Administration of Justice Act 1985 in Scotland

For the purposes of section 9, a “legal services body” means a body (corporate or unincorporate) in respect of which —

are satisfied.

The management and control condition is satisfied if—

The Society may by rules under section 9 provide that, in relation to specified kinds of bodies, subsection (2) applies as if the references to 75% were to such greater percentage as may be specified (and different percentages may be specified for different kinds of bodies).

The relevant lawyer condition is satisfied in relation to a body if at least one manager of the body is—

For that purpose a qualifying body is a body in respect of which—

For the purposes of this section the following are legally qualified—

a legal partnership which—

a body corporate which—

a body which—

and which satisfies the requirements of rules under subsection (6C).

For the purposes of subsection (6)(f), a partnership is to be treated as the same partnership despite a change in membership, if any person who was a member before the change remains a member.

For the purposes of subsection (6)(f) and (g), the references in the pre-commencement conduct rules to a recognised body are to be construed as references to a body which was recognised under section 9 immediately before the commencement of subsection (6)(f) and (g).

The Society must make rules for the purposes of paragraph (h) of subsection (6) prescribing the requirements relating to management and control which must be satisfied by or in relation to a body for it to fall within that paragraph.

For the purposes of this section, the services condition is satisfied in relation to a body if the body provides only services which may be provided by a recognised body (having regard to rules under section 9(1A) and (1C)).

For the purposes of this section—

• “authorised person” has the same meaning as in section 9;

• F5...

• “legal partnership” means a partnership in which a solicitor, a registered European lawyer or a recognised body is permitted to practise by virtue of rules made under section 31 of the Solicitors Act 1974 (c. 47), as those rules had effect immediately before the commencement of subsection (6)(f);

• “manager”, in relation to a body, has the meaning given by section 9;

• “pre-commencement conduct rules” means rules under Part 2 of the Solicitors Act 1974 or section 9 of this Act, known as the Solicitors' Code of Conduct 2007, as those rules had effect immediately before the commencement of subsection (6)(f) and (g);

• “recognised body” has the same meaning as in section 9(subject to subsection (6B) above);

• “registered European lawyer” has the same meaning as in section 9;

• “shares” has the same meaning as for the purposes of Part 5 of the Legal Services Act 2007 (see sections 72 and 109 of that Act);

• “the Society” has the meaning given by section 87(1) of the Solicitors Act 1974;

• “specified” means specified in rules made by the Society;

and a person has an interest in a body if the person has an interest in the body for the purposes of section 9.

A sole solicitor shall not describe or hold out the sole solicitor’s practice as a practice for the time being recognised under section 9 unless it is so recognised.

Any person who contravenes subsection (1) is guilty of an offence and liable on summary conviction to a fine not exceeding level 4 on the standard scale.

In this section “sole solicitor” has the same meaning as in section 9.

The provisions of this Part shall have effect for the purpose of regulating the provision of conveyancing services F1and other services by persons who hold licences in force under this Part or who are recognised bodies.

In this Part—

• “licence” means a licence to practise as a licensed conveyancer;

• “licensed conveyancer” means a person who holds a licence in force under this Part;

and references in this Part to practising as a licensed conveyancer are references to providing, as the holder of such a licence, conveyancing services in accordance with the licence.

References in this Part to conveyancing services are references to—

For the purposes of subsection (3)—

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

The Council shall make rules relating to the education and training of those seeking to practise as licensed conveyancers, and those rules shall, in particular, include provisions prescribing—

Rules made by the Council under this section may—

Rules under subsection (1)(b) may provide—

Without prejudice to the generality of subsection (2)(e), rules under this section may provide for persons who—

The Council may—

An application for a licence under this Part shall be made to the Council in such manner, and shall be accompanied by such fee, as may be prescribed by rules made by the Council under this section.

Any such rules—

This section applies where a person applies for a licence at a time when section 16 has effect in relation to him by reason of the circumstances mentioned in section 16(1)(ea).

The application must be accompanied by an additional fee of an amount prescribed by rules made by the Council for the purposes of this section.

This section applies where a licensed conveyancer's licence has effect subject to conditions.

On an application made by the licensed conveyancer, the Council may in prescribed circumstances direct—

“Prescribed” means prescribed by rules made by the Council.

Section 14 (applications for licences) applies in relation to an application under this section as it applies in relation to applications for a licence under this Part.

Rules made under subsection (2) of section 22 shall make provision for requiring a licensed conveyancer who has received money from a client to account, in such cases as may be prescribed by the rules, to the person who is or becomes entitled to the money for the interest which was, or could have been, earned by putting the money in a separate deposit account at an institution authorised for the purposes of rules under paragraph (a) of that subsection.

The cases in which a licensed conveyancer may be required to account for interest by rules made by virtue of subsection (1) may be defined by reference to, among other things, the amount of the sum held or received by him or the period for which it is likely to be retained, or both; and any such rules may include provision for enabling a client (without prejudice to any other remedy) to require that any question arising under the rules in relation to the client’s money be referred to and determined by the Council.

Except as provided by any rules so made and subject to subsection (4), a licensed conveyancer who maintains an account in pursuance of section 22(2)(a) in which he keeps money received or held for or on account of his clients generally shall not be liable to account to any person for interest received by him on money in that account.

Nothing in this section or in any rules under section 22(2) shall affect any arrangement in writing between a licensed conveyancer and his client as to the application of the client’s money or the payment of interest on it.

For the purposes of section 32 a “conveyancing services body” means a body (corporate or unincorporate) in respect of which—

are satisfied.

The management and control condition is satisfied in the case of a partnership if at least one of the partners is a licensed conveyancer.

The management and control condition is satisfied in the case of an unincorporated body (other than a partnership), or a body corporate which is managed by its members, if at least one of those members is a licensed conveyancer.

The management and control condition is satisfied in the case of any other body corporate if at least one director of the body is a licensed conveyancer.

The services condition is satisfied in respect of a body if the body is carrying on a business consisting of the provision of—

For the purposes of this section—

• “authorised person” means an authorised person in relation to an activity which is a reserved legal activity (within the meaning of the Legal Services Act 2007);

• “relevant legal services”, in relation to a body, means—

  1. (a)

     conveyancing services, and

  2. (b)

     where authorised persons are managers or employees of, or have an interest in, the body, services such as are provided by individuals practising as such authorised persons (whether or not those services involve the carrying on of reserved legal activities within the meaning of the Legal Services Act 2007);

and a person has an interest in a body if the person has an interest in the body within the meaning of Part 5 of the Legal Services Act 2007 (see sections 72 and 109 of that Act).

For the purposes of section 32 a “CLC practitioner services body” means a body (corporate or unincorporate) in respect of which—

are satisfied.

The management and control condition is satisfied in the case of a partnership if at least one of the partners is a licensed conveyancer or a licensed CLC practitioner.

The management and control condition is satisfied in the case of an unincorporated body (other than a partnership), or a body corporate which is managed by its members, if at least one of those members is a licensed conveyancer or a licensed CLC practitioner.

The management and control condition is satisfied in the case of any other body corporate if at least one director of the body is a licensed conveyancer or a licensed CLC practitioner.

The services condition is satisfied in respect of a body if—

The authorised person condition is satisfied if the licensed conveyancer or licensed CLC practitioner by reference to whom the management and control condition is satisfied, or one of the persons by reference to whom that condition is satisfied, is an authorised person in relation to any reserved legal activity involved in the CLC practitioner services that are provided by the body.

For the purposes of this section—

In this section—

• “administration of oaths” has the same meaning as in the Legal Services Act 2007 (see section 12 of, and Schedule 2 to, that Act);

• “authorised person” means an authorised person in relation to an activity which is a reserved legal activity (within the meaning of the Legal Services Act 2007);

• “conduct of litigation” has the same meaning as in the Legal Services Act 2007 (see section 12 of, and Schedule 2 to, that Act);

• “probate activities” has the same meaning as in the Legal Services Act 2007 (see section 12 of, and Schedule 2 to, that Act);

• “relevant legal services”, in relation to a body, means—

  1. (a)

     CLC practitioner services, and

  2. (b)

     where authorised persons are managers or employees of, or have an interest in, the body, services such as are provided by individuals practising as such authorised persons (whether or not those services involve the carrying on of reserved legal activities), except for conveyancing services;

• “reserved legal activity” has the same meaning as in the Legal Services Act 2007 (see section 12 of, and Schedule 2 to, that Act);

• “right of audience” has the same meaning as in the Legal Services Act 2007 (see section 12 of, and Schedule 2 to, that Act).

This section applies to actions in the High Court relating to the estates of deceased persons or to trusts and falling within any description specified in rules of court.

Rules of court may make provision for enabling any judgment given in an action to which this section applies to be made binding on persons who—

Different provision may be made under this section in relation to actions of different descriptions.

Where—

the High Court may, on the application of the personal representatives or trustees and without hearing argument, make an order authorising those persons to take such steps in reliance on the said opinion as are specified in the order.

The High Court shall not make an order under subsection (1) if it appears to the court that a dispute exists which would make it inappropriate for the court to make the order without hearing argument.

Where on a compromise of a probate action in the High Court—

the court may without more pronounce accordingly.

In this section—

• “probate action” means an action for the grant of probate of the will, or letters of administration of the estate, of a deceased person or for the revocation of such a grant or for a decree pronouncing for or against the validity of an alleged will, not being an action which is non-contentious or common form probate business; and

• “relevant beneficiary”, in relation to a pronouncement relating to any will or wills of a deceased person, means—

Where an application relating to the estate of a deceased person is made to the High Court under this subsection by or on behalf of a personal representative of the deceased or a beneficiary of the estate, the court may in its discretion—

Where the court appoints a person to act as a substituted personal representative of a deceased person, then—

The court may authorise a person appointed as a substituted personal representative to charge remuneration for his services as such, on such terms (whether or not involving the submission of bills of charges for taxation by the court) as the court may think fit.

Where an application relating to the estate of a deceased person is made to the court under subsection (1), the court may if it thinks fit, proceed as if the application were, or included, an application for the appointment under the M1Judicial Trustees Act 1896 of a judicial trustee in relation to that estate.

In this section “beneficiary”, in relation to the estate of a deceased person, means a person who under the will of the deceased or under the law relating to intestacy is beneficially interested in the estate.

In section 1 of the Judicial Trustees Act 1896, after subsection (6) there shall be added—

“(7)

Where an application relating to the estate of a deceased person is made to the court under this section, the court may, if it thinks fit, proceed as if the application were, or included, an application under section 50 of the Administration of Justice Act 1985 (power of High Court to appoint substitute for, or to remove, personal representative).”.

Section 138 of the County Courts Act 1984 (provisions as to forfeiture for non-payment of rent) shall be amended as provided in subsections (2) to (4) of this section.

In subsection (5), the words “Subject to subsection (6),” shall be omitted.

In subsection (7)—

After subsection (9) there shall be inserted—

“(9A)

Where the lessor recovers possession of the land at any time after the making of the order under subsection (3) (whether as a result of the enforcement of the order or otherwise) the lessee may, at any time within six months from the date on which the lessor recovers possession, apply to the court for relief; and on any such application the court may, if it thinks fit, grant to the lessee such relief, subject to such terms and conditions, as it thinks fit.

(9B)

Where the lessee is granted relief on an application under subsection (9A) he shall hold the land according to the lease without any new lease.

(9C)

An application under subsection (9A) may be made by a person with an interest under a lease of the land derived (whether immediately or otherwise) from the lessee’s interest therein in like manner as if he were the lessee; and on any such application the court may make an order which (subject to such terms and conditions as the court thinks fit) vests the land in such a person, as lessee of the lessor, for the remainder of the term of the lease under which he has any such interest as aforesaid, or for any lesser term.

In this subsection any reference to the land includes a reference to a part of the land.”.

In section 139 of the M1County Courts Act 1984 (service of summons and re-entry), after subsection (2) there shall be inserted—

“(3)

Subsections (9B) and (9C) of section 138 shall have effect in relation to an application under subsection (2) of this section as they have effect in relation to an application under subsection (9A) of that section.”.

The Schedule to the M1Pensions Appeal Tribunals Act 1943 shall be amended as follows.

In paragraph 6 (which provides for appeals by persons not resident in Scotland or Northern Ireland to be heard by one of the Tribunals appointed for England and Wales), after “and” there shall be inserted “, subject to any provision made by virtue of paragraph 6A of this Schedule,”.

After paragraph 6 there shall be inserted—

“

6A

Rules made under this Schedule may make provision for enabling an appeal brought by a person who, at the time when the notice of appeal was given, did not reside in any part of the United Kingdom to be heard by one of the Tribunals appointed for Scotland or, as the case may be, for Northern Ireland where, on an application in that behalf by the appellant made in such manner as may be prescribed by the rules to such authority as may be so prescribed, that authority is satisfied—

(a)

that the appellant has a closer connection with Scotland or, as the case may be, with Northern Ireland than with England and Wales; or

(b)

that there is some other good reason for the appeal to be heard in Scotland or, as the case may be, Northern Ireland.”.

The enactments specified in Schedule 7 shall have effect subject to the amendments there specified, being amendments consequential on the provisions of this Act.

The enactments specified in Schedule 8 are hereby repealed to the extent specified in the third column of that Schedule.

With the exception of the provisions referred to in subsection (2), this Act does not extend to Scotland or Northern Ireland.

Those provisions are—

Of those provisions—

An Order in Council under paragraph 1(1)(b) of Schedule 1 to the M4Northern Ireland Act 1974 (legislation for Northern Ireland in the interim period) which states that it is made only for purposes corresponding to those of section 45 or 52 of this Act—

This Act may be cited as the Administration of Justice Act 1985.

Subject to subsections (3) and (4), this Act shall come into force on such day as the F1Lord Chancellor may by order made by statutory instrument appoint; and an order under this subsection may appoint different days for different provisions and for different purposes.

The following provisions of this Act shall come into force on the day this Act is passed—

The following provisions of this Act shall come into force at the end of the period of two months beginning with the day on which this Act is passed—

The transitional provisions and savings contained in Schedule 9 shall have effect; but nothing in that Schedule shall be taken as prejudicing the operation of sections 16 and 17 of the M1Interpretation Act 1978 (which relate to repeals).

in subsection (1)(a), for the words from “a fine” onwards substitute “a fine not exceeding the fourth level on the standard scale, and”; and

in subsection (1)(b), for the words from “a fine” onwards substitute “a fine not exceeding the fourth level on the standard scale.”

in subsection (1)(b), for the words from “in respect of” onwards substitute “which involved conduct on his part of such a nature that in the opinion of the Society it would be undesirable for him to be employed by a solicitor in connection with his practice,”; and

omit subsection (6).

Schedule 1 (intervention in solicitor’s practice) shall be amended as follows.

In paragraph 1(1), after paragraph (e), insert—

“(ee)

the Council are satisfied that a sole solicitor is incapacitated by illness or accident to such an extent as to be unable to attend to his practice;”.

In paragraph 5(2), after “bank” insert “or other financial institution”.

In paragraph 6(4), for “14” substitute “8”.

In paragraph 7—

clients of the recognised body, other persons or trusts, generally, or

that client, person or trust, separately.

The Society may give a notice under this paragraph if it is satisfied that it is necessary to do so for the purpose of investigating whether a recognised sole solicitor’s practice continues to be suitable to be recognised under section 9.

A notice under this paragraph is a notice which requires a person within sub-paragraph (3)—

The persons are—

For the purposes of this paragraph, section 44B(4) to (7) of the 1974 Act applies—

and references in subsections (6) and (7) of that section to powers conferred by that section are to be read as references to powers conferred by this paragraph.

Where powers conferred by Part 2 of Schedule 1 to the 1974 Act are exercisable in relation to a person within paragraph (a) or (b) of sub-paragraph (3), they continue to be so exercisable after the person has ceased to be a person within the paragraph in question.

Section 44BA of the 1974 Act (power to require explanation of document or information) applies in relation to a notice under this paragraph and the person to whom such a notice is given as it applies in relation to a notice under section 44B of the 1974 Act and the person to whom such a notice is given.

Subsection (1) of section 44BC of that Act (falsification of documents etc) applies in relation to an investigation of the kind mentioned in sub-paragraph (1) as it applies in relation to the investigations mentioned in that subsection, and subsections (2), (4) and (5) of that section apply accordingly.

Subsection (3) of that section (provision of false information etc) applies in relation to a requirement imposed under this paragraph as it applies in relation to a requirement imposed by section 44B of that Act, and subsections (4) and (5) of that section apply accordingly.

The Council shall have power to appoint such officers and servants as it may determine.

The Council shall pay to its officers and servants such remuneration as it may determine.

The Council shall, as regards any officers or servants in whose case it may determine to do so, pay to or in respect of them such pensions, allowances or gratuities, or provide and maintain for them such schemes (whether contributory or not) for the payment to or in respect of them of such pensions, allowances or gratuities, as it may determine.

Every order of the Discipline and Appeals Committee under this Part shall be filed with the Council, together with a statement of the Committee’s findings signed by the chairman or by some other member of the Committee authorised by him for the purpose.

Any file kept by the Council under this paragraph may be inspected during office hours without payment.

An order which has been filed shall be treated, for the purpose of enforcement, as if it had been made by the High Court.

The High Court, on the application of the Council, may order that no payment shall be made without the leave of the court by any person (whether or not named in the order) of any money held by him (in whatever manner and whether it was received before or after the making of the order) on behalf of the licensed conveyancer or his firm.

No order under this paragraph shall take effect in relation to any person to whom it applies unless the Council has served a copy of the order on him (whether or not he is named in it) and, in the case of a bank or other financial institution, has indicated at which of its branches the Council believes that the money to which the order relates is held.

A person shall not be treated as having disobeyed an order under this paragraph by making a payment of money if he satisfies the court that he exercised due diligence to ascertain whether it was money to which the order related but nevertheless failed to ascertain that the order related to it.

This paragraph does not apply where the powers conferred by this Part of this Schedule are exercisable by virtue of paragraph 3.

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.

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.

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.

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.

The Council may make rules governing its treatment of sums vested in it under paragraph 6 or 6A(3).

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).

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.

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.

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.

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.

In this paragraph “specified” means specified in the order made by the High Court.

for “any person” substitute “a commissioner for oaths or any other person”; and

omit the words from “or a solicitor” onwards.

subsection (1) applies in relation to a complaint whether it was made before or after the commencement of that section; and

subsection (2) applies in relation to services provided by a solicitor whether they were provided before or after that commencement.

subsection (3) applies to acts done before or after the commencement of that section; but

subsection (4) does not apply to acts done before that commencement.

the hearing and determination by any tribunal established pursuant to any of those provisions of any complaint or other matter where a reference or application was made to the tribunal in respect of the complaint or matter before the commencement of that subsection; or

any appeal against the decision of such a tribunal with respect to any such complaint or matter.

Where immediately before the commencement of section 54 there is in force any entry in the register relating to—

nothing in subsection (2) of section 54 shall affect the continuation in force of that entry; but regulations under the said section 73 may make provision as to the cancellation of any such entry.

In sub-paragraph (1) “the register” means the register kept under the said section 73.