Law Reform (Miscellaneous Provisions) (Scotland) Act 1990

20 Professional misconduct, F1... etc.S

(1)Where, after such inquiry as they consider appropriate [F2into a conduct complaint remitted to them under section 6(a) or 15(5)(a) of the 2007 Act suggesting professional misconduct by a practitioner or that the circumstances referred to in paragraph (a)(ii) of section 2(1) of the 2007 Act apply as respects a practitioner] and after giving the practitioner concerned an opportunity to make representations, the [F3Council] are satisfied that a practitioner—

(a)is guilty of professional misconduct;

F4(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F4(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(d)has been convicted of a criminal offence rendering him no longer a fit and proper person to provide conveyancing services as a [F5conveyancing practitioner] 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—

F6(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F6(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(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;

[F7(ca)where the Council consider that the complainer has been directly affected by the professional misconduct or, as the case may be, the matter referred to in paragraph (d) of subsection (1), to direct the practitioner to pay compensation of such amount, not exceeding £5,000, as the Council may specify to the complainer for loss, inconvenience or distress resulting from the misconduct or, as the case may be, the matter;

(cb)subject to subsection (2ZA) below, to impose on the practitioner a fine not exceeding £2,000;]

F8(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F8(e). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F6(f). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F8(g). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(h)to make a report of the [F3Council'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.

[F9(2ZA)The Council shall not impose a fine under subsection (2)(cb) above where, in relation to the subject matter of the complaint, the practitioner has been convicted by any court of an offence involving dishonesty and sentenced to a term of imprisonment of not less than 2 years.

(2ZB) Any fine imposed under subsection (2)(cb) above shall be treated for the purposes of section 211(5) of the Criminal Procedure (Scotland) Act 1995 (fines payable to HM Exchequer) as if it were a fine imposed in the High Court.]

[F10(2A)Where—

(a)after holding an inquiry into a [F11conduct complaint] against a practitioner, [F12the Tribunal] are satisfied that—

(i)he has been guilty of professional misconduct; or

F13( ii ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b)a practitioner has been convicted by any court of an act involving dishonesty or has been sentenced to a term of imprisonment of not less than 2 years,

the Tribunal may take such of the steps set out in subsection (2B) below as they think fit.

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

(a)to suspend or revoke the registration of the practitioner;

[F14(aa)where the practitioner has been guilty of professional misconduct, and where the Tribunal consider that the complainer has been directly affected by the misconduct, to direct the practitioner to pay compensation of such amount, not exceeding £5,000, as the Tribunal may specify to the complainer for loss, inconvenience or distress resulting from the misconduct;]

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

(c)to censure the practitioner; and

[F15(d) a step which the Council may take in respect of a practitioner under subsection (2)(c) above. ]]

(3)The [F16Tribunal] shall not impose a fine under subsection [F17(2B)(b)] above where, in relation to the subject matter of the [F16Tribunal'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 [F17 (2B)(b) ] above shall be treated for the purposes of [F18 section 211(5) of the Criminal Procedure (Scotland) Act 1995 ] (fines payable to HM Exchequer) as if it were a fine imposed in the High Court.

F19(5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(6)Where the [F3Council] make a direction under F20... [F21[F22 subsection (2)(ca) or the Tribunal make a direction under subsection (2B)(aa),] the Council or (as the case may be) the Tribunal] shall, by notice in writing, require the practitioner to which the direction relates to give [F23to the Council], within such period being not less than 21 days as the notice may specify, an explanation of the steps which he F24... 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 [F3Council] are not satisfied as to the steps taken by the practitioner to comply with the direction to which the notice relates,

the [F3Council] may apply to the [F25court] 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 [F3Council] take a step set out in subsection (2)(c) [F26above or [F27the Tribunal], by virtue of subsection (2B)(d) above, take a similar step or the Tribunal take a step set out in subsection (2B)(a)] above and—

[F28(a)any period specified in this section for applying for review or for the making of an appeal in respect of the matter has expired without such a review having been applied for or such an appeal having been made;]

(b)where such an application [F29or appeal] is made, the matter is finally determined in favour of the [F3Council's] [F30or, as the case may be, Tribunal's] decision or the application [F29or appeal] is withdrawn,

[F31the Council] shall amend the register of executry practitioners or, as the case may be, the register of [F5conveyancing practitioners] accordingly.

[F32(8A)Where the Council are satisfied that a practitioner is guilty of professional misconduct or that the circumstances referred to in subsection (1)(d) apply as respects a practitioner, the practitioner may—

(a)before the expiry of the period of 21 days beginning with the day on which the finding by the Council to that effect is intimated to him, apply to the Council for a review by them of the finding;

(b)before the expiry of the period of 21 days beginning with the day on which the outcome of the review is intimated to him, appeal to the Tribunal against the decision of the Council in the review; and the Tribunal may quash or confirm the decision.]

F33(9). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F33(10). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(11)Where the [F3Council] take a step set out in subsection [F34(2)(c)] to [F35(cb)] above, the practitioner concerned may—

(a) within 21 days of the date on which the [F3 Council's ] decision is intimated to F36 ... him, apply to the [F3 Council ] to review their decision; and

(b)within 21 days of the date on which the outcome of such review is intimated to [F37him, appeal to [F38the Tribunal] against the decision made in any such review; and the Tribunal may quash, confirm or vary that decision]

[F39(11ZA)Where the Council find that a practitioner is guilty of professional misconduct or that the circumstances referred to in subsection (1)(d) apply as respects a practitioner but do not direct him under subsection (2)(ca) to pay compensation, the complainer may, before the expiry of the period of 21 days beginning with the day on which the Council's finding is intimated to him, apply to the Council for a review by them of their decision not to direct the practitioner under subsection (2)(ca) to pay compensation.

(11ZB)A complainer to whom the Council have directed a practitioner under subsection (2)(ca) to pay compensation may, before the expiry of the period of 21 days beginning with the day on which the direction under that subsection is intimated to him, apply to the Council for a review by them of the direction.

(11ZC)The complainer may, before the expiry of the period of 21 days beginning with the day on which the outcome of the review under subsection (11ZA) or (11ZB) is intimated to him, appeal to the Tribunal against the decision of the Council in the review; and the Tribunal may quash, confirm or vary the decision.]

[F40(11A)Within 21 days of the date on which—

(a)the outcome of any appeal under subsection [F41(8A)(b) or] (11)(b) above; or

[F42(aa)a finding by the Tribunal that a practitioner is guilty of professional misconduct or that the circumstances mentioned in subsection (1)(d) apply as respects the practitioner; or]

(b)the taking of any step referred to in subsection (2B) above,

is intimated to the practitioner concerned, he may appeal to the[F43court] against the decision made by the Tribunal in the appeal [F44the finding referred to in paragraph (aa) or, as the case may be, the decision] to take such a step; and the [F45court] may make such order in the matter as it thinks fit.]

[F46(11B)The complainer may, before the expiry of the period of 21 days beginning with the day on which the outcome of any appeal under subsection (11ZC) is intimated to him, appeal to the court against the Tribunal's decision in the appeal.

(11C)Where after holding an inquiry into a complaint against a practitioner, the Tribunal find that he has been guilty of professional misconduct or that the circumstances referred to in subsection (2A)(b) apply as respects him, but do not direct the practitioner under subsection (2B)(aa) to pay compensation, the complainer may, before the expiry of the period of 21 days beginning with the day on which the Tribunal's finding is intimated to him, appeal to the court against the decision of the Tribunal not to make a direction under that subsection.

(11D)A complainer to whom the Tribunal have directed a practitioner under subsection (2B)(aa) to pay compensation may, before the expiry of the period of 21 days beginning with the day on which the direction under that subsection is intimated to him, appeal to the court against the amount of the compensation directed to be paid.

(11E)In an appeal under subsection (11C) or (11D), the court may make such order in the matter as it thinks fit.]

[F47(11F)A direction of the Tribunal under this section is enforceable in like manner as an extract registered decree arbitral in its favour bearing a warrant for execution issued by the sheriff court of any sheriffdom in Scotland.]

[F48(11G)The Scottish Ministers may by order made by statutory instrument, after consulting the Council and such groups of persons representing consumer interests as they consider appropriate, amend subsection (2)(ca) or (2B)(aa) by substituting for the amount for the time being specified in that provision such other amount as they consider appropriate.

(11H)A statutory instrument containing an order under subsection (11G) is not to be made unless a draft of the instrument has been laid before, and approved by resolution of, the Scottish Parliament.]

F49(12). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F50(13). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F50(14). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F50(15). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(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 [F51(2)(cb) or] [F52(2B)(b)] 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 “ [F5 conveyancing practitioner ] ” respectively include any executry practitioner or [F5 conveyancing practitioner ] whether or not F53 ... he was registered as such at the time when the subject matter of the [F54 Council’s or, as the case may be, Tribunal's ] inquiry occurred and notwithstanding that subsequent to that time F53 ... he has ceased to be so registered.