Part II Legal Services
Conveyancing and executry services
20 Professional misconduct, F24... etc.
1
Where, after such inquiry as they consider appropriate F27into a conduct complaint remitted to them under section F556(2)(a) or 15(5)(a) of the 2007 Act suggesting professional misconduct by a practitioner or that the circumstances referred to in paragraph (a)(ii) of section 2(1) of the 2007 Act apply as respects a practitioner and after giving the practitioner concerned an opportunity to make representations, the F2Council are satisfied that a practitioner—
a
is guilty of professional misconduct;
F26b
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F26c
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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—
F28a
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F28b
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
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;
F29ca
where the Council consider that the complainer has been directly affected by the professional misconduct or, as the case may be, the matter referred to in paragraph (d) of subsection (1), to direct the practitioner to pay compensation of such amount, not exceeding £5,000, as the Council may specify to the complainer for loss, inconvenience or distress resulting from the misconduct or, as the case may be, the matter;
cb
subject to subsection (2ZA) below, to impose on the practitioner a fine not exceeding £2,000;
F6d
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F6e
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F28f
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F6g
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h
to make a report of the F2Council'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.
F252ZA
The Council shall not impose a fine under subsection (2)(cb) above where, in relation to the subject matter of the complaint, the practitioner has been convicted by any court of an offence involving dishonesty and sentenced to a term of imprisonment of not less than 2 years.
2ZB
Any fine imposed under subsection (2)(cb) above shall be treated for the purposes of section 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.
F42A
Where—
a
after holding an inquiry into a F44conduct complaint against a practitioner, F45the Tribunal are satisfied that—
i
he has been guilty of professional misconduct; or
F46 ii
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
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;
F30aa
where the practitioner has been guilty of professional misconduct, and where the Tribunal consider that the complainer has been directly affected by the misconduct, to direct the practitioner to pay compensation of such amount, not exceeding £5,000, as the Tribunal may specify to the complainer for loss, inconvenience or distress resulting from the misconduct;
b
subject to subsection (3) below, to impose on the practitioner a fine not exceeding £10,000;
c
to censure the practitioner; and
F49d
a step which the Council may take in respect of a practitioner under subsection (2)(c) above.
3
4
F505
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6
Where the F2Council make a direction under F51... F9F31 subsection (2)(ca) or the Tribunal make a direction under subsection (2B)(aa), 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 F53to the Council, within such period being not less than 21 days as the notice may specify, an explanation of the steps which he F54... 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 F2Council are not satisfied as to the steps taken by the practitioner to comply with the direction to which the notice relates,
8
Where the F2Council take a step set out in subsection (2)(c) F10above or F32the 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—
F11a
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
F228A
Where the Council are satisfied that a practitioner is guilty of professional misconduct or that the circumstances referred to in subsection (1)(d) apply as respects a practitioner, the practitioner may—
a
before the expiry of the period of 21 days beginning with the day on which the finding by the Council to that effect is intimated to him, apply to the Council for a review by them of the finding;
b
before the expiry of the period of 21 days beginning with the day on which the outcome of the review is intimated to him, appeal to the Tribunal against the decision of the Council in the review; and the Tribunal may quash or confirm the decision.
F159
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F1510
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11
Where the F2Council take a step set out in subsection F52(2)(c) to F33(cb) above, the practitioner concerned may—
a
F2311ZA
Where the Council find that a practitioner is guilty of professional misconduct or that the circumstances referred to in subsection (1)(d) apply as respects a practitioner but do not direct him under subsection (2)(ca) to pay compensation, the complainer may, before the expiry of the period of 21 days beginning with the day on which the Council's finding is intimated to him, apply to the Council for a review by them of their decision not to direct the practitioner under subsection (2)(ca) to pay compensation.
11ZB
A complainer to whom the Council have directed a practitioner under subsection (2)(ca) to pay compensation may, before the expiry of the period of 21 days beginning with the day on which the direction under that subsection is intimated to him, apply to the Council for a review by them of the direction.
11ZC
The complainer may, before the expiry of the period of 21 days beginning with the day on which the outcome of the review under subsection (11ZA) or (11ZB) is intimated to him, appeal to the Tribunal against the decision of the Council in the review; and the Tribunal may quash, confirm or vary the decision.
F511A
Within 21 days of the date on which—
a
the outcome of any appeal under subsection F48(8A)(b) or (11)(b) above; or
F35aa
a finding by the Tribunal that a practitioner is guilty of professional misconduct or that the circumstances mentioned in subsection (1)(d) apply as respects the practitioner; or
b
the taking of any step referred to in subsection (2B) above,
is intimated to the practitioner concerned, he may appeal to theF40court against the decision made by the Tribunal in the appeal F39the finding referred to in paragraph (aa) or, as the case may be, the decision to take such a step; and the F41court may make such order in the matter as it thinks fit.
F3611B
The complainer may, before the expiry of the period of 21 days beginning with the day on which the outcome of any appeal under subsection (11ZC) is intimated to him, appeal to the court against the Tribunal's decision in the appeal.
11C
Where after holding an inquiry into a complaint against a practitioner, the Tribunal find that he has been guilty of professional misconduct or that the circumstances referred to in subsection (2A)(b) apply as respects him, but do not direct the practitioner under subsection (2B)(aa) to pay compensation, the complainer may, before the expiry of the period of 21 days beginning with the day on which the Tribunal's finding is intimated to him, appeal to the court against the decision of the Tribunal not to make a direction under that subsection.
11D
A complainer to whom the Tribunal have directed a practitioner under subsection (2B)(aa) to pay compensation may, before the expiry of the period of 21 days beginning with the day on which the direction under that subsection is intimated to him, appeal to the court against the amount of the compensation directed to be paid.
11E
In an appeal under subsection (11C) or (11D), the court may make such order in the matter as it thinks fit.
F3711F
A direction of the Tribunal under this section is enforceable in like manner as an extract registered decree arbitral in its favour bearing a warrant for execution issued by the sheriff court of any sheriffdom in Scotland.
F3811G
The Scottish Ministers may by order made by statutory instrument, after consulting the Council and such groups of persons representing consumer interests as they consider appropriate, amend subsection (2)(ca) or (2B)(aa) by substituting for the amount for the time being specified in that provision such other amount as they consider appropriate.
11H
A statutory instrument containing an order under subsection (11G) is not to be made unless a draft of the instrument has been laid before, and approved by resolution of, the Scottish Parliament.
F1812
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F4213
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F4214
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F4215
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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 F43(2)(cb) orF19(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 “ F3 conveyancing practitioner ” respectively include any executry practitioner or F3 conveyancing practitioner whether or not F20 ... he was registered as such at the time when the subject matter of the F21 Council’s or, as the case may be, Tribunal's inquiry occurred and notwithstanding that subsequent to that time F20 ... he has ceased to be so registered.