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Courts and Legal Services Act 1990

Status:

This is the original version (as it was originally enacted).

Part IProcedure etc. in Civil Courts

Allocation and transfer of business

1Allocation of business between High Court and county courts

(1)The Lord Chancellor may by order make provision—

(a)conferring jurisdiction on the High Court in relation to proceedings in which county courts have jurisdiction;

(b)conferring jurisdiction on county courts in relation to proceedings in which the High Court has jurisdiction;

(c)allocating proceedings to the High Court or to county courts;

(d)specifying proceedings which may be commenced only in the High Court;

(e)specifying proceedings which may be commenced only in a county court;

(f)specifying proceedings which may be taken only in the High Court;

(g)specifying proceedings which may be taken only in a county court.

(2)Without prejudice to the generality of section 120(2), any such order may differentiate between categories of proceedings by reference to such criteria as the Lord Chancellor sees fit to specify in the order.

(3)The criteria so specified may, in particular, relate to—

(a)the value of an action (as defined by the order);

(b)the nature of the proceedings;

(c)the parties to the proceedings;

(d)the degree of complexity likely to be involved in any aspect of the proceedings; and

(e)the importance of any question likely to be raised by, or in the course of, the proceedings.

(4)An order under subsection (1)(b), (e) or (g) may specify one or more particular county courts in relation to the proceedings so specified.

(5)Any jurisdiction exercisable by a county court, under any provision made by virtue of subsection (4), shall be exercisable throughout England and Wales.

(6)Rules of court may provide for a matter—

(a)which is pending in one county court; and

(b)over which that court has jurisdiction under any provision made by virtue of subsection (4),

to be heard and determined wholly or partly in another county court which also has jurisdiction in that matter under any such provision.

(7)Any such order may—

(a)amend or repeal any provision falling within subsection (8) and relating to—

(i)the jurisdiction, practice or procedure of the Supreme Court; or

(ii)the jurisdiction, practice or procedure of any county court,

so far as the Lord Chancellor considers it to be necessary, or expedient, in consequence of any provision made by the order; or

(b)make such incidental or transitional provision as the Lord Chancellor considers necessary, or expedient, in consequence of any provision made by the order.

(8)A provision falls within this subsection if it is made by any enactment other than this Act or made under any enactment.

(9)Before making any such order the Lord Chancellor shall consult the Lord Chief Justice, the Master of the Rolls, the President of the Family Division, the Vice-Chancellor and the Senior Presiding Judge (appointed under section 72).

(10)No such order shall be made so as to confer jurisdiction on any county court to hear any application for judicial review.

(11)For the purposes of this section the commencement of proceedings may include the making of any application in anticipation of any proceedings or in the course of any proceedings.

(12)The Lord Chancellor shall, within one year of the coming into force of the first order made under this section, and annually thereafter, prepare and lay before both Houses of Parliament a report as to the business of the Supreme Court and county courts.

2Transfer of proceedings between courts

(1)The following section shall be substituted for section 40 of the [1984 c. 28.] County Courts Act 1984 (transfer of proceedings to county court)—

40Transfer of proceedings to county court

(1)Where the High Court is satisfied that any proceedings before it are required by any provision of a kind mentioned in subsection (8) to be in a county court it shall—

(a)order the transfer of the proceedings to a county court; or

(b)if the court is satisfied that the person bringing the proceedings knew, or ought to have known, of that requirement, order that they be struck out.

(2)Subject to any such provision, the High Court may order the transfer of any proceedings before it to a county court.

(3)An order under this section may be made either on the motion of the High Court itself or on the application of any party to the proceedings.

(4)Proceedings transferred under this section shall be transferred to such county court as the High Court considers appropriate, having taken into account the convenience of the parties and that of any other persons likely to be affected and the state of business in the courts concerned.

(5)The transfer of any proceedings under this section shall not affect any right of appeal from the order directing the transfer.

(6)Where proceedings for the enforcement of any judgment or order of the High Court are transferred under this section—

(a)the judgment or order may be enforced as if it were a judgment or order of a county court; and

(b)subject to subsection (7), it shall be treated as a judgment or order of that court for all purposes.

(7)Where proceedings for the enforcement of any judgment or order of the High Court are transferred under this section—

(a)the powers of any court to set aside, correct, vary or quash a judgment or order of the High Court, and the enactments relating to appeals from such a judgment or order, shall continue to apply; and

(b)the powers of any court to set aside, correct, vary or quash a judgment or order of a county court, and the enactments relating to appeals from such a judgment or order, shall not apply.

(8)The provisions referred to in subsection (1) are any made—

(a)under section 1 of the Courts and Legal Services Act 1990; or

(b)by or under any other enactment.

(9)This section does not apply to family proceedings within the meaning of Part V of the [1984 c. 42.] Matrimonial and Family Proceedings Act 1984.

(2)In section 41 of the [1984 c. 28.] County Courts Act 1984 (transfer to High Court by order of the High Court), the following subsection shall be added at the end—

(3)The power conferred by subsection (1) shall be exercised subject to any provision made—

(a)under section 1 of the Courts and Legal Services Act 1990; or

(b)by or under any other enactment.

(3)The following section shall be substituted for section 42 of the County Courts Act 1984 (transfer to High Court by order of a county court)—

42Transfer to High Court by order of a county court

(1)Where a county court is satisfied that any proceedings before it are required by any provision of a kind mentioned in subsection (7) to be in the High Court, it shall—

(a)order the transfer of the proceedings to the High Court; or

(b)if the court is satisfied that the person bringing the proceedings knew, or ought to have known, of that requirement, order that they be struck out.

(2)Subject to any such provision, a county court may order the transfer of any proceedings before it to the High Court.

(3)An order under this section may be made either on the motion of the court itself or on the application of any party to the proceedings.

(4)The transfer of any proceedings under this section shall not affect any right of appeal from the order directing the transfer.

(5)Where proceedings for the enforcement of any judgment or order of a county court are transferred under this section—

(a)the judgment or order may be enforced as if it were a judgment or order of the High Court; and

(b)subject to subsection (6), it shall be treated as a judgment or order of that court for all purposes.

(6)Where proceedings for the enforcement of any judgment or order of a county court are transferred under this section—

(a)the powers of any court to set aside, correct, vary or quash a judgment or order of a county court, and the enactments relating to appeals from such a judgment or order, shall continue to apply; and

(b)the powers of any court to set aside, correct, vary or quash a judgment or order of the High Court, and the enactments relating to appeals from such a judgment or order, shall not apply.

(7)The provisions referred to in subsection (1) are any made—

(a)under section 1 of the Courts and Legal Services Act 1990; or

(b)by or under any other enactment.

(8)This section does not apply to family proceedings within the meaning of Part V of the [1984 c. 42.] Matrimonial and Family Proceedings Act 1984.

(4)For section 75(3)(b) of the [1984 c. 28.] County Courts Act 1984 (power to make county court rules as to transfer of proceedings from one court to another) there shall be substituted—

(b)prescribing the circumstances in which proceedings may be transferred by decision of any judge, district judge or officer of the court from one court to another and the procedure consequent on any such transfer.

Remedies

3Remedies available in county courts

The following section shall be substituted for sections 38 and 39 of the County Courts Act 1984 (general ancillary jurisdiction and ancillary powers of judge)—

38Remedies available in county courts

(1)Subject to what follows, in any proceedings in a county court the court may make any order which could be made by the High Court if the proceedings were in the High Court.

(2)Any order made by a county court may be—

(a)absolute or conditional;

(b)final or interlocutory.

(3)A county court shall not have power—

(a)to order mandamus, certiorari or prohibition; or

(b)to make any order of a prescribed kind.

(4)Regulations under subsection (3)—

(a)may provide for any of their provisions not to apply in such circumstances or descriptions of case as may be specified in the regulations;

(b)may provide for the transfer of the proceedings to the High Court for the purpose of enabling an order of a kind prescribed under subsection (3) to be made;

(c)may make such provision with respect to matters of procedure as the Lord Chancellor considers expedient; and

(d)may make provision amending or repealing any provision made by or under any enactment, so far as may be necessary or expedient in consequence of the regulations.

(5)In this section “prescribed” means prescribed by regulations made by the Lord Chancellor under this section.

(6)The power to make regulations under this section shall be exercised by statutory instrument.

(7)No such statutory instrument shall be made unless a draft of the instrument has been approved by both Houses of Parliament.

Costs

4Costs

(1)The following section shall be substituted for section 51 of the [1981 c. 54.] Supreme Court Act 1981 (costs in civil division of Court of Appeal and High Court)—

51Costs in civil division of Court of Appeal, High Court and county courts

(1)Subject to the provisions of this or any other enactment and to rules of court, the costs of and incidental to all proceedings in—

(a)the civil division of the Court of Appeal;

(b)the High Court; and

(c)any county court,

shall be in the discretion of the court.

(2)Without prejudice to any general power to make rules of court, such rules may make provision for regulating matters relating to the costs of those proceedings including, in particular, prescribing scales of costs to be paid to legal or other representatives.

(3)The court shall have full power to determine by whom and to what extent the costs are to be paid.

(4)In subsections (1) and (2) “proceedings” includes the administration of estates and trusts.

(5)Nothing in subsection (1) shall alter the practice in any criminal cause, or in bankruptcy.

(6)In any proceedings mentioned in subsection (1), the court may disallow, or (as the case may be) order the legal or other representative concerned to meet, the whole of any wasted costs or such part of them as may be determined in accordance with rules of court.

(7)In subsection (6), “wasted costs” means any costs incurred by a party—

(a)as a result of any improper, unreasonable or negligent act or omission on the part of any legal or other representative or any employee of such a representative; or

(b)which, in the light of any such act or omission occurring after they were incurred, the court considers it is unreasonable to expect that party to pay.

(8)Where—

(a)a person has commenced proceedings in the High Court; but

(b)those proceedings should, in the opinion of the court, have been commenced in a county court in accordance with any provision made under section 1 of the Courts and Legal Services Act 1990 or by or under any other enactment,

the person responsible for determining the amount which is to be awarded to that person by way of costs shall have regard to those circumstances.

(9)Where, in complying with subsection (8), the responsible person reduces the amount which would otherwise be awarded to the person in question—

(a)the amount of that reduction shall not exceed 25 per cent; and

(b)on any taxation of the costs payable by that person to his legal representative, regard shall be had to the amount of the reduction.

(10)The Lord Chancellor may by order amend subsection (9)(a) by substituting, for the percentage for the time being mentioned there, a different percentage.

(11)Any such order shall be made by statutory instrument and may make such transitional or incidental provision as the Lord Chancellor considers expedient.

(12)No such statutory instrument shall be made unless a draft of the instrument has been approved by both Houses of Parliament.

(13)In this section “legal or other representative”, in relation to a party to proceedings, means any person exercising a right of audience or right to conduct litigation on his behalf.

(2)In section 52 of that Act (costs in Crown Court) the following subsection shall be inserted after subsection (2)—

(2A)Subsection (6) of section 51 applies in relation to any civil proceedings in the Crown Court as it applies in relation to any proceedings mentioned in subsection (1) of that section.

Evidence

5Witness statements

(1)Rules of court may make provision—

(a)requiring, in specified circumstances, any party to civil proceedings to serve on the other parties a written statement of the oral evidence which he intends to adduce on any issue of fact to be decided at the trial;

(b)enabling the court to direct any party to civil proceedings to serve such a statement on the other party; and

(c)prohibiting a party who fails to comply with such a requirement or direction from adducing oral evidence on the issue of fact to which it relates.

(2)Where a party to proceedings has refused to comply with such a requirement or direction, the fact that his refusal was on the ground that the required statement would have been a document which was privileged from disclosure shall not affect any prohibition imposed by virtue of subsection (1)(c).

(3)This section is not to be read as prejudicing in any way any other power to make rules of court.

6Evidence given in arbitrations on small claims

In section 64 of the [1984 c. 28.] County Courts Act 1984 (references to arbitration) the following subsections shall be inserted after subsection (2)—

(2A)County court rules may prescribe the procedures and rules of evidence to be followed on any reference under subsection (1) or (2).

(2B)Rules made under subsection (2A) may, in particular, make provision with respect to the manner of taking and questioning evidence.

Appeals

7Appeals to Court of Appeal

(1)Section 18 of the [1981 c. 54.] Supreme Court Act 1981 (restrictions on appeals to Court of Appeal) shall be amended as follows.

(2)In subsection (1), paragraphs (e), (f) and (h) (which deal with cases in which leave is required for an appeal) shall be omitted.

(3)After subsection (1) there shall be inserted the following subsections—

(1A)In any such class of case as may be prescribed by Rules of the Supreme Court, an appeal shall lie to the Court of Appeal only with the leave of the Court of Appeal or such court or tribunal as may be specified by the rules in relation to that class.

(1B)Any enactment which authorises leave to appeal to the Court of Appeal being given by a single judge, or by a court consisting of two judges, shall have effect subject to any provision which—

(a)is made by Rules of the Supreme Court; and

(b)in such classes of case as may be prescribed by the rules, requires leave to be given by such greater number of judges (not exceeding three) as may be so specified.

(4)In section 54(4) of the Act of 1981 (cases in which court is duly constituted when consisting of two judges), the following paragraph shall be inserted after paragraph (a)—

(aa)hearing and determining any application for leave to appeal;.

8Powers of Court of Appeal to award damages

(1)In this section “case” means any case where the Court of Appeal has power to order a new trial on the ground that damages awarded by a jury are excessive or inadequate.

(2)Rules of court may provide for the Court of Appeal, in such classes of case as may be specified in the rules, to have power, in place of ordering a new trial, to substitute for the sum awarded by the jury such sum as appears to the court to be proper.

(3)This section is not to be read as prejudicing in any way any other power to make rules of court.

Family proceedings

9Allocation of family proceedings which are within the jurisdiction of county courts

(1)The Lord Chancellor may, with the concurrence of the President of the Family Division, give directions that, in such circumstances as may be specified—

(a)any family proceedings which are within the jurisdiction of county courts; or

(b)any specified description of such proceedings,

shall be allocated to specified judges or to specified descriptions of judge.

(2)Any such direction shall have effect regardless of any rules of court.

(3)Where any directions have been given under this section allocating any proceedings to specified judges, the validity of anything done by a judge in, or in relation to, the proceedings shall not be called into question by reason only of the fact that he was not a specified judge.

(4)For the purposes of subsection (1) “county court” includes the principal registry of the Family Division of the High Court in so far as it is treated as a county court.

(5)In this section—

  • “family proceedings” has the same meaning as in the [1984 c. 42.] Matrimonial and Family Proceedings Act 1984 and also includes any other proceedings which are family proceedings for the purposes of the [1989 c. 41.] Children Act 1989;

  • “judge” means any person who—

    (a)

    is capable of sitting as a judge for a county court district;

    (b)

    is a district judge, an assistant district judge or a deputy district judge; or

    (c)

    is a district judge of the principal registry of the Family Division of the High Court; and

  • “specified” means specified in the directions.

10Family proceedings in magistrates' courts and related matters

(1)In this section “family proceedings” has the meaning given by section 65(1) of the [1980 c. 43.] Magistrates' Courts Act 1980.

(2)For the purpose of giving effect to any enactment mentioned in that section, rules made under section 144 of that Act may make, in relation to any family proceedings, any provision which—

(a)falls within subsection (2) of section 93 of the [1989 c. 41.] Children Act 1989 (rules of court); and

(b)may be made in relation to relevant proceedings under section 93 of the Act of 1989.

(3)In section 35 of the Justices of the [1979 c. 55.] Peace Act 1979 (composition of committee of magistrates for inner London area), in subsection (3)—

(a)in paragraph (b) for the words “three members of the juvenile court panel” there shall be substituted “one member of the juvenile court panel”; and

(b)after that paragraph there shall be inserted the following paragraph—

(bb)two members chosen, in such manner as may be prescribed by rules made for the purposes of this subsection, from any family panel or combined family panel for the inner London area.

(4)At the end of that section there shall be added the following subsection—

(7)No rules shall be made under subsection (3)(bb) above except on the advice of, or after consultation with, the rule committee established under section 144 of the Magistrates' Courts Act 1980.

(5)In section 37(1)(a) of that Act (justices' clerks) after the words “juvenile courts” there shall be inserted “and family proceedings courts”.

Miscellaneous

11Representation in certain county court cases

(1)The Lord Chancellor may by order provide that there shall be no restriction on the persons who may exercise rights of audience, or rights to conduct litigation, in relation to proceedings in a county court of such a kind as may be specified in the order.

(2)The power to make an order may only be exercised in relation to proceedings—

(a)for the recovery of amounts due under contracts for the supply of goods or services;

(b)for the enforcement of any judgment or order of any court or the recovery of any sum due under any such judgment or order;

(c)on any application under the [1974 c. 39.] Consumer Credit Act 1974;

(d)in relation to domestic premises; or

(e)referred to arbitration in accordance with county court rules made under section 64 of the [1984 c. 28.] County Courts Act 1984 (small claims),

or any category (determined by reference to such criteria as the Lord Chancellor considers appropriate) of such proceedings.

(3)Where an order is made under this section, section 20 of the [1974 c. 47.] Solicitors Act 1974 (unqualified person not to act as solicitor) shall cease to apply in relation to proceedings of the kind specified in the order.

(4)Where a county court is of the opinion that a person who would otherwise have a right of audience by virtue of an order under this section is behaving in an unruly manner in any proceedings, it may refuse to hear him in those proceedings.

(5)Where a court exercises its power under subsection (4), it shall specify the conduct which warranted its refusal.

(6)Where, in any proceedings in a county court—

(a)a person is exercising a right of audience or a right to conduct litigation;

(b)he would not be entitled to do so were it not for an order under this section; and

(c)the judge has reason to believe that (in those or any other proceedings in which he has exercised a right of audience or a right to conduct litigation) that person has intentionally misled the court, or otherwise demonstrated that he is unsuitable to exercise that right,

the judge may order that person’s disqualification from exercising any right of audience or any right to conduct litigation in proceedings in any county court.

(7)Where a judge makes an order under subsection (6) he shall give his reasons for so doing.

(8)Any person against whom such an order is made may appeal to the Court of Appeal.

(9)Any such order may be revoked at any time by any judge of a county court.

(10)Before making any order under this section the Lord Chancellor shall consult the Senior Presiding Judge.

(11)In this section “domestic premises” means any premises which are wholly or mainly used as a private dwelling.

12Penalty for failure to warn that hearing will not be attended

(1)This section applies where an appointment has been fixed for any hearing in the High Court or in any county court, but a party to the proceedings—

(a)has failed to appear; or

(b)has failed to give the court due notice of his desire to cancel the hearing or of his inability to appear at it.

(2)The court may summon the party concerned, or the person conducting the proceedings on his behalf, to explain his failure.

(3)Where a court—

(a)has summoned a person under subsection (2); and

(b)is not satisfied that he took reasonable steps to give due notice to the court of his desire to cancel the hearing or (as the case may be) of his inability to appear at it,

the court may declare that person to be in contravention of this section.

(4)On declaring a person to be in contravention of this section a court may impose on him a penalty equivalent to a fine not exceeding level 3 on the standard scale.

(5)Before deciding whether or not to impose any such penalty, the court shall consider the extent to which (if any) the person concerned will, or is likely to—

(a)suffer any financial loss (by way of a reduction of costs or otherwise); or

(b)be subject to any disciplinary action,

as a result of his failure.

(6)Sections 129 and 130 of the [1984 c. 28.] County Courts Act 1984 (enforcement, payment and application of fines) shall apply with respect to any penalty imposed by a county court under this section as they apply with respect to any fine imposed by any county court under that Act.

(7)In subsection (1) “due notice” means—

(a)such notice as is required by rules of court; or

(b)where there is no such requirement applicable to the circumstances of the case, such notice as the court considers reasonable.

13Administration orders

(1)For subsection (1) of section 112 of the County Courts Act 1984 (power to make administration orders) there shall be substituted—

(1)Where a debtor is unable to pay forthwith the amount of any debt owed by him, a county court may make an order providing for the administration of his estate.

(1A)The order may be made—

(a)on the application of the debtor (whether or not a judgment debt has been obtained against the debtor in respect of his debt, or any of his debts);

(b)on the application of any creditor under a judgment obtained against the debtor; or

(c)of the court’s own motion during the course of, or on the determination of, any enforcement or other proceedings.

(2)In that section the following subsection shall be inserted after subsection (4)—

(4A)Subsection (4) is subject to section 112A.

(3)Subsection (5) of that section shall be omitted.

(4)The following subsection shall be added at the end of that section—

(9)An administration order shall cease to have effect—

(a)at the end of the period of three years beginning with the date on which it is made; or

(b)on such earlier date as may be specified in the order.

(5)After that section there shall be inserted the following sections—

112AFurther powers of the court

(1)Where the court is satisfied—

(a)that it has power to make an administration order with respect to the debtor concerned; but

(b)that an order restricting enforcement would be a more satisfactory way of dealing with the case,

it may make such an order instead of making an administration order.

(2)Where an order restricting enforcement is made, no creditor specified in the order shall have any remedy against the person or property of the debtor in respect of any debt so specified, without the leave of the court.

(3)Subsection (4) applies to any creditor—

(a)who is named in the schedule to an administration order or in an order restricting enforcement; and

(b)who provides the debtor with mains gas, electricity or water for the debtor’s own domestic purposes.

(4)While the order has effect, the creditor may not stop providing the debtor with—

(a)mains gas, electricity or (as the case may be) water for the debtor’s own domestic purposes; or

(b)any associated service which it provides for its customers,

without leave of the court unless the reason for doing so relates to the non-payment of charges incurred by the debtor after the making of the order or is unconnected with non-payment by him of any charges.

(5)In this section “mains gas” means a supply of gas by a public gas supplier within the meaning of Part I of the [1986 c. 44.] Gas Act 1986.

(6)Rules of court may make provision with respect to the period for which any order restricting enforcement is to have effect and for the circumstances in which any such order may be revoked.

112BAdministration orders with composition provisions

(1)Where the court is satisfied—

(a)that it has power to make an administration order with respect to the debtor concerned; and

(b)that the addition of a composition provision would be a more satisfactory way of dealing with the case,

it may make an administration order subject to such a provision.

(2)Where, at any time while an administration order is in force—

(a)the debtor has not discharged the debts to which that order relates; and

(b)the court considers that he is unlikely to be able to discharge them,

the court may add a composition provision to that order.

(3)A composition provision shall specify an amount to which the debtor’s total indebtedness in respect of debts owed to creditors scheduled to the administration order is to be reduced.

(4)The amount of the debt owed to each of the creditors so scheduled shall be reduced in proportion to the reduction in his total indebtedness specified by the composition provision.

(5)Where a composition provision is added to an administration order after the order is made, section 113(a) shall apply as if the addition of the composition provision amounted to the making of a new administration order.

14Assessors

(1)Section 63 of the [1984 c. 28.] County Courts Act 1984 (assessors) shall be amended as follows.

(2)The following subsections shall be substituted for subsections (1) and (2)—

(1)In any proceedings a judge may, on the application of a party to the proceedings, summon to his assistance one or more persons—

(a)of skill and experience in the matter to which the proceedings relate; and

(b)who may be willing to sit with him and act as assessors.

(2)In any proceedings prescribed for the purposes of this subsection a judge may summon to his assistance one or more such persons even though no application has been made for him to do so.

(2A)In any proceedings prescribed for the purposes of this subsection a district judge may, on the application of a party to the proceedings, summon to his assistance one or more such persons.

(2B)In any proceedings prescribed for the purposes of this subsection a district judge may summon to his assistance one or more such persons even though no application has been made for him to do so.

(2C)The summons shall be made in such manner as may be prescribed.

(3)For subsection (4) there shall be substituted—

(4)In such cases as may be specified by order made by the Lord Chancellor with the consent of the Treasury, the remuneration of any assessor summoned under this section shall be paid, at such rate as may be so specified, out of money provided by Parliament.

(4A)Any power to make an order under subsection (4) shall be exercisable by statutory instrument subject to annulment by resolution of either House of Parliament.

15Enforcement

(1)In section 138 of the [1981 c. 54.] Supreme Court Act 1981 (effect of writs of execution against goods), the following subsection shall be inserted after subsection (3)—

(3A)Every sheriff or officer executing any writ of execution issued from the High Court against the goods of any person may by virtue of it seize—

(a)any of that person’s goods except—

(i)such tools, books, vehicles and other items of equipment as are necessary to that person for use personally by him in his employment, business or vocation;

(ii)such clothing, bedding, furniture, household equipment and provisions as are necessary for satisfying the basic domestic needs of that person and his family; and

(b)any money, banknotes, bills of exchange, promissory notes, bonds, specialties or securities for money belonging to that person.

(2)In section 89(1) of the [1984 c. 28.] County Courts Act 1984 (goods which may be seized under any warrant of execution), the following paragraph shall be substituted for paragraph (a)—

(a)any of that person’s goods except—

(i)such tools, books, vehicles and other items of equipment as are necessary to that person for use personally by him in his employment, business or vocation;

(ii)such clothing, bedding, furniture, household equipment and provisions as are necessary for satisfying the basic domestic needs of that person and his family;.

(3)Where a person takes steps to enforce a judgment or order of the High Court or a county court for the payment of any sum due, the costs of any previous attempt to enforce that judgment shall be recoverable to the same extent as if they had been incurred in the taking of those steps.

(4)Subsection (3) shall not apply in respect of any costs which the court considers were unreasonably incurred (whether because the earlier attempt was unreasonable in all the circumstances of the case or for any other reason).

16County court rules

(1)Section 75 of the County Courts Act 1984 (county court rules) is amended as follows.

(2)In subsection (3), the following paragraph shall be substituted for paragraph (d)—

(d)prescribing cases in which—

(i)any jurisdiction of a county court is to be exercised by a district judge of a county court or by some other officer of the court;

(ii)any functions of a judge of a county court are to be discharged by a district judge of a county court or some other officer of the court;

(iii)any functions of a district judge of a county court are to be discharged by some other officer of the court;

(iv)any such jurisdiction may be so exercised or any such functions may be so discharged; or.

(3)The following subsection shall be inserted after subsection (6)—

(6A)County court rules may—

(a)to any extent (and with or without modification) apply any rules of court, or other provision—

(i)made by or under any enactment; and

(ii)relating to the practice or procedure of any other court,

to the practice or procedure of county courts; and

(b)amend or repeal any statutory provision relating to the practice or procedure of county courts so far as may be necessary in consequence of any provision made by the rules.

Rules made by virtue of this subsection applying any provisions may apply them as amended from time to time.

Part IILegal Services

Introductory

17The statutory objective and the general principle

(1)The general objective of this Part is the development of legal services in England and Wales (and in particular the development of advocacy, litigation, conveyancing and probate services) by making provision for new or better ways of providing such services and a wider choice of persons providing them, while maintaining the proper and efficient administration of justice.

(2)In this Act that objective is referred to as “the statutory objective”.

(3)As a general principle the question whether a person should be granted a right of audience, or be granted a right to conduct litigation in relation to any court or proceedings, should be determined only by reference to—

(a)whether he is qualified in accordance with the educational and training requirements appropriate to the court or proceedings;

(b)whether he is a member of a professional or other body which—

(i)has rules of conduct (however described) governing the conduct of its members;

(ii)has an effective mechanism for enforcing the rules of conduct; and

(iii)is likely to enforce them;

(c)whether, in the case of a body whose members are or will be providing advocacy services, the rules of conduct make satisfactory provision in relation to the court or proceedings in question requiring any such member not to withhold those services—

(i)on the ground that the nature of the case is objectionable to him or to any section of the public;

(ii)on the ground that the conduct, opinions or beliefs of the prospective client are unacceptable to him or to any section of the public;

(iii)on any ground relating to the source of any financial support which may properly be given to the prospective client for the proceedings in question (for example, on the ground that such support will be available under the [1988 c. 34.] Legal Aid Act 1988); and

(d)whether the rules of conduct are, in relation to the court or proceedings, appropriate in the interests of the proper and efficient administration of justice.

(4)In this Act that principle is referred to as “the general principle”.

(5)Rules of conduct which allow a member of the body in question to withhold his services if there are reasonable grounds for him to consider that, having regard to—

(a)the circumstances of the case;

(b)the nature of his practice; or

(c)his experience and standing,

he is not being offered a proper fee, are not on that account to be taken as being incompatible with the general principle.

18The statutory duty

(1)Where any person is called upon to exercise any functions which are conferred by this Part with respect to—

(a)the granting of rights of audience;

(b)the granting of rights to conduct litigation;

(c)the approval of qualification regulations or rules of conduct; or

(d)the giving of advice with respect to any matter mentioned in paragraphs (a) to (c),

it shall be the duty of that person to exercise those functions as soon as is reasonably practicable and consistent with the provisions of this Part.

(2)A person exercising any such functions shall act in accordance with the general principle and, subject to that, shall—

(a)so far as it is possible to do so in the circumstances of the case, act to further the statutory objective; and

(b)not act in any way which would be incompatible with the statutory objective.

The Advisory Committee

19The Lord Chancellor’s Advisory Committee on Legal Education and Conduct

(1)There shall be a body corporate to be known as the Lord Chancellor’s Advisory Committee on Legal Education and Conduct (in this Act referred to as “the Advisory Committee”).

(2)The Advisory Committee shall consist of a Chairman, and 16 other members, appointed by the Lord Chancellor.

(3)The Chairman shall be a Lord of Appeal in Ordinary or a judge of the Supreme Court of England and Wales.

(4)Of the 16 other members of the Advisory Committee—

(a)one shall be a judge who is or has been a Circuit judge;

(b)2 shall be practising barristers appointed after consultation with the General Council of the Bar;

(c)2 shall be practising solicitors appointed after consultation with the Law Society;

(d)2 shall be persons with experience in the teaching of law, appointed after consultation with such institutions concerned with the teaching of law and such persons representing teachers of law as the Lord Chancellor considers appropriate; and

(e)9 shall be persons other than—

(i)salaried judges of any court;

(ii)practising barristers;

(iii)practising solicitors; or

(iv)teachers of law,

appointed after consultation with such organisations as the Lord Chancellor considers appropriate.

(5)In appointing any member who falls within subsection (4)(e), the Lord Chancellor shall have regard to the desirability of appointing persons who have experience in, or knowledge of—

(a)the provision of legal services;

(b)civil or criminal proceedings and the working of the courts;

(c)the maintenance of professional standards among barristers or solicitors;

(d)social conditions;

(e)consumer affairs;

(f)commercial affairs; or

(g)the maintenance of professional standards in professions other than the legal profession.

(6)The Advisory Committee shall not be regarded as the servant or agent of the Crown, or as enjoying any status, immunity or privilege of the Crown.

(7)The Advisory Committee’s property shall not be regarded as property of, or held on behalf of, the Crown.

(8)In this section “practising” means—

(a)in relation to a barrister, one who is in independent practice or is employed wholly or mainly for the purpose of providing legal services to his employer;

(b)in relation to a solicitor, one who has a practising certificate in force or is employed wholly or mainly for the purpose of providing legal services to his employer.

(9)The provisions of Schedule 1 shall have effect with respect to the constitution, procedure and powers of the Advisory Committee and with respect to connected matters.

20Duties of the Advisory Committee

(1)The Advisory Committee shall have the general duty of assisting in the maintenance and development of standards in the education, training and conduct of those offering legal services.

(2)The Advisory Committee shall carry out that general duty by performing the functions conferred on it by Schedule 2.

(3)In discharging its functions the Advisory Committee shall—

(a)where it considers it appropriate, have regard to the practices and procedures of other member States in relation to the provision of legal services;

(b)have regard to the desirability of equality of opportunity between persons seeking to practise any profession, pursue any career or take up any employment, in connection with the provision of legal services.

The Legal Services Ombudsman

21The Legal Services Ombudsman

(1)The Lord Chancellor shall appoint a person for the purpose of conducting investigations under this Act.

(2)The person appointed shall be known as “the Legal Services Ombudsman”.

(3)The Legal Services Ombudsman—

(a)shall be appointed for a period of not more than three years; and

(b)shall hold and vacate office in accordance with the terms of his appointment.

(4)At the end of his term of appointment the Legal Services Ombudsman shall be eligible for re-appointment.

(5)The Legal Services Ombudsman shall not be an authorised advocate, authorised litigator, licensed conveyancer, authorised practitioner or notary.

(6)Schedule 3 shall have effect with respect to the Legal Services Ombudsman.

22Ombudsman’s functions

(1)Subject to the provisions of this Act, the Legal Services Ombudsman may investigate any allegation which is properly made to him and which relates to the manner in which a complaint made to a professional body with respect to—

(a)a person who is or was an authorised advocate, authorised litigator, licensed conveyancer, registered foreign lawyer, recognised body or duly certificated notary public and a member of that professional body; or

(b)any employee of such a person,

has been dealt with by that professional body.

(2)If the Ombudsman investigates an allegation he may investigate the matter to which the complaint relates.

(3)If the Ombudsman begins to investigate an allegation he may at any time discontinue his investigation.

(4)If the Ombudsman decides not to investigate an allegation which he would be entitled to investigate, or discontinues an investigation which he has begun, he shall notify the following of the reason for his decision—

(a)the person making the allegation;

(b)any person with respect to whom the complaint was made; and

(c)the professional body concerned.

(5)The Ombudsman shall not investigate an allegation while—

(a)the complaint is being investigated by the professional body concerned;

(b)an appeal is pending against the determination of the complaint by that body; or

(c)the time within which such an appeal may be brought by any person has not expired.

(6)Subsection (5) does not apply if—

(a)the allegation is that the professional body—

(i)has acted unreasonably in failing to start an investigation into the complaint; or

(ii)having started such an investigation, has failed to complete it within a reasonable time; or

(b)the Ombudsman is satisfied that, even though the complaint is being investigated by the professional body concerned, an investigation by him is justified.

(7)The Ombudsman shall not investigate—

(a)any issue which is being or has been determined by—

(i)a court;

(ii)the Solicitors Disciplinary Tribunal;

(iii)the Disciplinary Tribunal of the Council of the Inns of Court; or

(iv)any tribunal specified in an order made by the Lord Chancellor for the purposes of this subsection; or

(b)any allegation relating to a complaint against any person which concerns an aspect of his conduct in relation to which he has immunity from any action in negligence or contract.

(8)The Ombudsman may—

(a)if so requested by the Scottish ombudsman, investigate an allegation relating to a complaint made to a professional body in Scotland; and

(b)arrange for the Scottish ombudsman to investigate an allegation relating to a complaint made to a professional body in England and Wales.

(9)For the purposes of this section, an allegation is properly made if it is made—

(a)in writing; and

(b)by any person affected by what is alleged in relation to the complaint concerned or, where that person has died or is unable to act for himself, by his personal representative or by any relative or other representative of his.

(10)The Ombudsman may investigate an allegation even though—

(a)the complaint relates to a matter which arose before the passing of this Act; or

(b)the person making the complaint may be entitled to bring proceedings in any court with respect to the matter complained of.

(11)In this section—

  • “professional body” means any body which, or the holder of any office who—

    (a)

    has disciplinary powers in relation to any person mentioned in subsection (1)(a); and

    (b)

    is specified in an order made by the Lord Chancellor for the purposes of this subsection;

  • “recognised body” means any body recognised under section 9 of the [1985 c. 61.] Administration of Justice Act 1985 (incorporated practices) or under section 32 of that Act (incorporated bodies carrying on business of provision of conveyancing services); and

  • “the Scottish ombudsman” means any person appointed to carry out functions in relation to the provision of legal services in Scotland which are similar to those of the Ombudsman.

23Recommendations

(1)Where the Legal Services Ombudsman has completed an investigation under this Act he shall send a written report of his conclusions to—

(a)the person making the allegation;

(b)the person with respect to whom the complaint was made;

(c)any other person with respect to whom the Ombudsman makes a recommendation under subsection (2); and

(d)the professional body concerned.

(2)In reporting his conclusions, the Ombudsman may recommend—

(a)that the complaint be reconsidered by the professional body concerned;

(b)that the professional body concerned or any other relevant disciplinary body consider exercising its powers in relation to—

(i)the person with respect to whom the complaint was made; or

(ii)any person who, at the material time, was connected with him;

(c)that—

(i)the person with respect to whom the complaint was made; or

(ii)any person who, at the material time, was connected with him,

pay compensation of an amount specified by the Ombudsman to the complainant for loss suffered by him, or inconvenience or distress caused to him, as a result of the matter complained of;

(d)that the professional body concerned pay compensation of an amount specified by the Ombudsman to the person making the complaint for loss suffered by him, or inconvenience or distress caused to him, as a result of the way in which the complaint was handled by that body;

(e)that the person or professional body to which a recommendation under paragraph (c) or (d) applies make a separate payment to the person making the allegation of an amount specified by the Ombudsman by way of reimbursement of the cost, or part of the cost, of making the allegation.

(3)More than one such recommendation may be included in a report under this section.

(4)Where the Ombudsman includes any recommendation in a report under this section, the report shall give his reasons for making the recommendation.

(5)For the purposes of the law of defamation the publication of any report of the Ombudsman under this section and any publicity given under subsection (9) shall be absolutely privileged.

(6)It shall be the duty of any person to whom a report is sent by the Ombudsman under subsection (1)(b) or (c) to have regard to the conclusions and recommendations set out in the report, so far as they concern that person.

(7)Where—

(a)a report is sent to any person under this section; and

(b)the report includes a recommendation directed at him,

he shall, before the end of the period of three months beginning with the date on which the report was sent, notify the Ombudsman of the action which he has taken, or proposes to take, to comply with the recommendation.

(8)Any person who fails to comply (whether wholly or in part) with a recommendation under subsection (2) shall publicise that failure, and the reasons for it, in such manner as the Ombudsman may specify.

(9)Where a person is required by subsection (8) to publicise any failure, the Ombudsman may take such steps as he considers reasonable to publicise that failure if—

(a)the period mentioned in subsection (7) has expired and that person has not complied with subsection (8); or

(b)the Ombudsman has reasonable cause for believing that that person will not comply with subsection (8) before the end of that period.

(10)Any reasonable expenses incurred by the Ombudsman under subsection (9) may be recovered by him (as a civil debt) from the person whose failure he has publicised.

(11)For the purposes of this section, the person with respect to whom a complaint is made (“the first person”) and another person (“the second person”) are connected if—

(a)the second person—

(i)employs the first person; and

(ii)is an authorised advocate, authorised litigator, duly certificated notary public, licensed conveyancer or partnership;

(b)they are both partners in the same partnership; or

(c)the second person is a recognised body which employs the first person or of which the first person is an officer.

24Advisory functions

(1)The Legal Services Ombudsman may make recommendations to any professional body about the arrangements which that body has in force for the investigation of complaints made with respect to persons who are subject to that body’s control.

(2)It shall be the duty of any professional body to whom a recommendation is made under this section to have regard to it.

(3)The Ombudsman may refer to the Advisory Committee any matters which come to his notice in the exercise of his functions and which appear to him to be relevant to the Committee’s functions.

25Procedure and offences

(1)Where the Legal Services Ombudsman is conducting an investigation under this Act he may require any person to furnish such information or produce such documents as he considers relevant to the investigation.

(2)For the purposes of any such investigation, the Ombudsman shall have the same powers as the High Court in respect of the attendance and examination of witnesses (including the administration of oaths or affirmations and the examination of witnesses abroad) and in respect of the production of documents.

(3)No person shall be compelled, by virtue of subsection (2), to give evidence or produce any document which he could not be compelled to give or produce in civil proceedings before the High Court.

(4)If any person is in contempt of the Ombudsman in relation to any investigation conducted under section 22, the Ombudsman may certify that contempt to the High Court.

(5)For the purposes of this section a person is in contempt of the Ombudsman if he acts, or fails to act, in any way which would constitute contempt if the investigation being conducted by the Ombudsman were civil proceedings in the High Court.

(6)Where a person’s contempt is certified under subsection (4), the High Court may enquire into the matter.

(7)Where the High Court conducts an inquiry under subsection (6) it may, after—

(a)hearing any witness produced against, or on behalf of, the person concerned; and

(b)considering any statement offered in his defence,

deal with him in any manner that would be available to it had he been in contempt of the High Court.

26Extension of Ombudsman’s remit

(1)The Lord Chancellor may by regulation extend the jurisdiction of the Legal Services Ombudsman by providing for the provisions of sections 21 to 25 to have effect, with such modifications (if any) as he thinks fit, in relation to the investigation by the Ombudsman of allegations—

(a)which relate to complaints of a prescribed kind concerned with the provision of probate services; and

(b)which he would not otherwise be entitled to investigate.

(2)Without prejudice to the generality of the power given to the Lord Chancellor by subsection (1), the regulations may make provision for the investigation only of allegations relating to complaints—

(a)made to prescribed bodies; or

(b)with respect to prescribed categories of person.

Rights of audience and rights to conduct litigation

27Rights of audience

(1)The question whether a person has a right of audience before a court, or in relation to any proceedings, shall be determined solely in accordance with the provisions of this Part.

(2)A person shall have a right of audience before a court in relation to any proceedings only in the following cases—

(a)where—

(i)he has a right of audience before that court in relation to those proceedings granted by the appropriate authorised body; and

(ii)that body’s qualification regulations and rules of conduct have been approved for the purposes of this section, in relation to the granting of that right;

(b)where paragraph (a) does not apply but he has a right of audience before that court in relation to those proceedings granted by or under any enactment;

(c)where paragraph (a) does not apply but he has a right of audience granted by that court in relation to those proceedings;

(d)where he is a party to those proceedings and would have had a right of audience, in his capacity as such a party, if this Act had not been passed; or

(e)where—

(i)he is employed (whether wholly or in part), or is otherwise engaged, to assist in the conduct of litigation and is doing so under instructions given (either generally or in relation to the proceedings) by a qualified litigator; and

(ii)the proceedings are being heard in chambers in the High Court or a county court and are not reserved family proceedings.

(3)No person shall have a right of audience as a barrister by virtue of subsection (2)(a) above unless he has been called to the Bar by one of the Inns of Court and has not been disbarred or temporarily suspended from practice by order of an Inn of Court.

(4)Nothing in this section affects the power of any court in any proceedings to refuse to hear a person (for reasons which apply to him as an individual) who would otherwise have a right of audience before the court in relation to those proceedings.

(5)Where a court refuses to hear a person as mentioned in subsection (4) it shall give its reasons for refusing.

(6)Nothing in this section affects any provision made by or under any enactment which prevents a person from exercising a right of audience which he would otherwise be entitled to exercise.

(7)Where, immediately before the commencement of this section, no restriction was placed on the persons entitled to exercise any right of audience in relation to any particular court or in relation to particular proceedings, nothing in this section shall be taken to place any such restriction on any person.

(8)Where—

(a)immediately before the commencement of this section; or

(b)by virtue of any provision made by or under an enactment passed subsequently,

a court does not permit the appearance of advocates, or permits the appearance of advocates only with leave, no person shall have a right of audience before that court, in relation to any proceedings, solely by virtue of the provisions of this section.

(9)In this section—

  • “advocate”, in relation to any proceedings, means any person exercising a right of audience as a representative of, or on behalf of, any party to the proceedings;

  • “authorised body” means—

    (a)

    the General Council of the Bar;

    (b)

    the Law Society; and

    (c)

    any professional or other body which has been designated by Order in Council as an authorised body for the purposes of this section;

  • “appropriate authorised body”, in relation to any person claiming to be entitled to any right of audience by virtue of subsection (2)(a), means the authorised body—

    (a)

    granting that right; and

    (b)

    of which that person is a member;

  • “family proceedings” has the same meaning as in the [1984 c. 42.] Matrimonial and Family Proceedings Act 1984 and also includes any other proceedings which are family proceedings for the purposes of the Children Act 1989;

  • “qualification regulations”, in relation to an authorised body, means regulations (however they may be described) as to the education and training which members of that body must receive in order to be entitled to any right of audience granted by it;

  • “qualified litigator” means—

    (i)

    any practising solicitor ( “practising” having the same meaning as in section 19(8)(b));

    (ii)

    any recognised body; and

    (iii)

    any person who is exempt from the requirement to hold a practising certificate by virtue of section 88 of the Solicitors Act 1974 (saving for solicitors to public departments and the City of London);

  • “recognised body” means any body recognised under section 9 of the [1985 c. 61.] Administration of Justice Act 1985 (incorporated practices);

  • “reserved family proceedings” means such category of family proceedings as the Lord Chancellor may, after consulting the President of the Law Society and with the concurrence of the President of the Family Division, by order prescribe; and

  • “rules of conduct”, in relation to an authorised body, means rules (however they may be described) as to the conduct required of members of that body in exercising any right of audience granted by it.

(10)Section 20 of the [1974 c. 47.] Solicitors Act 1974 (unqualified person not to act as a solicitor) section 22 of that Act (unqualified person not to prepare certain documents etc) and section 25 of that Act (costs where an unqualified person acts as a solicitor), shall not apply in relation to any act done in the exercise of a right of audience.

28Rights to conduct litigation

(1)The question whether a person has a right to conduct litigation, or any category of litigation, shall be determined solely in accordance with the provisions of this Part.

(2)A person shall have a right to conduct litigation in relation to any proceedings only in the following cases—

(a)where—

(i)he has a right to conduct litigation in relation to those proceedings granted by the appropriate authorised body; and

(ii)that body’s qualification regulations and rules of conduct have been approved for the purposes of this section, in relation to the granting of that right;

(b)where paragraph (a) does not apply but he has a right to conduct litigation in relation to those proceedings granted by or under any enactment;

(c)where paragraph (a) does not apply but he has a right to conduct litigation granted by that court in relation to those proceedings;

(d)where he is a party to those proceedings and would have had a right to conduct the litigation, in his capacity as such a party, if this Act had not been passed.

(3)Nothing in this section affects any provision made by or under any enactment which prevents a person from exercising a right to conduct litigation which he would otherwise be entitled to exercise.

(4)Where, immediately before the commencement of this section, no restriction was placed on the persons entitled to exercise any right to conduct litigation in relation to a particular court, or in relation to particular proceedings, nothing in this section shall be taken to place any such restriction on any person.

(5)In this section—

  • “authorised body” means—

    (a)

    the Law Society; and

    (b)

    any professional or other body which has been designated by Order in Council as an authorised body for the purposes of this section;

  • “appropriate authorised body”, in relation to any person claiming to be entitled to any right to conduct litigation by virtue of subsection (2)(a), means the authorised body—

    (a)

    granting that right; and

    (b)

    of which that person is a member;

  • “qualification regulations”, in relation to an authorised body, means regulations (however they may be described) as to the education and training which members of that body must receive in order to be entitled to any right to conduct litigation granted by it; and

  • “rules of conduct”, in relation to any authorised body, means rules (however they may be described) as to the conduct required of members of that body in exercising any right to conduct litigation granted by it.

(6)Section 20 of the [1974 c. 47.] Solicitors Act 1974 (unqualified person not to act as a solicitor), section 22 of that Act (unqualified person not to prepare certain documents etc.) and section 25 of that Act (costs where unqualified person acts as a solicitor) shall not apply in relation to any act done in the exercise of a right to conduct litigation.

29Authorised bodies: designation and approval of regulations and rules

(1)In order to be designated as an authorised body for the purposes of section 27 or 28 a professional or other body must—

(a)apply to the Lord Chancellor under this section, specifying the purposes for which it is seeking authorisation; and

(b)comply with the provisions of Part I of Schedule 4 as to the approval of qualification regulations and rules of conduct and other matters.

(2)Where—

(a)an application has been made to the Lord Chancellor under this section;

(b)the requirements of Part I of Schedule 4 have been satisfied; and

(c)the application has not failed,

the Lord Chancellor may recommend to Her Majesty that an Order in Council be made designating that body as an authorised body for the purposes of section 27 or (as the case may be) section 28.

(3)Where an authorised body alters—

(a)any of its qualification regulations; or

(b)any of its rules of conduct,

those alterations shall not have effect, so far as they relate to any right of audience or any right to conduct litigation granted by that body, unless they have been approved under Part II of Schedule 4.

(4)Where an authorised body makes any alteration to the rights of audience or rights to conduct litigation granted by it (including the grant of a new right), the qualification regulations and rules of conduct of that body must be approved under Part II of Schedule 4.

(5)Where the Lord Chancellor or any of the designated judges considers that it might be appropriate for an authorised body to alter—

(a)any of its qualification regulations or rules of conduct; or

(b)any right of audience, or right to conduct litigation, which it is entitled to grant,

he may advise that body accordingly.

(6)Where—

(a)the Lord Chancellor gives any advice under subsection (5), he shall inform the designated judges; and

(b)where a designated judge gives any such advice, he shall inform the Lord Chancellor and the other designated judges.

(7)Where an authorised body has been given any such advice it shall, in the light of that advice, consider whether to make the recommended alteration.

30Revocation of authorised body’s designation

(1)Where an Order in Council has been made under section 29 designating a body as an authorised body, the Lord Chancellor may recommend to Her Majesty that an Order in Council be made revoking that designation.

(2)An Order under this section may only be made if—

(a)the authorised body has made a written request to the Lord Chancellor asking for it to be made;

(b)that body has agreed (in writing) to its being made; or

(c)the Lord Chancellor is satisfied that the circumstances at the time when he is considering the question are such that, had that body then been applying to become an authorised body, its application would have failed.

(3)The provisions of Part III of Schedule 4 shall have effect with respect to the revocation of designations under this section.

(4)An Order made under this section may make such transitional and incidental provision as the Lord Chancellor considers necessary or expedient.

(5)Where such an Order is made, any right of audience or right to conduct litigation granted to any person by the body with respect to whom the Order is made shall cease to have effect, subject to any transitional provision made by the Order.

(6)Where such an Order is made, the Lord Chancellor shall—

(a)give the body with respect to whom the Order is made written notice of the making of the Order;

(b)take such steps as are reasonably practicable to bring the making of the Order to the attention of the members of that body; and

(c)publish notice of the making of the Order in such manner as he considers appropriate for bringing it to the attention of persons (other than those members) who, in his opinion, are likely to be affected by the Order.

31The General Council of the Bar

(1)On the coming into force of section 27—

(a)barristers shall be deemed to have been granted by the General Council of the Bar the rights of audience exercisable by barristers (in their capacity as such) immediately before 7th December 1989; and

(b)the General Council of the Bar shall be deemed to have in force qualification regulations and rules of conduct which have been properly approved for the purposes of section 27.

(2)Those qualification regulations and rules of conduct shall be deemed to have been approved only—

(a)in relation to the rights of audience mentioned in subsection (1)(a); and

(b)so far as they relate to those rights of audience.

(3)If any particular provision of those regulations or rules would not have been approved for the purposes of section 27 had it been submitted for approval under Part I of Schedule 4 it (but no other such provision) shall not be deemed to have been approved.

(4)In the event of any question arising as to whether any provision is deemed to have been approved, subsection (5) shall apply in relation to that question if the Lord Chancellor so directs.

(5)Where a direction is given under subsection (4)—

(a)the Lord Chancellor shall seek the advice of the Advisory Committee and the Director;

(b)the Lord Chancellor and each of the designated judges shall consider, in the light of that advice, whether the provision in question is deemed to have been so approved; and

(c)that provision shall not be deemed to have been so approved unless the Lord Chancellor and each of the designated judges are satisfied that it has been.

(6)In the event of any question arising as to whether any provision of the qualification regulations or rules of conduct of the General Council of the Bar requires to be approved by virtue of section 29(3) or (4), subsection (7) shall apply in relation to that question if the Lord Chancellor so directs.

(7)Where a direction is given under subsection (6)—

(a)the Lord Chancellor shall seek the advice of the Advisory Committee and the Director;

(b)the Lord Chancellor and each of the designated judges shall consider, in the light of that advice, whether the provision in question requires approval; and

(c)it shall require approval unless the Lord Chancellor and each of the designated judges are satisfied that it does not require approval.

(8)Where, by virtue of subsection (5)(c), any provision is not deemed to have been approved—

(a)it shall cease to have effect, so far as it relates to any right of audience deemed to have been granted by the General Council of the Bar; and

(b)the regulations and rules which are deemed, by virtue of subsection (1)(b), to have been properly approved shall be taken not to include that provision.

(9)Nothing in this section shall affect the validity of anything done in reliance on any provision of regulations or rules at any time before—

(a)it is determined in accordance with subsection (5)(c) that that provision is not deemed to have been approved; or

(b)it is determined in accordance with subsection (7)(c) that that provision requires approval.

32The Law Society: rights of audience

(1)On the coming into force of section 27—

(a)solicitors shall be deemed to have been granted by the Law Society the rights of audience exercisable by solicitors (in their capacity as such) immediately before 7th December 1989; and

(b)the Law Society shall be deemed to have in force qualification regulations and rules of conduct which have been properly approved for the purposes of section 27.

(2)Those qualification regulations and rules of conduct shall be deemed to have been approved only—

(a)in relation to the rights of audience mentioned in subsection (1)(a); and

(b)so far as they relate to those rights of audience.

(3)If any particular provision of those regulations or rules would not have been approved for the purposes of section 27 had it been submitted for approval under Part I of Schedule 4 it (but no other such provision) shall not be deemed to have been approved.

(4)In the event of any question arising as to whether any provision is deemed to have been approved, subsection (5) shall apply in relation to that question if the Lord Chancellor so directs.

(5)Where a direction is given under subsection (4)—

(a)the Lord Chancellor shall seek the advice of the Advisory Committee and the Director;

(b)the Lord Chancellor and each of the designated judges shall consider, in the light of that advice, whether the provision in question is deemed to have been so approved; and

(c)that provision shall not be deemed to have been so approved unless the Lord Chancellor and each of the designated judges are satisfied that it has been.

(6)In the event of any question arising as to whether any provision of the qualification regulations or rules of conduct of the Law Society requires to be approved by virtue of section 29(3) or (4), subsection (7) shall apply in relation to that question if the Lord Chancellor so directs.

(7)Where a direction is given under subsection (6)—

(a)the Lord Chancellor shall seek the advice of the Advisory Committee and the Director;

(b)the Lord Chancellor and each of the designated judges shall consider, in the light of that advice, whether the provision in question requires approval; and

(c)it shall require approval unless the Lord Chancellor and each of the designated judges are satisfied that it does not require approval.

(8)Where, by virtue of subsection (5)(c), any provision is not deemed to have been approved—

(a)it shall cease to have effect, so far as it relates to any right of audience deemed to have been granted by the Law Society; and

(b)the regulations and rules which are deemed, by virtue of subsection (1)(b) to have been properly approved shall be taken not to include that provision.

(9)Nothing in this section shall affect the validity of anything done in reliance on any provision of regulations or rules at any time before—

(a)it is determined in accordance with subsection (5)(c) that that provision is not deemed to have been approved; or

(b)it is determined in accordance with subsection (7)(c) that that provision requires approval.

33The Law Society: rights to conduct litigation

(1)On the coming into force of section 28—

(a)solicitors shall be deemed to have been granted by the Law Society the rights to conduct litigation exercisable by solicitors (in their capacity as such) immediately before 7th December 1989; and

(b)the Law Society shall be deemed to have in force qualification regulations and rules of conduct which have been properly approved for the purposes of section 28.

(2)Those qualification regulations and rules of conduct shall be deemed to have been approved only—

(a)in relation to the rights to conduct litigation mentioned in subsection (1)(a); and

(b)so far as they relate to those rights to conduct litigation.

(3)If any particular provision of those regulations or rules would not have been approved for the purposes of section 28 had it been submitted for approval under Part I of Schedule 4 it (but no other such provision) shall not be deemed to have been approved.

(4)In the event of any question arising as to whether any provision is deemed to have been approved, subsection (5) shall apply in relation to that question if the Lord Chancellor so directs.

(5)Where a direction is given under subsection (4)—

(a)the Lord Chancellor shall seek the advice of the Advisory Committee and the Director;

(b)the Lord Chancellor and each of the designated judges shall consider, in the light of that advice, whether the provision in question is deemed to have been so approved; and

(c)that provision shall not be deemed to have been so approved unless the Lord Chancellor and each of the designated judges are satisfied that it has been.

(6)In the event of any question arising as to whether any provision requires to be approved by virtue of section 29(3) or (4), subsection (7) shall apply in relation to that question if the Lord Chancellor so directs.

(7)Where a direction is given under subsection (6)—

(a)the Lord Chancellor shall seek the advice of the Advisory Committee and the Director;

(b)the Lord Chancellor and each of the designated judges shall consider, in the light of that advice, whether the provision in question requires approval; and

(c)it shall require approval unless the Lord Chancellor and each of the designated judges are satisfied that it does not require approval.

(8)Where, by virtue of subsection (5)(c), any provision is not deemed to have been approved—

(a)it shall cease to have effect, so far as it relates to any right to conduct litigation deemed to have been granted by the Law Society; and

(b)the regulations and rules which are deemed, by virtue of subsection (1)(b), to have been properly approved shall be taken not to include that provision.

(9)Nothing in this section shall affect the validity of anything done in reliance on any provision of regulations or rules at any time before—

(a)it is determined in accordance with subsection (5)(c) that that provision is not deemed to have been approved; or

(b)it is determined in accordance with subsection (7)(c) that that provision requires approval.

Extension of conveyancing services

34The Authorised Conveyancing Practitioners Board

(1)There shall be a body corporate to be known as the Authorised Conveyancing Practitioners Board (in this Act referred to as “the Board”).

(2)The Board shall consist of a Chairman and at least four, and at most eight, other members appointed by the Lord Chancellor.

(3)In appointing any member, the Lord Chancellor shall have regard to the desirability of—

(a)appointing persons who have experience in, or knowledge of—

(i)the provision of conveyancing services;

(ii)financial arrangements associated with conveyancing;

(iii)consumer affairs; or

(iv)commercial affairs; and

(b)securing, so far as is reasonably practicable, that the composition of the Board is such as to provide a proper balance between the interests of authorised practitioners and those who make use of their services.

(4)The Board shall not be regarded as the servant or agent of the Crown, or as enjoying any status, immunity or privilege of the Crown.

(5)The Board’s property shall not be regarded as property of, or held on behalf of, the Crown.

(6)Neither the Board nor any of its staff or members shall be liable in damages for anything done or omitted in the discharge or purported discharge of any of its functions.

(7)Subsection (6) does not apply where the act or omission is shown to have been in bad faith.

(8)The provisions of Schedule 5 shall have effect with respect to the constitution, procedure and powers of the Board and with respect to connected matters.

35Functions of the Board and financial provisions

(1)It shall be the general duty of the Board—

(a)to seek to develop competition in the provision of conveyancing services;

(b)to supervise the activities of authorised practitioners in connection with the provision by them of conveyancing services.

(2)In discharging the duty imposed on it by subsection (1)(b) the Board shall, in particular, make arrangements designed to enable it to ascertain whether authorised practitioners are complying with regulations made by the Lord Chancellor under section 40.

(3)The Board shall have the specific functions conferred on it by or under this Act.

(4)Where the Lord Chancellor refers to the Board any matter connected with—

(a)the provision of conveyancing services by authorised practitioners; or

(b)the organisation or practice of authorised practitioners,

it shall be the duty of the Board to consider the matter and to report its conclusions to the Lord Chancellor.

(5)Any report made under subsection (4) may be published by the Lord Chancellor in such manner as he thinks fit.

(6)A copy of any guidance for authorised practitioners issued by the Board shall be sent by the Board to the Lord Chancellor.

(7)Where it appears to the Lord Chancellor that there are grounds for believing that the Board has failed in any way to carry out any of its duties under this Act, he may give such directions to the Board as he considers appropriate.

(8)The Board may make rules providing for the expenses which it incurs in exercising its functions, after taking into account any grants made to it under subsection (10) and any fees received by it, to be met by the imposition on each authorised practitioner of an annual levy calculated, and payable, in accordance with the provisions of the rules.

(9)Any amount due to the Board from an authorised practitioner in respect of any levy payable by that practitioner under the rules shall be recoverable by the Board as a civil debt.

(10)The Lord Chancellor may, with the approval of the Treasury, make grants to the Board towards meeting the expenses incurred, or to be incurred, by it in the discharge of its functions.

(11)Any such grant may be made subject to such terms and conditions (including conditions as to repayment) as the Lord Chancellor sees fit to impose.

(12)Any sums required by the Lord Chancellor for making grants under subsection (10) shall be paid out of money provided by Parliament.

(13)Any sums repaid by the Board in accordance with conditions imposed under subsection (11) shall be paid into the Consolidated Fund.

36Provision of conveyancing services by authorised practitioners

(1)The restriction imposed by section 22 of the [1974 c. 47.] Solicitors Act 1974 (which has the effect of limiting the categories of person who may provide conveyancing services) shall not apply to any act done in connection with the provision of conveyancing services—

(a)by an individual at any time when he is an authorised practitioner;

(b)by a body corporate at any time when it is an authorised practitioner;

(c)by an officer or employee of a body corporate at any time when that body is an authorised practitioner; or

(d)by a member or employee of an unincorporated association at any time when that association is an authorised practitioner.

(2)In subsection (1)(c) and (d) “officer”, “employee” and “member” mean respectively an officer, employee or member who (at the time of the act in question) satisfies, and is acting in accordance with, regulations under section 40.

(3)Any rule (however described) which is imposed by a professional or other body and which would, but for this subsection, result in restricting or preventing a qualified person from—

(a)providing any conveyancing services as an authorised practitioner;

(b)acting as an employee of an authorised practitioner in connection with the provision of any such services; or

(c)acting on behalf of an authorised practitioner in connection with the provision of any such services,

shall be of no effect unless it is given partial effect by subsection (4)(a) or full effect by subsection (4)(b).

(4)If the result mentioned in subsection (3) is not the main or only result of the rule in question, subsection (3)—

(a)shall apply only to the extent that the rule would have that result; but

(b)shall not apply if the rule is reasonably required as a rule of general application for the purpose of regulating the conduct or practice of all members of that body.

(5)Nothing in this section prevents a professional or other body from imposing a rule that any member of that body who is acting as mentioned in subsection (3)(c) may do so only on terms which allow him to give independent legal or financial advice to the person for whom conveyancing services are being provided by the authorised practitioner concerned.

(6)In this section “qualified person” means—

(a)any barrister, solicitor, duly certificated notary public or licensed conveyancer;

(b)any body recognised under section 9 of the [1985 c. 61.] Administration of Justice Act 1985 (incorporated practices); or

(c)any body recognised under section 32 of the Act of 1985 (incorporated bodies carrying on business of provision of conveyancing services).

37Authorisation of practitioners

(1)On an application duly made by a person who proposes to provide conveyancing services, the Board shall authorise that person to provide those services, if—

(a)it is satisfied that the applicant’s business is, and is likely to continue to be, carried on by fit and proper persons or, in the case of an application by an individual, that he is a fit and proper person; and

(b)it is of the opinion that the applicant will comply with the requirements mentioned in subsection (7).

(2)Any such authorisation shall be given in writing and shall take effect on such date as the Board may specify.

(3)A person so authorised is referred to in this Act as “an authorised practitioner”.

(4)An application for authorisation must be made in accordance with rules made by the Board, with the approval of the Lord Chancellor, for the purposes of this section.

(5)On making any such application, the applicant shall pay to the Board such fee as may be specified in the rules.

(6)The rules may, in particular, make provision—

(a)as to the form in which any application must be made; and

(b)for the furnishing by applicants of information required by the Board in connection with their applications.

(7)The requirements are that the applicant—

(a)complies with any rules made by the Board and any regulations made under section 40, so far as applicable;

(b)ensures that satisfactory arrangements are at all times in force for covering adequately the risk of any claim made against the applicant in connection with the provision of conveyancing services provided by the applicant, however arising;

(c)maintains satisfactory procedures for—

(i)dealing with complaints made about any aspect of conveyancing services provided by the applicant; and

(ii)the payment of compensation;

(d)has in force satisfactory arrangements to protect the applicant’s clients in the event of the applicant ceasing to provide conveyancing services;

(e)is a member of the Conveyancing Ombudsman Scheme.

(8)Where the applicant is—

(a)an institution which is authorised by the Bank of England, under Part I of the [1987 c. 22.] Banking Act 1987, to carry on a deposit taking business;

(b)a building society which is authorised by the Building Societies Commission, under section 9 of the [1986 c. 53.] Building Societies Act 1986, to raise money from its members; or

(c)an insurance company which is authorised under section 3 or 4 of the [1982 c. 50.] Insurance Companies Act 1982,

the Board shall have regard to the fact that it is so authorised in determining whether the Board is satisfied as mentioned in subsection (1)(a).

(9)The Board shall maintain a register of authorised practitioners which shall be open to inspection, at all reasonable times, without charge.

(10)The Lord Chancellor may by order amend the provisions of subsection (7) by imposing any additional requirement or by varying or removing any requirement.

38Refusal of approval and imposition of conditions

(1)Where the Board proposes to refuse an application for authorisation under section 37 it shall give the applicant written notice of its proposal.

(2)The notice shall give the Board’s reasons for proposing to refuse the application and inform the applicant of the effect of subsection (7).

(3)Any authorisation under section 37 may be given subject to the applicant complying with conditions imposed by the Board with a view to the protection of clients.

(4)Any such conditions—

(a)may be imposed by the Board either when granting the application for authorisation or at any later time; and

(b)may be expressed to apply in relation to a specified part of the authorised practitioner’s business (for example, to a specified branch or office).

(5)Before imposing any such conditions, the Board shall give written notice of its intention to do so to the applicant or (as the case may be) authorised practitioner concerned.

(6)The notice shall inform the person to whom it is given of the effect of subsection (7).

(7)Where a notice is served under subsection (1) or (5), it shall be the duty of the Board to consider any representations duly made by the person on whom the notice is served before determining whether to grant or refuse the application or to impose any of the proposed conditions.

(8)For the purposes of subsection (7), representations are duly made if—

(a)they are made to the Board before the end of the period of 28 days beginning with the day on which the notice is served; and

(b)unless the Board directs otherwise in a particular case, are in writing.

(9)Where the Board—

(a)proposes to impose a condition under this section on an authorised practitioner; and

(b)is satisfied that the circumstances of the case are exceptional and justify the condition taking effect immediately,

it may disregard subsections (5) to (8) when imposing the condition.

(10)If the Board refuses the application, or imposes any of the proposed conditions, it shall give the applicant notice in writing and, in the case of a refusal, the notice shall give the Board’s reasons for refusing.

(11)A notice under subsection (10) shall inform the applicant of his rights of appeal under section 41.

(12)An authorised practitioner who fails to comply with a condition imposed on him under this section shall not thereby cease to be such a practitioner; but in such a case the Board may—

(a)impose additional, or substituted, conditions on him; or

(b)revoke or suspend his authorisation in accordance with rules made under section 39(1).

39Revocation and suspension of authorisation

(1)The Board shall, with the approval of the Lord Chancellor, make rules providing for the circumstances in which the authorisation of a person under section 37 may be revoked or suspended by the Board.

(2)Where any such authorisation is revoked or suspended in accordance with the rules, the person concerned shall cease to be an authorised person for the purposes of this Act.

(3)The rules may, in particular—

(a)provide for any suspension to be indefinite or for a period specified by the Board;

(b)provide for the total, or partial, lifting of any suspension in specified circumstances;

(c)provide for the publication by the Board of notice of any suspension or revocation under the rules;

(d)make transitional provision for dealing with any work in hand at the time when a revocation or suspension takes effect.

(4)Where the Board—

(a)revokes or suspends any authorisation in accordance with the rules; or

(b)lifts a suspension so imposed,

it shall take such steps as are reasonably practicable to inform any body which has any regulatory functions in relation to that authorised practitioner of the action which it has taken.

40Regulations about competence and conduct etc. of authorised practitioners

(1)The Lord Chancellor may by regulation make such provision as he considers expedient with a view to securing—

(a)that authorised practitioners maintain satisfactory standards of competence and conduct in connection with the provision by them of conveyancing services;

(b)that in providing such services (and in particular in fixing their charges) they act in a manner which is consistent with the maintenance of fair competition between authorised practitioners and others providing conveyancing services; and

(c)that the interests of their clients are satisfactorily protected.

(2)The regulations may, in particular, make provision—

(a)designed to—

(i)provide for the efficient transaction of business;

(ii)avoid unnecessary delays;

(b)as to the supervision, by persons with such qualifications as may be prescribed, of such descriptions of work as may be prescribed;

(c)requiring authorised practitioners to arrange, so far as is reasonably practicable, for each transaction to be under the overall control of one individual;

(d)designed to avoid conflicts of interest;

(e)as to the terms and conditions on which authorised practitioners may provide conveyancing services;

(f)as to the information to be given to prospective clients, the manner in which or person by whom it is to be given and the circumstances in which it is to be given free of charge;

(g)as to the handling by authorised practitioners of their clients' money;

(h)as to the disclosure of and accounting for commissions.

41The Conveyancing Appeal Tribunals

(1)There shall be tribunals to be known as “Conveyancing Appeal Tribunals” which shall hear appeals under this section.

(2)Any person who is aggrieved by any decision of the Board to—

(a)refuse an application for authorisation under section 37;

(b)suspend any authorisation given under section 37;

(c)refuse to lift such a suspension;

(d)revoke any such authorisation; or

(e)impose any condition under section 38,

may appeal to a Conveyancing Appeal Tribunal.

(3)No such decision of the Board shall have effect until—

(a)any appeal against it which is duly made under this section is disposed of; or

(b)the period within which an appeal may be made has expired without an appeal having been made.

(4)Subsection (3) shall not apply where—

(a)the Board is satisfied that the circumstances of the case are exceptional and justify the decision in question taking effect immediately, or earlier than would otherwise be the case; and

(b)notifies the person concerned to that effect.

(5)In this Part a Conveyancing Appeal Tribunal is referred to as “a Tribunal”.

(6)A Tribunal shall consist of a Chairman and two other members appointed by the Lord Chancellor.

(7)To be qualified for appointment as Chairman of a Tribunal, a person must have a 7 year general qualification (within the meaning of section 71).

(8)Of the other two members of a Tribunal—

(a)one must have experience in, or knowledge of, the provision of conveyancing services; and

(b)the other must have experience in, or knowledge of, accountancy.

(9)The Lord Chancellor shall appoint a person to be Secretary to the Tribunals.

(10)On receipt of notice of an appeal which is being made to a Tribunal, the Secretary shall inform the Lord Chancellor and the Lord Chancellor shall appoint a Tribunal to hear that appeal.

(11)Schedule 6 shall have effect with respect to the Tribunals.

42Appeals from Tribunals on points of law

(1)At the instance of a person aggrieved by a decision of a Tribunal, or at the instance of the Board, an appeal shall lie to the High Court on any question of law arising from that decision.

(2)If, on an appeal to the High Court under this section, the court is of the opinion that the decision appealed against was wrong in law, it shall remit the matter for re-hearing and determination by the Tribunal concerned or, where it is not reasonably practicable for the case to be re-heard by that Tribunal, by another Tribunal.

(3)No appeal to the Court of Appeal shall be brought from a decision of the High Court under this section except with the leave of the Court of Appeal or of the judge from whose decision the appeal is to lie.

43The Conveyancing Ombudsman Scheme

(1)The Board shall, with the approval of the Lord Chancellor, make rules establishing a scheme (to be known as “the Conveyancing Ombudsman Scheme”) for the investigation, by a person appointed by the Board with the approval of the Lord Chancellor, of complaints against authorised practitioners in connection with the provision by them of conveyancing services.

(2)The person so appointed shall be known as “the Conveyancing Ombudsman”.

(3)No person shall be appointed to be the Conveyancing Ombudsman if he is, or has at any time within the period of three years ending with his appointment been—

(a)involved in any capacity in the provision by an authorised practitioner of conveyancing services; or

(b)a member of the Board.

(4)Schedule 7 shall have effect for the purpose of supplementing this section.

(5)A person may be appointed to be both a member of the staff of the Board and a member of the staff of the Conveyancing Ombudsman.

(6)The Conveyancing Ombudsman may not make any charge for the use of his services.

(7)His expenses under the Scheme shall be defrayed by the Board and shall rank as expenses of the Board for the purposes of section 35.

(8)The Conveyancing Ombudsman shall submit to the Board an annual report on the discharge of his functions.

(9)The Board shall, when submitting its own annual report to the Lord Chancellor, send him a copy of the Conveyancing Ombudsman’s annual report.

(10)When laying the Board’s annual report before Parliament, the Lord Chancellor shall also lay before Parliament a copy of the Conveyancing Ombudsman’s report.

(11)It shall be the duty of the Conveyancing Ombudsman to inform the Board of any evidence which comes to his attention suggesting that there has been, or may have been, a breach of any of the rules made under subsection (1) or of the regulations made under section 40.

(12)The Board may—

(a)pay such remuneration and travelling and other allowances to the Conveyancing Ombudsman as may be determined by the Board;

(b)pay such pension, allowances or gratuities to or in respect of the Conveyancing Ombudsman as may be so determined; and

(c)if the Conveyancing Ombudsman ceases to hold office and it appears to the Board that there are special circumstances which make it right that he should receive compensation, pay him such sum as may be so determined.

44Compensation scheme

(1)The Board may, with the approval of the Lord Chancellor, make rules establishing a scheme for compensating persons who have suffered loss in consequence of dishonesty on the part of authorised practitioners or their employees.

(2)The rules may, in particular—

(a)provide for the establishment and functioning of an independent body (whether corporate or unincorporate) to administer the scheme and, subject to the rules, determine and regulate any matter relating to its operation;

(b)establish a fund out of which compensation is to be paid;

(c)provide for the levying of contributions from authorised practitioners and otherwise for financing the scheme and for the payment of contributions and other money into the fund;

(d)specify the terms and conditions on which, and the extent to which, compensation is to be payable and any circumstances in which the right to compensation is to be excluded or modified; and

(e)contain incidental and supplementary provisions.

45Advisory and supervisory functions of Director General of Fair Trading

(1)Where the Lord Chancellor is considering whether—

(a)to approve any rules which the Board is proposing to make; or

(b)to make any regulations under section 40,

he shall first send a copy of the proposed rules or regulations to the Director.

(2)The Director shall consider whether the proposed rules or regulations would have, or would be likely to have, the effect of restricting, distorting or preventing competition to any significant extent.

(3)When the Director has completed his consideration he shall give such advice to the Lord Chancellor as he thinks fit.

(4)The Director shall keep under review the rules made by the Board and the regulations made by the Lord Chancellor under section 40.

(5)If the Director is of the opinion that any such rule or regulation has, or is likely to have, the effect of restricting, distorting or preventing competition to any significant extent, he shall report his opinion to the Lord Chancellor.

(6)Any report under subsection (5) shall state what, in the Director’s opinion, is the effect of the rule or regulation or its likely effect.

(7)The Director may publish any advice given by him under subsection (3) or report made by him under subsection (5).

(8)The Director shall, so far as practicable, exclude from anything published under subsection (7) any matter—

(a)which relates to the affairs of a particular person; and

(b)the publication of which would, or might in the Director’s opinion, seriously and prejudicially affect the interests of that person.

46Investigatory powers of Director

(1)For the purpose of investigating any matter under section 45, the Director may by notice in writing—

(a)require any person to produce to him or to any person appointed by him for the purpose, at a time and place specified in the notice, any documents which are specified or described in the notice and which—

(i)are in that person’s custody or under that person’s control; and

(ii)relate to any matter relevant to the investigation; or

(b)require any person carrying on any business to furnish to him (within such time and in such manner and form as the notice may specify) such information as may be specified or described in the notice.

(2)A person shall not be required under this section to produce any document or disclose any information which he would be entitled to refuse to produce or disclose on grounds of legal professional privilege in proceedings in the High Court.

(3)Subsections (6) to (8) of section 85 of the [1973 c. 41.] Fair Trading Act 1973 (enforcement provisions) shall apply in relation to a notice under this section as they apply in relation to a notice under subsection (1) of that section.

47Power to obtain information and require production of documents

(1)The Board may serve a notice on any—

(a)authorised practitioner;

(b)officer or employee of an authorised practitioner;

(c)qualified person who is acting, or has acted, on behalf of an authorised practitioner; or

(d)officer or employee of such a qualified person,

requiring him to provide the Board (within such time and at such place as may be specified in the notice) with such document, or documents of such a description, or with such information, as may be so specified.

(2)The Board shall not exercise its powers under subsection (1) except for the purpose of obtaining such information as it thinks reasonably necessary in connection with the discharge of any of its functions.

(3)The Board’s power under this section to require a person to produce any document includes power—

(a)if the document is produced, to take copies of it or extracts from it and to require that person, or any other person who is or was a director or officer of, or is or was at any time employed by or acting as an employee of, the practitioner concerned, to provide an explanation of the document;

(b)if the document is not produced, to require the person who was required to produce it to state, to the best of his knowledge and belief, where it is.

(4)The Board’s power under this section may be exercised in relation to a person who falls within subsection (1)(c) or (d) only in relation to the provision of conveyancing services on behalf of the authorised practitioner concerned.

(5)Any person who, without reasonable excuse, fails to comply with a requirement imposed on him under this section shall be guilty of an offence and liable on summary conviction to a fine not exceeding level five on the standard scale.

(6)Any person who, in response to any requirement imposed on him under this section, knowingly or recklessly provides any information or explanation or makes any statement which is false or misleading in a material particular shall be liable—

(a)on summary conviction, to a fine not exceeding the statutory maximum; and

(b)on conviction on indictment, to imprisonment for a term not exceeding two years or to a fine or to both.

(7)Where any person from whom production of a document is required under this section claims a lien on the document, the production of it shall be without prejudice to the lien.

(8)Nothing in this section shall compel—

(a)the production of a document containing a communication which is privileged from disclosure in legal proceedings in England and Wales; or

(b)the furnishing of information contained in such a communication.

(9)In this section “document” includes any information recorded in any form and, in relation to information recorded otherwise than in legible form, references to its production include references to producing a copy in legible form.

48Investigations on behalf of the Board

(1)If it appears to the Board desirable to do so—

(a)in connection with the discharge of any of its functions; and

(b)in the interests of customers or potential customers of an authorised practitioner,

it may appoint one or more competent persons (“the investigators”) to investigate and report to it on the state and conduct of the affairs of that authorised practitioner.

(2)The Board shall give written notice of any such appointment to the authorised practitioner concerned.

(3)If the investigators think it necessary for the purposes of their investigation, they may also investigate the affairs of any qualified person who is acting, or has acted, on behalf of the authorised practitioner (so far as concerns the provision of conveyancing services on behalf of the authorised practitioner), after giving the qualified person written notice of their investigation.

(4)Any investigation under this section of the affairs of—

(a)any institution which is authorised by the Bank of England under Part I of the [1987 c. 22.] Banking Act 1987, to carry on a deposit-taking business;

(b)any building society which is authorised to raise money from its members by the Building Societies Commission under section 9 of the [1986 c. 53.] Building Societies Act 1986; or

(c)any insurance company which is authorised under section 3 or 4 of the [1982 c. 50.] Insurance Companies Act 1982,

shall be subject to such direction (if any) given by the Lord Chancellor with a view to limiting the scope of the investigation to matters concerned with the provision of conveyancing services.

(5)Any such direction may be general or be given with respect to a particular investigation.

(6)It shall be the duty of every person whose affairs are being investigated and of any officer or employee of his—

(a)to produce to the investigators, within such time and at such place as they may reasonably require, all documents relating to the provision of conveyancing services by the practitioner which are in that person’s custody or power;

(b)to provide the investigators, within such time as they may require, with such information as they may reasonably require with respect to the provision of those services; and

(c)to give the investigators such assistance in connection with the investigation as he is reasonably able to give.

(7)The investigators may take copies of, or extracts from, any document produced to them under subsection (6).

(8)This section applies in relation to a former authorised practitioner or former qualified person as it applies in relation to an authorised practitioner or qualified person.

(9)Any person who, without reasonable excuse, fails to produce any document, or provide any information, which it is his duty to produce under subsection (6) shall be guilty of an offence and liable on summary conviction to a fine not exceeding level five on the standard scale.

(10)Any person who, in response to any requirement imposed on him under this section, knowingly or recklessly provides any information or explanation or makes any statement which is false or misleading in a material particular shall be liable—

(a)on summary conviction, to a fine not exceeding the statutory maximum; and

(b)on conviction on indictment, to imprisonment for a term not exceeding two years or to a fine or to both.

(11)Nothing in this section shall compel the production by an authorised practitioner or qualified person acting on his behalf of a document containing a privileged communication made by him or to him in that capacity.

49Restrictions on disclosure of information

(1)Subject to section 50, restricted information which relates to the business or other affairs of any person shall not be disclosed—

(a)by the Board or any member of its staff;

(b)by any person appointed as an investigator under section 48 or any officer or servant of his; or

(c)by any person obtaining it directly or indirectly from a person mentioned in paragraph (a) or (b),

without the consent of the person from whom it was obtained and, if they are different, the person to whom it relates.

(2)Subject to subsection (3), information is restricted information for the purposes of this section if it was obtained (whether or not in response to any requirement that it be provided) for the purposes of, or in the discharge of functions under, any provision made by or under this Act.

(3)Information shall not be treated as restricted information for the purposes of this section if it has been made available to the public by virtue of being disclosed in any circumstances in which, or for any purpose for which, disclosure is not prevented by this section.

(4)Any person who contravenes this section shall be guilty of an offence and liable—

(a)on conviction on indictment, to imprisonment for a term not exceeding two years or to a fine or to both;

(b)on summary conviction, to a fine not exceeding the statutory maximum.

50Exceptions from restrictions on disclosure

(1)Section 49 shall not prevent the disclosure of information—

(a)with a view to the institution, or otherwise for the purposes, of any criminal proceedings;

(b)with a view to the institution, or otherwise for the purposes, of any civil proceedings arising under or by virtue of this Act;

(c)in a summary or collection of information framed in such a way as not to enable the identity of any person to whom the information relates to be ascertained; or

(d)in pursuance of any Community obligation.

(2)Section 49 shall not prevent the disclosure of information for the purpose of enabling or assisting—

(a)the Lord Chancellor to discharge any of his functions under this Act with respect to the Board or authorised practitioners;

(b)the Board to discharge any of its functions;

(c)the Law Society, the General Council of the Bar, the Council for Licensed Conveyancers or the Faculty Office of the Archbishop of Canterbury to discharge any of its functions;

(d)the Building Societies Commission to discharge any of its functions;

(e)the competent authority or a designated agency, recognised investment exchange, recognised clearing house, recognised self-regulating organisation or recognised professional body (all those expressions having the meaning given in the Financial Services Act 1986) to discharge any of its functions;

(f)the Bank of England to discharge any of its functions;

(g)the Secretary of State to discharge any of his functions under this Act, the [1986 c. 60.] Financial Services Act 1986 or any enactment relating to competition, companies, insurance or insolvency;

(h)any inspector appointed by the Secretary of State under any of the enactments mentioned in paragraph (g) to discharge any of his functions;

(i)an official receiver to discharge any of his functions under any enactment relating to insolvency;

(j)a body which is a recognised professional body under section 391 of the [1986 c. 45.] Insolvency Act 1986 to discharge any of its functions as such a body;

(k)the Insurance Brokers Registration Council to discharge any of its functions under the [1977 c. 46.] Insurance Brokers (Registration) Act 1977;

(l)any person appointed or authorised to discharge any powers under section 94, 106 or 177 of the Financial Services Act 1986 to exercise any of those powers;

(m)the Director to discharge any of his functions under—

(i)this Act;

(ii)the [1973 c. 41.] Fair Trading Act 1973 (other than Part II);

(iii)the [1974 c. 39.] Consumer Credit Act 1974;

(iv)the [1976 c. 34.] Restrictive Trade Practices Act 1976;

(v)the [1979 c. 38.] Estate Agents Act 1979;

(vi)the [1980 c. 21.] Competition Act 1980;

(vii)the Financial Services Act 1986;

(viii)the [S.I. 1988/915.] Control of Misleading Advertisements Regulations 1988;

(n)the Monopolies and Mergers Commission to discharge any of its functions under the Fair Trading Act 1973 and the Competition Act 1980;

(o)the Scottish Conveyancing and Executry Services Board to discharge any of its functions;

(p)an authority in a country or territory outside the United Kingdom to discharge any functions corresponding to—

(i)the functions of the Board, the Building Societies Commission or the Bank of England; or

(ii)those functions of the Secretary of State mentioned in paragraph (g);

(q)the Insolvency Practitioners Tribunal to discharge any of its functions under the Insolvency Act 1986;

(r)the Financial Services Tribunal to discharge any of its functions under the Financial Services Act 1986.

(3)Subject to subsection (4), section 49 shall not prevent the disclosure of information for the purpose of enabling or assisting any public or other authority for the time being designated for the purposes of this section by an order made by the Lord Chancellor to discharge any functions which are specified in the order.

(4)An order under subsection (3) designating an authority for the purposes of this section may—

(a)impose conditions subject to which the disclosure of information is permitted by subsection (3); and

(b)otherwise restrict the circumstances in which disclosure is permitted.

(5)Where information has been disclosed by one person (“the first person”) to another, by virtue of subsection (2), section 49 shall not prevent that other person from disclosing that information to any person to whom it could have been disclosed by the first person by virtue of subsection (2).

(6)The Lord Chancellor may by order modify the application of any provision of this section so as—

(a)to prevent the disclosure of information by virtue of that provision; or

(b)to restrict the extent to which disclosure of information is permitted by virtue of that provision.

51Board’s intervention powers

(1)The powers conferred on the Board by this section may be exercised if it appears to the Board to be desirable to do so for the purpose of protecting the interests of the clients, or prospective clients, of an authorised practitioner.

(2)The Board may, in particular, exercise any such power where it appears to it—

(a)that an authorised practitioner who is an individual is no longer fit to provide conveyancing services;

(b)that any person carrying on the business of an authorised practitioner is not fit to provide such services; or

(c)that an authorised practitioner has failed, or is likely to fail, to comply with any regulation made under section 40.

(3)The Board may direct the authorised practitioner not to dispose of, or otherwise deal with, except in accordance with the terms of the direction—

(a)any assets belonging to any client of the authorised practitioner and held by or under the control of the authorised practitioner in connection with his business as an authorised practitioner; or

(b)any assets of such a kind which are specified in the direction.

(4)The Board may direct the authorised practitioner to transfer to the Board, or to such persons (“the trustees”) as may be specified in the direction—

(a)all assets belonging to any client of that practitioner and held by or under his control in connection with his business as an authorised practitioner; or

(b)any assets of such a kind which are specified in the direction.

(5)Any assets which have been transferred as a result of a direction given under subsection (4) shall be held by the Board, or by the trustees, on trust for the client concerned.

(6)The trustees may deal with any assets which have been transferred to them only in accordance with directions given to them by the Board.

(7)In this section—

  • “assets” includes any sum of money held (in whatever form and whether or not in any bank, building society or other account) by the authorised practitioner or on behalf of the client concerned and any instrument or other document belonging to that client; and

  • “authorised practitioner” includes a person whose authorisation has been suspended or revoked under section 39.

(8)Any direction under this section—

(a)must be given in writing;

(b)must state the reason why it is being given;

(c)shall take effect on such date as may be specified in the direction (which may be the date on which it is served on the authorised practitioner);

(d)may be varied or revoked by a further direction given by the Board.

52Board’s intervention powers: supplemental provisions

(1)In this section—

  • “the intervention powers” means the powers given to the Board by section 51; and

  • “a direction” means a direction given under that section.

(2)An authorised practitioner to whom a direction is given may appeal against it to a Conveyancing Appeal Tribunal.

(3)Any authorised practitioner to whom a direction is given shall comply with it as soon as it takes effect (and whether or not he proposes to appeal).

(4)If, on an application made to the High Court by the Board, the court is satisfied—

(a)that an authorised practitioner has failed, within a reasonable time, to comply with any direction given to it; or

(b)that there is a reasonable likelihood that an authorised practitioner will so fail,

it may make an order requiring the authorised practitioner, and any other person whom the court considers it appropriate to subject to its order, to take such steps as the court may direct with a view to securing compliance with the direction.

(5)Where an authorised practitioner is—

(a)an authorised person under the Financial Services Act 1986; or

(b)an appointed representative (as defined in section 44(2) of that Act) of such an authorised person,

the intervention powers may be exercised only after consultation with the body by reference to which the authorised person acquired its authorisation under that Act.

(6)Where an authorised practitioner is—

(a)an institution which is authorised by the Bank of England under Part I of the Banking Act 1987 to carry on a deposit-taking business; or

(b)an appointed representative of such an institution,

the intervention powers may be exercised only after consultation with the Bank of England.

(7)Where an authorised practitioner is—

(a)a building society which is authorised to raise money from its members by the Building Societies Commission under section 9 of the Building Societies Act 1986; or

(b)an appointed representative of such a building society,

the intervention powers may be exercised only after consultation with the Commission.

(8)Where an authorised practitioner falls within more than one of subsections (5) to (7), the Board shall comply with each of the subsections in question.

Licensed conveyancers

53The Council for Licensed Conveyancers

(1)Subject to subsection (2), the Council for Licensed Conveyancers shall have the powers necessary to enable it to become—

(a)an authorised body for the purposes of granting rights of audience under section 27(2)(a);

(b)an authorised body for the purposes of granting rights to conduct litigation under section 28(2)(a); and

(c)an approved body for the purposes of granting, in accordance with section 55, exemption from the provisions of section 23(1) of the Solicitors Act 1974 (preparation of probate papers).

(2)The Council may exercise the powers given to it by this section only with respect to persons who are licensed conveyancers.

(3)Where the Council—

(a)becomes an authorised body for the purposes of section 27 and grants any right of audience;

(b)becomes an authorised body for the purposes of section 28 and grants any right to conduct litigation; or

(c)becomes an approved body for the purposes of section 55 and grants an exemption under that section,

it shall do so by issuing a licence to the licensed conveyancer to whom the right or exemption is being granted.

(4)Any such licence may be granted as a separate licence or as part of a composite licence comprising the licensed conveyancer’s licence issued under Part II of the Administration of Justice Act 1985 and any other licence which the Council may grant to the licensed conveyancer concerned.

(5)The Council’s general duty shall include the duty to ensure that the standards of competence and professional conduct among licensed conveyancers who are granted rights of audience, rights to conduct litigation or an exemption under section 55 are sufficient to secure adequate protection for consumers, and that the advocacy, litigation or (as the case may be) probate services provided by such persons are provided both economically and efficiently.

(6)Where the Council exercises any of its powers in connection with—

(a)an application under section 29 for authorisation or an application under Schedule 9 for approval; or

(b)the granting of any right of audience or right to conduct litigation or of an exemption under section 55,

it shall do so subject to any requirements to which it is subject in accordance with the provisions of this Act relating to the grant of any such right or exemption.

(7)Schedule 8 makes further provision in connection with the powers given to the Council by this section and the provision made by the Act of 1985 in relation to licensed conveyancers, including amendments of Part II of that Act.

(8)The Lord Chancellor may by order make such—

(a)amendments of, or modifications to, the provisions of Part II of the Act of 1985; or

(b)transitional or consequential provision,

as he considers necessary or expedient in connection with the provision made by this section and Schedule 8.

(9)Subject to any provision made by this section, Schedule 8 or any order made by the Lord Chancellor under subsection (8), the provisions of Part II of the Act of 1985 shall, with the necessary modifications, apply with respect to—

(a)any application for an advocacy, litigation or probate licence;

(b)any such licence;

(c)the practice of any licensed conveyancer which is carried on by virtue of any such licence;

(d)rules made by the Council under Schedule 8;

(e)the management and control by licensed conveyancers (or by licensed conveyancers together with persons who are not licensed conveyancers) of bodies corporate carrying on businesses which include the provision of advocacy, litigation or probate services; and

(f)any other matter dealt with by this section or Schedule 8,

as they apply with respect to the corresponding matters dealt with by Part II of that Act.

Probate services

54Preparation of papers for probate etc

(1)In section 23 of the [1974 c. 47.] Solicitors Act 1974 (preparation of papers for probate etc. by unqualified persons), the following subsections shall be substituted for subsections (2) and (3)—

(2)Subsection (1) does not apply to—

(a)a barrister;

(b)a duly certificated notary public;

(c)the Public Trustee;

(d)the Official Solicitor;

(e)any institution which—

(i)is authorised by the Bank of England, under Part I of the [1987 c. 22.] Banking Act 1987, to carry on a deposit-taking business ; and

(ii)satisfies the conditions mentioned in subsection (2A);

(f)any building society which—

(i)is authorised to raise money from its members by the Building Societies Commission under section 9 of the [1986 c. 53.] Building Societies Act 1986; and

(ii)satisfies those conditions;

(g)any insurance company which—

(i)is authorised under section 3 or 4 of the [1982 c. 50.] Insurance Companies Act 1982; and

(ii)satisfies those conditions;

(h)any subsidiary (as defined by section 736(1) of the [1985 c. 6.] Companies Act 1985) of a body falling within paragraph (e), (f) or (g)—

(i)whose business, or any part of whose business, consists of acting as trustee or executor; and

(ii)which satisfies those conditions.

(2A)The conditions are that the body is a member of, or otherwise subject to, a scheme which—

(a)has been established (whether or not exclusively) for the purpose of dealing with complaints about the provision of probate services; and

(b)complies with such requirements as may be prescribed by regulations made by the Lord Chancellor with respect to matters relating to such complaints.

(3)Subsection (1) also does not apply to—

(a)any act done by an officer or employee of a body corporate at a time when it is exempt from subsection (1) by virtue of any of paragraphs (e) to (h) of subsection (2) or by virtue of section 55 of the Courts and Legal Services Act 1990 (preparation of probate papers etc.); or

(b)any act done by any person at the direction and under the supervision of another person if—

(i)that other person was at the time his employer, a partner of his employer or a fellow employee; and

(ii)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 section.

(4)For the avoidance of doubt, where a person does any act which would constitute an offence under subsection (1) but for an exemption given to him by this section or by or under any other enactment, he shall not be guilty of an offence under section 22 by virtue of having done that act.

(2)In section 115 of the [1981 c. 54.] Supreme Court Act 1981 (grants to trust corporations) the following subsection shall be added at the end—

(4)Subsections (1) to (3) shall also apply in relation to any body which is exempt from the provisions of section 23(1) of the Solicitors Act 1974 (unqualified persons not to prepare papers for probate etc.) by virtue of any of paragraphs (e) to (h) of subsection (2) of that section.

(3)If a person who applies for any grant of probate or letters of administration—

(a)makes a statement in his application, or supports his application with a document, which he knows to be false or misleading in a material particular; or

(b)recklessly makes a statement in his application, or supports his application with a document, which is false or misleading in a material particular,

he shall be guilty of an offence.

(4)Any person guilty of an offence under subsection (3) shall be liable—

(a)on conviction on indictment, to imprisonment for a term not exceeding two years or to a fine or to both;

(b)on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding the statutory maximum or to both.

(5)In subsection (3) “letters of administration” includes all letters of administration of the effects of deceased persons, whether with or without a will annexed, and whether granted for general, special or limited purposes.

55Preparation of probate papers etc: exemption from section 23(1) of Solicitors Act 1974

(1)The provisions of section 23(1) of the [1974 c. 47.] Solicitors Act 1974 (preparation of papers for probate etc. by unqualified persons) shall not apply to any person to whom exemption from those provisions is granted by an approved body.

(2)An approved body may only grant such an exemption to a person who is one of its members and who satisfies it—

(a)that his business is, and is likely to continue to be, carried on by fit and proper persons or, in the case of an individual, that he is a fit and proper person;

(b)that he, and any person employed by him in the provision of probate services, is suitably trained;

(c)that satisfactory arrangements will at all times be in force for covering adequately the risk of any claim made against him in connection with the provision of probate services by him, however arising;

(d)that he is a member of, or otherwise subject to, a scheme which—

(i)has been established (whether or not exclusively) for the purpose of dealing with complaints about the provision of probate services; and

(ii)complies with such requirements as may be prescribed by regulations made by the Lord Chancellor with respect to matters relating to such complaints; and

(e)that he has in force satisfactory arrangements to protect his clients in the event of his ceasing to provide probate services.

(3)In this section “approved body” means a professional or other body which is approved by the Lord Chancellor under Schedule 9.

(4)The approval of any body under Schedule 9 may be revoked under that Schedule.

56Administration of oaths etc. by justices in certain probate business

(1)Every justice shall have power to administer any oath or take any affidavit which is required for the purposes of an application for a grant of probate or letters of administration made in any non-contentious or common form probate business.

(2)A justice before whom any oath or affidavit is taken or made under this section shall state in the jurat or attestation at what place and on what date the oath or affidavit is taken or made.

(3)No justice shall exercise the powers conferred by this section in any proceedings in which he is interested.

(4)A document purporting to be signed by a justice administering an oath or taking an affidavit shall be admitted in evidence without proof of the signature and without proof that he is a justice.

(5)In this section—

  • “affidavit” has the same meaning as in the [1889 c. 10.] Commissioners for Oaths Act 1889;

  • “justice” means a justice of the peace;

  • “letters of administration” includes all letters of administration of the effects of deceased persons, whether with or without a will annexed, and whether granted for general, special or limited purposes; and

  • “non-contentious or common form probate business” has the same meaning as in section 128 of the [1981 c. 54.] Supreme Court Act 1981.

Notaries

57(1)Public notaries shall no longer be appointed to practise only within particular districts in England, or particular districts in Wales.

(2)It shall no longer be necessary to serve a period of apprenticeship before being admitted as a public notary.

(3)Accordingly, the following enactments relating to public notaries shall cease to have effect—

(a)section 2 of the [1801 c. 79.] Public Notaries Act 1801 (which provides that no person shall be admitted as a public notary unless he has served as an apprentice for seven years);

(b)section 1 of the [1833 c. 70.] Public Notaries Act 1833 (which restricts the requirement to serve an apprenticeship to London and an area of ten miles from the Royal Exchange);

(c)section 2 of the Public Notaries Act 1833 (appointment of public notaries to practise within particular districts in England);

(d)section 3 of the [1843 c. 90.] Public Notaries Act 1843 (which reduced the period of apprenticeship to five years);

(e)section 37 of the [1914 c. 91.] Welsh Church Act 1914 (appointment of public notaries to practise within particular districts in Wales); and

(f)section 29 of the [1969 c. 58.] Administration of Justice Act 1969 (which reduced the period of apprenticeship for public notaries in London).

(4)The Master may by rules make provision—

(a)as to the educational and training qualifications which must be satisfied before a person may be granted a faculty to practise as a public notary;

(b)as to further training which public notaries are to be required to undergo;

(c)for regulating the practice, conduct and discipline of public notaries;

(d)supplementing the provision made by subsections (8) and (9);

(e)as to the keeping by public notaries of records and accounts;

(f)as to the handling by public notaries of clients' money;

(g)as to the indemnification of public notaries against losses arising from claims in respect of civil liability incurred by them;

(h)as to compensation payable for losses suffered by persons in respect of dishonesty on the part of public notaries or their employees; and

(i)requiring the payment, in such circumstances as may be prescribed, of such reasonable fees as may be prescribed, including in particular fees for—

(i)the grant of a faculty;

(ii)the issue of a practising certificate by the Court of Faculties of the Archbishop of Canterbury; or

(iii)the entering in that court of a practising certificate issued under the [1974 c. 47.] Solicitors Act 1974.

(5)The repeal of section 2 of the Act of 1833 and section 37 of the Act of 1914 by this Act shall not affect any appointment made under either of those sections; but the Master may by rules make such provision as he considers necessary or expedient in consequence of either, or both, of those repeals.

(6)Rules made under subsection (5) may, in particular, provide for the grant by the Master of a new faculty for any person to whom the Notary Public (Welsh Districts) Rules 1924 applied immediately before the commencement of this section, in place of the faculty granted to him by the Clerk of the Crown in Chancery.

(7)Subsections (4) to (6) shall not be taken to prejudice—

(a)any other power of the Master to make rules; or

(b)any rules made by him under any such power.

(8)With effect from the operative date, any restriction placed on a qualifying district notary, in terms of the district within which he may practise as a public notary, shall cease to apply.

(9)In this section—

  • “Master” means the Master of the Faculties;

  • “the operative date” means the date on which subsection (1) comes into force or, if on that date the notary concerned is not a qualifying district notary (having held his faculty for less than five years)—

    (a)

    the date on which he becomes a qualifying district notary; or

    (b)

    such earlier date, after the commencement of subsection (1), as the Master may by rules prescribe for the purpose of this subsection;

  • “prescribed” means prescribed by rules made under this section; and

  • “qualifying district notary” means a person who—

    (a)

    holds a faculty as a notary appointed under section 2 of the Act of 1833 or section 37 of the Act of 1914; and

    (b)

    has held it for a continuous period of at least five years.

(10)Section 5 of the [1533 c. 21.] Ecclesiastical Licences Act 1533 (which amongst other things now has the effect of requiring faculties to be registered by the Clerk of the Crown in Chancery) shall not apply in relation to any faculty granted to a public notary.

(11)Nothing in this section shall be taken—

(a)to authorise any public notary to practise as a notary or to perform or certify any notarial act within the jurisdiction of the Incorporated Company of Scriveners of London or to affect the jurisdiction or powers of the Company; or

(b)to restrict the power of the Company to require a person seeking to become a public notary within its jurisdiction to serve a period of apprenticeship.

Miscellaneous

58Conditional fee agreements

(1)In this section “a conditional fee agreement” means an agreement in writing between a person providing advocacy or litigation services and his client which—

(a)does not relate to proceedings of a kind mentioned in subsection (10);

(b)provides for that person’s fees and expenses, or any part of them, to be payable only in specified circumstances;

(c)complies with such requirements (if any) as may be prescribed by the Lord Chancellor; and

(d)is not a contentious business agreement (as defined by section 59 of the [1974 c. 47.] Solicitors Act 1974).

(2)Where a conditional fee agreement provides for the amount of any fees to which it applies to be increased, in specified circumstances, above the amount which would be payable if it were not a conditional fee agreement, it shall specify the percentage by which that amount is to be increased.

(3)Subject to subsection (6), a conditional fee agreement which relates to specified proceedings shall not be unenforceable by reason only of its being a conditional fee agreement.

(4)In this section “specified proceedings” means proceedings of a description specified by order made by the Lord Chancellor for the purposes of subsection (3).

(5)Any such order shall prescribe the maximum permitted percentage for each description of specified proceedings.

(6)An agreement which falls within subsection (2) shall be unenforceable if, at the time when it is entered into, the percentage specified in the agreement exceeds the prescribed maximum permitted percentage for the description of proceedings to which it relates.

(7)Before making any order under this section the Lord Chancellor shall consult the designated judges, the General Council of the Bar, the Law Society and such other authorised bodies (if any) as he considers appropriate.

(8)Where a party to any proceedings has entered into a conditional fee agreement and a costs order is made in those proceedings in his favour, the costs payable to him shall not include any element which takes account of any percentage increase payable under the agreement.

(9)Rules of court may make provision with respect to the taxing of any costs which include fees payable under a conditional fee agreement.

(10)The proceedings mentioned in subsection (1)(a) are any criminal proceedings and any proceedings under—

(a)the [1973 c. 18.] Matrimonial Causes Act 1973;

(b)the [1976 c. 50.] Domestic Violence and [1984 c. 42.] Matrimonial Proceedings Act 1976;

(c)the [1976 c. 36.] Adoption Act 1976;

(d)the [1978 c. 22.] Domestic Proceedings and Magistrates' Courts Act 1978;

(e)sections 1 and 9 of the [1983 c. 19.] Matrimonial Homes Act 1983;

(f)Part III of the [1984 c. 42.] Matrimonial and Family Proceedings Act 1984;

(g)Parts I, II or IV of the [1989 c. 41.] Children Act 1989; or

(h)the inherent jurisdiction of the High Court in relation to children.

59Representation under the Legal Aid Act 1988

(1)Nothing in this Part shall affect the right of a person who is represented in proceedings in the Supreme Court or the House of Lords under the [1988 c. 34.] Legal Aid Act 1988 to select his legal representative.

(2)The power to make regulations with respect to representation under section 2(7) or 32(8) of that Act shall not be exercised so as to provide that representation in any such proceedings may only be by a single barrister, solicitor or other legal representative (but that is not to be taken as restricting the power to make regulations under section 34(2)(e) of that Act).

60Regulation of right of Scottish and Northern Ireland lawyers to practise in England and Wales

(1)The Lord Chancellor may by regulations prescribe circumstances in which, and conditions subject to which, a practitioner who is qualified to practise in Scotland or Northern Ireland may, in such capacity as may be prescribed, exercise in England and Wales—

(a)prescribed rights of audience; or

(b)prescribed rights to conduct litigation,

without being entitled to do so apart from the regulations.

(2)The Lord Chancellor may by regulations make provision for the purpose of enabling practitioners who are qualified to practise in Scotland or Northern Ireland to become qualified to practise in England and Wales on terms, and subject to conditions, corresponding or similar to those on which practitioners who are qualified to practise in member States may become qualified to practise in that jurisdiction.

(3)Regulations made under subsection (1) may, in particular—

(a)prescribe any right of audience which may not be exercised by a person in England and Wales unless he is instructed to act together with a person who has that right of audience there;

(b)prescribe legal services which may not be provided by any person practising by virtue of the regulations;

(c)prescribe the title or description which must be used by any person practising by virtue of the regulations;

(d)provide for the means by which the qualification of any person claiming to be entitled to practise by virtue of the regulations is to be verified;

(e)provide for such professional or other body as may be prescribed to have power to investigate and deal with any complaint made against a person practising by virtue of the regulations.

(4)Regulations made under subsection (1) or (2) may modify any rule of law or practice which the Lord Chancellor considers should be modified in order to give effect to the regulations.

(5)In this section “practitioner” means—

(a)a member of the Bar of Northern Ireland or a solicitor of the Supreme Court of Northern Ireland or an advocate or solicitor in Scotland; and

(b)any person falling within such category as may be prescribed.

61Right of barrister to enter into contract for the provision of his services

(1)Any rule of law which prevents a barrister from entering into a contract for the provision of his services as a barrister is hereby abolished.

(2)Nothing in subsection (1) prevents the General Council of the Bar from making rules (however described) which prohibit barristers from entering into contracts or restrict their right to do so.

62Immunity of advocates from actions in negligence and for breach of contract

(1)A person—

(a)who is not a barrister; but

(b)who lawfully provides any legal services in relation to any proceedings,

shall have the same immunity from liability for negligence in respect of his acts or omissions as he would have if he were a barrister lawfully providing those services.

(2)No act or omission on the part of any barrister or other person which is accorded immunity from liability for negligence shall give rise to an action for breach of any contract relating to the provision by him of the legal services in question.

63Legal professional privilege

(1)This section applies to any communication made to or by a person who is not a barrister or solicitor at any time when that person is—

(a)providing advocacy or litigation services as an authorised advocate or authorised litigator;

(b)providing conveyancing services as an authorised practitioner; or

(c)providing probate services as a probate practitioner.

(2)Any such communication shall in any legal proceedings be privileged from disclosure in like manner as if the person in question had at all material times been acting as his client’s solicitor.

(3)In subsection (1), “probate practitioner” means a person to whom section 23(1) of the [1974 c. 47.] Solicitors Act 1974 (unqualified person not to prepare probate papers etc.) does not apply.

64Discrimination by, or in relation to, barristers

(1)The following shall be inserted in the [1975 c. 65.] Sex Discrimination Act 1975 after section 35—

Barristers
35ADiscrimination by, or in relation to, barristers

(1)It is unlawful for a barrister or barrister’s clerk, in relation to any offer of a pupillage or tenancy, to discriminate against a woman—

(a)in the arrangements which are made for the purpose of determining to whom it should be offered;

(b)in respect of any terms on which it is offered; or

(c)by refusing, or deliberately omitting, to offer it to her.

(2)It is unlawful for a barrister or barrister’s clerk, in relation to a woman who is a pupil or tenant in the chambers in question, to discriminate against her—

(a)in respect of any terms applicable to her as a pupil or tenant;

(b)in the opportunities for training, or gaining experience, which are afforded or denied to her;

(c)in the benefits, facilities or services which are afforded or denied to her; or

(d)by terminating her pupillage or by subjecting her to any pressure to leave the chambers or other detriment.

(3)It is unlawful for any person, in relation to the giving, withholding or acceptance of instructions to a barrister, to discriminate against a woman.

(4)In this section—

  • “barrister’s clerk” includes any person carrying out any of the functions of a barrister’s clerk; and

  • “pupil”, “pupillage”, “tenancy” and “tenant” have the meanings commonly associated with their use in the context of a set of barristers' chambers.

(5)Section 3 applies for the purposes of this section as it applies for the purposes of any provision of Part II.

(6)This section does not apply to Scotland.

(2)The following shall be inserted in the [1976 c. 74.] Race Relations Act 1976 after section 26—

Barristers
26ADiscrimination by, or in relation to, barristers

(1)It is unlawful for a barrister or barrister’s clerk, in relation to any offer of a pupillage or tenancy, to discriminate against a person—

(a)in the arrangements which are made for the purpose of determining to whom it should be offered;

(b)in respect of any terms on which it is offered; or

(c)by refusing, or deliberately omitting, to offer it to him.

(2)It is unlawful for a barrister or barrister’s clerk, in relation to a pupil or tenant in the chambers in question, to discriminate against him—

(a)in respect of any terms applicable to him as a pupil or tenant;

(b)in the opportunities for training, or gaining experience which are afforded or denied to him;

(c)in the benefits, facilities or services which are afforded or denied to him; or

(d)by terminating his pupillage or by subjecting him to any pressure to leave the chambers or other detriment.

(3)It is unlawful for any person, in relation to the giving, withholding or acceptance of instructions to a barrister, to discriminate against any person.

(4)In this section—

  • “barrister’s clerk” includes any person carrying out any of the functions of a barrister’s clerk; and

  • “pupil”, “pupillage”, “tenancy” and “tenant” have the meanings commonly associated with their use in the context of a set of barristers' chambers.

(5)This section does not apply to Scotland.

65Discrimination by, or in relation to, advocates

(1)The following shall be inserted in the [1975 c. 65.] Sex Discrimination Act 1975 after section 35A (as inserted by this Act)—

Advocates
35BDiscrimination by, or in relation to, advocates

(1)It is unlawful for an advocate, in relation to taking any person as his pupil, to discriminate against a woman—

(a)in the arrangements which he makes for the purpose of determining whom he will take as his pupil;

(b)in respect of any terms on which he offers to take her as his pupil; or

(c)by refusing, or deliberately omitting, to take her as his pupil.

(2)It is unlawful for an advocate, in relation to a woman who is a pupil, to discriminate against her—

(a)in respect of any terms applicable to her as a pupil;

(b)in the opportunities for training, or gaining experience, which are afforded or denied to her;

(c)in the benefits, facilities or services which are afforded or denied to her; or

(d)by terminating the relationship or by subjecting her to any pressure to terminate the relationship or other detriment.

(3)It is unlawful for any person, in relation to the giving, withholding or acceptance of instructions to an advocate, to discriminate against a woman.

(4)In this section—

  • “advocate” means a member of the Faculty of Advocates practising as such; and

  • “pupil” has the meaning commonly associated with its use in the context of a person training to be an advocate.

(5)Section 3 applies for the purposes of this section as it applies for the purposes of any provision of Part II.

(6)This section does not apply to England and Wales.

(2)The following shall be inserted in the [1976 c. 74.] Race Relations Act 1976 after section 26A (as inserted by this Act)—

Advocates
26BDiscrimination by, or in relation to, advocates

(1)It is unlawful for an advocate, in relation to taking any person as his pupil, to discriminate against a person—

(a)in the arrangements which he makes for the purpose of determining whom he will take as his pupil;

(b)in respect of any terms on which he offers to take any person as his pupil; or

(c)by refusing, or deliberately omitting, to take a person as his pupil.

(2)It is unlawful for an advocate, in relation to a person who is a pupil, to discriminate against him—

(a)in respect of any terms applicable to him as a pupil;

(b)in the opportunities for training, or gaining experience, which are afforded or denied to him;

(c)in the benefits, facilities or services which are afforded or denied to him; or

(d)by terminating the relationship or by subjecting him to any pressure to terminate the relationship or other detriment.

(3)It is unlawful for any person, in relation to the giving, withholding or acceptance of instructions to an advocate, to discriminate against any person.

(4)In this section—

  • “advocate” means a member of the Faculty of Advocates practising as such; and

  • “pupil” has the meaning commonly associated with its use in the context of a person training to be an advocate.

(5)This section does not apply to England and Wales..

66Multi-disciplinary and multi-national practices

(1)Section 39 of the [1974 c. 47.] Solicitors Act 1974 (which, in effect, prevents solicitors entering into partnership with persons who are not solicitors) shall cease to have effect.

(2)Nothing in subsection (1) prevents the Law Society making rules which prohibit solicitors from entering into any unincorporated association with persons who are not solicitors, or restrict the circumstances in which they may do so.

(3)Section 10 of the [1801 c. 79.] Public Notaries Act 1801 (which, in effect, prevents notaries entering into partnership with persons who are not notaries) shall cease to have effect.

(4)Nothing in subsection (3) prevents the Master of the Faculties making rules which prohibit notaries from entering into any unincorporated association with persons who are not notaries, or restrict the circumstances in which they may do so.

(5)It is hereby declared that no rule of common law prevents barristers from entering into any unincorporated association with persons who are not barristers.

(6)Nothing in subsection (5) prevents the General Council of the Bar from making rules which prohibit barristers from entering into any such unincorporated association, or restrict the circumstances in which they may do so.

67Right of audience for solicitors in certain Crown Court centres

—For section 83 of the [1981 c. 54.] Supreme Court Act 1981 (right of audience for solicitors) there shall be substituted the following section—

83Right of audience for solicitors in certain Crown Court centres

(1)The Lord Chancellor may at any time direct, as respects one or more specified places where the Crown Court sits, that solicitors, or such category of solicitors as may be specified in the direction, may have rights of audience in the Crown Court.

(2)Any such direction may be limited to apply only in relation to proceedings of a description specified in the direction.

(3)In considering whether to exercise his powers under this section the Lord Chancellor shall have regard, in particular, to the need to secure the availability of persons with rights of audience in the court or proceedings in question.

(4)Any direction under this section may be revoked by direction of the Lord Chancellor.

(5)Any direction under this section may be subject to such conditions and restrictions as appear to the Lord Chancellor to be necessary or expedient.

(6)Any exercise by the Lord Chancellor of his power to give a direction under this section shall be with the concurrence of the Lord Chief Justice, the Master of the Rolls, the President of the Family Division and the Vice-Chancellor.

68Preparation of documents etc. by registered patent agents and trade mark agents

(1)Section 22 of the [1974 c. 47] Solicitors Act 1974 (unqualified person not to prepare certain instruments) shall be amended as follows.

(2)In subsection (2) (persons exempt from subsection (1)), the following paragraphs shall be inserted after paragraph (a)—

(aa)a registered trade mark agent drawing or preparing any instrument relating to any design, trade mark or service mark;

(ab)a registered patent agent drawing or preparing any instrument relating to any invention, design, technical information, trade mark or service mark.

(3)The following subsection shall be inserted after subsection (3)—

(3A)In subsection (2)—

  • “registered trade mark agent” has the same meaning as in section 282(1) of the [1988 c. 48.] Copyright, Designs and Patents Act 1988; and

  • “registered patent agent” has the same meaning as in section 275(1) of that Act.

69Exemption from liability for damages etc

(1)Neither the Lord Chancellor nor any of the designated judges shall be liable in damages for anything done or omitted in the discharge or purported discharge of any of their functions under this Part.

(2)For the purposes of the law of defamation, the publication by the Lord Chancellor, a designated judge or the Director of any advice or reasons given by or to him in the exercise of functions under this Part shall be absolutely privileged.

Offences

70Offences

(1)If any person does any act in the purported exercise of a right of audience, or right to conduct litigation, in relation to any proceedings or contemplated proceedings when he is not entitled to exercise that right he shall be guilty of an offence.

(2)If any person does any act in the purported exercise of any right granted to authorised practitioners by virtue of this Act when he is not an authorised practitioner he shall be guilty of an offence.

(3)If any person—

(a)wilfully pretends—

(i)to be entitled to exercise any right of audience in relation to any proceedings, or contemplated proceedings; or

(ii)to be entitled to exercise any right to conduct litigation in relation to any proceedings, or contemplated proceedings,

when he is not so entitled;

(b)wilfully pretends to be an authorised practitioner when he is not; or

(c)with the intention of implying falsely that he is so entitled, or is such a practitioner, takes or uses any name, title or description,

he shall be guilty of an offence.

(4)A person guilty of an offence under subsection (1) or (2) shall be liable—

(a)on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding the statutory maximum or to both; or

(b)on conviction on indictment, to imprisonment for a term not exceeding two years or to a fine or to both.

(5)A person guilty of an offence under subsection (3) shall be liable, on summary conviction, to a fine not exceeding level 4 on the standard scale.

(6)A person guilty of an offence under this section, by virtue of subsection (1), shall also be guilty of contempt of the court concerned and may be punished accordingly.

(7)Subsection (8) applies where an offence under this section is committed by a body corporate.

(8)If the offence is proved to have been committed with the consent or connivance of or to be attributable to any neglect on the part of—

(a)any director, secretary or other similar officer of the body corporate; or

(b)any person who was purporting to act in any such capacity,

he (as well as the body corporate) shall be guilty of the offence and shall be liable to be proceeded against and punished accordingly.

Part IIIJudicial and Other Offices and Judicial Pensions

Judicial appointments

71Qualification for judicial and certain other appointments

(1)In section 10(3) of the [1981 c. 54.] Supreme Court Act 1981—

(a)in paragraph (b) (qualification for appointment as Lord Justice of Appeal) for the words “unless he is a barrister of at least fifteen years' standing or a judge of the High Court” there shall be substituted— unless—

(i)he has a 10 year High Court qualification within the meaning of section 71 of the Courts and Legal Services Act 1990; or

(ii)he is a judge of the High Court;;

(b)in paragraph (c) (qualification for appointment as puisne judge of the High Court) for the words “unless he is a barrister of at least ten years' standing” there shall be substituted— unless—

(i)he has a 10 year High Court qualification, within the meaning of section 71 of the Courts and Legal Services Act 1990; or

(ii)he is a Circuit judge who has held that office for at least 2 years.

(2)Schedule 10 shall have effect for the purpose of making amendments to other enactments, measures and statutory instruments which relate to qualification for judicial and certain other appointments.

(3)For the purposes of this section, a person has—

(a)a “Supreme Court qualification” if he has a right of audience in relation to all proceedings in the Supreme Court;

(b)a “High Court qualification” if he has a right of audience in relation to all proceedings in the High Court;

(c)a “general qualification” if he has a right of audience in relation to any class of proceedings in any part of the Supreme Court, or all proceedings in county courts or magistrates' courts;

(d)a “Crown Court qualification” if he has a right of audience in relation to all proceedings in the Crown Court;

(e)a “county court qualification” if he has a right of audience in relation to all proceedings in county courts;

(f)a “magistrates' court qualification” if he has a right of audience in relation to all proceedings in magistrates' courts.

(4)References in subsection (3) to a right of audience are references to a right of audience granted by an authorised body.

(5)Any reference in any enactment, measure or statutory instrument to a person having such a qualification of a particular number of years' length shall be construed as a reference to a person who—

(a)for the time being has that qualification, and

(b)has had it for a period (which need not be continuous) of at least that number of years.

(6)Any period during which a person had a right of audience but was not entitled to exercise it shall count towards the period mentioned in subsection (5)(b) unless he was prevented by the authorised body concerned from exercising that right of audience as a result of disciplinary proceedings.

(7)For the purposes of subsection (5)(a), a solicitor who does not have a right of audience, by reason only of not having a practising certificate in force, shall be deemed to have such a right, unless his not having a practising certificate in force is the result of disciplinary proceedings.

(8)For the purposes of subsection (5)(b), any period during which a solicitor did not have a right of audience, by reason only of not having a practising certificate in force, shall be deemed to be a period during which he had such a right, unless his not having a practising certificate in force was the result of disciplinary proceedings.

Judges

72Presiding Judges

(1)For each of the Circuits there shall be at least two Presiding Judges, appointed from among the puisne judges of the High Court.

(2)There shall be a Senior Presiding Judge for England and Wales, appointed from among the Lords Justices of Appeal.

(3)Any appointment under subsection (1) or (2) shall be made by the Lord Chief Justice with the agreement of the Lord Chancellor.

(4)In this section “the Circuits” means—

(a)the Midland and Oxford Circuit;

(b)the North Eastern Circuit;

(c)the Northern Circuit;

(d)the South Eastern Circuit;

(e)the Western Circuit; and

(f)the Wales and Chester Circuit,

or such other areas of England and Wales as the Lord Chancellor may from time to time, after consulting the Lord Chief Justice, direct.

(5)A person appointed as a Presiding Judge or as the Senior Presiding Judge shall hold that office in accordance with the terms of his appointment.

(6)In section 4 of the [1981 c. 54.] Supreme Court Act 1981 (composition of High Court)—

(a)in subsection (1), after the words “Vice-Chancellor” there shall be inserted—

(dd)the Senior Presiding Judge; and

(b)in subsection (6) for the words “or Vice-Chancellor” there shall be substituted “Vice-Chancellor or Senior Presiding Judge”.

73Delegation of certain administrative functions of Master of the Rolls

(1)Where the Master of the Rolls expects to be absent at a time when it may be appropriate for any relevant functions of his to be exercised, he may appoint a judge of the Supreme Court to exercise those functions on his behalf.

(2)Where the Master of the Rolls considers that it would be inappropriate for him to exercise any such functions in connection with a particular matter (because of a possible conflict of interests or for any other reason), he may appoint a judge of the Supreme Court to exercise those functions on his behalf in connection with that matter.

(3)Where the Master of the Rolls is incapable of exercising his relevant functions, the Lord Chancellor may appoint a judge of the Supreme Court to exercise, on behalf of the Master of the Rolls, such of those functions as the Lord Chancellor considers appropriate.

(4)Any appointment under this section shall be in writing and shall specify—

(a)the functions which may be exercised by the appointed judge; and

(b)the period for which the appointment is to have effect.

(5)In this section “relevant functions” means any functions of the Master of the Rolls under—

(a)section 144A of the [1922 c. 16.] Law of Property Act 1922 (functions in relation to manorial documents);

(b)section 7(1) of the [1958 c. 51.] Public Records Act 1958 (power to determine where records of the Chancery of England are to be deposited);

(c)the [1974 c. 47.] Solicitors Act 1974 (which gives the Master of the Rolls various functions in relation to solicitors);

(d)section 9 of, and Schedule 2 to, the [1985 c. 61.] Administration of Justice Act 1985 (functions in relation to incorporated practices).

74District judges

(1)The offices of—

(a)registrar, assistant registrar and deputy registrar for each county court district; and

(b)district registrar, assistant district registrar and deputy district registrar for each district registry of the High Court,

shall become the offices of district judge, assistant district judge and deputy district judge respectively.

(2)The office of registrar of the principal registry of the Family Division of the High Court shall become the office of district judge of the principal registry of the Family Division.

(3)Any reference in any enactment, instrument or other document to an office which is, or includes, one to which this section applies shall be construed as a reference to, or (as the case may be) as including a reference to, that office by its new name.

(4)In section 14 of the [1984 c. 28.] County Courts Act 1984 (power of judge to impose penalty for an assault on an officer of the court) after subsection (2) there shall be inserted—

(3)A district judge, assistant district judge or deputy district judge shall have the same powers under this section as a judge.

(5)In section 55 of that Act (power of judge to impose penalty for refusal to give evidence) after subsection (4) there shall be inserted—

(4A)A district judge, assistant district judge or deputy district judge shall have the same powers under this section as a judge.

(6)In section 118 of that Act (power of judge to commit for contempt) after subsection (2) there shall be inserted—

(3)A district judge, assistant district judge or deputy district judge shall have the same powers under this section in relation to proceedings before him as a judge.

(7)In section 42 of the [1984 c. 42.] Matrimonial and Family Proceedings Act 1984 (which allows certain county court proceedings to be taken in the principal registry of the Family Division) the following subsection shall be inserted after subsection (4)—

(4A)Where a district judge of the principal registry is exercising jurisdiction in any matrimonial cause or matter which could be exercised by a district judge of a county court, he shall have the same powers in relation to those proceedings as if he were a district judge of a county court and the proceedings were in a county court.

75Judges etc. barred from legal practice

No person holding as a full-time appointment any of the offices listed in Schedule 11 shall—

(a)provide any advocacy or litigation services (in any jurisdiction);

(b)provide any conveyancing or probate services;

(c)practise as a barrister, solicitor, public notary or licensed conveyancer, or be indirectly concerned in any such practice;

(d)practise as an advocate or solicitor in Scotland, or be indirectly concerned in any such practice; or

(e)act for any remuneration to himself as an arbitrator or umpire.

76Judicial oaths

(1)A person holding any of the following offices—

(a)district judge, including district judge of the principal registry of the Family Division;

(b)Master of the Queen’s Bench Division;

(c)Master of the Chancery Division;

(d)Registrar in Bankruptcy of the High Court;

(e)Taxing Master of the Supreme Court;

(f)Admiralty Registrar,

shall take the oath of allegiance and the judicial oath before a judge of the High Court or a Circuit judge.

(2)The [1868 c. 72.] Promissory Oaths Act 1868 shall have effect as if the offices listed in the Second Part of the Schedule to that Act included those offices.

Supreme Court Officers

77Age for retirement of certain Supreme Court officers

(1)In section 92 of the [1981 c. 54.] Supreme Court Act 1981 (tenure of office) for subsection (2) there shall be substituted—

(2)Subsection (1) applies to the offices listed in column 1 of Part II of Schedule 2 except the office of Queen’s Coroner and Attorney and Master of the Crown Office and Registrar of Criminal Appeals.

(2A)Subject to the following provisions of this section, a person who holds an office to which this subsection applies shall vacate it at the end of the completed year of service in the course of which he attains the age of sixty-two years.

(2B)Subsection (2A) applies to the offices listed in column 1 of Part I of Schedule 2 and the office of Queen’s Coroner and Attorney and Master of the Crown Office and Registrar of Criminal Appeals.

(2C)For the purposes of subsections (1) and (2A) a person who has successively held two or more offices listed in column 1 of Part I or II of Schedule 2 shall be treated as completing a year of service on the anniversary of his appointment to the first of them.

(2)After subsection (3) of that section (retirement age increased in certain circumstances to 75 years) there shall be inserted—

(3A)Where the Lord Chancellor considers it desirable in the public interest to retain in office a person who holds an office to which subsection (2A) applies after the time when he would otherwise retire in accordance with that subsection, the Lord Chancellor may from time to time authorise the continuance in office of that person until such date, not being later than the date on which he attains the age of sixty-five years, as he thinks fit.

(3)In subsection (4) of that section (person to hold office during good behaviour) after the words “subsection (1)” there shall be inserted “or (2A)”.

78Registrar of Criminal Appeals

(1)The office of Registrar of Criminal Appeals shall be combined with the office of Queen’s Coroner and Attorney and Master of the Crown Office.

(2)After section 13 of the [1981 c. 20.] Judicial Pensions Act 1981 there shall be inserted—

13ARegistrar of Criminal Appeals

There may be paid to persons who have held the office of Queen’s Coroner and Attorney and Master of the Crown Office and Registrar of Criminal Appeals such superannuation allowances as the Lord Chancellor may, with the approval of the Treasury, determine.

(3)In Part I of Schedule 1 to that Act (which lists certain officers of the Supreme Court and has the effect of entitling them to pension benefits etc.) the entry relating to the Registrar of Criminal Appeals shall be omitted.

(4)The offices of Assistant Registrar of Criminal Appeals and Deputy Assistant Registrar of Criminal Appeals are hereby abolished.

Judicial pensions

79Widowers' pensions

(1)The following section shall be inserted in the Judicial Pensions Act 1981, after section 18 (which sets out the conditions on which a widow’s pension is payable)—

18AWidowers' pensions

(1)Section 18 above shall have effect in relation to the death of a female person as it has effect in relation to the death of a male person but as if—

(a)for the words “widow”, “widow’s pension” and “wife” there were substituted “widower”, “widower’s pension” and “husband”; and

(b)for the words “his”, “he” and “him” there were substituted “hers”, “she” and “her”.

(2)The transitional provisions in Part IV of Schedule 2 to this Act shall have effect in relation to widowers' pensions.

(2)The transitional provisions set out in Schedule 12 shall be inserted in the Act of 1981 as Part IV of Schedule 2 to that Act.

80Widows' and widowers' pensions: supplemental

For section 19 of the Judicial Pensions Act 1981 (determination of widow’s pension) there shall be substituted—

19Widows' and widowers' pensions

(1)[1981 c. 20.] No widow’s or widower’s pension may be granted if the marriage with the deceased took place after he or she retired from relevant service.

(2)A widow’s or widower’s pension shall come to an end on the death of the widow or widower.

(3)Where a widow’s or widower’s pension is payable the Treasury may, on or at any time after the re-marriage of the widow or widower, direct that it shall cease to be payable.

(4)Where such a direction has been given the Treasury may at any time direct that payment of the pension is to be resumed.

(5)The annual amount of a widow’s or widower’s pension may be one half of the annual amount of the personal pension.

81Transfer of accrued rights to and from judicial pension schemes

Schedule 13 amends the Judicial Pensions Act 1981 by inserting a new Schedule 1A, which makes provision for the transfer of accrued rights into and out of the judicial pension schemes constituted by that Act and the [1961 c. 42.] Sheriffs' Pensions (Scotland) Act 1961.

82Voluntary contributions

(1)In the Judicial Pensions Act 1981, the following section shall be inserted after section 33—

33AVoluntary contributions

(1)Regulations shall make provision entitling any member of a judicial pension scheme constituted by this Act or the Sheriffs' Pensions (Scotland) Act 1961 to make voluntary contributions towards the cost of the provision of additional benefits under the scheme.

(2)The regulations—

(a)may not prohibit the payment of voluntary contributions;

(b)may not impose any limit on the amount which any member may pay by way of voluntary contributions other than an upper limit corresponding to that for the time being fixed by or under section 594 of the [1988 c. 1.] Income and Corporation Taxes Act 1988 (exempt statutory schemes);

(c)must secure that any voluntary contributions paid by a member of a scheme are used to provide prescribed additional benefits for or in respect of him; and

(d)must secure that the value of such additional benefits is reasonable, having regard to—

(i)the amount paid by way of voluntary contributions;

(ii)the value of the other benefits provided under the scheme; and

(iii)the general value of benefits available to a person under any contract of life insurance entered into by him with an insurance company to which Part II of the [1982 c. 50.] Insurance Companies Act 1982 (regulation of insurance companies carrying on insurance business within the United Kingdom) applies.

(3)The regulations may, in particular—

(a)provide that the value of additional benefits offered on payment of voluntary contributions shall be determined in accordance with prescribed rules based on tables prepared for the purposes of the regulations by the Government Actuary; and

(b)prescribe the manner in which it is to be determined in any case whether the amount of a person’s contributions exceeds any limit imposed by virtue of subsection (2)(b) above.

(4)Nothing in subsection (2) shall be taken to prevent the regulations from limiting the overall amount which a member may pay by way of voluntary contributions by reference to the maximum entitlement of members under the scheme.

(5)Regulations made under this section may make provision for consequential and incidental matters, including, in particular, consequential provision with respect to any enactment referring or relating to lump sums payable under Part II of this Act.

(6)Regulations under this section may be made—

(a)by the Lord Chancellor; or

(b)in relation to pensions for service in offices existing only in Scotland, by the Secretary of State,

with the consent of the Treasury.

(7)The power to make regulations under this section shall be exercisable by statutory instrument.

(8)Any such statutory instrument shall be subject to annulment in pursuance of a resolution of either House of Parliament.

(2)In section 12 of the [1986 c. 50.] Social Security Act 1986 (voluntary contributions), the following subsection shall be inserted after subsection (10)—

(10A)This section does not apply in relation to any pension payable under the [1981 c. 20.] Judicial Pensions Act 1981 or the [1961 c. 42.] Sheriffs' Pensions (Scotland) Act 1961.

(3)In Article 14 of the [S.I. 1986/1888 (N.I. 18).] Social Security (Northern Ireland) Order 1986 (voluntary contributions in Northern Ireland) the following paragraph shall be inserted after paragraph (10)—

(10A)This Article does not apply in relation to any pension payable under the Judicial Pensions Act 1981.

83Period of service to qualify for certain superannuation benefits

(1)In each of the following provisions (which among other things require a minimum number of years service for qualification for superannuation benefits)—

(a)section 7(1) of the Judicial Pensions Act 1981 (stipendiary magistrates);

(b)section 9(1) of that Act (Judge Advocate General);

(c)paragraph 4(1)(b) of Schedule 1 to that Act (Supreme Court officers etc); and

(d)section 1(1) of the Sheriffs' Pensions (Scotland) Act 1961,

for the words “5 years”, or “five years”, there shall be substituted, in each case, “2 years”.

(2)In section 7(3) of the Act of 1981 (rate of pension payable to a stipendiary magistrate) for “(a)” there shall be substituted—

(a)if the period of service amounts to less than 5 (but not less than 2) years, 6/80ths of his last annual salary,

(3)In section 9 of the Act of 1981 (rate of pension payable to Judge Advocate General) the following subsection shall be inserted after subsection (3)—

(3A)The annual rate of pension payable under this section to a person retiring after less than 5 (but not less than 2) years service shall be 6/80ths of his last annual salary.

(4)In paragraph 4(4) of Schedule 1 to the Act of 1981 (rate of pension payable to an officer of the Supreme Court etc.) for “(a)” there shall be substituted—

(a)if the period of relevant service amounts to less than 5 (but not less than 2) years, 6/80ths of his last annual salary,

(5)In subsections (2) and (3) of section 3 of the Sheriffs' Pensions (Scotland) Act 1961 (rate of pension payable to sheriff and salaried sheriff-substitute) for “(a)” there shall, in each case, be substituted—

(a)where the period of his relevant service exceeds two years but is less than five years, six eightieths of his last annual salary;

84Abolition of abatement of salary rule for judges etc

The following provisions (which provide for the abatement of salaries of holders of certain judicial and related offices who are in receipt of pensions payable in respect of public offices) shall cease to have effect—

(a)section 3 of the [1967 c. 28.] Superannuation (Miscellaneous Provisions) Act 1967 (miscellaneous offices);

(b)section 1 of the [1969 c. 7 (N.I.).] Superannuation (Miscellaneous Provisions) Act (Northern Ireland) 1969 (miscellaneous offices in Northern Ireland);

(c)section 18(3) of the [1971 c. 23.] Courts Act 1971 (Circuit judges);

(d)in section 1(2) of the [1975 c. 27.] Ministerial and other Salaries Act 1975 (Lord Chancellor), the words from “but” to the end;

(e)section 9(4) of the [1973 c. 15.] Administration of Justice Act 1973 (Lords of Appeal in Ordinary, judges of the Court of Session, judges of the Supreme Court in Northern Ireland and stipendiary magistrates);

(f)section 12(4) of the [1981 c. 54.] Supreme Court Act 1981 (judges of the Supreme Court other than the Lord Chancellor).

Part IVSolicitors

85Practising certificates for employed solicitors

After section 1 of the [1974 c. 47.] Solicitors Act 1974 (qualifications for practising as solicitor) there shall be inserted the following section—

1APractising certificates: employed solicitors

A person who has been admitted as a solicitor and whose name is on the roll shall, if he would not otherwise be taken to be acting as a solicitor, be taken for the purposes of this Act to be so acting if he is employed in connection with the provision of any legal services—

(a)by any person who is qualified to act as a solicitor;

(b)by any partnership at least one member of which is so qualified; or

(c)by a body recognised by the Council of the Law Society under section 9 of the Administration of Justice Act 1985 (incorporated practices).

86Commencement, expiry and replacement of practising certificates

The following section shall be substituted for section 14 of the Solicitors Act 1974 (date and expiry of practising certificates)—

14Commence-ment, expiry and replacement of practising certificates

(1)Every practising certificate shall have effect from the beginning of the day (“the commencement date”) on which it is issued.

(2)The Master of the Rolls may, with the concurrence of the Lord Chancellor and the Lord Chief Justice, make regulations—

(a)prescribing the date (“the replacement date”) by which each solicitor who has a practising certificate which is for the time being in force must apply for a new practising certificate if he wishes to continue to have one; and

(b)requiring every practising certificate to specify its replacement date.

(3)The Society shall enter the commencement date and replacement date of each practising certificate in the register kept under section 9.

(4)Without prejudice to section 28(1), any regulations under subsection (2) may—

(a)provide for different replacement dates for different categories of solicitor or in different circumstances;

(b)provide for the Society to specify different replacement dates to those prescribed by the regulations in respect of individual solicitors;

(c)make such transitional, incidental and supplemental provision, in connection with any provision for different replacement dates (including different dates specified by the Society), as the Master of the Rolls considers expedient.

(5)Where a practising certificate is in force with respect to a solicitor, the Society may withdraw the certificate if—

(a)the replacement date for that certificate has passed; but

(b)he has not applied for a new practising certificate.

(6)A practising certificate shall expire —

(a)where the solicitor’s name is removed from or struck off the roll, immediately upon the occurrence of that event;

(b)where it is withdrawn under subsection (5), immediately upon the occurrence of that event;

(c)where a new practising certificate is issued to the solicitor, on the commencement of the new certificate;

(d)where the Society refuses to issue the solicitor with a new practising certificate—

(i)immediately after the replacement date for the existing certificate has passed; or,

(ii)if that date has already passed, immediately upon the Society taking its decision not to issue him with a new certificate.

(7)Where any practising certificate expires in the circumstances mentioned in subsection (6)(a), (b) or (d) the date of its expiry shall be entered in the register kept under section 9.

87Fees payable on issue of practising certificates

In section 11 of the [1974 c. 47.] Solicitors Act 1974 (fees payable on issue of practising certificates), the following subsections shall be substituted for subsections (2) and (2A)—

(2)An order under subsection (1) may specify reduced fees for practising certificates in such circumstances as may be so specified.

(2A)Subsection (2B) applies where an order under subsection (1) specifies a reduced fee in the case of a solicitor whose income, from his practice as a solicitor, is, during such period as may be so specified, less than an amount so specified.

(2B)The question whether, for the purposes of any such order, the income of a solicitor during the specified period falls below the specified amount shall be determined in accordance with regulations made by the Master of the Rolls with the concurrence of the Lord Chancellor and the Lord Chief Justice.

88Additional fee payable by certain solicitors on applying for practising certificates

The following section shall be inserted in the Solicitors Act 1974 after section 12—

12AAdditional fee payable by certain solicitors on applying for practising certificates

(1)Where a solicitor applies for a practising certificate at a time when section 12 has effect in relation to him by reason of the circumstances mentioned in section 12(1)(ee), he shall pay an additional fee to the Society when making his application.

(2)The amount of that additional fee—

(a)shall be fixed by order of the Master of the Rolls made with the concurrence of the Lord Chancellor and the Lord Chief Justice; and

(b)shall be designed to provide reasonable compensation to the Society for the additional cost of dealing with such applications.

89Foreign lawyers: recognised bodies and partnerships with solicitors

(1)The Law Society shall maintain a register of foreign lawyers for the purposes of this section.

(2)A foreign lawyer who wishes to be registered under this section must apply to the Society in accordance with the requirements of Part I of Schedule 14.

(3)The power to make rules under—

(a)the following provisions of the Solicitors Act 1974—

(i)section 31 (professional practice, conduct and discipline);

(ii)section 32 (accounts and trust accounts);

(iii)section 34 (accountants' reports);

(iv)section 36 (Compensation Fund); and

(v)section 37 (professional indemnity); and

(b)section 9 of the Administration of Justice Act 1985 (incorporated practices),

shall also be exercisable in relation to registered foreign lawyers.

(4)Subject to the provisions of Schedule 14, any such power may be exercised so as—

(a)to make different provision with respect to solicitors who enter into multi-national partnerships to the provision made with respect to other solicitors;

(b)to make different provision with respect to the management and control of recognised bodies by solicitors and registered foreign lawyers to the provision made with respect to the management and control of recognised bodies by solicitors;

(c)to make different provision with respect to registered foreign lawyers who are members of multi-national partnerships to the provision made with respect to solicitors; or

(d)to make different provision with respect to officers of recognised bodies who are registered foreign lawyers to the provision made with respect to officers of recognised bodies who are solicitors.

(5)Subject to the provisions of Schedule 14, the Lord Chancellor may by order provide that any enactment or instrument—

(a)passed or made before the commencement of this section;

(b)having effect in relation to solicitors; and

(c)specified in the order,

shall have effect with respect to registered foreign lawyers as it has effect with respect to solicitors.

(6)An order under subsection (5) may provide for an enactment or instrument to have effect with respect to registered foreign lawyers subject to such additions, omissions or other modifications as the Lord Chancellor sees fit to specify in the order.

(7)Subject to the provisions of Schedule 14, the Lord Chancellor may by order provide that any enactment or instrument—

(a)passed or made before the commencement of this section;

(b)having effect in relation to recognised bodies; and

(c)specified in the order,

shall, in its application in relation to recognised bodies whose officers include one or more registered foreign lawyers, have effect with such additions, omissions or other modifications as the Lord Chancellor sees fit to specify in the order.

(8)Schedule 14 shall have effect for the purposes of supplementing this section.

(9)In this section and in Schedule 14—

  • “foreign lawyer” means a person who is not a solicitor or barrister but who is a member, and entitled to practise as such, of a legal profession regulated within a jurisdiction outside England and Wales;

  • “multi-national partnership” means a partnership whose members consist of one or more registered foreign lawyers and one or more solicitors;

  • “recognised body” has the same meaning as in section 9 of the Administration of Justice Act 1985 (management and control by solicitors of incorporated practices); and

  • “registered foreign lawyer” means a foreign lawyer who is registered under this section.

90The Compensation Fund: incorporated practices

In paragraph 6 of Schedule 2 to the [1985 c. 61.] Administration of Justice Act 1985 (payments into the Compensation Fund by bodies recognised under section 9 of that Act), the following sub-paragraphs shall be substituted for sub-paragraph (1)—

(1)On an application under section 9 of this Act a body corporate shall pay to the Society, with any fee required to be paid by virtue of subsection (2)(a) of that section, a contribution to the Compensation Fund of such amount as the Council may from time to time determine.

(1A)On being required to do so by the Society, every recognised body shall pay a further contribution to the Compensation Fund of such amount as the Council may from time to time determine.

(1B)The Society may only require a contribution under sub-paragraph (1A) if—

(a)the recognised body has held or received clients' money at any time within the twelve-month period; and

(b)no such contribution has been required from that body within that period.

(1C)In sub-paragraph (1B) “the twelve-month period”, in relation to any requirement for payment of a further contribution, means the period of twelve months ending immediately before the day on which the requirement is imposed.

(1D)Schedule 2 to the 1974 Act shall apply to amounts paid to the Society in pursuance of sub-paragraph (1) or (1A) of this paragraph as if they were annual contributions or special levies paid in pursuance of paragraph (a) or (b) of paragraph 2(1) of that Schedule.

91Power of Law Society to intervene in solicitors' practices

(1)In paragraph 1 of Schedule 1 to the Solicitors Act 1974 (circumstances in which Society may intervene in solicitors' practices) the following paragraphs shall be added at the end—

(h)the Council are satisfied that a sole solicitor has abandoned his practice;

(i)the Council are satisfied that a sole solicitor is incapacitated by age to such an extent as to be unable to attend to his practice;

(j)any power conferred by this Schedule has been exercised in relation to a sole solicitor by virtue of sub-paragraph (1)(a) and he has acted as a sole solicitor within the period of eighteen months beginning with the date on which it was so exercised;

(k)the Council are satisfied that a person has acted as a solicitor at a time when he did not have a practising certificate which was in force;

(l)the Council are satisfied that a solicitor has failed to comply with any condition, subject to which his practising certificate was granted or otherwise has effect, to the effect that he may act as a solicitor only—

(i)in employment which is approved by the Society in connection with the imposition of that condition;

(ii)as a member of a partnership which is so approved;

(iii)as an officer of a body recognised by the Council of the Law Society under section 9 of the [1985 c. 61.] Administration of Justice Act 1985 and so approved; or

(iv)in any specified combination of those ways.

(2)In section 15 of the Act of 1974 (suspension of practising certificates) the following subsections shall be inserted after subsection (1)—

(1A)Where the power conferred by paragraph 6(1) or 9(1) of Schedule 1 has been exercised in relation to a solicitor by virtue of paragraph 1(1)(a)(i), (c) (so far as it applies to rules made by virtue of section 32) or (e) of that Schedule, the exercise of that power shall operate immediately to suspend any practising certificate of that solicitor for the time being in force.

(1B)Subsection (1A) does not apply if, at the time when the power referred to there is exercised, the Society directs that subsection (1A) is not to apply in relation to the solicitor concerned.

(1C)If, at the time when the power referred to in subsection (1A) is exercised, the Society gives a direction to that effect, the solicitor concerned may continue to act in relation to any matter specified in the direction as if his practising certificate had not been suspended by virtue of subsection (1A), but subject to such conditions (if any) as the Society sees fit to impose.

(3)In section 16 of the Act of 1974 (duration of suspension of practising certificates) in subsection (3) the following paragraph shall be inserted after paragraph (c)—

(d)by virtue of section 15(1A).

92Functions of the Solicitors Disciplinary Tribunal

(1)Section 47 of the [1974 c. 47.] Solicitors Act 1974 (jurisdiction and powers of the Tribunal) shall be amended as follows.

(2)The following subsections shall be substituted for subsections (1) and (2)—

(1)Any application—

(a)to strike the name of a solicitor off the roll;

(b)to require a solicitor to answer allegations contained in an affidavit;

(c)to require a former solicitor whose name has been removed from or struck off the roll to answer allegations contained in an affidavit relating to a time when he was a solicitor;

(d)by a solicitor who has been suspended from practice for an unspecified period, by order of the Tribunal, for the termination of that suspension;

(e)by a former solicitor whose name has been struck off the roll to have his name restored to the roll;

(f)by a former solicitor in respect of whom a direction has been given under subsection (2)(g) to have his name restored to the roll,

shall be made to the Tribunal; but nothing in this subsection shall affect any jurisdiction over solicitors exercisable by the Master of the Rolls, or by any judge of the High Court, by virtue of section 50.

(2)Subject to subsection (3) and to section 54, on the hearing of any application or complaint made to the Tribunal under this Act, other than an application under section 43, the Tribunal shall have power to make such order as it may think fit, and any such order may in particular include provision for any of the following matters—

(a)the striking off the roll of the name of the solicitor to whom the application or complaint relates;

(b)the suspension of that solicitor from practice indefinitely or for a specified period;

(c)the payment by that solicitor or former solicitor of a penalty not exceeding £5,000, which shall be forfeit to Her Majesty;

(d)in the circumstances referred to in subsection (2A), the exclusion of that solicitor from legal aid work (either permanently or for a specified period);

(e)the termination of that solicitor’s unspecified period of suspension from practice;

(f)the restoration to the roll of the name of a former solicitor whose name has been struck off the roll and to whom the application relates;

(g)in the case of a former solicitor whose name has been removed from the roll, a direction prohibiting the restoration of his name to the roll except by order of the Tribunal;

(h)in the case of an application under subsection (1)(f), the restoration of the applicant’s name to the roll;

(i)the payment by any party of costs or a contribution towards costs of such amount as the Tribunal may consider reasonable.

(3)In subsection (2A) for the words “(2)(bb)” there shall be substituted “(2)(d)”.

(4)After subsection (3) there shall be inserted—

(3A)Where, on the hearing of any application or complaint under this Act, the Tribunal is satisfied that more than one allegation is proved against the person to whom the application or complaint relates it may impose a separate penalty (by virtue of subsection (2)(c)) with respect to each such allegation.

(5)In section 48(2) of that Act (recording and publishing of orders of the Tribunal)—

(a)for the words “(a) to (e)” there shall be substituted “(a) to (i)”;

(b)in paragraph (a) after the word “solicitor” there shall be inserted “or former solicitor”;

(c)in paragraph (b) for the words “paragraph (d) or (e) of that subsection” there shall be substituted “paragraph (e), (f), (h) or (i) of section 47(2)”.

(6)In section 49(1)(a) of that Act (appeal from Tribunal to the Master of the Rolls) for the words “47(1)(b)” there shall be substituted “47(1)(d), (e) or (f)”.

93Redress for inadequate professional services

(1)Section 44A of the [1974 c. 47.] Solicitors Act 1974 (powers of Council to impose sanctions for inadequate professional services) shall cease to have effect.

(2)In its place, the following shall be inserted in that Act after section 37—

Inadequate professional services

37ARedress for inadequate professional services

Schedule 1A shall have effect with respect to the provision by solicitors of services which are not of the quality which it is reasonable to expect of them.

(3)The provisions set out in Schedule 15 shall be inserted in that Act as Schedule 1A.

(4)Section 47A of that Act (power of Tribunal to impose sanctions for inadequate professional services) shall cease to have effect.

94Solicitors charged with or convicted of fraud or serious crime

(1)In section 13A of the Solicitors Act 1974 (imposition of conditions while practising certificates are in force), the following shall be added at the end of subsection (2)— ; or

(d)he has been charged with, or convicted of—

(i)an offence involving dishonesty or deception; or

(ii)a serious arrestable offence (as defined by section 116 of the [1984 c. 60.] Police and Criminal Evidence Act 1984).

(2)In subsection (5) of section 13A of that Act the following paragraph shall be added at the end—

This subsection does not apply to the exercise of the Society’s powers under this section by virtue of subsection (2)(d).

(3)After section 13A of that Act there shall be inserted the following section—

13BSuspension of practising certificates where solicitors convicted of fraud or serious crime

(1)Where—

(a)a solicitor has been convicted of—

(i)an offence involving dishonesty or deception; or

(ii)a serious arrestable offence (as defined by section 116 of the [1984 c. 60.] Police and Criminal Evidence Act 1984); and

(b)the Society has made an application to the Tribunal under section 47 with respect to him,

the Society may direct that any practising certificate of his which is for the time being in force be suspended.

(2)Any such suspension shall be for such period, not exceeding six months, as the Society shall specify in the direction.

(3)If, before the specified period expires—

(a)the Tribunal determines the Society’s application;

(b)the conviction is quashed or set aside; or

(c)the Society withdraws its application to the Tribunal,

the suspension shall cease to have effect.

(4)Where the specified period comes to an end without any of the events mentioned in subsection (3) having occurred, the Society may direct that the suspension be continued for such period, not exceeding six months, as it shall specify in the direction.

(5)A suspension under this section may only be extended once under subsection (4).

(6)Nothing in this section is to be taken as in any way affecting the Tribunal’s power to suspend a solicitor from practice.

(7)A solicitor in whose case a direction is given under subsection (1) or (4) may appeal to the Master of the Rolls against the direction within one month of being notified of it.

(8)In an appeal under subsection (7), the Master of the Rolls may—

(a)affirm the suspension;

(b)direct that the appellant’s certificate shall not be suspended but shall have effect subject to such conditions as the Master of the Rolls thinks fit;

(c)by order revoke the direction; or

(d)make such other order as he thinks fit.

95Appeals against refusal to restore solicitor’s name to roll under section 8 of the 1974 Act

In section 8 of the [1974 c. 47.] Solicitors Act 1974 (removal or restoration of name at solicitor’s request) the following subsections shall be added at the end—

(4)An appeal from any decision of the Society under subsection (2) shall lie to the Master of the Rolls.

(5)The Master of the Rolls may make regulations about appeals to him under this section.

96Powers of entry etc. of local weights and measures authorities

The following section shall be inserted in the [1974 c. 47.] Solicitors Act 1974 after section 22 (unqualified person not to prepare certain instruments)—

22APowers of entry etc. of local weights and measures authorities

(1)Any authorised officer who has reasonable cause to suspect that an offence may have been committed under section 22 may, at any reasonable time—

(a)enter any premises which are not used solely as a dwelling;

(b)require any officer, agent or other competent person on the premises who is, or may be, in possession of information relevant to an investigation under section 22, to provide such information;

(c)require the production of any document which may be relevant to such an investigation;

(d)take copies, or extracts, of any such documents;

(e)seize and retain any document which he has reason to believe may be required as evidence in proceedings for an offence under section 22.

(2)Any person exercising any power given by subsection (1) shall, if asked to do so, produce evidence that he is an authorised officer.

(3)A justice of the peace may issue a warrant under this section if satisfied, on information on oath given by an authorised officer, that there is reasonable cause to believe that an offence may have been committed under section 22 and that—

(a)entry to the premises concerned, or production of any documents which may be relevant to an investigation under section 22, has been or is likely to be refused to an authorised officer; or

(b)there is reasonable cause to believe that, if production of any such document were to be required by the authorised officer without a warrant having been issued under this section, the document would not be produced but would be removed from the premises or hidden, tampered with or destroyed.

(4)A warrant issued under this section shall authorise the authorised officer accompanied, where he considers it appropriate, by a constable or any other person—

(a)to enter the premises specified in the information, using such force as is reasonably necessary; and

(b)to exercise any of the powers given to the authorised officer by subsection (1).

(5)If a person—

(a)intentionally obstructs an authorised officer in the exercise of any power under this section;

(b)intentionally fails to comply with any requirement properly imposed on him by an authorised officer in the exercise of any such power;

(c)fails, without reasonable excuse, to give to an authorised officer any assistance or information which he may reasonably require of him for the purpose of exercising any such power; or

(d)in giving to an authorised officer any information which he has been required to give to an authorised officer exercising any such power, makes any statement which he knows to be false or misleading in a material particular,

he shall be guilty of an offence.

(6)A person guilty of an offence under this section shall be liable on summary conviction to a fine not exceeding level 3 on the standard scale.

(7)Nothing in this section shall be taken to require any person to answer any question put to him by an authorised officer, or to give any information to an authorised officer, if to do so might incriminate him.

(8)In this section—

  • “authorised officer” means any officer of a local weights and measures authority who is authorised by the authority to exercise the powers given by subsection (1); and

  • “document” includes information recorded in any form.

(9)In relation to information recorded otherwise than in legible form, references in this section to its production include references to producing a copy of the information in legible form.

97Committees and sub-committees of the Council

The following section shall be substituted for section 79 of the [1974 c. 47.] Solicitors Act 1974 (committees of the Council)—

79Committees and sub-committees of the Council

(1)Subject to any provision to the contrary made by or under any enactment, the Council may arrange for any of its functions (other than reserved functions) to be discharged by—

(a)a committee of the Council;

(b)a sub-committee of such a committee; or

(c)an individual (whether or not a member of the Society’s staff).

(2)Where, by virtue of subsection (1)(a), any of the Council’s functions may be discharged by a committee, the committee may arrange for the discharge of any of those functions by—

(a)a sub-committee of that committee; or

(b)an individual (whether or not a member of the Society’s staff).

(3)Where, by virtue of subsection (1) or (2), any of the Council’s functions may be discharged by a sub-committee, the sub-committee may arrange for the discharge of any of those functions by a member of the Society’s staff.

(4)Subsections (2) and (3) shall have effect subject to any contrary direction given by the Council.

(5)Subject to any direction given by the Council under subsection (4), subsection (3) shall have effect subject to any contrary direction given by the committee concerned.

(6)Any power given by subsection (1), (2) or (3) may be exercised so as to impose restrictions or conditions on the body or individual by whom the functions concerned are to be discharged.

(7)A committee of the Council, and any sub-committee of such a committee, discharging functions delegated under this section may include persons other than—

(a)members of the Council;

(b)members of the Society;

(c)solicitors.

(8)The majority of the members of any such committee or sub-committee may be persons who may be included by virtue of subsection (7).

(9)The number and term of office of the members of such a committee and the number of those members necessary to form a quorum, shall be fixed by the Council.

(10)Subject to any restriction or condition imposed by the Council, the number and term of office of the members of such a sub-committee and the number of those members necessary to form a quorum, shall be fixed by the committee concerned.

(11)The validity of any proceedings of such a committee or sub-committee shall not be affected by any casual vacancy among its members.

(12)In this section “reserved functions” means—

(a)the function of making rules or regulations under section 2, 31, 32, 34, 36, or 37 or under section 9 of the [1985 c. 61.] Administration of Justice Act 1985 (incorporated practices);

(b)the function of setting fees or financial contributions under paragraph 2(1) of Schedule 2 or section 8(2) or under paragraph 6 of Schedule 2 to the Administration of Justice Act 1985.

98Agreements with solicitors for payment by hourly rates

(1)Section 57 of the [1974 c. 47.] Solicitors Act 1974 (non-contentious business agreements) shall be amended in accordance with subsections (2) to (4).

(2)In subsection (2) (method of payment which may be agreed), after the words “gross sum” there shall be inserted “or by reference to an hourly rate”.

(3)In subsection (4), for the words “Subject to subsection (5)” there shall be substituted “Subject to subsections (5) and (7)”.

(4)After subsection (5) there shall be inserted the following subsections—

(6)Subsection (7) applies where the agreement provides for the remuneration of the solicitor to be by reference to an hourly rate.

(7)If, on the taxation of any costs, the agreement is relied on by the solicitor and the client objects to the amount of the costs (but is not alleging that the agreement is unfair or unreasonable), the taxing officer may enquire into—

(a)the number of hours worked by the solicitor; and

(b)whether the number of hours worked by him was excessive.

(5)In section 59(1) of the Act of 1974 (method of payment which may be agreed in contentious business agreement) after the words “gross sum” there shall be inserted “or by reference to an hourly rate”.

(6)In section 60(1) of the Act of 1974 (which among other things provides for section 69 of that Act not to apply to contentious business agreements), after the word “or” there shall be inserted “(except in the case of an agreement which provides for the solicitor to be remunerated by reference to an hourly rate)”.

(7)In section 61 of the Act of 1974 (enforcement of contentious business agreements), the following subsections shall be inserted after subsection (4)—

(4A)Subsection (4B) applies where a contentious business agreement provides for the remuneration of the solicitor to be by reference to an hourly rate.

(4B)If on the taxation of any costs the agreement is relied on by the solicitor and the client objects to the amount of the costs (but is not alleging that the agreement is unfair or unreasonable), the taxing officer may enquire into—

(a)the number of hours worked by the solicitor; and

(b)whether the number of hours worked by him was excessive.

Part VArbitration

99Arbitration by official referee

For section 11 of the [1950 c. 27.] Arbitration Act 1950 (reference to official referee) there shall be substituted—

11Power of official referee to take arbitrations

(1)An official referee may, if in all the circumstances he thinks fit, accept appointment as sole arbitrator, or as umpire, by or by virtue of an arbitration agreement.

(2)An official referee shall not accept appointment as arbitrator or umpire unless the Lord Chief Justice has informed him that, having regard to the state of official referees' business, he can be made available to do so.

(3)The fees payable for the services of an official referee as arbitrator or umpire shall be taken in the High Court.

(4)Schedule 3 to the [1970 c. 31.] Administration of Justice Act 1970 (which modifies this Act in relation to arbitration by judges, in particular by substituting the Court of Appeal for the High Court in provisions whereby arbitrators and umpires, their proceedings and awards are subject to control and review by the court) shall have effect in relation to official referees appointed as arbitrators or umpires as it has effect in relation to judge-arbitrators and judge-umpires (within the meaning of that Schedule).

(5)Any jurisdiction which is exercisable by the High Court in relation to arbitrators and umpires otherwise than under this Act shall, in relation to an official referee appointed as arbitrator or umpire, be exercisable instead by the Court of Appeal.

(6)In this section “official referee” means any person nominated under section 68(1)(a) of the [1981 c. 54.] Supreme Court Act 1981 to deal with official referees' business.

(7)Rules of the Supreme Court may make provision for—

(a)cases in which it is necessary to allocate references made under or by virtue of arbitration agreements to official referees;

(b)the transfer of references from one official referee to another.

100Specific powers of arbitrator exercisable by High Court

After section 43 of the [1981 c. 54.] Supreme Court Act 1981 there shall be inserted the following section—

43ASpecific powers of arbitrator exercisable by High Court

In any cause or matter proceeding in the High Court in connection with any contract incorporating an arbitration agreement which confers specific powers upon the arbitrator, the High Court may, if all parties to the agreement agree, exercise any such powers.

101Power of parties in certain cases to fill vacancy

(1)In section 10 of the [1950 c. 27.] Arbitration Act 1950 (power of court in certain cases to appoint an arbitrator or umpire), the following shall be substituted for subsection (3)—

(3)In any case where—

(a)an arbitration agreement provides that the reference shall be to three arbitrators, one to be appointed by each party and the third to be appointed by the two appointed by the parties or in some other manner specified in the agreement; and

(b)one of the parties (“the party in default”) refuses to appoint an arbitrator or does not do so within the time specified in the agreement or, if no time is specified, within a reasonable time,

the other party to the agreement, having appointed his arbitrator, may serve the party in default with a written notice to appoint an arbitrator.

(3A)A notice under subsection (3) must indicate whether it is served for the purposes of subsection (3B) or for the purposes of subsection (3C).

(3B)Where a notice is served for the purposes of this subsection, then unless a contrary intention is expressed in the agreement, if the required appointment is not made within seven clear days after the service of the notice—

(a)the party who gave the notice may appoint his arbitrator to act as sole arbitrator in the reference; and

(b)his award shall be binding on both parties as if he had been appointed by consent.

(3C)Where a notice is served for the purposes of this subsection, then, if the required appointment is not made within seven clear days after the service of the notice, the High Court or a judge thereof may, on the application of the party who gave the notice, appoint an arbitrator on behalf of the party in default who shall have the like powers to act in the reference and make an award (and, if the case so requires, the like duty in relation to the appointment of a third arbitrator) as if he had been appointed in accordance with the terms of the agreement.

(3D)The High Court or a judge thereof may set aside any appointment made by virtue of subsection (3B).

(2)Section 10 of the Act of 1950 shall continue to apply in relation to any arbitration agreement entered into before the commencement of this section as if this section had not been enacted.

(3)Subsection (2) does not apply if a contrary intention is expressed in the arbitration agreement, whether or not as the result of a variation made after the commencement of this section.

102Want of prosecution

After section 13 of the [1950 c. 27] Arbitration Act 1950 (time for making an award) there shall be inserted—

13AWant of prosecution

(1)Unless a contrary intention is expressed in the arbitration agreement, the arbitrator or umpire shall have power to make an award dismissing any claim in a dispute referred to him if it appears to him that the conditions mentioned in subsection (2) are satisfied.

(2)The conditions are—

(a)that there has been inordinate and inexcusable delay on the part of the claimant in pursuing the claim; and

(b)that the delay—

(i)will give rise to a substantial risk that it is not possible to have a fair resolution of the issues in that claim; or

(ii)has caused, or is likely to cause or to have caused, serious prejudice to the respondent.

(3)For the purpose of keeping the provision made by this section and the corresponding provision which applies in relation to proceedings in the High Court in step, the Secretary of State may by order made by statutory instrument amend subsection (2) above.

(4)Before making any such order the Secretary of State shall consult the Lord Chancellor and such other persons as he considers appropriate.

(5)No such order shall be made unless a draft of the order has been laid before, and approved by resolution of, each House of Parliament.

103Repeal of High Court’s power to order discovery etc

Section 12(6)(b) of the [1950 c. 27.] Arbitration Act 1950 (power of High Court to order discovery of documents and interrogatories) shall cease to have effect.

Part VIMiscellaneous and Supplemental

Tying-in

104Tying-in arrangements in connection with residential property loans

(1)In this section and sections 105 and 106 “residential property loan” means any loan which—

(a)is secured on land in the United Kingdom; and

(b)is made to an individual in respect of the acquisition of land which is for his residential use or the residential use of a dependant of his.

(2)No person (“the lender”) shall provide a residential property loan together with one or more controlled services to another person (“the borrower”) unless the conditions mentioned in subsection (3) are complied with before a relevant step is taken with respect to any of those services or the loan.

(3)The conditions are that the lender—

(a)informs the borrower by notice that the residential property loan, and each of the controlled services in question, are separate services;

(b)informs the borrower by notice whether the terms and conditions of the residential property loan will be capable of being varied by the lender after it is made;

(c)provides the borrower with a statement of—

(i)the price which will be payable by the borrower for each of the controlled services if they are all provided in accordance with the terms proposed by the lender; and

(ii)the extent to which (if at all) the terms and conditions of the residential property loan would differ if it were to be provided by the lender without the controlled services in question being provided by the lender; and

(d)informs the borrower by notice that, if the borrower declines to take from the lender any of the controlled services in question, the lender will not on that account refuse to provide the residential property loan.

(4)A person who—

(a)in the course of his business provides, or makes arrangements for the provision of, controlled services together with residential property loans; and

(b)advertises or in any other manner promotes—

(i)the provision of any controlled service or any residential property loan; or

(ii)the making by him of any such arrangements,

shall comply with such requirements as to the information to be given, or which may not be given, in any such advertisement or promotion as the Secretary of State may by regulations impose.

105Tying-in arrangements: supplemental provisions

(1)In section 104, this section and section 106 “controlled services” means any services of a description prescribed by order made by the Secretary of State.

(2)The order may, in particular, prescribe any description of—

(a)banking, insurance, investment, trusteeship, executorship or other financial services;

(b)services relating to the acquisition, valuation, surveying or disposal of property;

(c)conveyancing services; or

(d)removal services.

(3)For the purposes of section 104(1), the Secretary of State may by order specify—

(a)the circumstances in which land is to be treated as being for a person’s residential use; and

(b)who are to be treated as a person’s dependants.

(4)Section 104(2) shall not apply in relation to the provision of a controlled service if the lender proves—

(a)that the provision of that service was not connected with the transaction in respect of which the borrower required the residential property loan in question; or

(b)where it was so connected, that the lender did not know, and had no reasonable cause to know, that it was.

(5)For the purposes of section 104, this section and section 106—

(a)where the lender is a member of a group of companies, the lender and all the other members of the group shall be treated as one; and

(b)where the lender derives any financial benefit from the provision of a controlled service by any other person, the lender shall be treated as providing that service.

(6)In subsection (5), “a group of companies” means a holding company and its subsidiaries within the meaning of section 736 of the [1985 c. 6.] Companies Act 1985.

(7)The Secretary of State may by order provide that, in such cases or for such purposes as may be prescribed by the order, paragraph (a) or (b) of subsection (5) shall not have effect.

(8)For the purposes of section 104—

  • “notice” means a notice in writing given in the form prescribed by regulations made by the Secretary of State;

  • “price” shall have the meaning given by order made by the Secretary of State;

  • “relevant step”, in relation to any controlled service or residential property loan, means such step as may be prescribed by order made by the Secretary of State in relation to that service or loan (taken by such person as may be so prescribed); and

  • “statement” means a statement in writing given in the form prescribed by regulations made by the Secretary of State.

(9)In relation to land in Scotland—

(a)“conveyancing services” has the same meaning as in the [1990 c. 40.] Law Reform (Miscellaneous Provisions) (Scotland) Act 1990; and

(b)the reference in section 104(1) to a loan being secured on land shall be read as a reference to its being secured over land by a standard security.

(10)Before making any order or regulations under section 104 or this section the Secretary of State shall consult the Director and such other persons as he considers appropriate.

106Tying-in: offences

(1)If any person contravenes section 104(2) or (4) he shall be guilty of an offence.

(2)Subsection (3) applies where—

(a)a person (“the lender”) has, in relation to the proposed provision to any person (“the borrower”) of a residential property loan together with one or more controlled services, complied with the conditions mentioned in section 104(3); and

(b)the borrower has declined to take from the lender one or more of the controlled services.

(3)The lender shall be guilty of an offence if he refuses to provide the borrower with the residential property loan or refuses to provide it to him—

(a)on the terms applicable if it were provided together with the controlled services; or

(b)where they differ, on terms which are compatible with the statement required by section 104(3)(c)(ii),

unless he proves that his reason for so refusing was unconnected with the borrower’s having declined as mentioned in subsection (2)(b).

(4)Any person guilty of an offence under this section shall be liable—

(a)on summary conviction, to a fine not exceeding the statutory maximum; and

(b)on conviction on indictment, to a fine.

(5)Subsection (6) applies where an offence under this section is committed by a body corporate.

(6)If the offence is proved to have been committed with the consent or connivance of or to be attributable to any neglect on the part of—

(a)any director, secretary or other similar officer of the body corporate; or

(b)any person who was purporting to act in any such capacity,

he (as well as the body corporate) shall be guilty of the offence and shall be liable to be proceeded against and punished accordingly.

(7)The fact that a person has committed an offence under this section in connection with any agreement shall not make the agreement void, or unenforceable (whether as a whole or in part) or otherwise affect its validity or give rise to any cause of action for breach of statutory duty.

107Tying-in: enforcement

(1)Every local weights and measures authority (“an authority”) and the Director shall have the duty of enforcing sections 104 to 106 and any regulations made under them.

(2)Nothing in subsection (1) is to be taken as authorising a local weights and measures authority in Scotland to institute proceedings for an offence.

(3)Where an authority propose to institute proceedings for an offence under section 106 they shall give the Director notice of the intended proceedings together with a summary of the facts on which the charges are to be founded.

(4)Where an authority are under a duty to give such a notice and summary they shall not institute the proceedings until—

(a)the end of the period of 28 days beginning with the date on which they gave the required notice and summary; or

(b)if earlier, the date on which the Director notifies them of receipt of the notice and summary.

(5)Every authority shall, whenever the Director requires, report to him in such form and with such particulars as he requires on the exercise of their functions under this section.

(6)A duly authorised officer of the Director or of an authority (“an authorised officer”) who has reasonable cause to suspect that an offence may have been committed under section 106 may, at any reasonable time—

(a)enter any premises which are not used solely as a dwelling;

(b)require any officer, agent or other competent person on the premises who is, or may be, in possession of information relevant to an investigation in connection with the provision made by section 104 or 105 to provide such information;

(c)require the production of any document which may be relevant to such an investigation;

(d)take copies, or extracts, of any such documents;

(e)seize and retain any document which he has reason to believe may be required as evidence in proceedings for an offence under section 106.

(7)Any authorised officer exercising any power given by subsection (6) shall, if asked to do so, produce evidence that he is such an officer.

(8)A justice of the peace may issue a warrant under this section if satisfied, on information on oath given by an authorised officer, that there is reasonable cause to believe that an offence may have been committed under section 106 and that—

(a)entry to the premises concerned, or production of any documents which may be relevant to an investigation in connection with the provision made by section 104 or 105, has been or is likely to be refused to the authorised officer; or

(b)there is reasonable cause to believe that, if production of any such document were to be required by the authorised officer without a warrant having been issued under this section, the document would not be produced but would be removed from the premises or hidden, tampered with or destroyed.

(9)In the application of this section to Scotland, “justice of the peace” includes a sheriff and “information on oath” shall be read as “evidence on oath”.

(10)A warrant issued under this section shall authorise the authorised officer (accompanied, where he considers it appropriate, by a constable or any other person)—

(a)to enter the premises specified in the information, using such force as is reasonably necessary; and

(b)to exercise any of the powers given to the authorised officer by subsection (6).

(11)If a person—

(a)intentionally obstructs an authorised officer in the exercise of any power under this section;

(b)intentionally fails to comply with any requirement properly imposed on him by an authorised officer in the exercise of any such power;

(c)fails, without reasonable excuse, to give to an authorised officer any assistance or information which he may reasonably require of him for the purpose of exercising any such power; or

(d)in giving to an authorised officer any information which he has been required to give to an authorised officer exercising any such power, makes any statement which he knows to be false or misleading in a material particular,

he shall be guilty of an offence.

(12)A person guilty of an offence under subsection (11)(a), (b) or (c) shall be liable on summary conviction to a fine not exceeding level 3 on the standard scale.

(13)A person guilty of an offence under subsection (11)(d) shall be liable on summary conviction to a fine not exceeding level 4 on the standard scale.

(14)Nothing in this section shall be taken to require any person to answer any question put to him by an authorised officer, or to give any information to an authorised officer, if to do so might incriminate him.

(15)In this section “document” includes information recorded in any form.

(16)In relation to information recorded otherwise than in legible form, references in this section to its production include references to producing a copy of the information in legible form.

Miscellaneous

108Liability of magistrates for damages and costs

(1)The Justices of the [1979 c. 55.] Peace Act 1979 shall be amended as follows.

(2)For section 44 (acts done within jurisdiction) there shall be substituted the following section—

44Immunity for acts within jurisdiction

No action shall lie against any justice of the peace or justice’s clerk in respect of any act or omission of his—

(a)in the execution of his duty—

(i)as such a justice; or

(ii)as such a clerk exercising, by virtue of any statutory provision, any of the functions of a single justice; and

(b)with respect to any matter within his jurisdiction.

(3)For section 45 (acts beyond jurisdiction) there shall be substituted the following section—

45Immunity for certain acts beyond jurisdiction

An action shall lie against any justice of the peace or justice’s clerk in respect of any act or omission of his—

(a)in the purported execution of his duty—

(i)as such a justice; or

(ii)as such a clerk exercising, by virtue of any statutory provision, any of the functions of a single justice; but

(b)with respect to a matter which is not within his jurisdiction,

if, but only if, it is proved that he acted in bad faith.

(4)In section 15 (acting stipendiary magistrate) after subsection (2) there shall be inserted the following subsection—

(2A)Sections 44, 45 and 53 of this Act shall apply to a person acting as a stipendiary magistrate under subsection (1) as they apply to a stipendiary magistrate.

(5)In section 34 (acting metropolitan stipendiary magistrate) after subsection (2) there shall be inserted the following subsection—

(2A)Sections 44, 45 and 53 of this Act shall apply to a person acting as a metropolitan stipendiary magistrate under subsection (1) as they apply to a metropolitan stipendiary magistrate.

(6)The following sections shall cease to have effect—

(a)46 (warrant granted on conviction or order made by another justice);

(b)47 (exercise of discretionary powers);

(c)48 (compliance with, or confirmation on appeal to, superior court);

(d)49 (distress warrant for rates);

(e)51 (no action in county court if defendant justice objects);

(f)52 (limitation of damages against justice); and

(g)54 (provisions as to prerogative proceedings and membership of Crown Court).

109Liability of resident magistrates etc. in Northern Ireland for damages and costs

(1)The [S.I. 1981/1675 (N.I. 26).] Magistrates' Courts (Northern Ireland) Order 1981 shall be amended as follows.

(2)For Articles 5 and 6 (general immunity of resident magistrates etc.) there shall be substituted the following Articles—

5Immunity of resident magistrates etc. for acts within jurisdiction

No action shall lie against any resident magistrate, justice of the peace or clerk of petty sessions in respect of any act or omission of his—

(a)in the execution of his duty—

(i)as such a magistrate or justice; or

(ii)as such a clerk exercising, by virtue of any statutory provision, any function of a magistrates' court; and

(b)with respect to any matter within his jurisdiction.

6Immunity for certain acts beyond jurisdiction

An action shall lie against any resident magistrate, justice of the peace or clerk of petty sessions in respect of any act or omission of his—

(a)in the purported exercise of his duty—

(i)as such a magistrate or justice; or

(ii)as such a clerk exercising, by virtue of any statutory provision, any function of a magistrates' court; but

(b)with respect to a matter which is not within his jurisdiction,

if, but only if, it is proved that he acted in bad faith.

(3)After Article 145 there shall be inserted the following Article—

145AImmunity of county court judges hearing appeals under this Part

Articles 5, 6 and 10 shall apply in relation to a county court judge sitting in connection with an appeal under this Part as they apply in relation to a resident magistrate.

(4)In Schedule 2 to the [1968 c. 34 (N.I.).] Children and Young Persons Act (Northern Ireland) 1968 (constitution of juvenile courts) after paragraph 2 there shall be inserted the following paragraph—

2AArticles 5, 6 and 10 of the Magistrates' Courts (Northern Ireland) Order 1981 shall apply in relation to a member of a panel formed under paragraph 1 as they apply in relation to a resident magistrate.

(5)Section 63 of the [1985 c. 61.] Administration of Justice Act 1985 (limitation of damages in respect of acts by resident magistrates etc. in Northern Ireland) shall cease to have effect.

(6)The following provisions of the [S.I. 1981/1675 (N.I.26).] Magistrates' Courts (Northern Ireland) Order 1981 shall cease to have effect and are hereby repealed—

(a)in Article 7, the words from “another” to “or by”, and the words “magistrate, justice or”; and

(b)in Article 8, paragraph (1), and in paragraph (2) the words “resident magistrate or justice of the peace or” and the words “magistrate, justice or”.

110Jurisdiction of the Parliamentary Commissioner for Administration

(1)In section 5 of the [1967 c. 13.] Parliamentary Commissioner Act 1967 (matters subject to investigation), the following subsection shall be added at the end—

(6)For the purposes of this section, administrative functions exercisable by any person appointed by the Lord Chancellor as a member of the administrative staff of any court or tribunal shall be taken to be administrative functions of the Lord Chancellor’s Department or, in Northern Ireland, of the Northern Ireland Court Service.

(2)In Schedule 3 to that Act (matters not subject to investigation), the following paragraph shall be inserted after paragraph 6—

6AAction taken by any person appointed by the Lord Chancellor as a member of the administrative staff of any court or tribunal, so far as that action is taken at the direction, or on the authority (whether express or implied), of any person acting in a judicial capacity or in his capacity as a member of the tribunal.

111Costs against legal representatives etc. in criminal proceedings

The following section shall be inserted after section 19 of the Prosecution of Offences Act 1985—

19ACosts against legal representatives etc

(1)In any criminal proceedings—

(a)the Court of Appeal;

(b)the Crown Court; or

(c)a magistrates' court,

may disallow, or (as the case may be) order the legal or other representative concerned to meet, the whole of any wasted costs or such part of them as may be determined in accordance with regulations.

(2)Regulations shall provide that a legal or other representative against whom action is taken by a magistrates' court under subsection (1) may appeal to the Crown Court and that a legal or other representative against whom action is taken by the Crown Court under subsection (1) may appeal to the Court of Appeal.

(3)In this section—

  • “legal or other representative”, in relation to any proceedings, means a person who is exercising a right of audience, or a right to conduct litigation, on behalf of any party to the proceedings;

  • “regulations” means regulations made by the Lord Chancellor; and

  • “wasted costs” means any costs incurred by a party—

    (a)

    as a result of any improper, unreasonable or negligent act or omission on the part of any representative or any employee of a representative; or

    (b)

    which, in the light of any such act or omission occurring after they were incurred, the court considers it is unreasonable to expect that party to pay.

112Costs against legal representatives in magistrates' courts

The following section shall be inserted in the [1980 c. 43.] Magistrates' Courts Act 1980 after section 145 (which contains supplementary provisions about rules of court)—

145ARules: costs order against legal representative

(1)In any civil proceedings, a magistrates' court may disallow or (as the case may be) order the legal or other representative concerned to meet the whole of any wasted costs or such part of them as may be determined in accordance with rules.

(2)In subsection (1), “wasted costs” means any costs incurred by a party—

(a)as a result of any improper, unreasonable or negligent act or omission on the part of any legal or other representative or any employee of such a representative; or

(b)which, in the light of any such act or omission occurring after they were incurred, the court considers it is unreasonable to expect that party to pay.

(3)In this section “legal or other representative”, in relation to any proceedings, means any person who is exercising a right of audience, or a right to conduct litigation, on behalf of any party to the proceedings.

(4)Rules made by virtue of this section may, in particular, make provision as to the destination of any payment required to be made under the rules (including provision for the reimbursement of sums paid by the Legal Aid Board).

(5)Rules made by virtue of this section—

(a)shall require a magistrates' court which proposes to act under the rules against a legal or other representative to allow him a reasonable opportunity to appear before it and show cause why it should not do so;

(b)shall provide that action may be taken under the rules either on the application of any party to the proceedings or on the motion of the court;

(c)shall provide that no such action shall be taken after the end of the period of six months beginning with the date on which the proceedings are disposed of by the court; and

(d)shall provide that a legal or other representative against whom action is taken under the rules may appeal to the Crown Court.

113Administration of oaths and taking of affidavits

(1)In this section—

  • “authorised person” means—

    (a)

    any authorised advocate or authorised litigator, other than one who is a solicitor (in relation to whom provision similar to that made by this section is made by section 81 of the [1974 c. 47.] Solicitors Act 1974); or

    (b)

    any person who is a member of a professional or other body prescribed by the Lord Chancellor for the purposes of this section; and

  • “general notary” means any public notary other than—

    (a)

    an ecclesiastical notary; or

    (b)

    one who is a member of the Incorporated Company of Scriveners (in relation to whom provision similar to that made by this section is made by section 65 of the [1985 c. 61.] Administration of Justice Act 1985).

(2)Section 1(1) of the Commissioners for Oaths Act 1889 (appointment of commissioners by Lord Chancellor) shall cease to have effect.

(3)Subject to the provisions of this section, every authorised person shall have the powers conferred on a commissioner for oaths by the Commissioners for Oaths Acts 1889 and 1891 and section 24 of the [1891 c. 38.] Stamp Duties Management Act 1891; and any reference to such a commissioner in an enactment or instrument (including an enactment passed or instrument made after the commencement of this Act) shall include a reference to an authorised person unless the context otherwise requires.

(4)Subject to the provisions of this section, every general notary shall have the powers conferred on a commissioner for oaths by the Commissioners for Oaths Acts 1889 and 1891; and any reference to such a commissioner in an enactment or instrument (including an enactment passed or instrument made after the commencement of this Act) shall include a reference to a general notary unless the context otherwise requires.

(5)No person shall exercise the powers conferred by this section in any proceedings in which he is interested.

(6)A person exercising such powers and before whom any oath or affidavit is taken or made shall state in the jurat or attestation at which place and on what date the oath or affidavit is taken or made.

(7)A document containing such a statement and purporting to be sealed or signed by an authorised person or general notary shall be admitted in evidence without proof of the seal or signature, and without proof that he is an authorised person or general notary.

(8)The Lord Chancellor may, with the concurrence of the Lord Chief Justice and the Master of the Rolls, by order prescribe the fees to be charged by authorised persons exercising the powers of commissioners for oaths by virtue of this section in respect of the administration of an oath or the taking of an affidavit.

(9)In this section “affidavit” has the same meaning as in the Commissioners for Oaths Act 1889.

(10)Every—

(a)solicitor who holds a practising certificate which is in force;

(b)authorised person;

(c)general notary; and

(d)member of the Incorporated Company of Scriveners (“the Company”) who has been admitted to practise as a public notary within the jurisdiction of the Company,

shall have the right to use the title “Commissioner for Oaths”.

114Bail applications

The following section shall be inserted in the [1985 c. 23.] Prosecution of Offences Act 1985, after section 7—

7ABail applications

(1)The Director may designate, for the purposes of this section, members of the staff of the Crown Prosecution Service who are not Crown Prosecutors.

(2)A person so designated shall have all the powers of a Crown Prosecutor in relation to any application for, or relating to, bail in criminal proceedings, but shall exercise those powers subject to instructions given to him by the Director.

(3)Any such instructions may be given so as to apply generally.

(4)In this section “bail in criminal proceedings” has the same meaning as it has in the [1976 c. 63.] Bail Act 1976 by virtue of the definition in section 1 of that Act.

115Law reports

A report of a case made by a person who is not a barrister but who is a solicitor or has a Supreme Court qualification (within the meaning of section 71) shall have the same authority as if it had been made by a barrister.

116Provision with respect to the Children Act 1989

(1)The provisions of Part I of Schedule 16 shall have effect for the purpose of making amendments to the [1989 c. 41.] Children Act 1989 or to provisions of other enactments amended by that Act.

(2)Part II of Schedule 16 shall have effect for the purpose of making further provision consequential on the Act of 1989.

(3)The general rule making power of any authority having power to make rules of court for Northern Ireland shall include power to make any provision which may be made under section 93 of the Act of 1989 (rules of court) subject to the modifications that in subsection (2)—

(a)paragraphs (e) and (i) shall be omitted; and

(b)in paragraphs (1) and (g) the references to England and Wales shall be read as references to Northern Ireland.

117Extension of powers of justices' clerks

In section 28 of the Justices of the Peace Act 1979 (general powers and duties of justices' clerks) after subsection (1) there shall be inserted the following subsection—

(1A)Such rules may also make provision enabling things authorised to be done by, to or before a justices' clerk (whether by virtue of subsection (1) above or otherwise) to be done instead by, to or before—

(a)a person appointed by a magistrates' courts committee to assist him;

(b)where he is a part-time justices' clerk, any member of his staff who has been appointed by the magistrates' courts committee to assist him in his duties as such;

(c)any officer appointed by the committee of magistrates to be his deputy or to assist him.

118Functions of Treasury

(1)The [1981 c. 20.] Judicial Pensions Act 1981 shall have effect subject to the following amendments (which reflect the transfer of functions from the Ministers of the Civil Service to the [S.I. 1981/1760.] Treasury effected by the Transfer of Functions (Minister for the Civil Service and Treasury) Order 1981).

(2)In section 10(1), and paragraph 23(2) of Schedule 1, for the words “the Minister for the Civil Service” there shall be substituted “the Treasury”.

(3)In section 29, for the words “the Minister for the Civil Service or any other Minister” there shall be substituted “the Treasury or any Minister of the Crown”.

(4)In the following provisions—

(a)sections 3(4), 5(6), 7(5), 8(1), 11(a) and (b), 12(5), 13(4)(b), 15. 18(2), 20(4), 21(5), 22(1), 23(4). 25(1)(a) and 32(2);

(b)paragraphs 4(1)(b)(ii). 8, 10(2), 14(2), 15(2),(5) and (7), 17, 20(1) and (2) and 22 of Schedule 1; and

(c)paragraph 2(2) of Schedule 2,

for the words “the Minister”, wherever they occur, there shall be substituted “the Treasury”.

(5)In section 2 1(4), for the words “the Minister may, if he” there shall be substituted “the Treasury may, if it”.

(6)In section 22(4)—

(a)for the word “Minister”, where it first occurs, there shall be substituted “Treasury”; and

(b)for the words from “if the Minister” to “he thinks fit” there shall be substituted “if the Treasury does specially so direct, it may, if it thinks fit”.

(7)In Schedule 1—

(a)in paragraph 8(2). for the words “to him” there shall be substituted “to it”;

(b)in paragraph 15(7), for the words “he is satisfied” there shall be substituted “it is satisfied”;

(c)in paragraph 17(1), for the words “he shall” there shall be substituted “it shall”; and

(d)in paragraph 21, for the word “Minister”, where it first occurs, there shall be substituted “Treasury” and for the words “he thinks” there shall be substituted “it thinks”.

(8)In section 33, the definition of “the Minister” shall be omitted.

Supplemental

119Interpretation

(1)In this Act—

  • “administration”, in relation to letters of administration, has the same meaning as in section 128 of the [1981 c. 54.] Supreme Court Act 1981;

  • “advocacy services” means any services which it would be reasonable to expect a person who is exercising, or contemplating exercising, a right of audience in relation to any proceedings, or contemplated proceedings, to provide;

  • “authorised advocate” means any person (including a barrister or solicitor) who has a right of audience granted by an authorised body in accordance with the provisions of this Act;

  • “authorised body” and “appropriate authorised body”—

    (a)

    in relation to any right of audience or proposed right of audience, have the meanings given in section 27; and

    (b)

    in relation to any right to conduct litigation or proposed right to conduct litigation, have the meanings given in section 28;

  • “authorised litigator” means any person (including a solicitor) who has a right to conduct litigation granted by an authorised body in accordance with the provisions of this Act;

  • “authorised practitioner” has the same meaning as in section 37;

  • “conveyancing services” means the preparation of transfers, conveyances, contracts and other documents in connection with, and other services ancillary to, the disposition or acquisition of estates or interests in land;

  • “court” includes—

    (a)

    any tribunal which the Council on Tribunals is under a duty to keep under review;

    (b)

    any court-martial; and

    (c)

    a statutory inquiry within the meaning of section 19(1) of the [1971 c. 62.] Tribunals and Inquiries Act 1971;

  • “designated judge” means the Lord Chief Justice, the Master of the Rolls, the President of the Family Division or the Vice-Chancellor;

  • “the Director” means the Director General of Fair Trading;

  • “duly certificated notary public” has the same meaning as it has in the [1974 c. 47.] Solicitors Act 1974 by virtue of section 87(1) of that Act;

  • “the general principle” has the meaning given in section 17(4);

  • “licensed conveyancer” has the same meaning as it has in the [1985 c. 61.] Administration of Justice Act 1985 by virtue of section 11 of that Act;

  • “litigation services” means any services which it would be reasonable to expect a person who is exercising, or contemplating exercising, a right to conduct litigation in relation to any proceedings, or contemplated proceedings, to provide;

  • “member”, in relation to any professional or other body (other than any body established by this Act), includes any person who is not a member of that body but who may be subject to disciplinary sanctions for failure to comply with any of that body’s rules;

  • “multi-national partnership” has the meaning given by section 89(9);

  • “probate services” means the drawing or preparation of any papers on which to found or oppose a grant of probate or a grant of letters of administration and the administration of the estate of a deceased person;

  • “prescribed” means prescribed by regulations under this Act;

  • “proceedings” means proceedings in any court;

  • “qualification regulations” and “rules of conduct”—

    (a)

    in relation to any right of audience or proposed right of audience, have the meanings given in section 27; and

    (b)

    in relation to any right to conduct litigation or proposed right to conduct litigation, have the meanings given in section 28;

  • “qualified person” has the meaning given in section 36(6);

  • “registered foreign lawyer” has the meaning given by section 89(9);

  • “right of audience” means the right to exercise any of the functions of appearing before and addressing a court including the calling and examining of witnesses;

  • “right to conduct litigation” means the right—

    (a)

    to exercise all or any of the functions of issuing a writ or otherwise commencing proceedings before any court; and

    (b)

    to perform any ancillary functions in relation to proceedings (such as entering appearances to actions);

  • “solicitor” means solicitor of the Supreme Court; and

  • “the statutory objective” has the meaning given in section 17(2).

(2)For the purposes of the definition of “conveyancing services” in subsection (1)—

  • “disposition”—

    (i)

    does not include a testamentary disposition or any disposition in the case of such a lease as is referred to in section 54(2) of the [1925 c. 20.] Law of Property Act 1925 (short leases); but

    (ii)

    subject to that, includes in the case of leases both their grant and their assignment; and

  • “acquisition” has a corresponding meaning.

(3)In this Act any reference (including those in sections 27(9) and 28(5)) to rules of conduct includes a reference to rules of practice.

120Regulations and orders

(1)Any power to make orders or regulations conferred by this Act shall be exercisable by statutory instrument.

(2)Any such regulations or order may make different provision for different cases or classes of case.

(3)Any such regulations or order may contain such incidental, supplemental or transitional provisions or savings as the person making the regulations or order considers expedient.

(4)No instrument shall be made under section 1(1), 26(1), 37(10), 40(1), 58, 60, 89(5) or (7), 125(4) or paragraph 4 or 6 of Schedule 9 or paragraph 9(c) of Schedule 14 unless a draft of the instrument has been approved by both Houses of Parliament.

(5)An Order in Council shall not be made in pursuance of a recommendation made under section 29(2) or 30(1) unless a draft of the Order has been approved by both Houses of Parliament.

(6)Any other statutory instrument made under this Act other than one under section 124(3) shall be subject to annulment in pursuance of a resolution of either House of Parliament.

121Financial provisions

Any expenses incurred by the Lord Chancellor under this Act shall be payable out of money provided by Parliament.

122Power to make corresponding provision for Northern Ireland

An Order in Council made under paragraph 1(1)(b) of Schedule 1 to the [1974 c. 28.] Northern Ireland Act 1974 which contains a statement—

(a)that it amends the law in Northern Ireland with respect to —

(i)the pensions of county court judges and resident magistrates, and

(ii)pensions in relation to which provisions of the [1951 c. 20. (N.I.).] Judicial Pensions Act (Northern Ireland) 1951 apply; and

(b)that it is made only for purposes corresponding to those of—

(i)sections 79 to 83 and Schedules 12 and 13 and such other provisions of this Act as are consequential on those sections and those Schedules;

(ii)section 118,

shall not be subject to sub-paragraphs (4) and (5) of paragraph 1 of that Schedule (affirmative resolution of both Houses of Parliament) but shall be subject to annulment in pursuance of a resolution of either House of Parliament.

123Extent

(1)The following provisions of this Act extend to Scotland—

(a)section 65;

(b)section 71(2), so far as necessary;

(c)sections 79 to 83;

(d)sections 104 to 107;

(e)section 116, this section and sections 124 and 125, so far as necessary;

(f)paragraph 13 of Schedule 1;

(g)paragraph 8 of Schedule 3;

(h)paragraph 11 of Schedule 5;

(i)Schedule 10, so far as it amends any enactment extending to Scotland;

(j)paragraphs 5, 34 to 36, 39, 41 and 42 of Schedule 16;

(k)paragraph 1 of Schedule 17; and

(l)Schedule 20, so far as it repeals any enactment extending to Scotland.

(2)The following provisions of this Act extend to Northern Ireland—

(a)section 8;

(b)section 71(2), so far as necessary;

(c)sections 79(1) and 80 to 84;

(d)sections 109, 110, 116, 118, 121, 122, this section and sections 124 and 125 so far as necessary;

(e)paragraph 13 of Schedule 1;

(f)paragraph 8 of Schedule 3;

(g)paragraph 11 of Schedule 5;

(h)Schedule 10, so far as it amends any enactment extending to Northern Ireland;

(i)Schedule 13;

(j)paragraphs 5, 25, 33, 35, 39 and 41 of Schedule 16;

(k)Schedules 17, 18 and 19, so far as they amend or relate to any enactment extending to Northern Ireland;

(l)Schedule 20 so far as it repeals any such enactment.

124Commencement

(1)The following provisions come into force on the passing of this Act—

(a)sections 1, 5, 119 to 123, this section and section 125(1); and

(b)paragraphs 2 and 3 of Schedule 17.

(2)The following provisions come into force at the end of the period of two months beginning on the day on which this Act is passed—

(a)sections 6, 8, 11, 16, 64, 65, 72, 73, 85, 87 and 88, 90 to 92, 94 to 97, 98 and 108 to 110;

(b)paragraphs 1, 11, 12, 16 and 20 of Schedule 17;

(c)paragraphs 7, 8, 14 to 16, 55 and 57 of Schedule 18; and

(d)paragraph 1 of Schedule 19.

(3)The other provisions of this Act shall come into force on such date as may be appointed by order made by the Lord Chancellor or by the Secretary of State or by both, acting jointly.

(4)Different dates may be appointed for different provisions of this Act and for different purposes.

125Short title, minor and consequential amendments, transitionals and repeals

(1)This Act may be cited as the Courts and Legal Services Act 1990.

(2)The minor amendments set out in Schedule 17 shall have effect.

(3)The consequential amendments set out in Schedule 18 shall have effect.

(4)The Lord Chancellor may by order make such amendments or repeals in relevant enactments as appear to him to be necessary or expedient in consequence of any provision made by Part II with respect to advocacy, litigation, conveyancing or probate services.

(5)In subsection (4) “relevant enactments” means such enactments or instruments passed or made before or in the same Session as this Act as may be specified in the order.

(6)The transitional provisions and savings set out in Schedule 19 shall have effect.

(7)The repeals set out in Schedule 20 (which include repeals of certain enactments that are spent or of no further practical utility) shall have effect.

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