C15Part IILegal Services

Annotations:
Modifications etc. (not altering text)

Introductory

I517 The 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 F29as part of the Community Legal Service or Criminal Defence Service); 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.

I618 The 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 F30or alteration 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.

F311A

Where any person other than the F32Secretary of State is called upon to exercise any such functions, the F32Secretary of State may require him to do so within such time as the F32Secretary of State may reasonably specify.

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.

F4. . .

Annotations:
Amendments (Textual)
F4

S. 19 and crossheading preceding it repealed (1.1.2000) by 1999 c. 22, s. 106, Sch. 15 Pt. II (with Sch. 14 paras. 7(2), 36(9)); S.I. 1999/3344, art. 2(d), Sch. 1 para. 4

F219. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F320. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Rights of audience and rights to conduct litigation

C1727 Rights 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—

C16a

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 F33. . . 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.

F342A

Every person who exercises before any court a right of audience granted by an authorised body has—

a

a duty to the court to act with independence in the interests of justice; and

b

a duty to comply with rules of conduct of the body relating to the right and approved for the purposes of this section;

and those duties shall override any obligation which the person may have (otherwise than under the criminal law) if it is inconsistent with them.

3

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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.

F356

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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.

F368A

But a court may not limit the right to appear before the court in any proceedings to only some of those who have the right 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 M24Matrimonial 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 F37, or to exercise, any right of audience granted by it;

  • “qualified litigator” means—

    1. i

      any practising solicitor F38(that is, one who has a practising certificate in force or is employed wholly or mainly for the purpose of providing legal services to his employer);

    2. ii

      any recognised body; and

    3. 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 M25Administration of Justice Act 1985 (incorporated practices);

  • “reserved family proceedings” means such category of family proceedings as the F39Secretary of State 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 M26Solicitors 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.

C1828 Rights 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—

C19a

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 F40. . . 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.

F412A

Every person who exercises in relation to proceedings in any court a right to conduct litigation granted by an authorised body has—

a

a duty to the court to act with independence in the interests of justice; and

b

a duty to comply with rules of conduct of the body relating to the right and approved for the purposes of this section;

and those duties shall override any obligation which the person may have (otherwise than under the criminal law) if it is inconsistent with them.

3

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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.

F424A

A court may not limit the right to conduct litigation in relation to proceedings before the court to only some of those who have the right by virtue of the provisions of this section.

5

In this section—

  • “authorised body” means—

a

the Law Society; F43. . .

F44aa

the General Council of the Bar;

ab

the Institute of Legal Executives; 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 F45, or to exercise, 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.

F465A

Nothing in this section shall be taken to require the General Council of the Bar or the Institute of Legal Executives to grant a right to conduct litigation.

6

Section 20 of the M27Solicitors 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.

F4729 Authorised bodies.

The provisions of Schedule 4 shall have effect with respect to the authorisation of bodies for the purposes of sections 27 and 28 and the approval and alteration of qualification regulations and rules of conduct.

F48I730 Revocation 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.

F4931 Barristers and solicitors.

1

Every barrister shall be deemed to have been granted by the General Council of the Bar a right of audience before every court in relation to all proceedings (exercisable in accordance with the qualification regulations and rules of conduct of the General Council of the Bar approved for the purposes of section 27 in relation to the right).

2

Every solicitor shall be deemed to have been granted by the Law Society—

a

a right of audience before every court in relation to all proceedings (exercisable in accordance with the qualification regulations and rules of conduct of the Law Society approved for the purposes of section 27 in relation to the right); and

b

a right to conduct litigation in relation to every court and all proceedings (exercisable in accordance with the qualification regulations and rules of conduct of the Law Society approved for the purposes of section 28 in relation to the right).

3

A person shall not have a right of audience by virtue of subsection (1) if—

a

he has not been called to the Bar by an Inn of Court; or

b

he has been disbarred, or is temporarily suspended from practice, by order of an Inn of Court.

F5231A Employed advocates.

1

Where a person who has a right of audience granted by an authorised body is employed as a Crown Prosecutor or in any other description of employment, any qualification regulations or rules of conduct of the body relating to that right which fall within subsection (2) shall not have effect in relation to him.

2

Qualification regulations or rules of conduct relating to a right granted by a body fall within this subsection if—

a

they limit the courts before which, or proceedings in which, that right may be exercised by members of the body who are employed or limit the circumstances in which that right may be exercised by them by requiring them to be accompanied by some other person when exercising it; and

b

they do not impose the same limitation on members of the body who have the right but are not employed.

F1531B Advocates and litigators employed by Legal Services Commission.

1

Where a person who has a right of audience or right to conduct litigation granted by an authorised body is employed by the Legal Services Commission, or by any body established and maintained by the Legal Services Commission, any rules of the authorised body which fall within subsection (2) shall not have effect in relation to him.

2

Rules of a body fall within this subsection if they are—

a

rules of conduct prohibiting or limiting the exercise of the right on behalf of members of the public by members of the body who are employees; or

b

rules of any other description prohibiting or limiting the provision of legal services to members of the public by such members of the body,

and either of the conditions specified in subsection (3) is satisfied.

3

Those conditions are—

a

that the prohibition or limitation is on the exercise of the right, or the provision of the services, otherwise than on the instructions of solicitors (or other persons acting for the members of the public); and

b

that the rules do not impose the same prohibition or limitation on members of the body who have the right but are not employees.

F1631C Change of authorised body.

1

Where a person—

a

has at any time had, and been entitled to exercise, a right of audience before a court in relation to proceedings of any description granted by one authorised body; and

b

becomes a member of another authorised body and has a right of audience before that court in relation to that description of proceedings granted by that body,

any qualification regulations of that body relating to that right shall not have effect in relation to him.

2

Subsection (1) does not apply in relation to any qualification regulations to the extent that they impose requirements relating to continuing education or training which have effect in relation to the exercise of the right by all members of the body who have the right.

3

Subsection (1) does not apply to a person if he has been banned from exercising the right of audience by the body mentioned in paragraph (a) of that subsection as a result of disciplinary proceedings and that body has not lifted the ban.

I8F5032 The 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.

I9F5133 The 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

I1034 The 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 F53Secretary of State .

3

In appointing any member, the F53Secretary of State 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.

I1135 Functions 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 F54Secretary of State under section 40.

3

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

4

Where the F54Secretary of State 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 F54Secretary of State .

5

Any report made under subsection (4) may be published by the F54Secretary of State 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 F54Secretary of State .

7

Where it appears to the F54Secretary of State 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 F54Secretary of State 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 F54Secretary of State sees fit to impose.

12

Any sums required by the F54Secretary of State 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.

36 Provision of conveyancing services by authorised practitioners.

1

The restriction imposed by section 22 of the M28Solicitors 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 M29Administration 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).

37 Authorisation 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 F56Secretary of State , 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.

F558

Subsection (8A) applies if the applicant is—

a

a person with permission under Part 4 of the Financial Services and Markets Act 2000 to accept deposits or to effect or carry out contracts of insurance; or

b

an EEA firm of the kind mentioned in paragraph 5(b) or (d) of Schedule 3 to that Act which has permission under paragraph 15 of that Schedule (as a result of qualifying for authorisation under paragraph 12(1) of that Schedule) either—

i

to accept deposits, or

ii

to effect or carry out contracts of insurance.

8A

The Board must have regard to the fact that the applicant has obtained that permission in determining whether it is satisfied as mentioned in subsection (1)(a).

8B

Subsection (8) must be read with—

a

section 22 of the Financial Services and Markets Act 2000;

b

any relevant order under that section; and

c

Schedule 2 to that Act.

9

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

10

The F56Secretary of State may by order amend the provisions of subsection (7) by imposing any additional requirement or by varying or removing any requirement.

38 Refusal 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).

39 Revocation and suspension of authorisation.

1

The Board shall, with the approval of the F57Secretary of State , 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.

I1240 Regulations about competence and conduct etc. of authorised practitioners.

1

The F58Secretary of State 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.

41 The 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 F59Secretary of State .

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 F59Secretary of State 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 F59Secretary of State and the F59Secretary of State shall appoint a Tribunal to hear that appeal.

11

Schedule 6 shall have effect with respect to the Tribunals.

41 The 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 F59Secretary of State.

F607

A person is eligible for appointment as Chairman of a Tribunal only if he satisfies the judicial-appointment eligibility condition on a 5-year basis.

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 F59Secretary of State 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 F59Secretary of State and the F59Secretary of State shall appoint a Tribunal to hear that appeal.

11

Schedule 6 shall have effect with respect to the Tribunals.

42 Appeals 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.

F613

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

43 The Conveyancing Ombudsman Scheme.

1

The Board shall, with the approval of the F62Secretary of State , 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 F62Secretary of State , 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 F62Secretary of State , send him a copy of the Conveyancing Ombudsman’s annual report.

10

When laying the Board’s annual report before Parliament, the F62Secretary of State 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.

44 Compensation scheme.

1

The Board may, with the approval of the F63Secretary of State , 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.

45 Advisory and supervisory functions of F17Office of Fair Trading .

1

Where the F70Secretary of State 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 F64OFT.

2

The F64OFT 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 F64OFT has completed F65its consideration F65it shall give such advice to the F70Secretary of State as F65it thinks fit.

4

The F64OFTshall keep under review the rules made by the Board and the regulations made by the F70Secretary of State under section 40.

5

If the F64OFTis 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, F66it shall report F66its opinion to the F70Secretary of State .

6

Any report under subsection (5) shall state what, in the F67OFT’sopinion, is the effect of the rule or regulation or its likely effect.

7

The F64OFTmay publish any advice given by F68itunder subsection (3) or report made by F68it under subsection (5).

8

The F64OFT 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 F69its opinion, seriously and prejudicially affect the interests of that person.

46 Investigatory powers of F18OFT.

1

For the purpose of investigating any matter under section 45, the F71OFT may by notice in writing—

a

require any person to produce to F71it or to any person appointed by F71it 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 F71it (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

F72. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F7346A Enforcement of notices under section 46

1

The High Court may, on an application by the OFT, enquire into whether any person (“the defaulter”) has refused or otherwise failed, without reasonable excuse, to comply with a notice under section 46(1).

2

An application under subsection (1) shall include details of the possible failure which the OFT considers has occurred.

3

In enquiring into a case under subsection (1), the High Court shall hear any witness who may be produced against or on behalf of the defaulter and any statement which may be offered in defence.

4

Subsections (5) and (6) apply where the High Court is satisfied, after hearing any witnesses and statements as mentioned in subsection (3), that the defaulter has refused or otherwise failed, without reasonable excuse, to comply with the notice under section 46(1).

5

The High Court may punish the defaulter as it would have been able to punish him had he been guilty of contempt of court.

6

Where the defaulter is a body corporate, the High Court may punish any director or officer of the defaulter as it would have been able to punish that director or officer had the director or officer been guilty of contempt of court.

F7446B Altering, etc. documents required to be produced under section 46

1

A person commits an offence if he intentionally alters, suppresses or destroys a document which he has been required to produce by a notice under section 46(1).

2

A person who commits an offence under subsection (1) shall be liable—

a

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

b

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

47 Power 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.

48 Investigations 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.

F754

Subsection (4A) applies if an authorised practitioner whose affairs are under investigation is—

a

a person with permission under Part 4 of the Financial Services and Markets Act 2000 to accept deposits or to effect or carry out contracts of insurance; or

b

an EEA firm of the kind mentioned in paragraph 5(b) or (d) of Schedule 3 to that Act which has permission under paragraph 15 of that Schedule (as a result of qualifying for authorisation under paragraph 12(1) of that Schedule) either—

i

to accept deposits, or

ii

to effect or carry out contracts of insurance.

4A

The F76Secretary of State may give a direction with a view to limiting the scope of the investigation to matters concerned with the provision of conveyancing services.

4B

Subsection (4) must be read with—

a

section 22 of the Financial Services and Markets Act 2000;

b

any relevant order under that section; and

c

Schedule 2 to that Act.

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.

49 Restrictions 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.

50 Exceptions 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

F91. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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;

F77d

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F78e

a recognised investment exchange or a recognised clearing house (both within the meaning given by section 285 of the Financial Services and Markets Act 2000) to discharge any of its functions;

f

the Bank of England to discharge any of its functions;

F79fa

the Financial Services Authority to discharge its functions under the legislation relating to friendly societies or to industrial and provident societies, under the Building Societies Act 1986 or under the Financial Services and Markets Act 2000;

g

the Secretary of State or the Treasury to discharge any function conferred by this Act, the Financial Services and Markets Act 2000 or any enactment relating to competition, companies or insolvency;

h

the competent authority for the purposes of Part 6 of the Financial Services and Markets Act 2000 to discharge its functions under that Part;

ha

a person appointed under—

i

section 167 of the Financial Services and Markets Act 2000 (general investigations),

ii

section 168 of that Act (investigations in particular cases),

iii

section 169(1)(b) of that Act (investigation in support of overseas regulator),

iv

section 284 of that Act (investigations into affairs of certain collective investment schemes), or

v

regulations made as a result of section 262(2)(k) of that Act (investigations into open-ended investment companies),

to conduct an investigation to discharge his functions;

hb

any inspector appointed by the Secretary of State under this Act or any enactment relating to competition, companies or insolvency to discharge his functions under that enactment;

hc

a body designated under section 326(1) of the Financial Services and Markets Act 2000 to discharge its functions in its capacity as a body designated under that section;

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 M30Insolvency Act 1986 to discharge any of its functions as such a body;

F80k

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F77l

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

m

the F81OFT to discharge any of its functions under—

i

this Act;

ii

the M31Fair Trading Act 1973 F95. . . ;

iii

the M32Consumer Credit Act 1974;

F82iv

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

v

the M33Estate Agents Act 1979;

vi

the M34Competition Act 1980;

F83vii

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

viii

F96. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F84ix

the Competition Act 1998;

F86x

the Financial Services and Markets Act 2000;

F85F92xi

the Enterprise Act 2002;

F97xii

the Business Protection from Misleading Marketing Regulations 2008;

xiii

the Consumer Protection from Unfair Trading Regulations 2008;

n

the F87Competition Commission to discharge any of its functions under the Fair Trading Act 1973 and F87, the Competition Act 1980 and the Competition Act 1998;

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, F88. . . or the F89Financial Services Authority; 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;

F90r

the Financial Services Tribunal to discharge any function it has in relation to proceedings before it by virtue of the Financial Services and Markets Act 2000 (Transitional Provisions) (Partly Completed Procedures) Order 2001;

s

the Financial Services and Markets Tribunal to discharge any of its functions.

F94t

the Pensions Regulator Tribunal to discharge any of its functions.

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 F93Secretary of State 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 F93Secretary of State 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.

50 Exceptions 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

F91. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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;

F77d

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F78e

a recognised investment exchange or a recognised clearing house (both within the meaning given by section 285 of the Financial Services and Markets Act 2000) to discharge any of its functions;

f

the Bank of England to discharge any of its functions;

F79fa

the Financial Services Authority to discharge its functions under the legislation relating to friendly societies or to industrial and provident societies, under the Building Societies Act 1986 or under the Financial Services and Markets Act 2000;

g

the Secretary of State or the Treasury to discharge any function conferred by this Act, the Financial Services and Markets Act 2000 or any enactment relating to competition, companies or insolvency;

h

the competent authority for the purposes of Part 6 of the Financial Services and Markets Act 2000 to discharge its functions under that Part;

ha

a person appointed under—

i

section 167 of the Financial Services and Markets Act 2000 (general investigations),

ii

section 168 of that Act (investigations in particular cases),

iii

section 169(1)(b) of that Act (investigation in support of overseas regulator),

iv

section 284 of that Act (investigations into affairs of certain collective investment schemes), or

v

regulations made as a result of section 262(2)(k) of that Act (investigations into open-ended investment companies),

to conduct an investigation to discharge his functions;

hb

any inspector appointed by the Secretary of State under this Act or any enactment relating to competition, companies or insolvency to discharge his functions under that enactment;

hc

a body designated under section 326(1) of the Financial Services and Markets Act 2000 to discharge its functions in its capacity as a body designated under that section;

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 M30Insolvency Act 1986 to discharge any of its functions as such a body;

F80k

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F77l

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

m

the F81OFT to discharge any of its functions under—

i

this Act;

ii

the M31Fair Trading Act 1973 (other than Part II);

iii

the M32Consumer Credit Act 1974;

F82iv

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

v

the M33Estate Agents Act 1979;

vi

the M34Competition Act 1980;

F83vii

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

viii

the M35Control of Misleading Advertisements Regulations 1988;

F84ix

the Competition Act 1998;

F86x

the Financial Services and Markets Act 2000;

F85F92xi

the Enterprise Act 2002;

n

the F87Competition Commission to discharge any of its functions under the Fair Trading Act 1973 and F87, the Competition Act 1980 and the Competition Act 1998;

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, F88. . . or the F89Financial Services Authority; 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;

F90r

the Financial Services Tribunal to discharge any function it has in relation to proceedings before it by virtue of the Financial Services and Markets Act 2000 (Transitional Provisions) (Partly Completed Procedures) Order 2001;

s

the Financial Services and Markets Tribunal to discharge any of its functions.

F94t

the Pensions Regulator Tribunal to discharge any of its functions.

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 F93Secretary of State 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 F93Secretary of State 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.

51 Board’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.

52 Board’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.

F985

Subsection (6) applies to an authorised practitioner who—

a

has permission under any provision of the Financial Services and Markets Act 2000 to carry on a regulated activity; or

b

is an appointed representative of a person with such permission;

and “regulated activity" and “appointed representative" have the meaning given in that Act.

F986

In relation to an authorised practitioner to whom this subsection applies, the powers of intervention may be exercised only after consultation with the Financial Services Authority.

Licensed conveyancers

I253 The 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 F99Schedule 4 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 F100Secretary of State 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 F100Secretary of State 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

54 Preparation of papers for probate etc.

1

In section 23 of the M36Solicitors 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;

F101e

a person who—

i

has permission under Part 4 of the Financial Services and Markets Act 2000 to accept deposits or to effect or carry out contracts of insurance, and

ii

satisfies the conditions mentioned in subsection (2A);

f

an EEA firm of the kind mentioned in paragraph 5(b) or (d) of Schedule 3 to that Act—

i

which has permission under paragraph 15 of that Schedule (as a result of qualifying for authorisation under paragraph 12(1) of that Schedule) either to accept deposits or to effect or carry out contracts of insurance, and

ii

which satisfies those conditions;

h

any subsidiary (as defined by section 736(1) of the Companies Act 1985) of a body falling within paragraph (e), F102or (f)—

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 F104Secretary of State with respect to matters relating to such complaints.

F1032AB

Paragraphs (e) and (f) of subsection (2) must be read with—

a

section 22 of the Financial Services and Markets Act 2000;

b

any relevant order under that section; and

c

Schedule 2 to that Act.

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 M37Supreme 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.

55 Preparation of probate papers etc: exemption from section 23(1) of Solicitors Act 1974.

1

The provisions of section 23(1) of the M38Solicitors 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 F105Secretary of State 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 F105Secretary of State under Schedule 9.

4

The approval of any body under Schedule 9 may be revoked under that Schedule.

I356 Administration 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 M2Commissioners 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 M3Supreme Court Act 1981.

I457 Notaries

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 M4Public 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 M5Public 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 M6Public Notaries Act 1843 (which reduced the period of apprenticeship to five years);

e

section 37 of the M7Welsh Church Act 1914 (appointment of public notaries to practise within particular districts in Wales); and

f

section 29 of the M8Administration 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 M9Solicitors 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)—

    1. a

      the date on which he becomes a qualifying district notary; or

    2. 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—

    1. 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

    2. b

      has held it for a continuous period of at least five years.

10

Section 5 of the M10Ecclesiastical 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.

F1911

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Miscellaneous

F2058 Conditional fee agreements.

1

A conditional fee agreement which satisfies all of the conditions applicable to it by virtue of this section shall not be unenforceable by reason only of its being a conditional fee agreement; but (subject to subsection (5)) any other conditional fee agreement shall be unenforceable.

2

For the purposes of this section and section 58A—

a

a conditional fee agreement is an agreement with a person providing advocacy or litigation services which provides for his fees and expenses, or any part of them, to be payable only in specified circumstances; and

b

a conditional fee agreement provides for a success fee if it 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 payable only in specified circumstances.

3

The following conditions are applicable to every conditional fee agreement—

a

it must be in writing;

b

it must not relate to proceedings which cannot be the subject of an enforceable conditional fee agreement; and

C11c

it must comply with such requirements (if any) as may be prescribed by the F111Secretary of State.

C124

The following further conditions are applicable to a conditional fee agreement which provides for a success fee—

a

it must relate to proceedings of a description specified by order made by the F111Secretary of State;

b

it must state the percentage by which the amount of the fees which would be payable if it were not a conditional fee agreement is to be increased; and

c

that percentage must not exceed the percentage specified in relation to the description of proceedings to which the agreement relates by order made by the F111Secretary of State.

5

If a conditional fee agreement is an agreement to which section 57 of the M11Solicitors Act 1974 (non-contentious business agreements between solicitor and client) applies, subsection (1) shall not make it unenforceable.

F2158AConditional fee agreements: supplementary.

1

The proceedings which cannot be the subject of an enforceable conditional fee agreement are—

a

criminal proceedings, a part from proceedings under section 82 of the M12 Environmental Protection Act 1990; and

b

family proceedings.

2

In subsection (1) “family proceedings” means proceedings under any one or more of the following—

a

the M13Matrimonial Causes Act 1973;

b

the M41Adoption Act 1976;

c

the M14Domestic Proceedings and Magistrates’ Courts Act 1978;

d

Part III of the M15Matrimonial and Family Proceedings Act 1984;

e

Parts I, II and IV of the M16Children Act 1989;

f

Part IV of the M17Family Law Act 1996; F22. . .

F23fa

Chapter 2 of Part 2 of the Civil Partnership Act 2004 (proceedings for dissolution etc. of civil partnership);

fb

Schedule 5 to the 2004 Act (financial relief in the High Court or a county court etc.);

fc

Schedule 6 to the 2004 Act (financial relief in magistrates' courts etc.);

fd

Schedule 7 to the 2004 Act (financial relief in England and Wales after overseas dissolution etc. of a civil partnership); and

g

the inherent jurisdiction of the High Court in relation to children.

3

The requirements which the F112Secretary of State may prescribe under section 58(3)(c)—

a

include requirements for the person providing advocacy or litigation services to have provided prescribed information before the agreement is made; and

b

may be different for different descriptions of conditional fee agreements (and, in particular, may be different for those which provide for a success fee and those which do not).

4

In section 58 and this section (and in the definitions of “advocacy services” and “litigation services” as they apply for their purposes) “proceedings” includes any sort of proceedings for resolving disputes (and not just proceedings in a court), whether commenced or contemplated.

5

Before making an order under section 58(4), the F112Secretary of State shall consult—

a

the designated judges;

b

the General Council of the Bar;

c

the Law Society; and

d

such other bodies as he considers appropriate.

C136

A costs order made in any proceedings may, subject in the case of court proceedings to rules of court, include provision requiring the payment of any fees payable under a conditional fee agreement which provides for a success fee.

C137

Rules of court may make provision with respect to the assessment of any costs which include fees payable under a conditional fee agreement (including one which provides for a success fee).

58AAF27Damages-based agreements relating to employment matters

1

A damages-based agreement which relates to an employment matter and satisfies the conditions in subsection (4) is not unenforceable by reason only of its being a damages-based agreement.

2

But a damages-based agreement which relates to an employment matter and does not satisfy those conditions is unenforceable.

3

For the purposes of this section—

a

a damages-based agreement is an agreement between a person providing advocacy services, litigation services or claims management services and the recipient of those services which provides that—

i

the recipient is to make a payment to the person providing the services if the recipient obtains a specified financial benefit in connection with the matter in relation to which the services are provided, and

ii

the amount of that payment is to be determined by reference to the amount of the financial benefit obtained;

b

a damages-based agreement relates to an employment matter if the matter in relation to which the services are provided is a matter that is, or could become, the subject of proceedings before an employment tribunal.

4

The agreement—

a

must be in writing;

b

must not provide for a payment above a prescribed amount or for a payment above an amount calculated in a prescribed manner;

c

must comply with such other requirements as to its terms and conditions as are prescribed; and

d

must be made only after the person providing services under the agreement has provided prescribed information.

5

Regulations under subsection (4) are to be made by the Lord Chancellor and may make different provision in relation to different descriptions of agreements.

6

Before making regulations under subsection (4) the Lord Chancellor must consult—

a

the designated judges,

b

the General Council of the Bar,

c

the Law Society, and

d

such other bodies as the Lord Chancellor considers appropriate.

7

In this section—

  • “payment” includes a transfer of assets and any other transfer of money's worth (and the reference in subsection (4)(b) to a payment above a prescribed amount, or above an amount calculated in a prescribed manner, is to be construed accordingly);

  • “claims management services” has the same meaning as in Part 2 of the Compensation Act 2006 (see section 4(2) of that Act).

8

Nothing in this section applies to an agreement entered into before the coming into force of the first regulations made under subsection (4).

C14F10658B Litigation funding agreements.

1

A litigation funding agreement which satisfies all of the conditions applicable to it by virtue of this section shall not be unenforceable by reason only of its being a litigation funding agreement.

2

For the purposes of this section a litigation funding agreement is an agreement under which—

a

a person (“the funder”) agrees to fund (in whole or in part) the provision of advocacy or litigation services (by someone other than the funder) to another person (“the litigant”); and

b

the litigant agrees to pay a sum to the funder in specified circumstances.

3

The following conditions are applicable to a litigation funding agreement—

a

the funder must be a person, or person of a description, prescribed by the Secretary of State;

b

the agreement must be in writing;

c

the agreement must not relate to proceedings which by virtue of section 58A(1) and (2) cannot be the subject of an enforceable conditional fee agreement or to proceedings of any such description as may be prescribed by the Secretary of State;

d

the agreement must comply with such requirements (if any) as may be so prescribed;

e

the sum to be paid by the litigant must consist of any costs payable to him in respect of the proceedings to which the agreement relates together with an amount calculated by reference to the funder’s anticipated expenditure in funding the provision of the services; and

f

that amount must not exceed such percentage of that anticipated expenditure as may be prescribed by the Secretary of State in relation to proceedings of the description to which the agreement relates.

4

Regulations under subsection (3)(a) may require a person to be approved by the Secretary of State or by a prescribed person.

5

The requirements which the Secretary of State may prescribe under subsection (3)(d)—

a

include requirements for the funder to have provided prescribed information to the litigant before the agreement is made; and

b

may be different for different descriptions of litigation funding agreements.

6

In this section (and in the definitions of “advocacy services” and “litigation services” as they apply for its purposes) “proceedings” includes any sort of proceedings for resolving disputes (and not just proceedings in a court), whether commenced or contemplated.

7

Before making regulations under this section, the Secretary of State shall consult—

a

the designated judges;

b

the General Council of the Bar;

c

the Law Society; and

d

such other bodies as he considers appropriate.

8

A costs order made in any proceedings may, subject in the case of court proceedings to rules of court, include provision requiring the payment of any amount payable under a litigation funding agreement.

9

Rules of court may make provision with respect to the assessment of any costs which include fees payable under a litigation funding agreement.

F2459. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

60 Regulation of right of Scottish and Northern Ireland lawyers to practise in England and Wales.

1

The F107Secretary of State 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 F107Secretary of State 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 F107Secretary of State 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.

60AF28Procedural requirements relating to recommendations for the purposes of section 60

1

Before making a recommendation under this section, the Legal Services Board must publish a draft of—

a

the proposed recommendation, and

b

the proposed draft regulations.

2

The draft must be accompanied by a notice which states that representations about the proposals may be made to the Board within a specified period.

3

Before making the recommendation, the Board must have regard to any representations duly made.

4

If the draft regulations to be annexed to the recommendation differ from the draft regulations published under subsection (1)(b) in a way which is, in the opinion of the Board, material, the Board must, before making the recommendation, publish the draft recommendations along with a statement detailing the changes made and the reasons for the changes.

61 Right 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.

62 Immunity of advocates from actions in negligence and for breach of contract.

F25. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

I1363 Legal 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 M39Solicitors Act 1974 (unqualified person not to prepare probate papers etc.) does not apply.

64 Discrimination by, or in relation to, barristers.

1

The following shall be inserted in the M18Sex Discrimination Act 1975 after section 35—

Barristers

35A Discrimination 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 M19Race Relations Act 1976 after section 26—

Barristers

26A Discrimination 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.

65 Discrimination by, or in relation to, advocates.

1

The following shall be inserted in the M20Sex Discrimination Act 1975 after section 35A (as inserted by this Act)—

Advocates

35B Discrimination 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 M21Race Relations Act 1976 after section 26A (as inserted by this Act)—

Advocates

26B Discrimination 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.

66 Multi-disciplinary and multi-national practices.

1

Section 39 of the M22Solicitors 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 M23Public 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.

F2667. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

68 Preparation of documents etc. by registered patent agents and trade mark agents.

1

Section 22 of the M40Solicitors 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 Copyright, Designs and Patents Act 1988; and

  • “registered patent agent” has the same meaning as in section 275(1) of that Act.

I1469 Exemption from liability for damages etc.

1

Neither the F110Secretary of State 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 F110Secretary of State , a designated judge or the F108OFTof any advice or reasons given by or to him F109or it in the exercise of functions under this Part shall be absolutely privileged.

Offences

C2070 Offences.

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.