Office of Public Sector Information
SCHEDULE 17 continued PART 1 continued
22 For section 33 (legal professional privilege), substitute—
(1) Subsection (2) applies where a licensed conveyancer or recognised body acts as such for a client.
(2) Any communication, document, material or information is privileged from disclosure in like manner as if the licensed conveyancer or body had at all material times been acting as the client’s solicitor.
(3) This section does not apply to a recognised body which holds a licence under Part 5 of the Legal Services Act 2007 (alternative business structures).”
23 After that section insert—
The Council may make rules prescribing its arrangements for authorising licensed conveyancers, for the purposes of the Legal Services Act 2007, to carry on activities which consist of the administration of oaths.”
24 In section 34 (modification of existing enactments relating to conveyancing etc), omit subsection (2)(c) to (e).
25 In section 35 (penalty for pretending to be a licensed conveyancer or recognised body), in subsection (2) omit “corporate”.
26 In section 36 (offences by bodies corporate)—
(a) the existing section becomes subsection (1) of that section and in that subsection for “director” to “capacity” substitute “officer of the body corporate”, and
(b) after that subsection insert—
“(2) Where the affairs of a body corporate are managed by its members, subsection (1) applies in relation to the acts and defaults of a member in connection with the member’s functions of management as it applies to an officer of the body corporate.
(3) Proceedings for an offence under this section alleged to have been committed by an unincorporated body are to be brought in the name of that body (and not in that of any of its members) and, for the purposes of any such proceedings, any rules of court relating to the service of documents have effect as if that body were a corporation.
(4) A fine imposed on an unincorporated body on its conviction of an offence under this section is to be paid out of the funds of that body.
(5) If an unincorporated body is charged with an offence under this section, section 33 of the Criminal Justice Act 1925 and Schedule 3 to the Magistrates' Courts Act 1980 (procedure on charge of an offence against a corporation) have effect in like manner as in the case of a corporation so charged.
(6) Where an offence under this section committed by an unincorporated body (other than a partnership) is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, any officer of the body or any member of its governing body, that officer or member as well as the unincorporated body is guilty of the offence and liable to be proceeded against and punished accordingly.
(7) Where an offence under this section committed by a partnership is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, a partner, that partner as well as the partnership is guilty of the offence and liable to be proceeded against and punished accordingly.
(8) In this section “officer”, in relation to a body corporate, means—
(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.”
27 In section 38 (rules)—
(a) omit subsection (1), and
(b) in subsection (2) for “such rules” substitute “rules made by the Council under this Part”.
28 In section 39(1) (interpretation of Part 2)—
(a) in the definition of “client”, in paragraph (a) omit “or his firm”,
(b) omit the definitions of “director” and “officer”,
(c) at the appropriate place insert—
““manager”, in relation to a body, has the same meaning as in the Legal Services Act 2007 (see section 207 of that Act);”, and
(d) in the definition of “recognised body” omit “corporate”.
29 (1) Schedule 3 (Council for Licensed Conveyancers: supplementary provisions) is amended as follows.
(2) In paragraph 2(1), for “elected or nominated” substitute “appointed”.
(3) In paragraph 2(2), for “elect” substitute “appoint”.
(4) Omit paragraph 2(3).
(5) Omit paragraph 3.
(6) In paragraph 4(1)—
(a) for “election or nomination” (in both places) substitute “appointment”,
(b) for “election of” substitute “appointment of”, and
(c) for “elected or nominated” substitute “appointed”.
(7) In paragraph 4(2), for “elected or nominated” (in each place) substitute “appointed”.
(8) In paragraph 4(3), for the words from “Secretary of State” (in the first place) to the end substitute “Legal Services Board.”
(9) In paragraph 4(4)—
(a) for “Secretary of State” (in both places) substitute “Legal Services Board”,
(b) for “him” substitute “it”, and
(c) for “he” (in both places) substitute “it”.
(10) In paragraph 9, for “election or nomination” substitute “appointment”.
(11) In paragraph 10 for “Secretary of State” (in both places) substitute “Lord Chancellor”.
(12) In paragraph 11(3) for “Secretary of State” substitute “Lord Chancellor”.
30 (1) Schedule 4 (the Discipline and Appeals Committee: supplementary provisions) is amended as follows.
(2) In paragraph 1 (rules of procedure)—
(a) omit sub-paragraphs (3) and (4), and
(b) in sub-paragraph (5), for “paragraphs 2 and 3” substitute “paragraph 2”.
(3) Omit paragraph 3.
31 (1) Schedule 5 (intervention in licensed conveyancer’s practice) is amended as follows.
(2) In paragraph 1 (grounds for intervention)—
(a) in sub-paragraph (1)(a) after “practice” insert “or former practice or in connection with any trust of which that licensed conveyancer is or was a trustee”,
(b) after that sub-paragraph insert—
“(aa) the Council has reason to suspect dishonesty on the part of a licensed conveyancer (“L”) in connection with—
(i) the business of any person of whom L is or was an employee, or of any body of which L is or was a manager, or
(ii) any business which is or was carried on by L as a sole trader;”,
(c) in sub-paragraph (1)(b) after “practice” insert “or in connection with any trust”,
(d) in sub-paragraph (1)(c), after “section” insert “20, 21(3)(c),”,
(e) after sub-paragraph (1)(e) insert—
“(ea) the Council is satisfied that a licensed conveyancer has abandoned his practice;
(eb) the Council is satisfied that a licensed conveyancer has been practising in breach of any conditions subject to which his licence has effect;”,
(f) in sub-paragraph (1)(f), after “illness” insert “, injury”,
(g) for sub-paragraph (1)(g) substitute—
“(g) a licensed conveyancer lacks capacity (within the meaning of the Mental Capacity Act 2005) to act as a licensed conveyancer and powers under section 15 to 20 or section 48 of that Act are exercisable in relation to the licensed conveyancer;”,
(h) after sub-paragraph (1)(h) insert—
“(i) the Council is satisfied that it is necessary to exercise the powers conferred by Part 2 of this Schedule (or any of them) in relation to a licensed conveyancer to protect—
(i) the interests of clients (or former or potential clients) of the licensed conveyancer or his firm, or
(ii) the interests of the beneficiaries of any trust of which the licensed conveyancer is or was a trustee.”, and
(i) omit sub-paragraph (2).
(3) In paragraph 3 (intervention following an undue delay)—
(a) for “10(3)” substitute “10(9)”,
(b) in paragraph (a) for “a complaint is made to the Council” substitute “the Council is satisfied”,
(c) in that paragraph for “was instructed” substitute “is or was acting”, and
(d) in that paragraph after “client” insert “or in connection with any trust”.
(4) In paragraph 4(2) (continuation of powers after death etc of licensed conveyancer)—
(a) after “and (3)” insert “, 6A”,
(b) for “and (5)” substitute “, (5) and (6)”, and
(c) for “10(1)” substitute “10(2) and (7)”.
(5) In paragraph 6 (vesting of sums in Council)—
(a) in sub-paragraph (1) after “thereto” insert “and to rules under paragraph 6B”, and
(b) in sub-paragraph (2)(a) after “practice” insert “or former practice or with any trust of which he is or was a trustee”.
(6) After paragraph 6 insert—
“6A (1) Without prejudice to paragraph 5, if the Council passes a resolution to the effect that any rights to which this paragraph applies shall vest in the Council, those rights shall vest accordingly.
(2) This paragraph applies to any right to recover or receive debts due to the licensed conveyancer or his firm in connection with his practice or former practice.
(3) Any sums recovered by the Council by virtue of the exercise of rights vested under sub-paragraph (1) shall vest in the Council and shall be held by it on trust to exercise in relation to them the powers conferred by this Part of this Schedule and, subject to those powers and to rules under paragraph 6B, upon trust for the persons beneficially entitled to them.
(4) The Council shall serve on the licensed conveyancer or his firm, and any person who owes a debt to which the order applies a certified copy of the Council’s resolution.
6B (1) The Council may make rules governing its treatment of sums vested in it under paragraph 6 or 6A(3).
(2) The rules may, in particular, make provision in respect of cases where the Council, having taken such steps to do so as are reasonable in all the circumstances of the case, is unable to trace the person or persons beneficially entitled to any sum vested in the Council under paragraph 6 or 6A(3) (including provision which requires amounts to be paid into or out of a fund maintained under section 21).”
(7) In paragraph 7(1) (holding of sums vested in Council) after “thereto” insert “and to rules under paragraph 6B”.
(8) In paragraph 8 for “holds money” to the end substitute—
“(a) holds money on behalf of the licensed conveyancer or his firm, or
(b) has information which is relevant to identifying any money held by or on behalf of the licensed conveyancer or his firm,
the court may require that person to give the Council information as to any such money and the accounts in which it is held.”
(9) In paragraph 9 (documents)—
(a) in sub-paragraph (1)(a)—
(i) after “possession” insert “or under the control”, and
(ii) after “practice” insert “or former practice or with any trust of which the licensed conveyancer is or was a trustee”,
(b) in sub-paragraph (1)(b)—
(i) after “possession” insert “or under the control”, and
(ii) for “to which the complaint relates” substitute “of which the Council is satisfied”,
(c) in sub-paragraph (3) after “possession” insert “or control”,
(d) in sub-paragraph (5) after “possession” insert “or are under the control”,
(e) after that sub-paragraph insert—
“(5A) In the case of a document which consists of information which is stored in electronic form, the requirement imposed by a notice under sub-paragraph (1) or an order under sub-paragraph (4) or (5), is a requirement to produce or deliver the information in a form in which it is legible or from which it can readily be produced in a legible form.”,
(f) in sub-paragraph (6) after “possession of” insert “(a)”,
(g) at the end of that sub-paragraph insert—
“(b) any property—
(i) in the possession or under the control of the licensed conveyancer or his firm, or
(ii) in the case of an order under sub-paragraph (5), which was in the possession or under the control of such a person and has come into the possession or under the control of the person in respect of whom the order is made,
which the Council reasonably requires for the purpose of accessing information contained in such documents,
and to use property obtained under paragraph (b) for that purpose.”,
(h) in sub-paragraph (7) after “documents” insert “or other property”,
(i) in sub-paragraph (8) after “documents” insert “or other property”, and
(j) in sub-paragraph (10) after “documents” insert “or other property”.
(10) For paragraph 10 (mail) substitute—
10 (1) The High Court, on the application of the Council, may from time to time make a communications redirection order.
(2) A communications redirection order is an order that specified communications to the licensed conveyancer or his firm are to be directed, in accordance with the order, to the Council, or any person appointed by the Council.
(3) For the purposes of this paragraph—
(a) “specified communications” means communications of such description as are specified in the order;
(b) the descriptions of communications which may be so specified include—
(i) communications in the form of a postal packet;
(ii) electronic communications;
(iii) communications by telephone.
(4) A communications redirection order has effect for such time not exceeding 18 months as is specified in the order.
(5) Where a communications redirection order has effect, the Council or the person appointed by the Council may take possession or receipt of the communications redirected in accordance with the order.
(6) Where a communications redirection order is made the Council must pay to—
(a) in the case of an order relating to postal packets, the postal operator concerned, and
(b) in any other case, the person specified in the order,
the like charges (if any) as would have been payable for the redirection of the communications to which the order relates if the addressee had permanently ceased to occupy or use the premises or other destination of the communications and had applied to the postal operator or the specified person (as the case may be) to redirect the communications to him as mentioned in the order.
(7) The High Court may, on the application of the Council, authorise the Council, or a person appointed by it, to take such steps as may be specified in the order in relation to any website purporting to be or have been maintained by or on behalf of the licensed conveyancer or his firm if the High Court is satisfied that the taking of those steps is necessary to protect the public interest or the interests of clients (or potential or former clients) of the licensed conveyancer or his firm.
(8) In this paragraph “postal operator” and “postal packet” have the meaning given by section 125(1) of the Postal Services Act 2000.
(9) This paragraph does not apply where the powers conferred by this Part of this Schedule are exercisable by virtue of paragraph 3.”
(11) After paragraph 10 insert—
10A (1) If the licensed conveyancer or his personal representative is a trustee of a trust, the Council may apply to the High Court for an order for the appointment of a new trustee in substitution for him.
(2) The Trustee Act 1925 has effect in relation to an appointment of a new trustee under this paragraph as it has effect in relation to an appointment under section 41 of that Act.”
(12) In paragraph 11 (liens) for “and documents” substitute “, documents and other property”.
(13) After paragraph 12 (costs) insert—
“12A (1) The High Court, on the application of the Council, may order a former partner of the licensed conveyancer to pay a specified proportion of the costs mentioned in paragraph 12.
(2) The High Court may make an order under this paragraph only if it is satisfied that the conduct (or any part of the conduct) by reason of which the powers conferred by this Part were exercisable in relation to the licensed conveyancer was conduct carried on with the consent or connivance of, or was attributable to any neglect on the part of, the former partner.
(3) In this paragraph “specified” means specified in the order made by the High Court.”
32 (1) Schedule 6 (bodies recognised under section 32: supplementary provisions) is amended as follows.
(2) In paragraph 1—
(a) omit “corporate” (in both places), and
(b) in sub-paragraph (2) omit—
(i) “or complaint” (in both places), and
(ii) “or (b)”.
(3) In paragraph 2 (disciplinary control of recognised bodies) after “24” insert “, 24A”.
(4) In paragraph 3—
(a) in sub-paragraph (1), in paragraph (a)(i) omit “by any court in the United Kingdom”,
(b) after paragraph (a) of that sub-paragraph insert—
“(aa) it is alleged that a manager or employee of a recognised body who is not a licensed conveyancer has failed to comply with any rules applicable to him by virtue of section 32;
(ab) it is alleged that a recognised body (while a recognised body) has failed to comply with a condition subject to which its recognition has effect.”,
(c) in that sub-paragraph omit—
(i) paragraph (b), and
(ii) from “with a view” to the end, and
(d) after sub-paragraph (1) insert—
“(1A) After making such an investigation, the Investigating Committee may—
(a) hear and determine the allegation, or
(b) refer the allegation to the Discipline and Appeals Committee for hearing and determination by that Committee under paragraph 4.
(1B) The Council shall make rules as to the cases in which the Investigating Committee may hear and determine an allegation, and the cases in which they must refer an allegation to the Discipline and Appeals Committee.”
(5) After paragraph 3 insert—
“3A (1) Where, on hearing an allegation by virtue of paragraph 3(1A)(a), the Investigating Committee are satisfied—
(a) in a case within paragraph 3(1)(a), that a recognised body has failed to comply with any such rules as are mentioned in sub-paragraph (ii) of that paragraph, or
(b) in a case within paragraph 3(1)(aa), that a manager or employee has failed to comply with any such rules as are mentioned in that paragraph, or
(c) in a case within paragraph 3(1)(ab), that a recognised body has failed to comply with any condition mentioned in that paragraph,
the Committee may make an order directing the payment by the recognised body, manager or employee of a penalty to be forfeited to Her Majesty.
(2) In relation to proceedings before the Investigating Committee by virtue of paragraph 3(1A)(a), the Committee may make such order as they consider fit as to the payment of costs by—
(a) the Council;
(b) the recognised body, manager or employee against whom the proceedings were brought;
(c) if the person on whose allegation the proceedings were brought was heard (in person, or through a representative) by the Committee in the course of the proceedings, that person.
(3) In sub-paragraph (2), for the purposes of paragraph (a) or (b) of that sub-paragraph, the reference to costs includes costs incurred in connection with a preliminary investigation of the allegation under paragraph 3.
(4) The amount of any penalty required to be paid under sub-paragraph (1) may not exceed such amount as is prescribed by rules made by the Council for the purposes of this sub-paragraph.
(5) Paragraphs 1, 2(1) and (3) and 4 of Schedule 4 have effect in relation to—
(a) proceedings for the hearing and determination of an allegation by the Investigating Committee, as they have effect in relation to proceedings before the Discipline and Appeals Committee under section 26, and
(b) orders of the Investigating Committee, as they have effect in relation to orders of the Discipline and Appeals Committee.
(6) A person against whom an order is made by the Investigating Committee by virtue of sub-paragraph (1) may appeal to the Discipline and Appeals Committee, and on any such appeal the Discipline and Appeals Committee may make such order as they think fit.
(7) If an order is made by the Investigating Committee by virtue of sub-paragraph (2), a person listed in paragraphs (a) to (c) of that sub-paragraph may appeal to the Discipline and Appeals Committee, and on any such appeal the Discipline and Appeals Committee may make such order as they think fit.
(8) Where an order is made by the Discipline and Appeals Committee under sub-paragraph (6) or (7)—
(a) a party to the appeal, or
(b) if not within paragraph (a), the Council,
may appeal against the order to the High Court.
(9) On an appeal under sub-paragraph (8) the High Court may make such order as it thinks fit.
(10) The decision of the High Court on an appeal under sub-paragraph (8) shall be final.”
(6) In paragraph 4—
(a) in sub-paragraph (1) after “allegation” insert “within paragraph 3(1)(a) or (ab)”,
(b) in that sub-paragraph, after paragraph (b) insert “, or
(c) has failed to comply with any such condition as is mentioned in paragraph 3(1)(ab),”,
(c) in sub-paragraph (2), in paragraph (b), for “£3,000” substitute “such amount as may be prescribed by rules made by the Council for the purposes of this sub-paragraph”,
(d) after paragraph (b) of that sub-paragraph insert—
“(ba) an order reprimanding that body;
(bb) an order that the recognition of that body under section 32 is to have effect subject to such conditions as may be specified in the order;”,
(e) omit paragraph (c) of that sub-paragraph,
(f) after that sub-paragraph insert—
“(2A) Where on the hearing of any allegation within paragraph 3(1)(aa) the Discipline and Appeals Committee are satisfied that a manager or employee has failed to comply with any such rules as are mentioned in sub-paragraph (ii) of that paragraph, the Committee may, if they think fit, make one or more of the orders referred to in sub-paragraph (2B).
(2B) Those orders are—
(a) an order directing the payment by the manager or employee of a penalty not exceeding such amount as may be prescribed by rules made by the Council for the purposes of this sub-paragraph;
(b) an order requiring the Council to consider taking such steps as the Committee may specify in relation to the manager or employee;
(c) an order requiring the Council to refer to an appropriate regulator any matter relating to the conduct of the manager or employee.
(2C) For the purposes of sub-paragraph (2B)(c) an “appropriate regulator” in relation to a manager or employee means—
(a) if the person is an authorised person in relation to a reserved legal activity for the purposes of the Legal Services Act 2007, any relevant approved regulator (within the meaning of that Act) in relation to that person, and
(b) if the person carries on activities which are not reserved legal activities, any person who exercises regulatory functions in relation to the carrying on of such activities by the person.
(2D) In relation to proceedings under this paragraph, the Committee may make such order as they consider fit as to the payment of costs by—
(a) the Council;
(b) the recognised body or manager or employee against whom the proceedings were brought;
(c) if the person on whose allegation the proceedings were brought was heard (in person, or through a representative) by the Committee in the course of the proceedings, that person.
(2E) In sub-paragraph (2D), for the purposes of paragraph (a) or (b) of that sub-paragraph, the reference to costs includes costs incurred in connection with a preliminary investigation of the allegation under paragraph 3.”, and
(g) omit sub-paragraphs (3), (3A) and (4).
(7) In paragraph 5—
(a) in sub-paragraph (1)—
(i) after “26” insert “or paragraph 4”, and
(ii) for “director” (in each place) substitute “manager”,
(b) in sub-paragraph (3) for “director” (in both places) substitute “manager”, and
(c) after sub-paragraph (3) insert—
“(4) In relation to proceedings for the revocation of a recognition under sub-paragraph (1), the Discipline and Appeals Committee may make such order as they consider fit as to the payment of costs by—
(a) the Council;
(b) the body to whose recognition the proceedings relate.”.
(8) In paragraph 6 (appeals against orders of the Committee)—
(a) in sub-paragraph (1)—
(i) for “body corporate” substitute “person”,
(ii) after “4(1)” insert “or (2A)”, and
(iii) for “5” substitute “5(1)”, and
(b) after that sub-paragraph insert—
“(1A) Where an order is made by the Committee under paragraph 4(2D) or 5(4) a person listed in that paragraph may appeal to the High Court, and on any such appeal the High Court may make such order as it thinks fit.”
(9) After paragraph 7 (revocation of recognition on grounds of fraud or error)—
(a) in sub-paragraph (1) and (2) omit “corporate”, and
(b) after sub-paragraph (2) insert—
“(3) In relation to proceedings for the revocation of a recognition under sub-paragraph (1), the Discipline and Appeals Committee may make such order as they consider fit as to the payment of costs by—
(a) the Council;
(b) the body to whose recognition the proceedings relate.
(4) In relation to proceedings on an application under sub-paragraph (2), the Discipline and Appeals Committee may make such order as they consider fit as to the payment of costs by—
(a) the Council;
(b) the applicant.”
(10) In paragraph 8 (appeal against decision of Council in relation to grant of recognition)—
(a) in sub-paragraph (1) omit “corporate”,
(b) in paragraph (b) of that sub-paragraph for “restrictions” substitute “conditions”,
(c) after that paragraph insert “, or
(c) decides to give a direction in relation to that body under section 32(3B), or
(d) refuses an application by that body under section 32(3D),”,
(d) in sub-paragraph (2) for “this paragraph” substitute “sub-paragraph (1)(a) or (b)”,
(e) in paragraph (a) of that sub-paragraph—
(i) for “restrictions” (in the first place) substitute “conditions”, and
(ii) for “restrictions falling within subsection (3)(d) of that section” substitute “conditions”, and
(f) after that sub-paragraph insert—
Legal Services Act 2007