Office of Public Sector Information
PART III continued
(2) The ombudsman shall make such investigation of any handling complaint as seems to him to be appropriate; and for that purpose he may request the organisation concerned to provide him with such information as he may reasonably require.
(3) Where the organisation concerned have not completed an investigation under section 33(1) of this Act within such period as the Secretary of State may from time to time determine, the ombudsman may request a report from them on the progress of the investigation.
(4) The ombudsman—
(a) may, at any stage in the investigation of a handling complaint, make an interim report in relation to that investigation; and
(b) shall, at the conclusion of such an investigation, report the result of that investigation,
to the complainer and to the organisation concerned.
(5) The ombudsman may—
(a) if so requested by any person appointed to carry out equivalent functions in relation to the provision of legal services in England and Wales, investigate a complaint against a professional body in England and Wales on that person’s behalf; and
(b) request any person appointed as mentioned in paragraph (a) above to investigate a complaint against an organisation in Scotland on his behalf.
(6) The Secretary of State may by regulations extend the jurisdiction of the ombudsman by providing for this section to apply, with such modifications (if any) as he thinks fit, in relation to the investigation by the ombudsman of such categories of handling complaints as may be specified in the regulations with respect to the provision of executry services by persons other than executry practitioners within the meaning of section 23 of this Act.
(7) Without prejudice to the generality of subsection (6) above, regulations under that subsection may make provision for the investigation of handling complaints with respect to particular persons or categories of person.
(8) Regulations under subsection (6) above shall be made by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.
(9) The following shall not be eligible to be appointed as the ombudsman—
(a) advocates;
(b) solicitors;
(c) members and officers of the Scottish Conveyancing and Executry Services Board established by section 16 of this Act;
(d) subject to paragraph (e) below, executry practitioners within the meaning of section 23 of this Act;
(e) where any such executry practitioner is a partnership or a body corporate, the partners or, as the case may be, the directors, secretary or other similar officers;
(f) the directors, secretary or other similar officers of any recognised financial institution within the meaning of section 19(2) of this Act;
(g) qualified conveyancers within the meaning of section 23 of this Act; or
(h) any member or employee of a professional or other body any of whose members has acquired any right to conduct litigation or right of audience by virtue of section 27 of this Act.
(10) Schedule 3 to this Act shall have effect in relation to the ombudsman.
(1) Paragraphs 1 to 3 of Schedule 4 to this Act shall have effect in relation to the eligibility of sheriffs principal, sheriffs and solicitors to be appointed as judges of the Court of Session.
(2) Paragraph 4 of the said Schedule shall have effect in relation to the appointment of—
(a) members of the Inner House of the Court of Session; and
(b) a Lord Ordinary of that Court to be the Lord Ordinary in exchequer causes.
(3) Notwithstanding any provision in any enactment, if it appears expedient to the Secretary of State he may, in accordance with the provisions of paragraphs 5 to 11 of the said Schedule, and after consulting the Lord President, appoint persons to act as temporary judges of the Court of Session.
(4) Section 3 (constitution of Scottish Land Court) of the [1911 c. 49.] Small Landholders (Scotland) Act 1911 shall have effect subject to the amendments mentioned in paragraph 12 of the said Schedule.
(1) An advocate and the person instructing him may agree, in relation to a litigation undertaken on a speculative basis, that, in the event of the litigation being successful, the advocate’s fee shall be increased by such percentage as may, subject to subsection (2) below, be agreed.
(2) The percentage increase which may be agreed under subsection (1) above shall not exceed such limit as the court may, after consultation with the Dean of the Faculty of Advocates, prescribe by act of sederunt.
(3) After section 61 of the 1980 Act there shall be inserted the following section—
(1) Subject to the provisions of this section, and without prejudice to—
(a) section 32(1)(i) of the [1971 c. 58.] Sheriff Courts (Scotland) Act 1971; or
(b) section 5(h) of the [1988 c. 36.] Court of Session Act 1988,
where a solicitor and his client have reached an agreement in writing as to the solicitor’s fees in respect of any work done or to be done by him for his client it shall not be competent, in any litigation arising out of any dispute as to the amount due to be paid under any such agreement, for the court to remit the solicitor’s account for taxation.
(2) Subsection (1) is without prejudice to the court’s power to remit a solicitor’s account for taxation in a case where there has been no written agreement as to the fees to be charged.
(3) A solicitor and his client may agree, in relation to a litigation undertaken on a speculative basis, that, in the event of the litigation being successful, the solicitor’s fee shall be increased by such a percentage as may, subject to subsection (4), be agreed.
(4) The percentage increase which may be agreed under subsection (3) shall not exceed such limit as the court may, after consultation with the Council, prescribe by act of sederunt.”.
(4) In section 33 of the [1986 c. 47.] Legal Aid (Scotland) Act 1986 (fees and outlays of solicitors and counsel who have provided services under that Act) there shall be added at the end the following subsection—
“(6) It shall not be competent, in any litigation arising out of any dispute as to the amount of—
(a) any fees or outlays to be paid to a solicitor; or
(b) any fees to be paid to an advocate,
under or by virtue of this Act, for the court to remit the account concerned for taxation.”.
(1) For subsection (2) of section 6 of the 1980 Act (admission of persons as solicitors) there shall be substituted the following subsection—
“(2) Where—
(a) a person has complied with the requirements of subsection (1); but
(b) the Council have not lodged a petition for his admission as a solicitor within one month of his having so complied,
he may apply by petition to the court for admission as a solicitor; and if he produces the certificate mentioned in paragraph (b) of subsection (1) the court shall make an order admitting him as a solicitor.”.
(2) Section 57 of that Act (admission of notaries public) shall be amended as follows—
(a) for subsection (1) there shall be substituted—
“(1) The offices and functions of—
(a) the clerk to the admission of notaries public; and
(b) the keeper of the register of notaries public,
are hereby transferred to the Council.”;
(b) in subsection (2), for the words from “grant” to the end there shall be substituted “direct the Council to register him in the register of notaries public.”;
(c) after subsection (2) there shall be inserted the following subsections—
“(2A) A petition by the Council under section 6(3A) for the admission of a person as a solicitor may, if the person so requests, include an application for the person’s admission as a notary public; and an order on any such petition admitting that person as a solicitor may admit him as a notary public and direct the Council to register him in the register of notaries public.
(2B) A petition by a person under section 6(2)for his admission as a solicitor may include an application for his admission as a notary public; and an order on any such petition admitting that person as a solicitor may admit him as a notary public and direct the Council to register him in the register of notaries public.”;
(d) in subsection (4) for the word “solicitor” there shall be substituted “person”; and
(e) for subsection (5) there shall be substituted—
“(5) The Council may charge such reasonable fees as they consider appropriate in respect of the admission of any person as a notary public.”.
(3) In section 58 of that Act (removal from and restoration to the register of names of notaries public)—
(a) in subsection (1), for the words from “give” to the end there shall be substituted “strike off or, as the case may be, remove his name from the register of notaries public”;
(b) in subsection (2), for the words from “it” to “thereupon” there shall be substituted “the Council shall forthwith”;
(c) at the end of that section there shall be added the following subsections—
“(3) Where a person who is both a solicitor and a notary public is suspended from practising as a solicitor under this Act the Council shall forthwith remove the person’s name from the register of notaries public.
(4) If the suspension of such a person as is mentioned in subsection (3) is terminated or otherwise comes to an end the Council shall restore the person’s name to the register.”.
After section 43 of the [1986 c. 47.] Legal Aid (Scotland) Act 1986 there shall be inserted the following section—
(1) Advice and assistance shall be available, in accordance with the provisions of this Act, in relation to the provision of executry services by executry practitioners and recognised financial institutions and conveyancing services by independent qualified conveyancers, all within the meaning of section 23 (interpretation of sections 16 to 22) of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 as they are so available in relation to the provision of the like services by solicitors.
(2) Subject to any act of sederunt or act of adjournal made under subsection (7) of section 26 of that Act (consideration of applications made under section 25) advice and assistance, civil legal aid and criminal legal aid shall be available, in accordance with the provisions of this Act, in relation to the provision of services by persons who have acquired rights to conduct litigation or, as the case may be, rights of audience by virtue of that section as they are so available in relation to the provision of the like services by solicitors and, where appropriate, by advocates.
(3) Where advice and assistance, civil legal aid or criminal legal aid has been made available by virtue of this section, the provisions of this Act shall apply in relation to the person providing those services as they apply in relation to a solicitor or advocate providing like services.”.
Section 29 of the 1980 Act (which restricts the borrowing of the process relating to any court proceedings to solicitors having a place of business, in relation to the Court of Session, in Edinburgh, and, in relation to the inferior courts, within the jurisdiction of the court concerned) shall cease to have effect.
(1) Before—
(a) making any regulations under section 17(11) or 18(10) of this Act; or
(b) approving any rules—
(i) made under section 17(3); or
(ii) such as are mentioned in section 31(1) or (2),
of this Act; or
(c) considering any provisions of a draft scheme under section 26(1) or (3) of this Act,
the Secretary of State shall first send a copy of the proposed regulations, rules or provisions to the Director.
(2) The Director shall consider whether any such regulations, rules or provisions as are mentioned in subsection (1) above 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 Secretary of State as he thinks fit.
(4) The Director may publish any advice given by him under subsection (3) above.
(5) The Director shall, so far as practicable, exclude from anything published under subsection (4) above 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.
(6) For the purposes of the law of defamation, the publication of any advice by the Director under this section shall be absolutely privileged.
(1) For the purpose of investigating any matter under section 40 of this Act, 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 the grounds of confidentiality between a client and his professional legal adviser in any civil proceedings.
(3) Subsections (5) to (8) of section 85 of the [1973 c. 41.] Fair Trading Act 1973 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) Where the Secretary of State has approved—
(a) a rule under section 17(15) or 31(2) of this Act; or
(b) a draft scheme under section 26(6) of this Act,
he may and, where the Lord President, in the case of a draft scheme such as is mentioned in paragraph (b), so requests shall, require the body which made the rule or, as the case may be, the scheme to review its terms.
(2) When they have reviewed a rule or, as the case may be, a scheme, following a requirement made under subsection (1) above, the body concerned may revise the rule or scheme in the light of that review, and shall then submit the rule or scheme as revised or, if they have not revised it, as previously approved—
(a) in the case of a rule such as is mentioned in subsection (1)(a) above, to the Secretary of State; or
(b) in the case of a draft scheme such as is mentioned in subsection (1)(b) above, to the Secretary of State and the Lord President.
(3) Where a rule, whether revised or as previously approved, is submitted to the Secretary of State under subsection (2)(a) above, he may—
(a) approve the rule as submitted to him; or
(b) amend the rule in such manner as he considers appropriate,
and (except where the rule remains in the form previously approved) he may direct the body concerned to bring it into operation as soon as is practicable.
(4) Where the Lord President and the Secretary of State are agreed that the terms of a draft scheme submitted to them under subsection (2)(b) above are satisfactory, the Secretary of State may—
(a) approve the scheme; and
(b) (except where the scheme remains in the form previously approved) direct the body concerned to bring the scheme, as so amended, into force as soon as is practicable.
(5) Where either the Secretary of State or the Lord President is of the view that the terms of any such scheme so submitted to them are not satisfactory, but they do not agree as to what the terms of the scheme should be, the scheme shall continue to have effect as previously approved.
(6) Where the Secretary of State and the Lord President agree both that the terms of a scheme so submitted to them are not satisfactory, and as to what the terms of the scheme should be, the Secretary of State may amend the scheme in such manner as he and the Lord President consider appropriate; and may direct the body concerned to bring the scheme, as so amended, into force as soon as is practicable.
(7) The provisions of section 40(1)(b) and (c) of this Act shall apply to rules and schemes submitted under subsection (2) of this section as they apply to rules submitted under sections 17(15) and 31(2) and schemes submitted under section 25(1) of this Act.
After section 64 of the 1980 Act there shall be inserted the following sections—
(1) Before considering any rule—
(a) made under section 25A(4)
or (5); or
(b) such as is mentioned in section 34(3A),
the Secretary of State shall send a copy of the proposed rule in question to the Director.
(2) The Director shall consider whether the rule in question 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 Secretary of State as he thinks fit.
(4) The Director may publish any advice given by him under subsection (3).
(5) The Director shall, so far as practicable, exclude from anything published under subsection (4) 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.
(6) For the purposes of the law of defamation, the publication of any advice or report by the Director under this section shall be absolutely privileged.
When he has received advice under section 64A(3) in relation to a rule made under section 25A(4) or (5) or such as is mentioned in section 34(3A), the Secretary of State may, having considered—
(a) that advice;
(b) whether the interests of justice require that there should be such a rule; and
(c) in relation to a rule made under section 25A(5), any relevant practice obtaining in the sheriff court,
approve or refuse to approve the rule.
(1) For the purpose of investigating any matter under section 64A, 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 the grounds of confidentiality between a client and his professional legal adviser in any civil proceedings.
(3) Subsections (5) to (8) of section 85 of the [1973 c. 41.] Fair Trading Act 1973 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) Without prejudice to the power of the Council to review any rule made by them, where the Secretary of State has approved a rule under section 64B he may, and if so requested by the Lord President shall, require the Council to review its terms.
(2) When they have reviewed a rule following a requirement made under subsection (1), the Council may revise the rule in the light of that review, and shall then submit the rule as revised or, if they have not revised it, as previously approved to the Lord President and the Secretary of State.
(3) Where the Lord President and the Secretary of State are agreed that the terms of the rule as submitted to them are satisfactory, the Secretary of State shall approve the rule, and may direct the Council to bring it into force as soon as is practicable.
(4) Where either the Secretary of State or the Lord President is of the view that any rule, as submitted to them, is not satisfactory, but they do not agree as to what the terms of the rule should be, the rule shall continue to have effect as previously approved.
(5) Where the Secretary of State and the Lord President agree both that any rule submitted to them under subsection (2) is not satisfactory, and as to what the terms of the rule should be, the Secretary of State may direct the Council—
(a) to amend the rule in such manner as he and the Lord President consider appropriate; and
(b) to bring the rule, as so amended, into force as soon as is practicable.
(6) The provisions of sections 64A and 64B apply to rules submitted to the Secretary of State under this section as they apply to rules submitted to him under sections 25A(9) or (10) and 34(3A).”.
In this Part of this Act, unless the context otherwise requires—
“advocate” means a member of the Faculty of Advocates practising as such;
“the Director” means the Director General of Fair Trading;
“Lord President” means the Lord President of the Court of Session;
“solicitor” has the same meaning as in section 65(1) of the 1980 Act; and
“the 1980 Act” means the [1980 c. 46.] Solicitors (Scotland) Act 1980.
Law Reform (Miscellaneous Provisions) (Scotland) Act 1990