Law Reform (Miscellaneous Provisions) (Scotland) Act 1990

Prospective

20 Professional misconduct, inadequate professional services, etc. S

(1) Where, after such inquiry as they consider appropriate (whether or not following a complaint to them) and after giving the practitioner concerned an opportunity to make representations, the Board are satisfied that a practitioner—

(a) is guilty of professional misconduct;

(b) has provided inadequate professional services;

(c) has failed to comply with regulations made under section 17(11) or 18(10) of this Act; or

(d) has been convicted of a criminal offence rendering him no longer a fit and proper person to provide conveyancing services as a qualified conveyancer or, as the case may be, executry services as an executry practitioner,

they may take such of the steps set out in subsection (2) below as they think fit and shall, without prejudice to subsection (6) below, intimate their decision to the practitioner by notice in writing.

(2) The steps referred to in subsection (1) above are—

(a) to determine that the amount of fees and outlays which the practitioner may charge in respect of such services as the Board may specify shall be—

(i) nil; or

(ii) such amount as the Board may specify in the determination,

and to direct the practitioner to comply, or secure compliance, with such of the requirements set out in subsection (5) below as appear to them to be necessary to give effect to the determination;

(b) to direct the practitioner to secure the rectification at his or its own expense of any such error, omission or other deficiency arising in connection with the services as the Board may specify;

(c) to attach conditions (or, as the case may be, further conditions) to the registration of the practitioner or to vary any condition so attached;

(d) to suspend or revoke that registration;

(e) subject to subsection (3) below, to impose on the practitioner a fine not exceeding £10,000;

(f) in a case where the practitioner has provided inadequate professional services, to direct the practitioner to pay to the client by way of compensation such sum, not exceeding £1,000, as the Board may specify;

(g) to censure the practitioner; and

(h) to make a report of the Board’s findings to any other person exercising functions with respect to—

(i) the practitioner; or

(ii) any person employed by or acting on behalf of the practitioner in connection with the provision of the services.

(3) The Board shall not impose a fine under subsection (2)(e) above where, in relation to the subject matter of the Board’s inquiry, the practitioner has been convicted by any court of an offence involving dishonesty and sentenced to a term of imprisonment of not less than two years.

(4) Any fine imposed under subsection (2)(e) above shall be treated for the purposes of section 203 of the M1 Criminal Procedure (Scotland) Act 1975 (fines payable to HM Exchequer) as if it were a fine imposed in the High Court.

(5) The requirements referred to in subsection (2)(a) above are—

(a) to refund, whether in whole or to any specified extent, any amount already paid by or on behalf of the client in respect of the fees and outlays of the practitioner in connection with the services; and

(b) to waive, whether wholly or to any specified extent, the right to recover those fees and outlays.

(6) Where the Board make a direction under subsection (2)(a), (b) or (f) above they shall, by notice in writing, require the practitioner to which the direction relates to give, within such period being not less than 21 days as the notice may specify, an explanation of the steps which he or it has taken to comply with the direction.

(7) Where a practitioner—

(a) fails to comply with a notice under subsection (6) above; or

(b) complies with such a notice but the Board are not satisfied as to the steps taken by the practitioner to comply with the direction to which the notice relates,

the Board may apply to the Court of Session for an order requiring the practitioner to comply with the direction to which the notice relates within such time as the court may order.

(8) Where the Board take a step set out in subsection (2)(c) or (d) above and—

(a) the period specified in subsection (11)(a) or (b) below has expired without an application for review or, as the case may be, an application to the Court of Session having been made; or

(b) where such an application is made, the matter is finally determined in favour of the Board’s decision or the application is withdrawn,

they shall amend the register of executry practitioners or, as the case may be, the register of qualified conveyancers accordingly.

(9) The Board shall—

(a) subject to subsection (10) below, publish every decision taken by them under subsection (1) above (including a decision that they are not satisfied as to the matters mentioned in subsection (1)(a) to (d)); and

(b) make available a copy of every decision published under paragraph (a) above for inspection by any person without charge.

(10) In carrying out their duty under subsection (9) above, the Board may refrain from publishing any names or other information which would, in their opinion, damage or be likely to damage the interests of persons other than—

(a) the practitioner to whom the decision relates; or

(b) where the practitioner is an individual, his partners; or

(c) his or their families,

but where they so refrain, they shall publish their reasons for so doing.

(11) Where the Board take a step set out in subsection (2)(a) to (g) above, the practitioner concerned may—

(a) within 21 days of the date on which the Board’s decision is intimated to it or him, apply to the Board to review their decision; and

(b) within 21 days of the date on which the outcome of such review is intimated to it or him, apply to the Court of Session, which may make such order in the matter as it thinks fit.

(12) Part II of Schedule 1 to this Act (Board’s powers of investigation for the purposes of this section and section 21) shall have effect.

(13) The Secretary of State, after consulting the Board, may by order made by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament, amend subsection (2)(f) above by substituting for the sum for the time being specified in that provision such other sum as he considers appropriate.

(14) The taking of any steps under subsection (2) above shall not be founded upon in any proceedings for the purpose of showing that the practitioner in respect of whom the steps were taken was negligent.

(15) A direction under subsection (2)(f) above to a practitioner to pay compensation to a client shall not prejudice any right of that client to take proceedings against that practitioner for damages in respect of any loss which he alleges he has suffered as a result of that practitioner’s negligence, and any sum directed to be paid to that client under that provision may be taken into account in the computation of any award of damages made to him in any such proceedings.

(16) The Secretary of State may, by order made by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament, amend subsection (2)(e) above by substituting for the amount for the time being specified in that provision such other amount as appears to him to be justified by a change in the value of money.

(17) In this section “executry practitioner” and “qualified conveyancer” respectively include any executry practitioner or qualified conveyancer whether or not it or he was registered as such at the time when the subject matter of the Board’s inquiry occurred and notwithstanding that subsequent to that time it or he has ceased to be so registered.

Marginal Citations

M1 1975 c. 21.