Solicitors (Scotland) Act 1980

Sections 50, 52.

SCHEDULE 4S Constitution, Procedure and Powers of Tribunal

Modifications etc. (not altering text)

C1Sch. 4 applied (with modifications) (1.10.2004) by The Solicitors (Scotland) Act 1980 (Foreign Lawyers and Multi-national Practices) Regulations (S.S.I. 2004/383), {reg. 13}

Part IS

ConstitutionS

[F11SThe Tribunal shall consist of not more than 28 members.]

Textual Amendments

[F21ASThe Tribunal shall consist of equal numbers of—

(a)members (in this Part referred to as “solicitor members”) appointed by the Lord President, who are solicitors recommended by the Council as representatives of the solicitors' profession throughout Scotland; and

(b)members (in this Part referred to as “non-lawyer members”) appointed by the Lord President after consultation with the Scottish Ministers, who are not—

(i)solicitors;

(ii)advocates;

(iii)conveyancing practitioners or executry practitioners, within the meaning of section 23 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 (c. 40) (“the 1990 Act”);

(iv)persons exercising a right to conduct litigation or a right of audience acquired by virtue of section 27 of the 1990 Act.

Textual Amendments

1BSThe validity of any proceedings of the Tribunal is not affected by a vacancy in membership of the Tribunal nor by any defect in the appointment of a member.

Textual Amendments

1CSThe Scottish Ministers may by order made by statutory instrument amend paragraph 1 so as to vary the maximum number of members of the Tribunal.

Textual Amendments

1DSA statutory instrument containing an order made under paragraph 1C is subject to annulment in pursuance of a resolution of the Scottish Parliament.]

Textual Amendments

2SEach member of the Tribunal shall retire from office on the expiry of 5 years from the date of his appointment, but [F3in the case—

(a)of a [F4non-lawyer] member, may be re-appointed by the Lord President [F5after consultation with the Secretary of State]; and

(b)of a solicitor member, may be [F6re-appointed by the Lord President] on the recommendation of the Council.]

Textual Amendments

3SThe Lord President may from time to time terminate the appointment of any member of the Tribunal, and may fill any vacany therein by the appointment of a solicitor recommended by the Council or, as the case may be, [F7after consultation with the Secretary of State,] by the appointment of a [F8non-lawyer] member.

Textual Amendments

4SThe Tribunal may appoint one of their number to be chairman, and may also appoint a clerk, who shall not be a member of the Tribunal, and, subject to the provisions of this Act, may regulate their procedure in such way as they may think fit.

5SThe Tribunal shall be deemed to be properly constituted if—

(a)at least 4 members are present, and

(b)at least [F92 solicitor members are] present, and

[F10(c)at least 2 non-lawyer members are present.]

(d)F11. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

6SThere shall be paid to the [F12non-lawyer] members of the Tribunal out of money provided by Parliament such fees and allowances as the Secretary of State may F13. . . determine.

Textual Amendments

Part IIS Procedure and Powers of Tribunal

Modifications etc. (not altering text)

ComplaintsS

7SThe making of a complaint to the Tribunal or the giving of any information in connection with a complaint shall confer qualified privilege.

Modifications etc. (not altering text)

8SA complaint made to the Tribunal shall not be withdrawn except with the Tribunal’s leave and subject to such conditions with respect to expenses or otherwise as the Tribunal thinks fit.

Modifications etc. (not altering text)

8ASF14. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

9SSubject to Part IV, the Tribunal may dismiss a complaint against a solicitor [F15or an incorporated practice]—

(a)without requiring the solicitor [F15or the incorporated practice] to answer the allegations made against him [F15or, as the case may be, it] or without holding any enquiry if—

(i)they are of the opinion that the complaint discloses no prima facie case of professional misconduct on the part of the solicitor [F15or, of failure on the part of the incorporated practice to comply with any provision of this Act or of rules made under this Act]. . . ; or

(ii)the complainer fails to comply with any rule made under section 52; or

(b)without hearing parties if they are of the opinion upon consideration of the complaint and other documents that they disclose no case of professional misconduct on the part of the solicitor [F15or, of failure on the part of the incorporated practice to comply with any provision of this Act or of rules made under this Act]. . . .

Textual Amendments

Modifications etc. (not altering text)

10SThe Tribunal shall give notice of the complaint to the solicitor [F16or incorporated practice] against whom the complaint is made (“the respondent”) and shall enquire into the complaint, giving him [F16or, as the case may be, it] reasonable opportunity of making his [F16or, as the case may be, its] defence.

Textual Amendments

11SFor the purpose of enquiring into the complaint the Tribunal may administer oaths and receive affirmations; and the complainer and respondent shall each be entitled—

(a)to require the evidence of parties, witnesses and others interested, and

(b)to call for and recover such evidence and documents, and examine such witnesses, as they think proper, but no person shall be compelled to produce any document which he could not be compelled to produce in an action.

Modifications etc. (not altering text)

12SOn a petition by the complainer or the respondent to the Court, or to the sheriff having jurisdiction in any place in which the respondent carries on business, the Court or, as the case may be, the sheriff, on production of copies (certified by the Clerk of the Tribunal) of the complaint and answers, if lodged, together with a statement signed by the clerk specifying the place and date of the hearing of the complaint and certifying that notice to that effect has been given to the complainer and to the respondent, and on being satisfied that it would be proper to compel the giving of evidence by any witness or the production of documents by any haver, may—

(a)grant warrant for the citation of witnesses and havers to give evidence or to produce documents before the Tribunal, and for the issue of letters of second diligence against any witness or haver failing to appear after due citation;

(b)grant warrant for the recovery of documents; and

(c)appoint commissioners to take the evidence of witnesses, to examine havers, and to receive exhibits and productions.

DecisionsS

13SThe Tribunal shall set out in their decision—

(a)in the case of a complaint, the facts proved, and

(b)in the case of a conviction, particulars of the conviction and sentence.

and shall in the case of a complaint add to their decision a note stating the grounds on which the decision has been arrived at.

Modifications etc. (not altering text)

14SEvery decision on the Tribunal shall be signed by the chairman or other person presiding and [F17shall, subject to paragraph 14A, be published in full].

Textual Amendments

Modifications etc. (not altering text)

[F1814ASIn carrying out their duty under paragraph 14, the Tribunal may refrain from publishing any names, places or other facts the publication of which would, in their opinion, damage, or be likely to damage, the interests of persons other than—

(a)the solicitor against whom the complaint was made; or

(b)his partners; or

(c)his or their families,

but where they so refrain they shall publish their reasons for so doing.]

Textual Amendments

Modifications etc. (not altering text)

15SA copy of every decision by the Tribunal certified by the clerk shall be sent forthwith by the clerk to the respondent [F19, the complainer and, as the case may be, the person who made the complaint as respects which the appeal was made to the Tribunal] intimating the right of appeal available from that decision under this Act.

Textual Amendments

Modifications etc. (not altering text)

16SIn the case of a decision by the Tribunal—

(a)ordering a solicitor to be struck off the roll; or

(b)ordering a solicitor to be suspended from practice; or

(c)censuring a solicitor [F20or an incorporated practice]; or

(d)fining a solicitor [F20or an incorporated practice], [F21or

(e)order that the recognition under section 34(1A) of an incorporated practice be revoked][F22; or

(f)F23. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(g)F23. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(h)ordering that an investment business certificate issued to a solicitor, a firm of solicitors or an incorporated practice be—

(i)suspended; or

(ii)subject to such terms and conditions as they may direct; or

(iii)revoked,]

on the expiration of the days of appeal [F24(if any)] without an appeal being lodged or, where an appeal has been lodged, if and as soon as the appeal is withdrawn or a decision by the Court is given in terms of subparagraphs (a) to [F25(h)] or in the case of a decision of the Tribunal under section 53(6) [F26or (6B)] which has not been varied or quashed by the Court [F20or under section 53(6A) which has not been varied by the court], the clerk of the Tribunal shall immediately send to the Council a copy of the decision of the Tribunal certified by him and a copy of the decision by the Court in any appeal, and the Council shall forthwith give effect to any order as to striking the solicitor off the roll and to any terms and conditions directed by the Tribunal under section 53(5); and in any other case shall cause a note of the effect of the decision to be entered against the name of the solicitor in the roll [F27or as revoking the recognition under section 34(1A) of an incorporated practice].

Textual Amendments

17SThe Council shall forthwith intimate any order striking a solicitor off the roll or suspending a solicitor from practice to each sheriff clerk and F28 . . ., to the Principal Clerk of Session, and shall [F29, without prejudice to paragraph 14,] cause a notice of the operative part of the order to be published in the Edinburgh Gazette F30[ . . .]

Textual Amendments

18SThe file of orders under this Act striking solicitors off the roll, suspending solicitors from practice, or restoring persons to the roll shall be open for inspection at the office of the Society at any reasonable hour by any person without payment of any fee.

[F3118ASWithout prejudice to paragraph 18, the Council shall ensure that a copy of every decision published under paragraph 14 is open for inspection at the office of the Society during office hours by any person without payment of any fee.]

Textual Amendments

Modifications etc. (not altering text)

ExpensesS

19SSubject to the provisions of Part IV, the Tribunal may make in relation to any complaint against a solicitor such order as it thinks fit as to the payment by the complainer or by the respondent of the expenses incurred by the other party and by the Tribunal or a reasonable contribution towards those expenses.

Modifications etc. (not altering text)

20SOn the application of the person in whose favour an order for expenses under paragraph 19 is made and on production of a certificate by the clerk of the Tribunal that the days of appeal against the order have expired without an appeal being lodged or, where such an appeal has been lodged, that the appeal has been dismissed or withdrawn, the Court may grant warrant authorising that person to recover those expenses from the person against whom the order was made.

Modifications etc. (not altering text)

21SSuch warrant shall have effect for execution and for all other purposes as if it were an extracted decree of court awarded against the person against whom the order of the Tribunal was made.

Modifications etc. (not altering text)

22SThe expenses of the Tribunal so far as not otherwise defrayed shall be paid by the Society as part of the expenses of the Society.

Modifications etc. (not altering text)

[F32 AppealsS

Textual Amendments

23SThe foregoing provisions of Part II of this Schedule shall apply in relation to an appeal to the Tribunal under section [F3342ZA(9), (10), (11) or (12), section 42ZD(1)]F34. . . or section 53D(1) as they apply in relation to a complaint, but with the following modifications—

(a)for references to a complaint [F35(except in paragraph 14A)] there shall be substituted references to an appeal;

(b)F36. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(c)paragraphs F37. . . 9 and 10 shall not apply;

[F38(ca)in paragraph 11, for the words “complainer and respondent” there shall be substituted “ parties to the appeal ”;

(cb)in paragraph 12—

(i)for the words “the complainer or the respondent” there shall be substituted “ any party to the appeal ”;

(ii)for the word “respondent” where it second appears there shall be substituted “ solicitor, the firm of solicitors or, as the case may be, the incorporated practice ”;

(iii)for the words “complainer and to the respondent” there shall be substituted “ parties to the appeal ”;

(cc)in paragraph 14A(a), after the word “complaint” there shall be inserted “ (as respects which the appeal was made) ”;

(cd)in paragraph 15, for the words “respondent, the complainer and, as the case may be, the person who made the complaint as respects which the appeal was made to the Tribunal” there shall be substituted “ parties to the appeal and, if the person who made the complaint as respects which the appeal was made was not a party to the appeal, to that person ”;

(ce)in paragraph 16, after paragraph (e) there shall be inserted—

“(ea)under section 42ZD(2); or

(eb)under section 53ZB(1), (2), (3) or (4); or”;] and

[F39(d)in paragraph 19, for the words from the beginning to “respondent” there shall be substituted The Tribunal may make such order as it thinks fit as to the payment by any party to the appeal;]

Textual Amendments

24SSubject to Part IV, the Tribunal may dismiss an appeal without holding an inquiry if—

(a)they are of the opinion that the appeal is manifestly ill-founded; or

(b)the appellant fails to comply with any rule made under section 52.

25SThe Tribunal shall give notice of the appeal to the [F40solicitor, the firm of solicitors or, as the case may be, the incorporated practice, to the person who made the complaint in respect of which the appeal was made and, as the case may be,] to the Council and shall enquire into the matter, giving the appellant and the complainer reasonable opportunity to make representations to the Tribunal.]

Textual Amendments