Statutory Instrument 1997 No. 316 (S.20)

The Independent Qualified Conveyancers (Scotland) Regulations 1997

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© Crown Copyright 1997

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"Bank" means an institution authorised under the Banking Act 1987[2] and shall include an European deposit taker as defined in regulation 82(3) of The Banking Co-ordination (Second Council Directive) Regulations 1992[3];

"the Board" means the Scottish Conveyancing and Executry Services Board;

"Building Society" has the same meaning as in section 119(1) of the Building Societies Act 1986[4];

"client" includes a prospective client and, where the client is acting as executor on the estate of a deceased person or as a trustee, includes the client acting in that capacity;

"clients' money" means all money held or received by an independent qualified conveyancer on account of a client for whom that independent qualified conveyancer is providing, or has provided, conveyancing services whether the money is held by that independent qualified conveyancer as agent, trustee or in any other capacity;

"conveyancing services" have the same meaning as in section 23 of the Act;

"executry practitioner" has the same meaning as in section 23 of the Act;

"executry services" have the same meaning as in section 23 of the Act;

"group of companies" means a holding company and its subsidiaries within the meaning of section 736 of the Companies Act 1985[5];

"inadequate professional services" have the same meaning as in section 23 of the Act;

"independent qualified conveyancer" has the same meaning as in section 23 of the Act;

"qualified conveyancer" has the same meaning as in section 23 of the Act;

"qualified person" means a person qualified to practice as a solicitor under section 4 of the Solicitors (Scotland) Act 1980[6] or a qualified conveyancer;

"recognised financial institution" means any institution which is

(a) an institution authorised by the Bank of England to operate a deposit-taking business under Part I of the Banking Act 1987[7];

(b) a building society authorised to raise money from its members by the Building Societies Commission under section 9 of the Building Societies Act 1986[8];

(c) a body authorised to carry on insurance business under section 3 or 4 of the Insurance Companies Act 1982[9]; or

(d) any subsidiary (as defined by section 736(1) of the Companies Act 1985) of a body falling within paragraph (a), (b) or (c) above whose business or any part of whose business, consists of the provision of executry services;

"related" shall be construed in accordance with paragraph (2);

"solicitor" has the same meaning as in section 65(1) of the Solicitors (Scotland) Act 1980[10];

"specified services" means any services within the following descriptions of services-

(a) services relating to the acquisition, disposal, valuation or surveying of property or to any estate agency work to which the Estate Agents Act 1979[11] applies;

(b) services relating to the provision of mortgage finance;

(c) services relating to banking, investment, insurance or other financial services;

(d) removal services;

(e) executry services;

(f) taxation advisory services; and

(g) services relating to arranging the provision of any of the services in this definition;

but shall not include any valuation or surveying services provided solely or primarily for the purposes of a person considering providing mortgage finance on the security of the property to be valued or surveyed;

"terms of engagement letter" has the same meaning as in regulation 12,

and other expressions used in these Regulations which are defined in section 23 of the Act shall have the same meaning in these Regulations as they have in that section.

    (2) A party ("the first party") is related to another party ("the second party") if the first party is-

(a) the second party's spouse;

(b) the second party's brother, sister, ancestor or descendent;

(c) the second party's spouse's brother, sister, ancestor or descendent; or

(d) the spouse of any person who, by virtue of sub-paragraphs (b) or (c) above is a relative of the second party.

    (3) For the purposes of paragraph (2)-

"ancestor" means a parent or a parent's parent;

"brother" includes a half-brother and a step-brother;

"descendant" means a child or a child's child;

"relative" includes a relative by adoption;

"sister" includes a half-sister and a step-sister;

"spouse" includes a former spouse and a person living with another as that person's husband or wife.

    (4) For the purposes of paragraph (3)-

"child" includes a step-child; and

"parent" includes a step-parent.

    (5) Unless the context otherwise requires, any reference in these Regulations-

(a) to a numbered section is to the section bearing that number in the Act;

(b) to a numbered regulation is to the regulation bearing that number in these Regulations; and

(c) in a regulation to a numbered paragraph is to the paragraph bearing that number in that regulation.

Confidentiality
     4 .  - (1) An independent qualified conveyancer shall treat any communication made to or by him in the course of his acting as such for a client as confidential in like manner as if he had at all material times been a solicitor acting for the client.

    (2) Paragraph (1) shall not prevent an independent qualified conveyancer from disclosing any such communication to a qualified person ("the relevant qualified person"), who is directing, supervising or carrying out the conveyancing services (or who may direct, supervise or carry out such services) for the client to whom the communication relates, insofar as the communication is relevant to the conveyancing transaction.

    (3) An independent qualified conveyancer shall take all reasonable steps to ensure that the relevant qualified person is also required to comply with the obligation specified in paragraph (1), except that the relevant qualified person may disclose to the independent qualified conveyancer any communication which is relevant to the conveyancing transaction.

    (4) The obligations referred to in paragraphs (1) and (3) shall not apply to any communication the disclosure of which has been agreed to in writing by the client.

Fees
     5 . An independent qualified conveyancer shall ensure that the fees he charges for the conveyancing services provided for a client are fair and reasonable, having regard to:-

(a) the nature of the work done;

(b) the skill and time necessary to complete the work;

(c) the degree of urgency required by the client;

(d) the amount and value of any property or transaction involved; and

(e) any specialised or unusual knowledge required.

Tying-in
     6 .  - (1) An independent qualified conveyancer shall not refuse to accept instructions to provide a client with conveyancing services on the ground that the client has declined to instruct that independent qualified conveyancer or an associate to provide any of the specified services.

    (2) Where an independent qualified conveyancer provides any of the specified services in addition to conveyancing services, any material published by that independent qualified conveyancer for the purpose of advertising the conveyancing services shall make it clear that the conveyancing services may be provided to a client by that independent qualified conveyancer whether or not that independent qualified conveyancer also provides the client with any of the specified services.

    (3) Before an independent qualified conveyancer accepts instructions from a client to provide conveyancing services, he shall ascertain-

(a) whether the client has been offered any of the specified services by an associate or by any other person; and, if so,

(b) whether the client has been offered those services on the express condition that he uses the independent qualified conveyancer for the provision of conveyancing services,

and the independent qualified conveyancer shall not knowingly act for such a client.

Independent financial advice
     7 . An independent qualified conveyancer shall, before he accepts instructions from a client to provide conveyancing services, advise the client in the terms of engagement letter of his right to obtain independent financial advice in connection with the provision of those services or with any transaction to which those services relate and shall take no action to prevent the client obtaining such advice.

Duty to colleagues
     8 .  - (1) An independent qualified conveyancer shall at all times not knowingly mislead other independent qualified conveyancers, solicitors executry practitioners or recognised financial institutions ("his colleagues") or break any undertaking which he has given to his colleagues and shall act with his colleagues in a manner consistent with persons having mutual trust and confidence in each other.

    (2) Where an independent qualified conveyancer authorised by and acting for a client employs or instructs another qualified conveyancer or a solicitor or an executry practitioner, or a recognised financial institution, he shall (whether or not he discloses the client) be liable to that other person for that person's fees and outlays unless, at the time of the employment or instruction, he expressly disclaims any such liability.

[2] 1987 c.22. back

[3] S.I. 1992/3218. back

[4] 1986 c.53. back

[5] 1985 c.6; section 736 was substituted by the Companies Act 1989 (c.40), section 144. back

[6] 1980 c.46. back

[7] 1987 c.22. back

[8] 1986 c.53; section 9 was amended and repealed in part by S.I. 1992/3218. back

[9] 1982 c.50. back

[10] 1980 c.46. back

[11] 1979 c.38. back