PART III continued
(3) No such decision of the Board shall have effect until—
(a) any appeal against it which is duly made under this section is disposed of; or
(b) the period within which an appeal may be made has expired without an appeal having been made.
(4) Subsection (3) shall not apply where—
(a) the Board is satisfied that the circumstances of the case are exceptional and justify the decision in question taking effect immediately, or earlier than would otherwise be the case; and
(b) notifies the person concerned to that effect.
(5) In this Part a Conveyancing Appeal Tribunal is referred to as “a Tribunal”.
(6) A Tribunal shall consist of a Chairman and two other members appointed by the Lord Chancellor.
(7) To be qualified for appointment as Chairman of a Tribunal, a person must have a 7 year general qualification (within the meaning of section 71).
(8) Of the other two members of a Tribunal—
(a) one must have experience in, or knowledge of, the provision of conveyancing services; and
(b) the other must have experience in, or knowledge of, accountancy.
(9) The Lord Chancellor shall appoint a person to be Secretary to the Tribunals.
(10) On receipt of notice of an appeal which is being made to a Tribunal, the Secretary shall inform the Lord Chancellor and the Lord Chancellor shall appoint a Tribunal to hear that appeal.
(11) Schedule 6 shall have effect with respect to the Tribunals.
(1) At the instance of a person aggrieved by a decision of a Tribunal, or at the instance of the Board, an appeal shall lie to the High Court on any question of law arising from that decision.
(2) If, on an appeal to the High Court under this section, the court is of the opinion that the decision appealed against was wrong in law, it shall remit the matter for re-hearing and determination by the Tribunal concerned or, where it is not reasonably practicable for the case to be re-heard by that Tribunal, by another Tribunal.
(3) No appeal to the Court of Appeal shall be brought from a decision of the High Court under this section except with the leave of the Court of Appeal or of the judge from whose decision the appeal is to lie.
(1) The Board shall, with the approval of the Lord Chancellor, make rules establishing a scheme (to be known as “the Conveyancing Ombudsman Scheme”) for the investigation, by a person appointed by the Board with the approval of the Lord Chancellor, of complaints against authorised practitioners in connection with the provision by them of conveyancing services.
(2) The person so appointed shall be known as “the Conveyancing Ombudsman”.
(3) No person shall be appointed to be the Conveyancing Ombudsman if he is, or has at any time within the period of three years ending with his appointment been—
(a) involved in any capacity in the provision by an authorised practitioner of conveyancing services; or
(b) a member of the Board.
(4) Schedule 7 shall have effect for the purpose of supplementing this section.
(5) A person may be appointed to be both a member of the staff of the Board and a member of the staff of the Conveyancing Ombudsman.
(6) The Conveyancing Ombudsman may not make any charge for the use of his services.
(7) His expenses under the Scheme shall be defrayed by the Board and shall rank as expenses of the Board for the purposes of section 35.
(8) The Conveyancing Ombudsman shall submit to the Board an annual report on the discharge of his functions.
(9) The Board shall, when submitting its own annual report to the Lord Chancellor, send him a copy of the Conveyancing Ombudsman’s annual report.
(10) When laying the Board’s annual report before Parliament, the Lord Chancellor shall also lay before Parliament a copy of the Conveyancing Ombudsman’s report.
(11) It shall be the duty of the Conveyancing Ombudsman to inform the Board of any evidence which comes to his attention suggesting that there has been, or may have been, a breach of any of the rules made under subsection (1) or of the regulations made under section 40.
(12) The Board may—
(a) pay such remuneration and travelling and other allowances to the Conveyancing Ombudsman as may be determined by the Board;
(b) pay such pension, allowances or gratuities to or in respect of the Conveyancing Ombudsman as may be so determined; and
(c) if the Conveyancing Ombudsman ceases to hold office and it appears to the Board that there are special circumstances which make it right that he should receive compensation, pay him such sum as may be so determined.
(1) The Board may, with the approval of the Lord Chancellor, make rules establishing a scheme for compensating persons who have suffered loss in consequence of dishonesty on the part of authorised practitioners or their employees.
(2) The rules may, in particular—
(a) provide for the establishment and functioning of an independent body (whether corporate or unincorporate) to administer the scheme and, subject to the rules, determine and regulate any matter relating to its operation;
(b) establish a fund out of which compensation is to be paid;
(c) provide for the levying of contributions from authorised practitioners and otherwise for financing the scheme and for the payment of contributions and other money into the fund;
(d) specify the terms and conditions on which, and the extent to which, compensation is to be payable and any circumstances in which the right to compensation is to be excluded or modified; and
(e) contain incidental and supplementary provisions.
(1) Where the Lord Chancellor is considering whether—
(a) to approve any rules which the Board is proposing to make; or
(b) to make any regulations under section 40,
he shall first send a copy of the proposed rules or regulations to the Director.
(2) The Director shall consider whether the proposed rules or regulations would have, or would be likely to have, the effect of restricting, distorting or preventing competition to any significant extent.
(3) When the Director has completed his consideration he shall give such advice to the Lord Chancellor as he thinks fit.
(4) The Director shall keep under review the rules made by the Board and the regulations made by the Lord Chancellor under section 40.
(5) If the Director is of the opinion that any such rule or regulation has, or is likely to have, the effect of restricting, distorting or preventing competition to any significant extent, he shall report his opinion to the Lord Chancellor.
(6) Any report under subsection (5) shall state what, in the Director’s opinion, is the effect of the rule or regulation or its likely effect.
(7) The Director may publish any advice given by him under subsection (3) or report made by him under subsection (5).
(8) The Director shall, so far as practicable, exclude from anything published under subsection (7) any matter—
(a) which relates to the affairs of a particular person; and
(b) the publication of which would, or might in the Director’s opinion, seriously and prejudicially affect the interests of that person.
(1) For the purpose of investigating any matter under section 45, the Director may by notice in writing—
(a) require any person to produce to him or to any person appointed by him for the purpose, at a time and place specified in the notice, any documents which are specified or described in the notice and which—
(i) are in that person’s custody or under that person’s control; and
(ii) relate to any matter relevant to the investigation; or
(b) require any person carrying on any business to furnish to him (within such time and in such manner and form as the notice may specify) such information as may be specified or described in the notice.
(2) A person shall not be required under this section to produce any document or disclose any information which he would be entitled to refuse to produce or disclose on grounds of legal professional privilege in proceedings in the High Court.
(3) Subsections (6) to (8) of section 85 of the [1973 c. 41.] Fair Trading Act 1973 (enforcement provisions) shall apply in relation to a notice under this section as they apply in relation to a notice under subsection (1) of that section.
(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.
(1) If it appears to the Board desirable to do so—
(a) in connection with the discharge of any of its functions; and
(b) in the interests of customers or potential customers of an authorised practitioner,
it may appoint one or more competent persons (“the investigators”) to investigate and report to it on the state and conduct of the affairs of that authorised practitioner.
(2) The Board shall give written notice of any such appointment to the authorised practitioner concerned.
(3) If the investigators think it necessary for the purposes of their investigation, they may also investigate the affairs of any qualified person who is acting, or has acted, on behalf of the authorised practitioner (so far as concerns the provision of conveyancing services on behalf of the authorised practitioner), after giving the qualified person written notice of their investigation.
(4) Any investigation under this section of the affairs of—
(a) any institution which is authorised by the Bank of England under Part I of the [1987 c. 22.] Banking Act 1987, to carry on a deposit-taking business;
(b) any building society which is authorised to raise money from its members by the Building Societies Commission under section 9 of the [1986 c. 53.] Building Societies Act 1986; or
(c) any insurance company which is authorised under section 3 or 4 of the [1982 c. 50.] Insurance Companies Act 1982,
shall be subject to such direction (if any) given by the Lord Chancellor with a view to limiting the scope of the investigation to matters concerned with the provision of conveyancing services.
(5) Any such direction may be general or be given with respect to a particular investigation.
(6) It shall be the duty of every person whose affairs are being investigated and of any officer or employee of his—
(a) to produce to the investigators, within such time and at such place as they may reasonably require, all documents relating to the provision of conveyancing services by the practitioner which are in that person’s custody or power;
(b) to provide the investigators, within such time as they may require, with such information as they may reasonably require with respect to the provision of those services; and
(c) to give the investigators such assistance in connection with the investigation as he is reasonably able to give.
(7) The investigators may take copies of, or extracts from, any document produced to them under subsection (6).
(8) This section applies in relation to a former authorised practitioner or former qualified person as it applies in relation to an authorised practitioner or qualified person.
(9) Any person who, without reasonable excuse, fails to produce any document, or provide any information, which it is his duty to produce under subsection (6) shall be guilty of an offence and liable on summary conviction to a fine not exceeding level five on the standard scale.
(10) Any person who, in response to any requirement imposed on him under this section, knowingly or recklessly provides any information or explanation or makes any statement which is false or misleading in a material particular shall be liable—
(a) on summary conviction, to a fine not exceeding the statutory maximum; and
(b) on conviction on indictment, to imprisonment for a term not exceeding two years or to a fine or to both.
(11) Nothing in this section shall compel the production by an authorised practitioner or qualified person acting on his behalf of a document containing a privileged communication made by him or to him in that capacity.
(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.
(1) Section 49 shall not prevent the disclosure of information—
(a) with a view to the institution, or otherwise for the purposes, of any criminal proceedings;
(b) with a view to the institution, or otherwise for the purposes, of any civil proceedings arising under or by virtue of this Act;
(c) in a summary or collection of information framed in such a way as not to enable the identity of any person to whom the information relates to be ascertained; or
(d) in pursuance of any Community obligation.
(2) Section 49 shall not prevent the disclosure of information for the purpose of enabling or assisting—
(a) the Lord Chancellor to discharge any of his functions under this Act with respect to the Board or authorised practitioners;
(b) the Board to discharge any of its functions;
(c) the Law Society, the General Council of the Bar, the Council for Licensed Conveyancers or the Faculty Office of the Archbishop of Canterbury to discharge any of its functions;
(d) the Building Societies Commission to discharge any of its functions;
(e) the competent authority or a designated agency, recognised investment exchange, recognised clearing house, recognised self-regulating organisation or recognised professional body (all those expressions having the meaning given in the Financial Services Act 1986) to discharge any of its functions;
(f) the Bank of England to discharge any of its functions;
(g) the Secretary of State to discharge any of his functions under this Act, the [1986 c. 60.] Financial Services Act 1986 or any enactment relating to competition, companies, insurance or insolvency;
(h) any inspector appointed by the Secretary of State under any of the enactments mentioned in paragraph (g) to discharge any of his functions;
(i) an official receiver to discharge any of his functions under any enactment relating to insolvency;
(j) a body which is a recognised professional body under section 391 of the [1986 c. 45.] Insolvency Act 1986 to discharge any of its functions as such a body;
(k) the Insurance Brokers Registration Council to discharge any of its functions under the [1977 c. 46.] Insurance Brokers (Registration) Act 1977;
(l) any person appointed or authorised to discharge any powers under section 94, 106 or 177 of the Financial Services Act 1986 to exercise any of those powers;
(m) the Director to discharge any of his functions under—
(i) this Act;
(ii) the [1973 c. 41.] Fair Trading Act 1973 (other than Part II);
(iii) the [1974 c. 39.] Consumer Credit Act 1974;
(iv) the [1976 c. 34.] Restrictive Trade Practices Act 1976;
(v) the [1979 c. 38.] Estate Agents Act 1979;
(vi) the [1980 c. 21.] Competition Act 1980;
(vii) the Financial Services Act 1986;
(viii) the [S.I. 1988/915.] Control of Misleading Advertisements Regulations 1988;
(n) the Monopolies and Mergers Commission to discharge any of its functions under the Fair Trading Act 1973 and the Competition Act 1980;
(o) the Scottish Conveyancing and Executry Services Board to discharge any of its functions;
(p) an authority in a country or territory outside the United Kingdom to discharge any functions corresponding to—
(i) the functions of the Board, the Building Societies Commission or the Bank of England; or
(ii) those functions of the Secretary of State mentioned in paragraph (g);
(q) the Insolvency Practitioners Tribunal to discharge any of its functions under the Insolvency Act 1986;
(r) the Financial Services Tribunal to discharge any of its functions under the Financial Services Act 1986.
(3) Subject to subsection (4), section 49 shall not prevent the disclosure of information for the purpose of enabling or assisting any public or other authority for the time being designated for the purposes of this section by an order made by the Lord Chancellor to discharge any functions which are specified in the order.
(4) An order under subsection (3) designating an authority for the purposes of this section may—
(a) impose conditions subject to which the disclosure of information is permitted by subsection (3); and
(b) otherwise restrict the circumstances in which disclosure is permitted.
(5) Where information has been disclosed by one person (“the first person”) to another, by virtue of subsection (2), section 49 shall not prevent that other person from disclosing that information to any person to whom it could have been disclosed by the first person by virtue of subsection (2).
(6) The Lord Chancellor may by order modify the application of any provision of this section so as—
(a) to prevent the disclosure of information by virtue of that provision; or
(b) to restrict the extent to which disclosure of information is permitted by virtue of that provision.
(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.
(1) In this section—
“the intervention powers” means the powers given to the Board by section 51; and
“a direction” means a direction given under that section.
(2) An authorised practitioner to whom a direction is given may appeal against it to a Conveyancing Appeal Tribunal.
(3) Any authorised practitioner to whom a direction is given shall comply with it as soon as it takes effect (and whether or not he proposes to appeal).
(4) If, on an application made to the High Court by the Board, the court is satisfied—
(a) that an authorised practitioner has failed, within a reasonable time, to comply with any direction given to it; or
(b) that there is a reasonable likelihood that an authorised practitioner will so fail,
it may make an order requiring the authorised practitioner, and any other person whom the court considers it appropriate to subject to its order, to take such steps as the court may direct with a view to securing compliance with the direction.
(5) Where an authorised practitioner is—
(a) an authorised person under the Financial Services Act 1986; or
(b) an appointed representative (as defined in section 44(2) of that Act) of such an authorised person,
the intervention powers may be exercised only after consultation with the body by reference to which the authorised person acquired its authorisation under that Act.
(6) Where an authorised practitioner is—
(a) an institution which is authorised by the Bank of England under Part I of the Banking Act 1987 to carry on a deposit-taking business; or
(b) an appointed representative of such an institution,
the intervention powers may be exercised only after consultation with the Bank of England.
(7) Where an authorised practitioner is—
(a) a building society which is authorised to raise money from its members by the Building Societies Commission under section 9 of the Building Societies Act 1986; or
(b) an appointed representative of such a building society,
the intervention powers may be exercised only after consultation with the Commission.
(8) Where an authorised practitioner falls within more than one of subsections (5) to (7), the Board shall comply with each of the subsections in question.
(1) Subject to subsection (2), the Council for Licensed Conveyancers shall have the powers necessary to enable it to become—
(a) an authorised body for the purposes of granting rights of audience under section 27(2)(a);
(b) an authorised body for the purposes of granting rights to conduct litigation under section 28(2)(a); and
(c) an approved body for the purposes of granting, in accordance with section 55, exemption from the provisions of section 23(1) of the Solicitors Act 1974 (preparation of probate papers).
(2) The Council may exercise the powers given to it by this section only with respect to persons who are licensed conveyancers.
(3) Where the Council—
(a) becomes an authorised body for the purposes of section 27 and grants any right of audience;
(b) becomes an authorised body for the purposes of section 28 and grants any right to conduct litigation; or
(c) becomes an approved body for the purposes of section 55 and grants an exemption under that section,
it shall do so by issuing a licence to the licensed conveyancer to whom the right or exemption is being granted.
(4) Any such licence may be granted as a separate licence or as part of a composite licence comprising the licensed conveyancer’s licence issued under Part II of the Administration of Justice Act 1985 and any other licence which the Council may grant to the licensed conveyancer concerned.
(5) The Council’s general duty shall include the duty to ensure that the standards of competence and professional conduct among licensed conveyancers who are granted rights of audience, rights to conduct litigation or an exemption under section 55 are sufficient to secure adequate protection for consumers, and that the advocacy, litigation or (as the case may be) probate services provided by such persons are provided both economically and efficiently.
(6) Where the Council exercises any of its powers in connection with—
(a) an application under section 29 for authorisation or an application under Schedule 9 for approval; or
(b) the granting of any right of audience or right to conduct litigation or of an exemption under section 55,
it shall do so subject to any requirements to which it is subject in accordance with the provisions of this Act relating to the grant of any such right or exemption.
(7) Schedule 8 makes further provision in connection with the powers given to the Council by this section and the provision made by the Act of 1985 in relation to licensed conveyancers, including amendments of Part II of that Act.
(8) The Lord Chancellor may by order make such—
(a) amendments of, or modifications to, the provisions of Part II of the Act of 1985; or
(b) transitional or consequential provision,
as he considers necessary or expedient in connection with the provision made by this section and Schedule 8.
(9) Subject to any provision made by this section, Schedule 8 or any order made by the Lord Chancellor under subsection (8), the provisions of Part II of the Act of 1985 shall, with the necessary modifications, apply with respect to—
(a) any application for an advocacy, litigation or probate licence;
(b) any such licence;
(c) the practice of any licensed conveyancer which is carried on by virtue of any such licence;
(d) rules made by the Council under Schedule 8;
(e) the management and control by licensed conveyancers (or by licensed conveyancers together with persons who are not licensed conveyancers) of bodies corporate carrying on businesses which include the provision of advocacy, litigation or probate services; and
(f) any other matter dealt with by this section or Schedule 8,
as they apply with respect to the corresponding matters dealt with by Part II of that Act.