Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 (c. 40)

Part IIS Legal Services

Conveyancing and executry servicesS

20 Professional misconduct, inadequate professional services, etc.S

(1)Where, after such inquiry as they consider appropriate (whether or not following a complaint to them) and after giving the practitioner concerned an opportunity to make representations, the [F1Council] are satisfied that a practitioner—

(a)is guilty of professional misconduct;

(b)has provided inadequate professional services;

(c)has failed to comply with [F2rules made under section 17(11) or 18(10), or rules or regulations referred to in section 17(11B) or 18(10B),] of this Act; or

(d)has been convicted of a criminal offence rendering him no longer a fit and proper person to provide conveyancing services as a [F3conveyancing practitioner] or, as the case may be, executry services as an executry practitioner,

they may take such of the steps set out in subsection (2) below as they think fit and shall, without prejudice to subsection (6) below, intimate their decision to the practitioner by notice in writing.

(2)The steps referred to in subsection (1) above are—

(a)to determine that the amount of fees and outlays which the practitioner may charge in respect of such services as the [F1Council] may specify shall be—

(i)nil; or

(ii)such amount as the [F1Council] may specify in the determination,

and to direct the practitioner to comply, or secure compliance, with such of the requirements set out in subsection (5) below as appear to them to be necessary to give effect to the determination;

(b)to direct the practitioner to secure the rectification at his F4... own expense of any such error, omission or other deficiency arising in connection with the services as the [F1Council] may specify;

(c)to attach conditions (or, as the case may be, further conditions) to the registration of the practitioner or to vary any condition so attached;

F5(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F5(e). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(f)in a case where the practitioner has provided inadequate professional services, to direct the practitioner to pay to the client by way of compensation such sum, not exceeding £1,000, as the [F1Council] may specify;

F5(g). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(h)to make a report of the [F1Council's] findings to any other person exercising functions with respect to—

(i)the practitioner; or

(ii)any person employed by or acting on behalf of the practitioner in connection with the provision of the services.

[F6(2A)Where—

(a)after holding an inquiry into a complaint against a practitioner, the Scottish Solicitors' Discipline Tribunal are satisfied that—

(i)he has been guilty of professional misconduct; or

(ii)he has provided inadequate professional services; or

(b)a practitioner has been convicted by any court of an act involving dishonesty or has been sentenced to a term of imprisonment of not less than 2 years,

the Tribunal may take such of the steps set out in subsection (2B) below as they think fit.

(2B)The steps referred to in subsection (2A) above are—

(a)to suspend or revoke the registration of the practitioner;

(b)subject to subsection (3) below, to impose on the practitioner a fine not exceeding £10,000;

(c)to censure the practitioner; and

(d)any of the steps which the Council may take in respect of a practitioner under subsection (2)(a) to (f) above.]

(3)The [F7Tribunal] shall not impose a fine under subsection [F8(2B)(b)] above where, in relation to the subject matter of the [F7Tribunal's] inquiry, the practitioner has been convicted by any court of an offence involving dishonesty and sentenced to a term of imprisonment of not less than two years.

(4)Any fine imposed under subsection [F8(2B)(b)] above shall be treated for the purposes of [F9section 211(5) of the Criminal Procedure (Scotland) Act 1995] (fines payable to HM Exchequer) as if it were a fine imposed in the High Court.

(5)The requirements referred to in subsection (2)(a) above are—

(a)to refund, whether in whole or to any specified extent, any amount already paid by or on behalf of the client in respect of the fees and outlays of the practitioner in connection with the services; and

(b)to waive, whether wholly or to any specified extent, the right to recover those fees and outlays.

(6)Where the [F1Council] make a direction under subsection (2)(a), (b) or (f) above [F10, or the Scottish Solicitors' Discipline Tribunal, by virtue of subsection (2B)(d) above, make a similar direction, the Council or (as the case may be) the Tribunal] shall, by notice in writing, require the practitioner to which the direction relates to give [F11to the Council], within such period being not less than 21 days as the notice may specify, an explanation of the steps which he F12... has taken to comply with the direction.

(7)Where a practitioner—

(a)fails to comply with a notice under subsection (6) above; or

(b)complies with such a notice but the [F1Council] are not satisfied as to the steps taken by the practitioner to comply with the direction to which the notice relates,

the [F1Council] may apply to the Court of Session for an order requiring the practitioner to comply with the direction to which the notice relates within such time as the court may order.

(8)Where the [F1Council] take a step set out in subsection (2)(c) [F13above or the Scottish Solicitors' Discipline Tribunal, by virtue of subsection (2B)(d) above, take a similar step or the Tribunal take a step set out in subsection (2B)(a)] above and—

[F14(a)any period specified in this section for applying for review or for the making of an appeal in respect of the matter has expired without such a review having been applied for or such an appeal having been made;]

(b)where such an application [F15or appeal] is made, the matter is finally determined in favour of the [F1Council's] [F16or, as the case may be, Tribunal's] decision or the application [F15or appeal] is withdrawn,

[F17the Council] shall amend the register of executry practitioners or, as the case may be, the register of [F3conveyancing practitioners] accordingly.

F18(9). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F18(10). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(11)Where the [F1Council] take a step set out in subsection (2)(a) to [F19(f)] above, the practitioner concerned may—

(a)within 21 days of the date on which the [F1Council's] decision is intimated to F20... him, apply to the [F1Council] to review their decision; and

(b)within 21 days of the date on which the outcome of such review is intimated to [F21him, appeal to the Scottish Solicitors' Discipline Tribunal against the decision made in any such review; and the Tribunal may quash, confirm or vary that decision]

[F22(11A)Within 21 days of the date on which—

(a)the outcome of any appeal under subsection (11)(b) above; or

(b)the taking of any step referred to in subsection (2B) above,

is intimated to the practitioner concerned, he may appeal to the Court of Session against the decision made by the Tribunal in the appeal or, as the case may be, to take such a step; and the Court may make such order in the matter as it thinks fit.]

F23(12). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(13)The Secretary of State, after consulting the [F1Council], may by order made by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament, amend subsection (2)(f) above by substituting for the sum for the time being specified in that provision such other sum as he considers appropriate.

(14)The taking of any steps under subsection (2) [F24or (2B)] above shall not be founded upon in any proceedings for the purpose of showing that the practitioner in respect of whom the steps were taken was negligent.

(15)A direction under subsection (2)(f) above to a practitioner to pay compensation to a client shall not prejudice any right of that client to take proceedings against that practitioner for damages in respect of any loss which he alleges he has suffered as a result of that practitioner’s negligence, and any sum directed to be paid to that client under that provision may be taken into account in the computation of any award of damages made to him in any such proceedings.

(16)The Secretary of State may, by order made by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament, amend subsection [F25(2B)(b)] above by substituting for the amount for the time being specified in that provision such other amount as appears to him to be justified by a change in the value of money.

(17)In this section “executry practitioner” and “[F3conveyancing practitioner]” respectively include any executry practitioner or [F3conveyancing practitioner] whether or not F26... he was registered as such at the time when the subject matter of the [F27Council’s or, as the case may be, Tribunal's] inquiry occurred and notwithstanding that subsequent to that time F26... he has ceased to be so registered.