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SCHEDULES

SCHEDULE 4S Constitution, Procedure and Powers of Tribunal

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

Part IIS Procedure and Powers of Tribunal

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ComplaintsS

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

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8SA complaint made to the Tribunal shall not be withdrawn except with the Tribunal’s leave and subject to such conditions with respect to expenses or otherwise as the Tribunal thinks fit.

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[F18AWhere a complaint is made to the Tribunal by a person other than—

(a)the Council; or

(b)a person mentioned in section 51(3),

the Tribunal may remit the complaint to the Council.]

Textual Amendments

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9Subject to Part IV, the Tribunal may dismiss a complaint against a solicitor [F2or an incorporated practice]—

(a)without requiring the solicitor [F2or the incorporated practice] to answer the allegations made against him [F2or, as the case may be, it] or without holding any enquiry if—

(i)they are of the opinion that the complaint discloses no prima facie case of professional misconduct on the part of the solicitor [F2or, of failure on the part of the incorporated practice to comply with any provision of this Act or of rules made under this Act][F3or, as the case may be, of provision of inadequate professional services]; or

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

(b)without hearing parties if they are of the opinion upon consideration of the complaint and other documents that they disclose no case of professional misconduct on the part of the solicitor [F2or, of failure on the part of the incorporated practice to comply with any provision of this Act or of rules made under this Act][F3or, as the case may be, of provision of inadequate professional services].

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10SThe Tribunal shall give notice of the complaint to the solicitor [F4or incorporated practice] against whom the complaint is made (“the respondent”) and shall enquire into the complaint, giving him [F4or, as the case may be, it] reasonable opportunity of making his [F4or, as the case may be, its] defence.

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

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

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

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

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

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

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

DecisionsS

13SThe Tribunal shall set out in their decision—

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

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

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

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14SEvery decision on the Tribunal shall be signed by the chairman or other person presiding and [F5shall, subject to paragraph 14A, be published in full].

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[F614ASIn carrying out their duty under paragraph 14, the Tribunal may refrain from publishing any names, places or other facts the publication of which would, in their opinion, damage, or be likely to damage, the interests of persons other than—

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

(b)his partners; or

(c)his or their families,

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

Textual Amendments

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15A copy of every decision by the Tribunal certified by the clerk shall be sent forthwith by the clerk to the respondent and to the complainer intimating the right of appeal available from that decision under this Act.

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16In the case of a decision by the Tribunal—

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

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

(c)censuring a solicitor [F7or an incorporated practice]; or

(d)fining a solicitor [F7or an incorporated practice], [F8or

(e)order that the recognition under section 34(1A) of an incorporated practice be revoked][F9; or

(f)containing a direction under section 53A or an order under section 53C(2); or

(g)confirming or varying a determination or direction of the Council on an appeal under section 42A(7); or

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

(i)suspended; or

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

(iii)revoked,]

on the expiration of the days of appeal [F10(if any)] without an appeal being lodged or, where an appeal has been lodged, if and as soon as the appeal is withdrawn or a decision by the Court is given in terms of subparagraphs (a) to [F11(h)] or in the case of a decision of the Tribunal under section 53(6) [F12or (6B)] which has not been varied or quashed by the Court [F7or under section 53(6A) which has not been varied by the court], the clerk of the Tribunal shall immediately send to the Council a copy of the decision of the Tribunal certified by him and a copy of the decision by the Court in any appeal, and the Council shall forthwith give effect to any order as to striking the solicitor off the roll and to any terms and conditions directed by the Tribunal under section 53(5); and in any other case shall cause a note of the effect of the decision to be entered against the name of the solicitor in the roll [F13or as revoking the recognition under section 34(1A) of an incorporated practice].

Textual Amendments

17SThe Council shall forthwith intimate any order striking a solicitor off the roll or suspending a solicitor from practice to each sheriff clerk and F14 . . ., to the Principal Clerk of Session, and shall [F15, without prejudice to paragraph 14,] cause a notice of the operative part of the order to be published in the Edinburgh Gazette F16[ . . .]

Textual Amendments

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

[F1718ASWithout prejudice to paragraph 18, the Council shall ensure that a copy of every decision published under paragraph 14 is open for inspection at the office of the Society during office hours by any person without payment of any fee.]

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ExpensesS

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

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

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

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

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[F18 AppealsS

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23The foregoing provisions of Part II of this Schedule shall apply in relation to an appeal to the Tribunal under section 42A(7) or section 53D(1) as they apply in relation to a complaint, but with the following modifications—

(a)for references to a complaint there shall be substituted references to an appeal;

(b)for references to the respondent there shall be substituted references to the appellant;

(c)paragraphs 8A, 9 and 10 shall not apply; and

(d)in paragraph 19 the words “against a solicitor” shall be omitted.

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

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

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

25The Tribunal shall give notice of the appeal to the person by whom the original complaint was made (referred to in this Schedule as ’’the complainer’’) and to the Council and shall enquire into the matter, giving the appellant and the complainer reasonable opportunity to make representations to the Tribunal.