in partnership or otherwise;
(e)the suspension of the solicitor from practice;
(f)the termination of the solicitor’s suspension from practice;
(g)the striking off the roll of the name of the solicitor;
(h)the replacement on the roll of the name of a former solicitor whose name has been struck off the roll;
(i)the termination of the solicitor’s exclusion from legal aid work;
(j)the payment by any party to the inquiry of the costs of any other party to be measured by the Tribunal, or of a stated sum as a contribution towards such costs;
(k)the payment by any party to the inquiry of a sum to be measured by the Tribunal for the costs incurred by the Tribunal, or of a stated sum as a contribution towards such costs;
(l)the making by any party of such restitution or satisfaction to any aggrieved party as the Tribunal think fit.
(2) Paragraph (1) does not apply where the Tribunal hold an inquiry into an application under Article 42(5A).
(3) Where the Tribunal hold an inquiry into a complaint under Article 41A(8) relating to a direction given under Article 41A, they may, without prejudice to their powers under paragraph (1) or Article 51A, make an order providing for the direction to be treated for the purposes of this Order as if it were contained in an order of the Tribunal.
(4) An order made by the Tribunal under paragraph (1)(f) or (h) may impose the restriction that the solicitor shall not practise on his own account, whether in partnership or otherwise.
(5) An order made by the Tribunal under paragraph (1)(k) for the payment by any party of the costs of the Tribunal or of a sum towards those costs shall direct such payment to be made by that party to the Society; and any money so paid shall be appropriated by the Society towards the defrayal of the costs referred to in Article 43(11).
(6) The Tribunal may postpone the making of an order under this Article, Article 51A or Article 51B.
(7) Where the making of an order is postponed under paragraph (6), the Tribunal may, on request made to them in that behalf when the matter is considered after such postponement, allow the application or complaint to be withdrawn without any order being made.
(8) The Tribunal may, on the application of the solicitor to whom an order under this Article, Article 51A or Article 51B relates, or of any other party, suspend in whole or in part the operation of the order pending an appeal under Article 53.
(9) Where an order is suspended under paragraph (8)—
(a)nothing in Article 52(1), (2) or (3) shall apply to the filing, enforcement or lodgment of copies of, or to the publication of, that order while it remains suspended; and
(b)neither Article 15(1) nor Article 54(1) shall have effect in relation to that order while it remains suspended.
(10) Any person who practises as a solicitor on his own account, whether in partnership or otherwise, in contravention of—
(a)any regulation for the time being in force under Article 26(2)(a); or
(b)any order made by the Tribunal under paragraph (1)(c) or (4), or by the Lord Chief Justice or the High Court on an appeal under Article 53,
shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding level 4 on the standard scale.
(11) If it appears to the Department of Finance and Personnel that there has been a change in the value of money since the relevant date, that Department may by order, subject to negative resolution, substitute for the sum for the time being specified in paragraph (1)(b) such other sum as appears to that Department to be justified by the change.
(12) In paragraph (11) “the relevant date” means—ain relation to the first order made under that paragraph, the date of the coming into operation of Article 19(1) of the Solicitors (Amendment) (Northern Ireland) Order 1989; and
(b)in relation to each subsequent order, the last occasion on which the sum specified in paragraph (1)(b) was altered.
51A.—(1) The powers conferred on the Tribunal by this Article shall be exercisable on an inquiry into—
(a)any application or complaint made to the Tribunal under this Order by or on behalf of the Society; or
(b)any application made to the Tribunal under Article 42(5A) by a lay observer,
and, in the case mentioned in sub-paragraph (a), shall be exercisable whether or not they make any other order on the inquiry.
(2) Where, on an inquiry into any such application or complaint with respect to a solicitor, it appears to the Tribunal that the professional services provided by the solicitor in connection withany matter in which he or his firm had been instructed by a clientwere in any respect not of the quality that could reasonably havebeen expected of him as a solicitor, then (subject to paragraph (4)), the Tribunal may, if they think fit, do one or more of the following things, namely—
(a)determine that the costs to which the solicitor shall be entitled in respect of those services shall be limited to suchamount as may be specified in their determination and by order direct the solicitor to comply, or to secure compliance, with such one or more requirements falling within paragraph (3) as appear to them to be necessary in order to give effect to their determination;
(b)by order direct the solicitor to take such steps for the completion of the said matter within such reasonable time as they may specify;
(c)by order direct the solicitor to secure the rectification, at the expense of the solicitor or his firm, of any such error, omission or other deficiency arising in connection with the said matter as they may specify;
(d)by order direct the solicitor to take, at the expense of the solicitor or his firm, such other action in the interests of the client as they may specify.
(3) The requirements referred to in paragraph (2)(a) are—
(a)a requirement to refund the whole or part of any amount already paid by or on behalf of the client in respect of the solicitor’s costs in respect of his services in connection with the said matter;
(b)a requirement to remit the whole or part of those costs;
(c)a requirement to waive, whether wholly or to any specified extent, the right to recover those costs.
(4) The Tribunal shall not exercise any of their powers under this Article unless they are satisfied that it would in all the circumstances be appropriate to do so; and in determining whether in any case it would be appropriate to exercise any of those powers the Tribunal may have regard—
(a)to the existence of any remedy that could reasonably be expected to be available to the client in civil proceedings;
(b)where proceedings seeking any such remedy have not been commenced by him, to whether it would be reasonable to expect him to commence such proceedings.
(5) Where the Tribunal have given a direction under paragraph (2)(a) in order to give effect to a determination by them under that provision as to the costs of a solicitor in respect of any services provided by him, then—
(a)for the purposes of any taxation of a bill covering those costs the amount charged by the bill in respect of those costs shall be deemed to be limited to the amount specified in the Tribunal’s determination; and
(b)where a bill covering those costs has not been taxed in accordance with sub-paragraph (a), the client shall, for the purposes of the recovery of those costs (by whatever means) and notwithstanding any enactment or agreement, be deemed to be liable to pay in respect of those costs only the amount specified in the Tribunal’s determination.
(6) Where a bill covering those costs has been taxed in accordance with paragraph (5)(a), the Tribunal’s direction under paragraph (2)(a) shall, so far as relating to those costs, cease to have effect.
(7) In paragraphs (2)(d) and (4)(a) “client”, in relation to any matter in which a solicitor or his firm has been instructed, includes any person on whose behalf the person who gave the instructions was acting.
51B.—(1) On an inquiry into a complaint made to the Tribunal under Article 44(1) against a solicitor the Tribunal may, whether or not they make any other order on the inquiry,—
(a)make an order providing for the exclusion (either permanently or for a specified period) of the solicitor from legal aid work;
(b)order that any costs—
(i)otherwise payable under or in accordance with Part II or III of the Order of 1981; or
(ii)otherwise chargeable as mentioned in Article 8(1) of that Order,
in connection with services provided by the solicitor shall be reduced or cancelled.
(2) The Tribunal shall not make an order under paragraph (1) unless they determine that there is good reason for doing so arising out of—
(a)the conduct of the solicitor in connection with the giving of advice or assistance under Part II of the Order of 1981;
(b)the conduct of the solicitor in connection with the provision of services for any person receiving legal aid under Part II or III of the Order of 1981 (including the provision of any such services in the capacity of agent for that person’s solicitor); or
(c)the professional conduct generally of the solicitor.
(3) Where the Tribunal make an order under paragraph (1)(a)in the case of a solicitor who is a member of a firm of solicitors,the Tribunal may, if they think fit, order that any other person who is for the time being a member of the firm shall be excluded (either permanently or for a specified period) from legal aid work.
(4) The Tribunal shall not make an order under paragraph (3) excluding any person from legal aid work unless an opportunity is given to him to show cause why the order should not be made.
(5) In so far as any of Articles 7, 8, 13(1) and 36(1) of the Order of 1981 has effect in relation to any costs reduced or cancelled by an order under paragraph (1)(b), it shall so have effect subject to the provisions of that order.
(6) In this Article—
(a)“the Order of 1981” means the Legal Aid, Advice and Assistance (Northern Ireland) Order 1981(6);
(b)references to a person being excluded from legal aid work are references to his being excluded from both of the following classes of persons, namely—
(i)those who may be selected under Article 15(3) of the Order of 1981; and
(ii)those who may be assigned to give legal aid under Part III of that Order.
51C.—(1) Where the Tribunal hold an inquiry into any application or complaint made under this Order with respect to a solicitor, they may, whether or not they make any order on the inquiry, make a recommendation to the Council that the provisions of Schedule 1 should apply in relation to that solicitor and the other persons mentioned in that Schedule.
(2) A recommendation made by the Tribunal under paragraph (1) shall contain a statement of the findings on which the Tribunal based the recommendation.”.
(2) In Article 52 of the Solicitors Order—
(a)in paragraph (1) for the words from the beginning to “Article 51” there shall be substituted “An order made by the Tribunal on an inquiry”;
(b)in paragraph (2) for the words from the beginning to “restitution or satisfaction” there shall be substituted—
“Where the Tribunal make an order—
(a)under Article 51(1)(b) imposing a fine on a solicitor;
(b)under Article 51(1)(j), (k) or (l);
(c)under Article 51(3); or
(d)under Article 51A(2),”;
(c)in paragraph (5) for “Article 51(1)(c) or (d)” there shall be substituted “Article 51(1)(c) or (e) or (4)”.
20. For Article 53 of the Solicitors Order there shall be substituted—
53.—(1) A person aggrieved by—
(a)an order of the Tribunal dismissing an application made by him under Article 44(1)(a), (b) or (c); or
(b)an order of the Tribunal under Article 51(4) restricting him from practising on his own account, whether in partnership or otherwise,
may appeal to the Lord Chief Justice who may—
(i)affirm the order of the Tribunal; or
(ii)make any order which could have been made by the Tribunal on its inquiry.
(2) An appeal against any other order made by the Tribunal (except an order under Article 51(3)) shall lie to the High Court—
(a)at the instance of the solicitor or the Society or any person directed by the order to make any restitution or satisfaction;
(b)by leave of the High Court, at the instance of any other person appearing to the High Court to be affected by the order.
(3) An appeal shall also lie to the High Court against the refusal of the Tribunal to suspend the operation of an order under Article 51(8).
(4) The Society shall be entitled to appear and to be heard on the hearing of an appeal under this Article.
(5) A copy of every order made on an appeal under paragraph (2) or (3) shall be sent to the registrar by the Master (Queen’s Bench and Appeals).
(6) An appeal under this Article shall be brought within 21 days from the date of the making of the order or refusal appealed against.”.
21.—(1) For Part V of the Solicitors Order (costs in non-contentious business) there shall be substituted—
64.—(1) Subject to paragraph (2), a solicitor may make an agreement in, or evidenced by, writing with his client as to his remuneration in respect of any contentious business done, or to be done, by him providing that he shall be remunerated by a gross sum, or by a salary, or otherwise, and whether at a higher or lower rate than that at which he would otherwise have been entitled to be remunerated.
(2) Nothing in a contentious business agreement shall give validity to—
(a)any purchase by a solicitor of the interest, or any part of the interest, of his client in any action or other contentious proceeding; or
(b)any agreement by which a solicitor retained or employed to prosecute any action or other contentious proceeding, stipulates for payment only in the event of success in that action or proceeding; or
(c)any disposition, contract, settlement, conveyance, delivery, dealing or transfer which under the law relating to bankruptcy is invalid against a trustee or creditor in any bankruptcy or composition.
65.—(1) Subject to the provisions of this Article and to Articles 66 to 68, the costs of a solicitor in any case where a contentious business agreement has been made shall not be subject to taxation or to the provisions of Article 71E.
(2) Subject to paragraph (3), a contentious business agreement shall not affect the amount of, or any rights or remedies for the recovery of, any costs payable by the client to, or to the client by, any person other than the solicitor, and that person may, unless he has otherwise agreed, require any such costs to be taxed according to the rules for their taxation for the time being in force.
(3) A client shall not be entitled to recover from any other person under an order for the payment of any costs to which acontentious business agreement relates more than the amount payable by him to his solicitor in respect of those costs under the agreement.
(4) A contentious business agreement shall be deemed to exclude any claim by the solicitor in respect of the business to which it relates other than—
(a)a claim for the agreed costs; or
(b)a claim for such costs as are expressly excepted from the agreement.
(5) A provision in a contentious business agreement that the solicitor shall not be liable for negligence, or that he shall be relieved from any responsibility to which he would otherwise be subject as a solicitor, shall be void.
66.—(1) No action shall be brought on any contentious business agreement, but on the application of any person who—
(a)is a party to the agreement or the representative of such a party; or
(b)is or is alleged to be liable to pay, or is or claims to be entitled to be paid, the costs due or alleged to be due in respect of the business to which the agreement relates,
the court may enforce or set aside the agreement and determine every question as to its validity or effect.
(2) On any application under paragraph (1), the court—
(a)if it is of the opinion that the agreement is in all respect fair and reasonable, may enforce it;
(b)if it is of the opinion that the agreement is in any respect unfair or unreasonable, may set it aside and order the costs covered by it to be taxed as if it had never been made;
(c)in any case, may make such order as to the costs of the application as it thinks fit.
(3) If the business covered by a contentious business agreement (not being an agreement to which Article 67 applies) is business done, or to be done, in any action, a client who is a party to the agreement may make application to the taxing officer for the agreement to be examined.
(4) The taxing officer to whom an application is made under paragraph (3) shall examine the agreement and may either allow it or, if he is of the opinion that the agreement is unfair or unreasonable, require the opinion of the court to be taken on it, and the court may allow the agreement or reduce the amount payable under it, or set it aside and order the costs covered by it to be taxed as if it had never been made.
(5) Where the amount agreed under any contentious business agreement is paid by or on behalf of the client or by any person entitled to do so, the person making the payment may at any time within 12 months from the date of payment, or within such further time as appears to the court to be reasonable, apply to the court, and, if it appears to the court that the special circumstances of the case require it to be re-opened, the court may, on such terms as may be just, re-open it and order the costs covered by the agreement to be taxed and the whole or any part of the amount received by the solicitor to be repaid by him.
(6) In this Article and in Articles 67 to 69 “the court” means—
(a)in relation to an agreement under which any business has been done or was to have been done in the High Court, the High Court;
(b)in relation to an agreement under which any business has been done or was to have been done in the Lands Tribunal, the High Court;
(c)in relation to any other agreement—
(i)under which more than £5,000 is payable, the High Court; or
(ii)under which not more than £5,000 is payable, a county court.
(7) In this Article and in Articles 67 to 70 “the taxing officer” means—
(a)where the court is the High Court, the Master (Taxing Office); and
(b)where the court is the county court, a circuit registrar.
67.—(1) Where the client who makes a contentious business agreement makes it as a representative of a person whose property will be chargeable with the whole or part of the amount payable under the agreement, the agreement shall be referred to the taxing officer before payment.
(2) The taxing officer to whom an agreement is referred under paragraph (1) shall examine it and may either allow it, or, if he isof the opinion that it is unfair or unreasonable, require the opinion of the court to be taken on it, and the court may allow theagreement or reduce the amount payable under it, or set it aside and order the costs covered by it to be taxed as if it had never been made.
(3) A client who makes a contentious business agreement as mentioned in paragraph (1) and pays the whole or any part of the amount payable under the agreement without it being allowed by the taxing officer or by the court shall be liable at any time toaccount to the person whose property is charged with the whole orany part of the amount so paid for the sum so charged, and thesolicitor who accepts the payment may be ordered by the court to refund the amount received by him.
(4) A client makes a contentious business agreement as the representative of another person if he makes it—
(a)as his guardian,
(b)as a trustee for him under a deed or will,
(c)as controller for his property and affairs under Part VIII of the Mental Health (Northern Ireland) Order 1986(7), or
(d)as a person other than a controller authorised under that Part of that Order to act on his behalf.
68.—(1) If, after some business has been done under a contentious business agreement but before the solicitor has wholly performed it—
(a)the solicitor dies, or becomes incapable of acting; or
(b)the client changes his solicitor (as, notwithstanding the agreement, he shall be entitled to do); or
(c)the solicitor withdraws from the retainer,
any party to, or the representative of any party to, the agreement may apply to the court, and the court shall have the same jurisdiction as to enforcing the agreement so far as it has been performed, or setting it aside, as the court would have had if the solicitor had not died or become incapable of acting, or the client had not changed his solicitor, or the solicitor had not withdrawn from the retainer.
(2) The court, notwithstanding that it is of the opinion that the agreement is in all respects fair and reasonable, may order the amount due in respect of business under the agreement to be ascertained by taxation, and in that case—
(a)the taxing officer, in ascertaining that amount, shall have regard so far as may be to the terms of the agreement; and
(b)payment of the amount found by him to be due shall be paid forthwith by the party liable to pay the same, unless rules of court provide otherwise pending the determination of an appeal under Article 71G(6).
(3) If in such a case as is mentioned in paragraph (1)(b) an order is made for the taxation of the amount due to the solicitor in respect of the business done under the agreement, the court shall direct the taxing officer to have regard to the circumstances under which the change of solicitor has taken place, and the taxing officer, unless he is of the opinion that there has been no default, negligence, improper delay or other conduct on the part of the solicitor affording the client reasonable ground for changing his solicitor, shall not allow to the solicitor the full amount of the remuneration agreed to be paid to him.
(4) If in such a case as is mentioned in paragraph (1)(c) an order is made for the taxation of the amount due to the solicitor in respect of the business done under the agreement, the court shalldirect the taxing officer to have regard to the circumstances underwhich the withdrawal from the retainer has taken place, and thetaxing officer, unless he is of opinion that the withdrawal from the retainer was for good cause, shall not allow to the solicitor the full amount of the remuneration agreed to be paid to him.
69.—(1) A solicitor may take security from his client for his costs, to be ascertained by taxation or otherwise, in respect of any contentious business to be done by him.
(2) If a solicitor who has been retained by a client to conduct contentious business requests the client to make a payment of a sum of money, being a reasonable sum on account of the costs incurred or to be incurred in the conduct of that business and the client refuses or fails within a reasonable time to make that payment, the refusal or failure shall be deemed to be a good cause whereby the solicitor may, upon giving reasonable notice to the client, withdraw from the retainer.
(3) On any application for an order declaring that the solicitor has ceased to be the solicitor acting for the party in the cause or matter which is the subject of the contentious business referred to in paragraph (2), the court may determine whether the sum requested by the solicitor was reasonable and whether the client has failed to make the payment within a reasonable time.
70. Subject to the provisions of any rules of court or county court rules, on every taxation of costs in respect of any contentious business, the taxing officer may—
(a)allow interest at such rate and from such time as he thinks just on money disbursed by the solicitor for the client, and on money of the client in the hands of, and improperly retained by, the solicitor; and
(b)in determining the remuneration of the solicitor, have regard to the skill, labour and responsibility involved in the business done by him.
71.—(1) For the purposes of this Article there shall be a committee to be known as the “Non-contentious Costs Committee” (in this Part referred to as “the Committee”) and consisting of the following persons—
(a)two judges of the High Court or the Court of Appeal of whom the Lord Chief Justice may be one, appointed by the Lord Chief Justice;
(b)the President of the Lands Tribunal;
(c)two solicitors appointed by the Council; and
(d)for the purpose only of prescribing and regulating the remuneration of solicitors in respect of business under the Land Registration Act (Northern Ireland) 1970(8), the Registrar of Titles.
(2) The Committee acting by any three or more of the members thereof (the Lord Chief Justice or another judge of the High Court or the Court of Appeal being one) may make orders prescribing and regulating in such manner as they think fit the remuneration of solicitors in respect of non-contentious business.
(3) The Lord Chief Justice may appoint an officer of the Supreme Court to act as Clerk to the Committee.
(4) The Committee may refer any question arising in the exercise of their functions to any person appearing to them to be likely to assist them in reaching a conclusion thereon for advice, investigation or report and the Committee or any such person may receive evidence from any source appearing to the Committee or, as the case may be, to such person to be relevant.
(5) The costs of any reference made by the Committee under paragraph (4) shall be defrayed by the Society.
(6) Before any order is made under this Article, the Committee shall—
(a)cause a draft of the order to be sent to the Council; and
(b)consider any observations in writing submitted to them by the Council within three months of the sending of the draft;
and the Committee may then make the order either in the form of the draft or with such alterations or additions as they may think fit.
(7) An order under this Article may, as regards the mode of remuneration, prescribe that it shall be according to a scale of rates of commission or percentage, varying or not in different classes of business, or by a gross sum, or by a fixed sum for each document prepared or perused, without regard to length, or in any other mode, or partly in one mode and partly in another, and may regulate the amount of remuneration with reference to all or any of the following, among other, considerations, that is to say—
(a)the position of the party for whom the solicitor is concerned in the business, that is, whether as vendor or purchaser, lessor or lessee, mortgagor or mortgagee, and the like;
(b)the place where, and the circumstances in which, the business or any part thereof is transacted;
(c)the amount of the capital money or rent to which the business relates;
(d)the skill, labour, specialised knowledge and responsibility involved therein on the part of the solicitor;
(e)the complexity, importance, difficulty, rarity or urgency of the questions raised;
(f)the number and importance of the documents prepared or perused; and
(g)the time expended by the solicitor.
(8) An order under this Article may authorise and regulate—
(a)the taking by a solicitor from his client of security for payment of any remuneration, to be ascertained by taxation or otherwise, which may become due to him under any such order; and
(b)the allowance of interest.
(9) So long as an order made under this Article is in operation, taxation of bills of costs of solicitors in respect of non-contentious business shall, subject to the provisions of Article 71A, be regulated by that order.
(10) All orders made by the Committee shall be laid before the Assembly by the Head of the Department of Finance and Personnel and shall be subject to negative resolution.
(11) In Part I of Schedule 1 to the Statutory Rules (Northern Ireland) Order 1979(9) for the reference to Article 64 of the Solicitors (Northern Ireland) Order 1976(10) there shall be substituted a reference to this Article.
71A.—(1) Subject to the provisions of this Article and to regulations, a solicitor may make an agreement in, or evidenced by, writing with his client respecting the amount and manner of payment for the whole or a part of any past or future services in respect of non-contentious business done or to be done by the solicitor, either by a gross sum or by commission or percentage, or by salary or otherwise, and either at the same rate as, or, subject to the provisions of regulations, at a rate different from, that at which he would otherwise be entitled to be remunerated.
(2) Any such agreement shall be limited to the conduct and completion of the non-contentious business in respect of which it is made and shall not extend to any other non-contentious business unless subsequently agreed upon in writing between the client and the solicitor.
(3) If it appears to the High Court upon an application made to the Court in that behalf that any such agreement is in all respectsfair and reasonable between the parties, the Court may order theagreement to be enforced in such manner and subject to suchconditions as to the costs of the application or otherwise as it thinks fit; but if the terms of the agreement do not appear to the Court to be fair and reasonable the Court may order the agreement to be set aside or varied and may direct that all or any costs incurred or chargeable in respect of the matters included in the agreement be taxed under this Part.
(4) Except as provided by paragraph (3), the bill of a solicitor for the amount due under any such agreement as is referred to in this Article shall not be subject to taxation or to the provisions of Article 71E.
(5) Articles 64(2) and 65(2) to (5) shall apply to a non-contentious business agreement as they apply to a contentious business agreement.
71B.—(1) Any stipulation made on the sale of any land after 1st September 1976 to the effect that any purchaser shall be liable for any costs of the vendor’s solicitor shall be void.
(2) A grantor or lessor who grants or leases any property for ever or for any term of years may as a condition of the grant or lease lawfully require that it be prepared by his solicitor but may not require the grantee or lessee to pay any costs of such solicitor in connection therewith.
(3) Any stipulation made on the sale of any land after 1st September 1976 to the effect that the assurance to, or the registration of the assurance to, or the registration of the title of, the purchaser shall be prepared or carried out by a solicitor appointed by or acting for the vendor, and any stipulation which might restrict a purchaser in the selection of a solicitor to act on his behalf in relation to any land agreed to be purchased, shall, except as provided in paragraph (2), be void, but a stipulation requiring the purchaser to furnish to the vendor at the purchaser’s expense, a duplicate or counterpart of the assurance shall be valid.
(4) For the purposes of this Article—
“sale” includes a transaction effected by a grant or sub-grant in fee farm and a demise or sub-demise, but does not include the compulsory acquisition of land by virtue of any enactment or the acquisition of land by agreement by a person or body authorised or capable of being authorised under an enactment in force at the date of the agreement to acquire that land compulsorily;
“assurance” includes a conveyance or transfer, a grant or sub-grant in fee farm, a lease or sub-lease, or a tenancy agreement;
“vendor” includes a vendor who is a transferor, grantor or sub-grantor in fee farm, a lessor or sub-lessor; and “purchaser” shall be construed accordingly.
71C.—(1) The jurisdiction of the High Court to make orders forthe delivery by a solicitor of a bill of costs, and for the delivery upof, or otherwise in relation to, any documents in his possession, custody or power, is hereby declared to extend to cases in which no business has been done by him in the High Court.
(2) A county court shall have the same jurisdiction as the High Court to make orders making such provision as is mentioned in paragraph (1) in cases where the bill of costs or the documents relate wholly or partly to contentious business done by the solicitor in that county court.
(3) In this Article and in Articles 71D to 71G “solicitor” includes the executors, administrators and assignees of a solicitor.
71D. A solicitor’s bill shall be sufficient in form if it contains a reasonable statement or description of the services rendered, with a lump sum charged therefor, together with a detailed statement of disbursements, but in any action upon or taxation of such a bill further details of the services rendered may, if it is deemed proper, be ordered by the court or, as the case may be, by the taxing officer.
71E.—(1) Subject to the provisions of this Order, no action shall be brought to recover any costs due to a solicitor unless a bill of those costs has been delivered in accordance with the requirements set out in paragraph (2).
(2) The requirements referred to in paragraph (1) are that the bill must—
(a)be signed by the solicitor, or if the costs are due to a firm, by one of the partners of that firm, either in his own name or in the name of the firm, or be enclosed in, or accompanied by, a letter which is so signed and refers to the bill; and
(b)be delivered to the party to be charged therewith, either personally or by being sent to him by ordinary post to, or left for him at, his place of business, dwelling-house, or last known place of abode;
and, where a bill is proved to have been delivered in compliance with those requirements, it shall not be necessary in the first instance for the solicitor to prove the contents of the bill and it shall be presumed, until the contrary is shown, to be a bill duly complying with this Order.
71F.—(1) Where the retainer of a solicitor is disputed, the solicitor or the client may apply to the High Court to have suchdispute determined and if the Court then finds that a proper retainer exists the Court may order the bill to be taxed.
(2) Where the retainer of a solicitor is not disputed an order may be obtained from the Master (Taxing Office)—
(a)by the client, for the delivery and taxation of the solicitor’s bill;
(b)by the client, for the taxation of a bill already delivered;
(c)by the solicitor, for the taxation of a bill already delivered, at any time after the expiration of one month from its delivery, where no other order for its taxation has previously been made.
(3) An application for an order under paragraph (2) shall not be made by a client—
(a)save in exceptional circumstances—
(i)after the expiration of three months from the date of the delivery of the bill;
(ii)in any case where judgment has been obtained in an action for the recovery of the amount of a bill of costs; or
(iii)where the bill has been paid;
(b)in any event, after the expiration of six months from the date of the delivery of the bill.
(4) An order for the taxation of a bill made on an application under this Article by a client shall be an order—
(a)for the taxation of all the costs; or
(b)for the taxation of such part of the costs as the client requests in his application.
(5) An order under this Article may be made upon such terms as to the costs of the application therefor and of the taxation as the Master (Taxing Office) or, as the case may be, the High Court, thinks fit.
(6) No bill previously taxed shall be again referred unless in exceptional circumstances the High Court sees fit so to order.
(7) Where a person other than the client has paid, or is or was liable to pay, a bill either to the solicitor or to his client, that person or his assignee or personal representative may apply to the Master (Taxing Office) for taxation of the bill as if he were the client, and the same proceedings shall be had thereon as if the application had been made by the client.
(8) Where the Master (Taxing Office) has no power to make an order by virtue of paragraph (7) except in special circumstances, he may in considering whether there are special circumstances sufficient to justify the making of an order, take into account circumstances which affect the applicant but do not affect the client.
(9) Without prejudice to the provisions of paragraph (7), where a trustee or personal representative has become liable to pay the bill of a solicitor, the Master (Taxing Office) may, upon the application of any person interested in any property out of which the trustee or personal representative has paid, or has power to pay, the bill, and upon such terms (if any) as he thinks fit, make an order for the taxation of the bill; and in considering any such application, the Master (Taxing Office) shall have regard to the provisions of this Article as to applications by the client for the taxation of a solicitor’s bill so far as they are capable of being applied to an application made under this paragraph and to the extent and nature of the interest of the applicant.
(10) If an applicant under paragraph (9) pays any money to the solicitor, he shall have the same right to be paid that money by the trustee or personal representative liable to pay the bill as the solicitor had.
(11) The Master (Taxing Office) on any application made pursuant to paragraph (7) or (9) may order the solicitor to deliver to the person making the application a copy of the bill upon payment of the costs of the copy.
(12) Where a bill of costs relates wholly to contentious business done in a county court the functions of the High Court and the Master (Taxing Office) under this Article and Article 71G in relation to that bill may be exercised by the county court and a circuit registrar, and the references in Article 71G(5) and (8) to rules of court shall in any such case be construed as references to county court rules.
71G.—(1) Where a client or other person obtains an order for the delivery and taxation of a solicitor’s bill, a copy of the bill shall be delivered within two months from the service of the order or such extended time as the Master (Taxing Office) may allow.
(2) The bill delivered shall stand referred to the Master (Taxing Office) and he shall tax the bill on such date as he may direct.
(3) On such taxation the solicitor shall give credit for, and an account shall be taken of, all sums of money received by him from or on account of the client and the solicitor shall be entitled to credit for all disbursements, expenses or other sums properly paid by him for or on account of the client.
(4) The costs of the taxation shall, unless otherwise directed by the High Court in any particular case, be in the discretion of the Master (Taxing Office), subject to an appeal under paragraph (6) by any dissatisfied party and shall be taxed by the taxing officer when and as allowed.
(5) The amount certified by the Master (Taxing Office) to be due on such taxation (including, where allowed, the costs of the taxation) shall be paid forthwith by the party liable to pay the same, unless rules of court provide otherwise pending the determination of an appeal under paragraph (6).
(6) An appeal shall lie at the instance of any dissatisfied party to the High Court against any allowance or disallowance made by the Master (Taxing Office) under this Part.
(7) If after due notice of any taxation any party fails, without reasonable explanation given to the Master (Taxing Office) before taxation, to attend or be represented on the taxation, the Master (Taxing Office) may proceed with the taxation in the absence of such party.
(8) Without prejudice to the provisions of section 21 of the Interpretation Act (Northern Ireland) 1954(11), the procedure to be followed on taxation under this Part and on an appeal therefrom shall be regulated by rules of court.
71H.—(1) Subject to paragraph (2), any court in which a solicitor has been employed to prosecute or defend any action, matter or proceeding may at any time declare the solicitor entitled to a charge on the property recovered or preserved through his in-strumentality for his taxed costs in relation to that action, matter orproceeding, and may make such orders for the taxation of thosecosts and for raising money to pay, or for paying, those costs out of that property as the court thinks fit, and all conveyances and acts done to defeat, or operating to defeat, that charge shall, except in the case of a conveyance to a bona fide purchaser for value without notice, be void as against the solicitor.
(2) No order shall be made under paragraph (1) if the right to recover the costs is barred by any statute of limitations.
(3) In section 23 of the Arbitration Act (Northern Ireland) 1937(12) for the reference to Article 71 of the Solicitors (Northern Ireland) Order 1976(13) there shall be substituted a reference to this Article.”.
(2) Article 72 of the Solicitors Order (termination of retainer) shall cease to have effect.
22. In Part VI of the Solicitors Order at the beginning there shall be inserted—
72A. Where, under any provision of this Order or otherwise, a solicitor has delivered any document to the Society or to a solicitor appointed by the Society, the Society shall be deemed to have a lien on that document of the same nature and to the same extent as the solicitor would have had if the document had remained in his possession.”.
23.—(1) After Article 73 of the Solicitors Order there shall be inserted—
73A.—(1) The Council has power to appoint a committee for any such general or special purpose as in the opinion of the Council may be better regulated or managed by means of a committee, and may delegate to any committee so appointed, with or without restrictions or conditions, as they think fit, the exercise of any functions exercisable by the Council.
(2) Subject to paragraph (5), the number and term of office of the members of a committee appointed under this Article, and the number of those members necessary to form a quorum, shall be fixed by the Council.
(3) A committee appointed under this Article may include persons who are not members of the Council, and such persons need be neither members of the Society nor solicitors; but at least half of the members of any such committee (including the chairman) shall be members of the Council.
(4) If more than one-third of the members of any committee appointed under this Article are not members of the Council, no resolution of that committee shall be duly passed unless the majority of the members of the Council present vote in favour of it.
(5) Any committee to which any functions exercisable by the Council under Article 41A or 41B are delegated in pursuance of paragraph (1) shall include—
(a)such number of persons who are solicitors but not members of the Council as the committee may determine; and
(b)such number of persons who are neither solicitors nor members of the Bar of Northern Ireland as the Lord Chief Justice may, after consultation with the Council, determine.
(6) The persons to be appointed by the Council to any committee pursuant to paragraph (5)(b) shall be nominated by the Lord Chief Justice.
(7) The validity of any proceedings of a committee to which paragraph (5) applies shall not be affected by any casual vacancy among the persons appointed to it pursuant to that paragraph.”.
(2) In Article 74 of the Solicitors Order (powers to act on behalf of the Society)—
(a)in paragraph (1) at the end there shall be added “; and the power to delegate functions to committees conferred on the Council by Article 73A shall include power to delegate functions exercisable by the Council by virtue of this paragraph”;
(b)in paragraph (2)—
(i)after “Society” there shall be inserted “or the Council”;
(ii)for “by the secretary and” there shall be substituted “or, as the case may be, the Council by the secretary of the Society or”.
24. In Schedule 1 to the Solicitors Order (property in control or possession of certain solicitors and other persons)—
(a)in paragraph 8(2) for “paragraph 3 or paragraph 13” there shall be substituted “paragraph 22A”;
(b)in paragraph 13, sub-paragraphs (2) to (4) shall cease to have effect; and
(c)at the beginning of Part II of that Schedule there shall be inserted—
“22A.—(1) Without prejudice to paragraph 13(1)(b)(ii), the High Court may at any time, on the application of the Society, by order appoint the Society as the attorney of any solicitor named in a resolution passed by the Council under Article 36.
(2) Where the Society are appointed under paragraph 13(1)(b)(ii) or this paragraph to act as attorney of a solicitor—
(a)the Society shall have power, either in their nameor in the name of the solicitor, to do all or any ofthe acts and things mentioned in paragraph 23 and all such other acts and things in relation to the solicitor’s practice or property or assets as appear to the Society to be necessary for any of the purposes of this Order, as fully and effectively in all respects as if they were done by the solicitor present in person (irrespective of where he then may be); and
(b)the solicitor shall be precluded from doing any of the acts and things mentioned in head (a) which may be done by the Society as his attorney.
(3) The Society shall have a claim on the property of the solicitor for all costs (if any) incurred by the Society as his attorney.”;
(d)in paragraph 23 for “paragraph 13(3)” there shall be substituted “paragraph 22A(2)”.
25.—(1) In Article 33(1)(a) of the Solicitors Order (regulations as to keeping of accounts by solicitors) after “banks” there shall be inserted “or with building societies”.
(2) In Article 34 of the Solicitors Order (interest on client’s money)—
(a)in paragraph (1)(a)(i) after “bank” there shall be inserted “or with a building society”;
(b)in paragraph (2) after “bank” there shall be inserted “or with a building society”.
(3) In Article 40 of the Solicitors Order (dealing with bank account after death of solicitor)—
(a)in paragraph (1) after “bank” there shall be inserted “or building society”;
(b)in paragraphs (1) and (2) for “a banking” substitute “an”;
(c)in paragraph (1) “banking” in the last two places where it occurs shall cease to have effect.
(4) In Article 41 of the Solicitors Order (provisions aboutbankruptcy)—
(a)in paragraphs (3) and (4)(a) and (c) after “bank” there shall be inserted “or building society”;
(b)in paragraph (4)(b) and (d) “bank” shall cease to have effect.
(5) In Article 77 of the Solicitors Order (relief for banks)—
(a)in paragraph (1)—
(i)after “a bank” there shall be inserted “or a building society”;
(ii)after “other bank” there shall be inserted “or building society”;
(b)in paragraph (2) after “bank” there shall be inserted “or a building society”;
(c)in paragraph (3)—
(i)after “a bank” there shall be inserted “or a building society”;
(ii)after “the bank” there shall be inserted “or society”.
(6) In Schedule 1 to the Solicitors Order (property in control or possession of certain solicitors and other persons)—
(a)in paragraph 9—
(i)in sub-paragraph (1)(a) after “bank” there shall be inserted “or building society”;
(ii)in sub-paragraph (1)(a) “banking” shall cease to have effect;
(iii)in sub-paragraph (2)(b) after “banker” there shall be inserted “or building society officer” and after “bank” there shall be inserted “or building society”;
(b)in paragraph 10 after “bank” there shall be inserted “or building society”;
(c)in paragraph 11 after “bank” there shall be inserted “, building society”;
(d)in paragraph 12 after “bank” there shall be inserted “or a building society”;
(e)in paragraph 22 after “banking” there shall be inserted “or building society”;
(f)in paragraph 23(1) after “all banking” there shall be inserted “or building society” and “banking” in the last two places where it occurs shall cease to have effect.
26.—(1) In Article 15 of the Legal Aid, Advice and Assistance (Northern Ireland) Order 1981(14)—
(a)in paragraph (1) the words “solicitor or” and sub-paragraph (b) shall cease to have effect;
(b)in paragraph (2) the words “or solicitor” shall cease to have effect;
(c)after paragraph (2) there shall be inserted—
“(2A) Any practising solicitor shall be entitled to give advice or assistance or to act for persons receiving legal aid unless he is for the time being excluded by an order under Article 51B(1) or (3) of the Solicitors (Northern Ireland) Order 1976 from selection under paragraph (3).”;
(d)for paragraph (4) there shall be substituted—
“(4) Notwithstanding paragraph (3), a solicitor who has been selected to act for a person under that paragraph may himself select to act for that person, as the solicitor’s agent, any other solicitor who is not for the time being excluded from selection under paragraph (3) by an order under Article 51B(1) or (3) of the Solicitors (Northern Ireland) Order 1976.”.
(2) In Article 18(5)(b) of that Order after the word “complaints” there shall be inserted “against barristers”.
(3) In Article 24(1) of that Order at the end of sub-paragraph (b) there shall be added
“or
(c)for the purpose of facilitating the proper performance by the Solicitors Disciplinary Tribunal of its functions under the Solicitors (Northern Ireland) Order 1976 in respect of a complaint made to it under Article 44(1)(g) of that Order or in connection with the making of an order under Article 51B(1) or (3) of that Order..”
(4) After Article 36 of that Order there shall be inserted—
36A. A solicitor shall not be assigned in pursuance of a criminal aid certificate if he is for the time being excluded from being so assigned by an order under Article 51B(1) or (3) of the Solicitors (Northern Ireland) Order 1976.”.
27.—(1) The Solicitors Order shall have effect subject to the amendments specified in Schedule 2.
(2) The transitional and saving provisions in Schedule 3 shall have effect for the purposes of this Order.
(3) The statutory provisions specified in Schedule 4 are hereby repealed to the extent specified in column 3 of that Schedule.
G. I. de Deney
Clerk of the Privy Council
Article 10(2).
Article 26A(7).
1.—(1) Subject to sub-paragraph (2), references in this Schedule to a recognised body are references to a body corporate for the time being recognised under Article 26A.
(2) References in this Schedule to a recognised body in relation to—
(a)a complaint (other than such a complaint as is mentioned in paragraph 19(1)(a)); or
(b)any such application as is mentioned in paragraph 18(2),
include references to a body corporate that was recognised under Article 26A at the time when the conduct to which the complaint or application relates took place.
(3) References in this Schedule to an officer of a recognised body include references to a director, manager or secretary of that body.
(4) In Article 3(2) the definitions of “client”, “contentious business” and “non-contentious business” shall apply for the purposes of—
(a)this Schedule; and
(b)any other provision of this Order in so far as it has effect in relation to a recognised body by virtue of this Schedule,
as if for any reference to a solicitor there were substituted a reference to a recognised body; and for those purposes “controlled trust”, in relation to a recognised body, means a trust of which it is sole trustee or co-trustee only with one or more of its officers or employees and “unqualified person” does not include a recognised body.
2.—(1) A body corporate aggrieved by a decision of the Council refusing an application for recognition under Article 26A may, within one month from the date on which notice of that decision is served on it, appeal to the Lord Chief Justice who may—
(a)affirm the decision; or
(b)direct the Council to grant recognition of the body in question under Article 26A;
and the Lord Chief Justice may make such order as to the payment of costs by the Council or by that body as he thinks proper.
(2) Regulations may make provision, as respects any application for recognition that is neither granted nor refused by the Council within such period as may be prescribed, for enabling an appeal to be brought under sub-paragraph (1) in relation to the application as if it had been refused by the Council.
(3) A body corporate aggrieved by a decision of the Council to revoke the recognition of that body under regulations made under Article 26A(2)(d) may, within one month from the date on which notice of thatdecision is served on it, appeal to the Lord Chief Justice who may affirm or revoke the decision and make such order as to the payment of costs by the Council or by that body as he thinks proper.
3. Article 15(5) shall apply in relation to proceedings which have been brought with respect to a recognised body for any of the following purposes, namely—
(a)for the winding-up of the body; or
(b)for the appointment of a receiver or manager of property of the body,
as it applies in relation to proceedings in bankruptcy which have been taken against a solicitor.
4.—(1) No recognised body shall wilfully and knowingly—
(a)act as agent in any action, suit, matter or transaction for any unqualified person; or
(b)permit its name to be in any way made use of in any action, suit, matter or transaction upon the account, or for the profit, of any unqualified person; or
(c)send any process to an unqualified person; or
(d)do any other act so as to enable an unqualified person to appear, act or practice in any respect as a solicitor in any action, suit, matter or transaction.
(2) Sub-paragraph (1) does not apply where the recognised body is acting by virtue of an appointment made pursuant to Article 32.
5.—(1) Subject to sub-paragraph (2), a recognised body which knowingly shares any of its profits or fees with an unqualified person shall beguilty of an offence and shall be liable on summary conviction to a fine not exceeding level 4 on the standard scale.
(2) Sub-paragraph (1) shall not apply in any of the following cases, namely—
(a)where a body corporate which has ceased its business as a recognised body receives from a recognised body a share of the profits or fees of that recognised body as a price or value of the body corporate’s business; or
(b)where an agreement for sharing fees is made between a recognised body in Northern Ireland and a body or person carrying on the business or profession of providing professional legal services in some other part of the United Kingdom or in any country outside the United Kingdom; or
(c)where, for the purposes of making legal aid and advice more readily available to persons in need, the Council have directed in writing that sub-paragraph (1) shall not apply in relation to a non-profit making organisation.
(3) References in this paragraph to the profits and fees of a recognised body are to the profits and fees of the business of that body as a recognised body.
6. Article 29 (except paragraph (4)) shall apply to a recognised body and its business as such as it applies to a solicitor and his practice as such.
7. Article 30 shall apply in relation to employment by a recognised body in connection with its business as it applies in relation to employment by a solicitor in connection with his practice.
8. In Article 31(1) to (4)—
(a)any reference to a person who is or was an employee of a solicitor, but is not himself a solicitor shall be construed as including a reference to a person who is or was employed by a recognised body but is not himself a solicitor; and
(b)any other reference to a solicitor or to his practice as a solicitor shall be construed as including a reference to a recognised body or to its business as such a body.
9. In Article 32 the reference to a duly qualified solicitor shall be construed as including a reference to a recognised body.
10.—(1) Where regulations made under Article 33 and containing any such provision as is referred to in Article 34(1)(a)(i) are applied to recognised bodies in accordance with Article 26A(2)(f), then, except as provided by the regulations and subject to sub-paragraph (2), a recognised body which in pursuance of the regulations maintains an account in which it keeps money received or held for or on account of its clients generally shall not be liable to account to any person for interest received by it on money in that account.
(2) Nothing in any such regulations or in sub-paragraph (1) shall—
(a)affect any arrangement in writing between a recognised body and any of its clients as to the application of the client’s money or interest on it; or
(b)apply to money received by a recognised body being money subject to a trust of which the body is a trustee.
11.—(1) In Article 35—
(a)paragraphs (1) and (2); and
(b)subject to any regulations made under that Article and applied to recognised bodies in accordance with Article 26A(2)(f), paragraph (3),
shall apply to a recognised body as they apply to a solicitor.
(2) A certificate under the hand of the secretary of the Society shall, unless the contrary is proved, be evidence that a recognised body has or, as the case may be, has not delivered to the Society an accountant’s report or supplied any evidence required under Article 35 or under any such regulations as are referred to in sub-paragraph (1)(b).
12.—(1) Where the Council have reasonable cause to believe and have passed a resolution stating that they have reasonable cause to believe, that—
(a)an officer or employee of a recognised body has been guilty of dishonesty in connection with that body’s business or in connection with any trust of which that body is a trustee; or
(b)in consequence of the act on default of an officer or employee of a recognised body—
(i)there has been undue delay in connection with any matter in which the recognised body has been instructed on behalf of a client or any matter which relates to the administration of a controlled trust; or
(ii)any sum of money due from the recognised body to, or held by it on behalf of, its clients or subject to any controlled trust is in jeopardy while in the control or possession of that body,
the provisions of Schedule 1 shall apply in relation to the recognised body and its business in like manner as they apply in relation to a solicitor and his practice.
(2) Subject to sub-paragraph (3), where—
(a)the Council are satisfied that a recognised body has failed to comply with any regulations applicable to it by virtue of Article 26A; or
(b)a person has been appointed receiver or manager of property of a recognised body; or
(c)a winding-up order has been made with respect to a recognised body, or a resolution for voluntary winding-up has been passed with respect to a recognised body (other than a resolution passed solely for the purposes of its reconstruction or of its amalgamation with another body corporate),
the provisions of Schedule 1 shall apply in relation to the recognised body and its business in like manner as they apply in relation to a solicitor and his practice.
(3) Those powers shall only be exercisable by virtue of sub-paragraph (2)(a) if the Society have given the recognised body notice in writing that the Council are satisfied that the body has failed to comply with the regulations specified in the notice and also (at the same or any later time) notice that those powers are accordingly exercisable in its case by virtue of sub-paragraph (2)(a).
(4) Where the Council have passed a resolution to the effect that they are satisfied that a recognised body—
(a)has failed to comply with—
(i)any provision respecting the keeping of accounts contained in regulations made under Article 33 and applied to recognised bodies in accordance with Article 26A(2)(f) or with any requirement made in pursuance of any such regulations so applied for the production of books of account or other documents; or
(ii)the provisions of Article 35 or of any regulations made thereunder and applied to recognised bodies in accordance with Article 26A(2)(f); and
(b)has been informed that such failure will have the consequence that the provisions of Schedule 1 shall apply in relation to the body and its business,
the provisions of Schedule 1 shall apply in relation to the recognised body and its business in like manner as they apply in relation to a solicitor and his practice.
(5) Where a recognised body—
(a)having more than one office or place of business at any one time (disregarding, where it has a Belfast agent, the office or place of business of such agent) has been invited by the Society to satisfy them that its officers and employees who are solicitors exercise adequate personal supervision over each such office or place of business and, having failed so to satisfy the Society, has been notified in writing by the Society that it has so failed; or
(b)having been invited by the Society to give an explanation in respect of any matter relating to the conduct of a director of the body and having failed to give the Society such an explanation as appears to them to be satisfactory, has been notified in writing by the Society that it has so failed,
the Council may direct that the provisions of Schedule 1 shall apply in relation to the recognised body and its business in like manner as they apply in relation to a solicitor and his practice.
(6) Where the Tribunal have made a recommendation to the Council under paragraph 24 in respect of any recognised body the Council may direct that the provisions of Schedule 1 shall apply in relation to the recognised body and its business in like manner as they apply in relation to a solicitor and his practice.
13.—(1) Where the recognition of a body corporate under Article 26A—
(a)has been revoked under regulations made under Article 26A(2)(d) or by an order of the Tribunal under this Schedule; or
(b)has expired and no further recognition of that body has been granted under that Article,
that body shall within three weeks from the material date satisfy the Council that it has made suitable arrangements for making available to its clients or to some other recognised body or solicitor instructed by his clients or, with the approval of the Council, instructed by itself—
(i)all deeds, wills, documents constituting or evidencing title to any property, papers, books of accounts, records, vouchers or other documents in its possession or control, or relating to any controlled trust; and
(ii)all sums of money due from it to, or held by it on behalf of, its clients or subject to any controlled trust,
and if it fails so to satisfy the Council, the provisions of Schedule 1 shall apply in relation to the body and its former business in like manner as they apply in relation to a solicitor and his practice.
(2) In sub-paragraph (1) “the material date” means whichever is the latest of the following dates, that is to say—
(a)the date on which the recognition of the body corporate under Article 26A expires;
(b)where an application for further recognition of the body corporate under Article 26A has been made before the date specified in head (a), the last date on which an appeal against the decision not to grant further recognition of the body corporate may be lodged;
(c)the last date on which an appeal against the decision or order revoking the recognition may be lodged;
(d)the date on which any appeal mentioned in head (b) or (c) is dismissed or abandoned.
(3) Where the powers conferred by Schedule 1 are exercisable in relation to a recognised body in accordance with paragraph 12 or 14 they shall continue to be so exercisable after that body’s recognition under Article 26A has been revoked or has otherwise ceased to be in force.
14. Where—
(a)a complaint is made to the Council that there has been undue delay on the part of a recognised body in connection with any matter in which it has been instructed on behalf of a client or any matter which relates to the administration of a controlled trust or in complying with an order of the Tribunal under paragraph 21(2)(c), (d) or (e) or (3) or Article 51A; and
(b)the Council have by notice invited the body to give an explanation in respect of the matter; and
(c)the body has, within a period of not less than fourteen days specified in the said notice or such longer period as the Council may determine failed to give an explanation in respect of that matter which the Council regard as sufficient and satisfactory; and
(d)the body has been notified in writing by the Society that it has so failed,
the provisions of Schedule 1 shall apply in relation to the recognised body and its business in like manner as they apply in relation to a solicitor and his practice; but as regards the documents specified in paragraph 2 and the sums of money specified in paragraph 10 of Part I of that Schedule only in so far as they relate to the matter of the complaint.
15. In connection with the application of Schedule 1 for the purposes of this Schedule, in Schedule 1 any reference to the solicitor or to his practice shall be construed as including a reference to the body corporate in relation to which the powers conferred by that Schedule are exercisable by virtue of paragraph 12, 13 or 14 of this Schedule or to its business (or former business) as a recognised body.
16.—(1) In Article 41A (except paragraphs (8) and (9))—
(a)any reference to a solicitor shall be construed as including a reference to a recognised body; and
(b)any reference to professional services provided by a solicitor in connection with any matter in which he or his firm had been instructed by a client shall be construed as including a reference to professional services provided by a recognised body in connection with any matter in which it had been instructed by a client.
(2) The powers conferred on the Council by Article 41A(1)(a) shall be exercisable in relation to a body corporate in accordance with this paragraph notwithstanding that it is no longer a recognised body.
(3) If a body corporate fails to comply with a direction given under Article 41A by virtue of this paragraph which has taken effect, any person may make a complaint in respect of that failure to the Tribunal; but no other proceedings whatever shall be brought in respect of it.
17.—(1) Where the Council are satisfied that it is necessary to do so for the purpose of investigating—
(a)any such complaint as is mentioned in head (b), (c) or (d) of paragraph 19(1); or
(b)any complaint made to the Society and relating to the quality of any professional services provided by a recognised body,
the Society may give notice to the recognised body to which the complaint relates requiring the production or delivery to any person appointed by the Society, at a time and a place to be fixed by the Society, of all documents in the body’s possession in connection with the matters to which the complaint relates (whether or not they relate also to other matters).
(2) Paragraphs 2(2) to 8 and 17 to 21 of Schedule 1 shall apply in relation to the powers conferred by sub-paragraph (1) as they apply in relation to the powers conferred by sub-paragraph (1) of paragraph 2 of that Schedule, and accordingly in those provisions—
(a)any reference to the solicitor shall be construed as including a reference to the body with respect to which the powers are exercisable by virtue of sub-paragraph (1);
(b)any reference to a person appointed, or to a requirement, under paragraph 2(1) of that Schedule shall be construed as including a reference to a person appointed, or to a requirement, under sub-paragraph (1); and
(c)any reference to any such documents as are mentioned in paragraph 2(1) of that Schedule shall be construed as including a reference to any such documents as are mentioned in sub-paragraph (1).
18.—(1) Paragraph (1)(b) of Article 42 shall apply in relation to a complaint about a recognised body or an officer or employee of such a body as it applies in relation to a complaint about a solicitor or an employee of a solicitor.
(2) Where it appears to a lay observer, in examining any such allegation as is mentioned in paragraph (1)(b) of that Article—
(a)that there arises out of the complaint in respect of which the allegation has been made both—
(i)a question as to the conduct of a recognised body, being conduct capable, in his view, of forming the subject-matter of any such complaint as is mentioned in head (b), (c) or (d) of paragraph 19(1); and
(ii)a question as to the quality of any professional services provided by the body as a recognised body; and
(b)that it would be appropriate for the latter question to be considered by the Tribunal with a view to determining whether to exercise in relation to the body any of the powers conferred on the Tribunal by paragraph 22,
the lay observer may make an application to the Tribunal with respect to the body.
19.—(1) The Tribunal shall have jurisdiction to hear and determine any of the following complaints made to it under this paragraph with respect to a recognised body, namely—
(a)a complaint that the body has (while a recognised body) been convicted by any court in the United Kingdom of a criminal offence which renders it unsuitable to be recognised under Article 26A;
(b)a complaint that the body has failed to comply with Article 35 or with any regulations applicable to it by virtue of Article 26A;
(c)a complaint that the body has acted in contravention of paragraph 4 or Article 29 or of any terms and conditions subject to which a consent has been granted under Article 29; or
(d)a complaint that the body has knowingly acted in contravention of an order under Article 31 or of any terms and conditions subject to which a consent has been granted under such an order.
(2) A complaint may be made to the Tribunal under this paragraph by any person.
20. In Article 46 any reference to a solicitor shall be construed as including a reference to a recognised body.
21.—(1) Where on an inquiry into any complaint made to it under this Schedule the Tribunal are satisfied that a recognised body—
(a)has been convicted as mentioned in head (a) of paragraph 19(1); or
(b)has failed to comply with Article 35 or with any such regulations as are mentioned in head (b) of paragraph 19(1); or
(c)has acted as mentioned in head (c) or (d) of that provision; or
(d)has failed to comply with any direction given to it under Article 41A by virtue of paragraph 16,
the Tribunal may, if they think fit, make one or more of the orders referred to in sub-paragraph (2).
(2) Those orders are—
(a)an order revoking the recognition under Article 26A of the body to which the complaint relates;
(b)an order directing the payment by that body of a fine not exceeding £3,000, to be paid to and applied for the purposes of the Society;
(c)the payment by any party to the inquiry of the costs of any other party to be measured by the Tribunal, or of a stated sum as a contribution towards such costs;
(d)the payment by any party to the inquiry of a sum to be measured by the Tribunal for the costs incurred by the Tribunal, or of a stated sum as a contribution towards such costs;
(e)the making by any party of such restitution or satisfaction to any aggrieved party as the Tribunal thinks fit.
(3) On an inquiry into a complaint under paragraph 16(3) relating to a direction given under Article 41A, the Tribunal may, without prejudice to their powers under sub-paragraphs (1) and (2) or paragraph 22, make an order providing for the direction to be treated for the purposes of this Order as if it were an order of the Tribunal.
(4) In Article 51—
(a)paragraph (5) shall apply to an order under sub-paragraph (2)(d) as it applies to an order under paragraph (1)(k) of that Article;
(b)paragraphs (6) to (9) shall apply to an order under this paragraph as they apply to an order under that Article, but in paragraph (8) the reference to the solicitor shall be construed as a reference to the recognised body;
(c)paragraphs (11) and (12) shall have effect in relation to the sum specified in sub-paragraph (2)(b) as they have effect in relation to the sum specified in paragraph (1)(b) of that Article.
22.—(1) The powers conferred on the Tribunal by Article 51A shall be exercisable on an inquiry into—
(a)any complaint made to the Tribunal under this Schedule by or on behalf of the Society with respect to a recognised body; or
(b)any application made to the Tribunal under paragraph 18(2) by a lay observer with respect to a recognised body,
in like manner as they are exercisable on an inquiry into any complaint or application made as mentioned in Article 51A(1) with respect to a solicitor.
(2) Accordingly, in Article 51A as it applies in relation to any such complaint or application as is mentioned in sub-paragraph (1)(a) or (b)—
(a)any reference to a solicitor shall be construed as including a reference to a recognised body; and
(b)any reference to professional services provided by a solicitor in connection with any matter in which he or his firm had been instructed by a client shall be construed as including a reference to professional services provided by a recognised body in connection with any matter in which it had been instructed by a client.
23.—(1) Where the Tribunal makes any such order as is referred to in Article 51B(1)(a) in the case of a solicitor who is an officer or employee of a recognised body, the Tribunal may, if they think fit, order that any solicitor who is for the time being a director of that body shall be excluded (either permanently or for a specified period) from legal aid work.
(2) The reference in sub-paragraph (1) to a person being excluded from legal aid work shall be construed in accordance with Article 51B(6).
24.—(1) Where the Tribunal hold an inquiry into any application or complaint made under this Schedule with respect to a recognised body they may, whether or not they make any order on the inquiry, make a recommendation to the Council that the provisions of Schedule 1 should apply in relation to that recognised body.
(2) A recommendation made by the Tribunal under sub-paragraph (1) shall contain a statement of the findings on which the Tribunal based the recommendation.
25.—(1) Where the Tribunal make an order—
(a)under paragraph 21(2)(b), (c), (d) or (e) or (3); or
(b)under Article 51A(2), by virtue of paragraph 22,
the registrar, if so required in writing by the Society or by any other party in whose favour the order was made, shall lodge a duly authenticated copy of the order with the Master (Queen’s Bench and Appeals) who shall forthwith cause such copy to be filed; and thereupon the order shall be of the like effect as a judgment of the High Court and enforceable accordingly.
(2) Where the Tribunal make an order revoking the recognition of a body corporate under Article 26A the registrar shall forthwith—
(a)lodge a duly authenticated copy of the order with the Master (Queen’s Bench and Appeals); and
(b)cause to be published in the Belfast Gazette and in such other manner as the Tribunal may direct, a notice stating the effect of the order.
(3) Article 52(4) shall not apply to orders made by the Tribunal under this Schedule but the registrar shall maintain separate files on which such orders shall be entered in the following manner—
(a)on a file to be termed File C, there shall be entered, in alphabetical order against the names of the bodies corporate concerned, each order revoking the recognition under Article 26A of a body corporate;
(b)on a file to be termed File D, there shall be entered, in chronological order, all other orders.
(4) Article 52(6), (7) and (8) shall apply to File C as they apply to File A and to File D as they apply to File B.
26.—(1) Where—
(a)an order is made by the Lord Chief Justice under Article 20(1) or 27(1) in the case of a director of a recognised body;
(b)any order is made by the Tribunal under Article 51 in the case of a director of a recognised body; or
(c)an order is made by the High Court or the Court of Appeal that the name of a director of a recognised body be struck off the roll or that such a director be suspended from practice as a solicitor; or
(d)any such order as is mentioned in head (a), (b) or (c) is made in the case of a person employed by a recognised body and the act or omission constituting the ground on which the order was made was instigated or connived at by a director of the recognised body or, if the act or omission was a continuing act or omission, a director of the body had or reasonably ought to have had knowledge of its continuance,
the Tribunal may, on an application made with respect to the recognised body by or on behalf of the Society, by order revoke its recognition under Article 26A.
(2) The Tribunal shall not take a case into consideration during any period within which proceedings by way of appeal may be brought which may result in sub-paragraph (1) being rendered inapplicable in that case, or while any such proceedings are pending.
(3) Any reference to a director of a recognised body in any of heads (a) to (d) of sub-paragraph (1) includes a reference to a person who was a director of the body at the time of the conduct leading to the making of the order referred to in that paragraph.
27.—(1) On an application for recognition under Article 26A a body corporate shall pay to the Society with any fee required to be paid by virtue of paragraph (2)(a) of that Article a contribution to the Compensation Fund of such amount as the Council may from time to time determine; and Schedule 2 shall apply to an amount paid to the Society in pursuance of this sub-paragraph as if it were an annual contribution paid in pursuance of paragraph 2 of that Schedule.
(2) Where the Council, on an application for a grant being made to the Society, are satisfied—
(a)that a person has suffered loss in consequence of dishonesty on the part of an officer or employee of a recognised body in connection with that body’s business or purported business as a recognised body or in connection with any trust of which it is or was a trustee; or
(b)that a person has suffered or is likely to suffer hardship in consequence of the failure on the part of a recognised body to account for money which has come into its possession in connection with that body’s business or purported business as a recognised body or in connection with any trust of which it is or was a trustee;
then, subject to the provisions of sub-paragraph (3), the Society may, if the Council think fit, make to that person a grant out of the Compensa-tion Fund for the purpose of making good or mitigating that loss or (as the case may be) relieving such hardship.
(3) The following provisions shall have effect in relation to grants under sub-paragraph (2)—
(a)the Society shall not make a grant unless the Council are satisfied that the recognised body in respect of whose act or default or in respect of whose officer’s or employee’s act or default the application is made has been given sufficient notice of the substance of the application and had not given, either to the applicant or to the Society, such explanation as satisfies the Council that no grant should be made;
(b)the fact that the applicant is a solicitor, an employee of a solicitor, a recognised body or an officer or employee of such a body shall not disqualify the applicant from receiving a grant.
(4) Where the Council, on an application being made to the Society, are satisfied that a member of a recognised body has suffered or is likely to suffer loss or hardship by reason of his liability to any of that body’s clients in consequence of some act or default of any officer or employee of that body, in circumstances where but for the liability of that member a grant might have been made out of the Compensation Fund to some other person, then, subject to the provisions of sub-paragraph (5), the Society may, if the Council think fit, make to that member a grant out of the Compensation Fund for the purpose of relieving that loss or hardship.
(5) The following provisions shall have effect in relation to grants under sub-paragraph (4)—
(a)the Society shall not make a grant to a member of a recognised body in respect of any act or default of another member of that body unless the Council are satisfied that the other member (unless he is dead or it is impracticable to give notice to him) has been given sufficient notice of the substance of the application and has not given, either to the applicant or to the Society, such explanation as satisfies the Council that no grant should be made;
(b)a grant may (if the Council think fit) take the form of a loan upon such terms and conditions (including conditions as to the time and manner of repayment, as to the payment of interest and as to security for repayment) as the Council may determine;
(c)in relation to a grant made by way of loan, the Society may, upon such terms or conditions (if any) as the Council may think fit, at any time or times waive or refrain from enforcing the repayment of the whole or any part of the loan or any instalment of the loan or the payment of any interest or any of the other terms or conditions upon which the loan was granted.
(6) Sub-paragraph (7) applies—
(a)to a grant made under sub-paragraph (2);
(b)to a grant made under sub-paragraph (4) otherwise than by way of loan; and
(c)where a grant has been made under sub-paragraph (4) by way of loan and thereafter—
(i)the repayment of any amount (being either the whole or some part of the loan) has been waived; or
(ii)the borrower fails to repay any amount (being either the whole or some part of the loan) the repayment of which has not been waived;
to such a grant to the extent of any such amount.
(7) Where this sub-paragraph applies to a grant—
(a)the Society shall, to the extent of the amount of the grant, be subrogated to any rights and remedies of the person to whom it is made in relation to the act or default in respect of which it is made and such person shall not be entitled, whether by way of winding-up, bankruptcy or other legal proceedings or otherwise, to receive any sum out of the assets of the recognised body or an officer or employee of that body in respect of that act or default until the Society have been reimbursed the full amount of the grant;
(b)the fact that a person has received or may be likely to receive a grant from the Society shall not constitute any defence to an action brought by such person in respect of the act or default in relation to which such grant has been or may be made and the Society shall be entitled (whether before or after payment of the grant) upon giving to such person a sufficient indemnity against costs to require him to sue in his own name but on behalf of the Society for the purpose of giving effect to any rights conferred on the Society by head (a) and to permit the Society to have the conduct of the proceedings.
(8) In sub-paragraphs (2) to (7)—
(a)references to the person to whom a grant has been made or to any member, officer or employee of a recognised body in respect of whose act or default a grant has been made shall include, in the event of his death, bankruptcy or other disability, references to his personal representative or to any other person having authority to administer his estate;
(b)references to any recognised body in respect of whose act or default a grant has been made shall include, in the event of the winding up of that body, a reference to its liquidator.
28.—(1) In the provisions to which this paragraph applies—
(a)any reference to a solicitor or to a client of a solicitor shall be construed as including a reference to a recognised body or to a client of such a body; and
(b)any reference to a client’s solicitor shall be construed as including a reference to any recognised body acting for a client.
(2) This paragraph applies to the following provisions (which relate to the remuneration of solicitors in respect of contentious and non-contentious business), namely—
Article 64;
Article 65 (except paragraph (5));
Articles 66 and 67;
Article 69;
Article 71 (except paragraphs (1)(c) and (7));
Articles 71A and 71B;
Article 71D;
Article 71E(1); and
Articles 71F to 71H.
29. A provision in a contentious or non-contentious business agreement made between a recognised body and a client that the body shall not be liable for the negligence of any of its officers or employees, or that it shall be relieved from any responsibility to which it would otherwise be subject in the course of carrying on its business as a recognised body, shall be void.
30.—(1) If, after some business has been done under a contentious business agreement made between a recognised body and a client but before the body has wholly performed it, the body ceases to be capable of wholly performing it by reason of one of the following events, namely—
(a)the body ceases (for any reason) to be a recognised body;
(b)a winding-up order is made with respect to the body or a resolution for voluntary winding-up is passed with respect to the body (other than a resolution passed solely for the purposes of its reconstruction or of its amalgamation with another body corporate); or
(c)the client terminates the retainer or employment of the body in favour of another recognised body or a solicitor (as, notwithstanding the agreement, he shall be entitled to do),
any party to, or the representative of any party to, the agreement may apply to the court, and the court shall have the same jurisdiction as to enforcing the agreement so far as it has been performed, or setting it aside, as the court would have had if the recognised body were still capable of wholly performing it.
(2) The court, notwithstanding that it is of the opinion that the agreement is in all respects fair and reasonable, may order the amount due in respect of business under the agreement to be ascertained by taxation, and in that case—
(a)the taxing officer, in ascertaining that amount, shall have regard so far as may be to the terms of the agreement; and
(b)payment of the amount found by him to be due may be enforced in the same manner as if the agreement had been wholly performed.
(3) If in such a case as is mentioned in sub-paragraph (1)(c) an order is made for the taxation of the amount due to the recognised body in respect of the business done under the agreement, the court shall direct the taxing officer to have regard to the circumstances under which the termination of the body’s retainer or employment has taken place, and the taxing officer, unless he is of the opinion that there has been no default, negligence, improper delay or other conduct on the part of any officer or employee of the body affording the client reasonable ground for terminating its re-tainer or employment, shall not allow to the body the full amount of the remuneration agreed to be paid to it.
(4) In this paragraph “the court” has the meaning assigned by Article 66(6) and in this paragraph and paragraph 31 “the taxing officer” has the meaning assigned by Article 66(7).
31. Subject to the provisions of any rules of court or county court rules, on every taxation of costs in respect of any contentious business done by a recognised body, the taxing officer may—
(a)allow interest at such rate and from such time as he thinks just on money disbursed by the body for the client, and on money of the client in the possession of, and improperly retained by, the body; and
(b)in determining the remuneration of the body, have regard to the skill, labour and responsibility on the part of any solicitor, being an officer or employee of the body, which the business involved.
32. In relation to an order under Article 71 regulating (in accordance with paragraph 28) the remuneration of recognised bodies in respect of non-contentious business, paragraph (7) of that Article shall have effect as if—
(a)in sub-paragraph (a), for “the solicitor” there were substituted “the recognised body”; and
(b)in sub-paragraphs (d) and (g), for “the solicitor” there were substituted “any solicitor, being an officer or employee of the recognised body,”.
33. Any jurisdiction—
(a)of the High Court to make any such orders as are referred to in Article 71C(1) in relation to a solicitor (whether or not business has been done by him in the High Court); or
(b)of the county court to make any such orders as are referred to in Article 71C(2) in relation to a solicitor,
shall be exercisable in like manner in relation to a recognised body.
34. Any jurisdiction of the High Court to make, in the case of a solicitor who is acting or has acted as such for a client, an order requiring the payment or delivery up of, or otherwise relating to, money or securities which the solicitor has in his possession or control on behalf of the client shall be exercisable in like manner in the case of a recognised body which is acting or has acted as such for a client.
35. Paragraph (2) of Article 71E shall have effect in relation to a bill of costs delivered by a recognised body as if—
(a)for the words from “by the solicitor” to “the firm” there were substituted “on behalf of the recognised body by any officer or employee of the body authorised by it to do so”; and
(b)for “the solicitor” (where last occurring) there were substituted “the recognised body”.
36. Article 72A shall apply in relation to a recognised body as it applies in relation to a solicitor.
37. Article 77 shall apply in relation to a recognised body as it applies in relation to a solicitor.
38.—(1) Any communication made to or by a recognised body in the course of its acting as such for a client shall in any legal proceedings be privileged from disclosure in like manner as if the body had at all material times been a solicitor acting for the client.
(2) Any enactment or instrument making special provision in relation to a solicitor or other legal representative as to the disclosure of information, or as to the production, seizure or removal of documents, with respect to which a claim to professional privilege could be maintained shall, with any necessary modifications, have effect in relation to a recognised body as it has effect in relation to a solicitor.
(3) In sections 745(3) and 778(3) of, and paragraph 14(5) of Schedule 15 to, the Income and Corporation Taxes Act 1988(15) any reference to a solicitor’s client shall, in relation to a solicitor who is an officer or employee of a recognised body, be construed as a reference to a client of that body.
39. In the following provisions, namely—
(a)sections 56 and 66 of the Conveyancing Act 1881(16);
(b)section 85(1)(e) of the Land Registration Act (Northern Ireland) 1970(17);
(c)paragraph (3) of Schedule 1 to the Registration of Deeds Act (Northern Ireland) 1970(18); and
(d)Article 8(2) of the Family Law (Miscellaneous Provisions) (Northern Ireland) Order 1984(19),
any reference to a solicitor shall be construed as including a reference to a recognised body, and any reference to a person’s solicitor shall be construed as including a reference to a recognised body acting for that person.”.
Article 27(1).
In the following provisions for “Disciplinary Committee” or “Committee” wherever they occur substitute “Tribunal”—
(a)Article 10(3);
(b)Article 26(3);
(c)Article 29(4);
(d)Article 31(1), (2) and (5);
(e)Article 33(2);
(f)Article 35(6);
(g)Article 48(1), (2) and (3);
(h)Article 49(1), (2) and (3);
(i)Article 50;
(j)Article 52(3), (4), (5), (6) and (8);
(k)Article 54(3);
(l)Article 63(4).
In Article 3(2)—
(a)the definitions of “the Disciplinary Committee” and “solicitor-trustee” shall cease to have effect;
(b)at the end of the definition of “client” there shall be added the words “and, in relation to contentious business, includes any person who as a principal or on behalf of another person retains or employs, or is about to retain or employ, a solicitor, and any person who is or may be liable to pay a solicitor’s costs”;
(c)the following definitions shall be inserted at the appropriate places in alphabetical order—
““building society” means a building society within the meaning of the Building Societies Act 1986; and a reference to an account with a building society is a reference to a deposit account;
“contentious business agreement” means an agreement made in pursuance of Article 64;
“controlled trust”, in relation to a solicitor, means a trust of which he is a sole trustee or co-trustee only with one or more of his partners or employees;
“employee” includes an apprentice or clerk;
“sole solicitor” means a solicitor who is the sole principal in a practice;
“the Tribunal” means the Solicitors Disciplinary Tribunal appointed under Article 43(1);”.
In Article 3(3) for “a clerk, employee or servant” (twice) substitute “an employee”, for “an apprentice” substitute “an employee” and for “the apprentice” substitute “the employee”.
In Article 3 after paragraph (3) insert—
“(3A) In this Order—
(a)references to the removal of a solicitor’s name from the roll are references to its removal at his own request or in pursuance of regulations under Article 8(3);
(b)references to striking a solicitor’s name off the roll are references to striking it off as a disciplinary sanction; and
(c)references to removal or striking off include references to deleting an entry made by means of a computer by whatever means are appropriate.”.
Article 5(5)(b) and the word “or” immediately before it shall cease to have effect.
In Article 21 for “Article 16(3) or (4) or, if the suspension was terminated subject to terms and conditions” substitute “Article 16(4) or (7) or, if his practising certificate has effect subject to terms and conditions by virtue of a direction under Article 16(4)(c) or (7)”.
In Article 25(1) for “not qualified so to act” substitute “an unqualified person”.
In Article 27(1) for “£100” substitute “£1,000”.
In Article 28(1) after “who” insert “knowingly”.
In Article 29(4) for “contravenes” substitute “knowingly contravenes this Article or”.
In Article 31(2) for “made by them with the approval of the Lord Chief Justice under this Order” substitute “made under Article 43(8)”.
In Article 31(5) for “contravenes” substitute “knowingly contravenes any order under this Article or”.
In Article 33(1)(a) for head (ii) substitute—
“(ii)for money comprised in controlled trusts;”.
In Article 34(1) after “Regulations” insert “under Article 33”.
In Article 36(1)(a) for “or his clerk, apprentice or servant” substitute “or an employee of his”.
In Article 36(1) for sub-paragraph (b) substitute—
“(b)in consequence of the act or default of a solicitor or of any of his employees—
(i)there has been undue delay in connection with any matter in which that solicitor or his firm has been instructed on behalf of a client or any matter which relates to the administration of a controlled trust; or
(ii)any sum of money due from the solicitor or his firm to, or held by him or his firm on behalf of, his clients or subject to a controlled trust is in jeopardy while in the control or possession of the solicitor or his firm,”.
In Article 36(2) for the words from “either in his own name” to “firm” substitute “as a sole solicitor”.
In Article 37(1)(a) for the words from “trust” to the end substitute “controlled trust; and”.
In Article 39(1)(a)(ii) for the words from “solicitor in his own name” to “firm name” substitute “sole solicitor”.
In Article 41(4)(c) for the words from “trust” to the end substitute “controlled trust, or”.
In Article 52(6) for “Article 53(4)” substitute “Article 53(5)”.
In Article 54(1) for the words from the beginning to “Disciplinary Committee” substitute
“A copy of every order made—
(a)by the Lord Chief Justice under Article 20(1) or 27(1);
(b)by the Tribunal;
(c)on an appeal under Article 53;
(d)in the exercise of the jurisdiction referred to in Article 81(a),.”
In Article 56 for “apprentice, or of a clerk or servant” substitute “employee”.
In Article 58(1)(a) for “apprentice's, clerk’s or servant's” substitute “employee's”.
In Article 58(1)(b) for “apprentice or the clerk or servant” substitute “employee”.
In Article 58(1)(c) and (2) for “apprentice, clerk or servant” substitute “or employee”.
In Article 59 for “partner of that solicitor, or of any apprentice, or of any clerk or servant of that solicitor” substitute “of his partners or employees”.
In Article 62 for “apprentice's, clerk’s or servant's” substitute “employee's”.
In Article 63(1)(b) for “apprentice, clerk or servant or former apprentice, clerk or servant” substitute “employee or former employee” and for “apprentice, clerk or servant” substitute “employee”.
In Schedule 1 at the end of paragraph 8(1) add “, but the Society may, before appointing any person under paragraph 2(1), require from that person such undertakings (including undertakings as to the payment of money) as will, in the opinion of the Society, ensure that a solicitor or other person who is deprived of any such lien or right in consequence of anything done under this Schedule does not suffer any financial loss as a result of being so deprived.”.
Article 27(2).
1. Article 5 applies to applications for practising certificates made after the date on which that Article comes into operation.
2. Article 14 of the Solicitors Order, as substituted by Article 6, applies in relation to applications for practising certificates made after the date on which Article 6 comes into operation.
3. Article 15 of the Solicitors Order, as substituted by Article 6, applies in relation to practising certificates which are suspended after the date on which Article 6 comes into operation.
4. In Article 7—
(a)paragraph (c) applies to acts done before or after the date on which that Article comes into operation; but
(b)paragraphs (b) and (d) do not apply to acts done before that date.
5. Where a person has committed an offence under Article 24 of the Solicitors Order before the date on which Article 8 comes into operation, he shall not be liable after that date to be proceeded against in respect of that offence unless the act constituting that offence would have constituted an offence under Article 24 of the Solicitors Order, as amended by Article 8, if it had been in operation at the time when the act was done.
6. Any provision made by an order under paragraph (8) of Article 26A of the Solicitors Order after the date on which Article 10(1) comes into operation may be made with retrospective effect as from that date or any later date.
7. Article 16(1) applies in relation to services provided by a solicitor whether they were provided before or after the date on which Article 16(1) comes into operation.
8. Article 16(2) applies in relation to a complaint whether it was made before or after the date on which Article 16(2) comes into operation.
9.—(1) Article 17(b) applies in relation to a complaint whether it was made before or after the date on which Article 17(b) comes into operation.
(2) Article 51A of the Solicitors Order, as substituted by Article 19(1), applies in relation to services provided by a solicitor whether they were provided before or after the date on which Article 19(1) comes into operation.
10. Any complaint or application made to the Disciplinary Committee under Article 44(1) of the Solicitors Order before the coming into operation of Articles 18 to 20 shall be heard and determined, and any appeal from an order of the Committee on holding an inquiry into any such complaint or application shall lie, as if those Articles had not come into operation.
11. Article 51B of the Solicitors Order, as substituted by Article 19(1), applies in relation to conduct of a solicitor whether it occurred before or after the coming into operation of Article 19(1).
12.—(1) Article 26 does not affect—
(a)the hearing and determination by any tribunal established under the Legal Aid, Advice and Assistance (Northern Ireland) Order 1981(20) of any complaint made, or referred, to the tribunal before the coming into operation of Article 26; or
(b)any appeal against the decision of such a tribunal with respect to any such complaint.
(2) Subject to sub-paragraph (1)(b), a decision under Article 15(1) of that Order to exclude a person from acting for persons receiving legal aid, advice or assistance shall have effect as if it were an order of the Tribunal under Article 51B(1)(a) of the Solicitors Order.
13. The amendment of Article 27(1) of the Solicitors Order in Schedule 2 shall not affect the fine for an act done before the date on which that amendment comes into operation.
14. The provisions of this Schedule shall have effect without prejudice to section 29 of the Interpretation Act (Northern Ireland) 1954(21).
Article 27(3).
| Chapter or Number | Short Title | Extent of repeal |
|---|---|---|
| 1849 c. 53. | The Solicitors (Ireland) Act 1849. | The whole Act. |
| 1870 c. 28. | The Attorneys' and Solicitors' Act 1870. | The whole Act. |
| 1976 NI 12. | The Solicitors (Northern Ireland) Order 1976. | In Article 3(2) the definitions of “the Disciplinary Committee” and “solicitor-trustee”. In Article 4 the words from “and for the purposes” to the end. In Article 5(5) sub-paragraph (b) and the word “or” immediately before it. In Article 10(2) the words from “and any person” onwards.Article 23(2)(e)(i). In Article 26(2)(a) the words from “not exceeding” to “solicitor”.Article 31(6). In Article 36(3) the words “or solicitor—trustee” where they twice occur. In Article 37(2) the words from “of the Disciplinary Committee” to “Court of Appeal”. In Article 38(a) the words “or himself”. In Article 40(1) the words “whether in his own name or in a firm name” and the word “banking” in the last two places where it occurs. In Article 41(4)(b) and (d) the word “bank”. In Article 52(3)(b) the words from “which notice” to the end.Article 72.Article 82(2) and (4). In Schedule 1, in paragraph 1 the definition of “controlled trust”. In Schedule 1 in paragraphs 3(1)(b), 8(2), 9(1) (twice), 13(1)(b), 15(1), 16(1) and 19 the words “a judge of”. In Schedule 1, in paragraph 8(2) the words “or solicitor-trustee” and “or a solicitor-trustee”. In Schedule 1, in paragraph 9(1)(a) the word “banking”. In Schedule 1, paragraph 13(2) to (4). In Schedule 1, in paragraph 23(1) the word “banking” in the last two places where it occurs. |
| 1978 c. 23. | The Judicature (Northern Ireland) Act 1978. | In Part II of Schedule 5 the amendments to Articles 15(1), 37(2), 64(1)(a) and 64(2) of the Solicitors Order. |
| 1981 NI 8. | The Legal Aid, Advice and Assistance (Northern Ireland) Order 1981. | In Article 15(1) the words “solicitor or” and sub-paragraph (b) and the word “or” immediately before it. In Article 15(2) the words “or solicitor”. |
(This note is not part of the Order)
This Order makes miscellaneous amendments to the Solicitors (Northern Ireland) Order 1976. The main amendments are—
(a)to enable terms and conditions imposed on practising certificates to continue in respect of subsequent certificates;
(b)to enable terms and conditions to be imposed on practising certificates as an alternative to suspension;
(c)to regulate the provision of solicitors' services in the case of incorporated practices;
(d)to extend the functions of lay observers;
(e)to enable the Council and Disciplinary Tribunal to impose sanctions for inadequate professional services;
(f)to consolidate the provisions relating to costs in contentious and non-contentious business;
(g)to enable the roll and register to be kept by computer.