Solicitors (Scotland) Act 1980

on the expiration of the days of appeal (if any) without an appeal being lodged or, where an appeal has been lodged, if and as soon as the appeal is withdrawn or a decision by the Court is given in terms of subparagraphs (a) to (h) or in the case of a decision of the Tribunal under section 53(6) or (6B) which has not been varied or quashed by the Court or under section 53(6A) which has not been varied by the court, the clerk of the Tribunal shall immediately send to the Council a copy of the decision of the Tribunal certified by him and a copy of the decision by the Court in any appeal, and the Council shall forthwith give effect to any order as to striking the solicitor off the roll and to any terms and conditions directed by the Tribunal under section 53(5); and in any other case shall cause a note of the effect of the decision to be entered against the name of the solicitor in the roll or as revoking the recognition under section 34(1A) of an incorporated practice.

17

The Council shall forthwith intimate any order striking a solicitor off the roll or suspending a solicitor from practice to each sheriff clerk and . . ., to the Principal Clerk of Session, and shall , without prejudice to paragraph 14, cause a notice of the operative part of the order to be published in the Edinburgh Gazette . . .

18

The file of orders under this Act striking solicitors off the roll, suspending solicitors from practice, or restoring persons to the roll shall be open for inspection at the office of the Society at any reasonable hour by any person without payment of any fee.

Expenses

19

Subject to the provisions of Part IV, the Tribunal may make in relation to any complaint against a solicitor such order as it thinks fit as to the payment by the complainer or by the respondent of the expenses incurred by the other party and by the Tribunal or a reasonable contribution towards those expenses.

20

On the application of the person in whose favour an order for expenses under paragraph 19 is made and on production of a certificate by the clerk of the Tribunal that the days of appeal against the order have expired without an appeal being lodged or, where such an appeal has been lodged, that the appeal has been dismissed or withdrawn, the Court may grant warrant authorising that person to recover those expenses from the person against whom the order was made.

21

Such warrant shall have effect for execution and for all other purposes as if it were an extracted decree of court awarded against the person against whom the order of the Tribunal was made.

22

The expenses of the Tribunal so far as not otherwise defrayed shall be paid by the Society as part of the expenses of the Society.

SCHEDULE 5

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SCHEDULE 6

General

1

• (1) Insofar as—

• (b) any approval, consent, direction or notice given by virtue of such an enactment, or

• (c) any complaint made or investigation begun by virtue of such enactment, or

• (d) any other proceedings begun by virtue of such an enactment, or

• (e) anything done or having effect as if done,

could, if a corresponding enactment in this Act were in force at the relevant time, have been made, given, begun or done by virtue of the corresponding enactment, it shall, if effective immediately before the corresponding enactment comes into force, continue to have effect thereafter as if made, given, begun or done by virtue of that corresponding enactment.

• (2) Where—

• (a) there is any reference in this Act (whether expressed or implied) to a thing done or required or authorised to be done, or a thing omitted, or to an event which has occurred, under or for the purposes of or by reference to or in contravention of this Act, then

• (b) that reference shall be construed (subject to its context) as including a reference to the corresponding thing, done or required or authorised to be done, or omitted, or to the corresponding events which occurred, as the case may be, under or for the purposes of or by reference to or in contravention of any of the corresponding provisions of the repealed enactments.

2

Where any enactment passed before this Act or any instrument of document refers either expressly or by implication to an enactment repealed by this Act, the reference shall (subject to its context) be construed as or as including a reference to the corresponding provision of this Act.

3

Where any period of time specified in an enactment repealed by this Act is current at the commencment of this Act, this Act has effect as if its corresponding provision has been in force when the period began to run.

Admission of enrolled law agent

4

Notwithstanding the repeal by this Act of section 15 of the Solicitors (Scotland) Act 1933, the Court may grant an application to be admitted as a solicitor to any applicant who was on 28th June 1933 entitled to be admitted as an enrolled law agent according to the regulations for admission then in force under the Law Agents (Scotland) Act 1873.

Restriction of grant under Guarantee Fund

5

Notwithstanding the repeal by this Act of section 22(2)(b) of the Legal Aid and Solicitors (Scotland) Act 1949, no grant shall be made by the Council under section 43 in respect of a loss which in the opinion of the Council arose before 1st November 1951.

Rights of banks

6

Nothing in section 61(3) shall deprive a bank of any right existing on 1st November 1949.

Admission to societies

7

Notwithstanding the repeal by this Act of sections 44 and 45 of the Solicitors (Scotland) Act 1933 any society may—

• (a) admit a solicitor as a member on such conditions as it thinks fit;

• (b) accept as a qualification for admission an apprenticeship served under the provisions of this Act with a solicitor who is not a member.

Powers of societies

8

The repeal of Section 35 of the Solicitors (Scotland) Act 1933 is without prejudice to powers of control exercisable by any society over its members, being powers the society were entitled to exercise immediately before 1st March 1934.

Saving for non-qualified person to conduct certain proceedings

9

Nothing in this Act shall affect any enactment empowering any person, not being a person qualified to act as a solicitor, to conduct, defend or otherwise act in relation to any action or proceedings in any court.

Register of Law Agents

10

Notwithstanding the repeal by this Act of section 18(1) of the Solicitors (Scotland) Act 1933, the Council shall continue to keep in their custody the Register of Law Agents kept under the Law Agents (Scotland) Act 1873 and any relative documents transferred to their custody by virtue of section 18(4) of the Solicitors (Scotland) Act 1949.

Certificate of admission

11

Notwithstanding the repeal by this Act of section 14 of the Solicitors (Scotland) Act 1933, the certificate of admission of a solicitor shall be in writing and signed by a judge of the Court.

SCHEDULE 7

Establishment and objects of Law Society of Scotland.

3A

• (1) The Council may arrange for any of their functions (other than excepted functions) to be discharged on their behalf by—

• (a) a committee of the Council;

• (b) a sub-committee of such a committee; or

• (c) an individual (whether or not a member of the Society’s staff).

• (2) Where, under subsection (1)(a), the Council have arranged for any of their functions to be discharged by a committee, the committee may, with the approval of the Council, arrange for that function to be discharged on behalf of the Council by—

• (a) a sub-committee of the committee; or

• (b) an individual (whether or not a member of the Society’s staff).

• (3) Where, under subsection (1) or (2), the Council or a committee have arranged for any of the Council’s functions to be discharged by a sub-committee, the sub-committee may, with the approval of the Council, arrange for that function to be discharged on behalf of the Council by a member of the Society’s staff.

• (4) A power given by subsection (1), (2) or (3) may be exercised so as to impose restrictions or conditions on the body or person by whom the function concerned is to be discharged.

• (5) Any arrangement made under this section shall not arrange for any of the following functions of the Council to be discharged by an individual—

• (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (aa) that under section 47(2) of the 2007 Act of determining what action to propose, or take, as respects a conduct complaint remitted to them under section 6(2)(a) or 15(5)(a) of that Act;

• (ab) that under—

• (i) section 42ZA(1) or (2) of this Act or section 20ZB(1) or (2) of the 1990 Act of determining whether or not to uphold a conduct complaint so remitted which suggests unsatisfactory professional conduct;

• (ii) section 42ZA(3)(b) of this Act or section 20ZB(3)(b) of the 1990 Act of determining what steps to take when upholding such a conduct complaint;

• (ac) that under section 51(1) of this Act of determining whether or not to make a complaint to the Tribunal as respects a conduct complaint so remitted which suggests professional misconduct;

• (ad) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (b) that under section 20(1) or (2) of the 1990 Act . . . of determining—

• (i) whether paragraph (a) or (d) of the said section 20(1) applies to the practitioner;

• (ii) what action to take in the matter.

• (6) An arrangement made under this section may identify an individual by name or by reference to an office or post which the individual holds.

• (7) An arrangement under this section for the discharge of any of the functions of the Council may extend to any of the functions of the Society which is exercisable by the Council.

• (8) Where any arrangement is made under this section for the discharge of any of the functions of the Council by a body or person, the function shall be exercised by that body or person in the name of the Council, except that, where the function in question is a function of the Society which is exercisable by the Council, it shall be exercised in the name of the Society.

• (9) Any arrangement under this section for the discharge of any of the functions of the Council—

• (a) does not affect the responsibility of the Council for the exercise of the function or any liability arising therefrom;

• (b) does not prevent the Council from exercising the function; and

• (c) may be revoked at any time by the Council and also, in the case of any arrangement made under subsection (2) or (3), by the committee or sub-committee which made that arrangement.

• (10) In this section, “ excepted functions ” means—

• (a) any function of the Council to make rules or regulations under this Act or any other enactment; and

• (b) any function of the Council under paragraph 2 of Schedule 1 to prepare a scheme (scheme for the constitution of the Council etc. ).

• (11) This sectionis—

• (a) subject to sections 3B to 3G, and

• (b) without prejudice to any other power which the Council may have to arrange for the discharge of their functions.

• (12) During any period before—

• (a) paragraph 14(6)(a) of schedule 4 to the Public Appointments and Public Bodies etc. (Scotland) Act 2003 (asp 4) comes into force, subsection (5) applies as if paragraph (b) and the word “and” that precedes it were omitted;

• (b) section 12(c) of that Act comes into force, subsection (5)(a) applies as if for the words “the 1990 Act” there were substituted the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 (c. 40) (“ the 1990 Act ”).

Training regulations.

Register of European lawyers

12A

• (1) The Council shall establish and maintain the register referred to in regulation 15 of the European Communities (Lawyer’s Practice) (Scotland) Regulations 2000 as those regulations have effect by virtue of regulation 6 or 7 of the Services of Lawyers and Lawyer's Practice (EU Exit) (Scotland) (Amendment etc.) Regulations 2019, and shall keep the register at the office of their secretary.

• (2) The register shall consist of the names in alphabetical order of all European lawyers entered on it in accordance with regulation 17 of those regulations as it has effect by virtue of regulation 6 or 7 of the Services of Lawyers and Lawyer's Practice (EU Exit) (Scotland) (Amendment etc.) Regulations 2019.

• (2A) The register is also to record against the name of each lawyer entered on it the address of the place of business of that lawyer and related information (as given under section 12B(1)).

• (3) Any person may inspect the register during office hours without payment.

• (4) Schedule 2 (powers of Council in relation to roll of solicitors) shall apply to the register as it does to the roll and in its application to the register the words “section 7(3)” in paragraph 4 shall be read as if the words “section 12A” were substituted therefor.

12B

• (1) Any registered European lawyer–

• (a) shall, on registration, inform the Council in writing of the address of his place of business, his home professional title, and the name and address of the competent authority with which he is registered in his home state; and

• (b) shall thereafter inform the Council of any change to the information required under paragraph (a) above.

• (2) The Council shall issue a registration to any registered European lawyer who applies for it.

12C

• (1) A registered European lawyer who wishes his name, or any annotation made against his name under section 25A(3), to be removed from the register may make an application to the Council in that behalf, and the Council shall... remove the name of that solicitor, or, as the case may be, the annotation against his name, from the register.

• (2) But the Council are required to remove the name or annotation only if they are satisfied that—

• (a) the solicitor has made adequate arrangements with respect to the business which the solicitor then has in hand, and

• (b) it is otherwise appropriate to do so.

12D

• (1) Subject to subsection (2), a registered European lawyer whose name has been removed from the register shall be entitled to have his name restored to the register only if, on an application in that behalf made by him to the Tribunal and after such enquiry as the Tribunal thinks proper, the Tribunal so orders.

• (2) On an application to the Council by a registered European lawyer whose name, or any annotation against whose name, has been removed from the register under section 12C, the Council may, after such inquiry as they think proper, restore the name of the registered European lawyer or, as the case may be, the annotation, to the register.

• (3) Rules made by the Tribunal under section 52 may–

• (a) regulate the making, hearing and determining of applications under subsection (1);

• (b) provide for payment by the applicant to the council of such fee in respect of restoration to the register as the rules may specify.

23A

Failure on the part of a registered European lawyer in practice to have in force a current registration certificate may be treated as professional misconduct for the purposes of Part IV.

23B

Failure on the part of a registered foreign lawyer in practice to have in force a current registration certificate may be treated as professional misconduct for the purposes of Part IV.

Registration certificates for registered European Lawyers

24A

• (1) Subject to sections 24B to 24G below, the Council may make rules with respect to–

• (a) applications for;

• (b) the issue of;

• (c) the keeping of a register for and the issue of,

registration certificates for registered European lawyers as it would make rules under section 13 with respect to practising certificates for enrolled solicitors.

• (2) Any person may inspect the register referred to in subsection (1)(c) during office hours without payment.

• (3) The making of a false statement by a registered European lawyer in an application for a registration certificate may be treated as professional misconduct by him for the purposes of Part IV, unless he proves the statement was made without intention to deceive.

24B

• (1) The Council shall issue to a registered European lawyer on application being made by him, a registration certificate in accordance with rules made by them under section 24A.

• (2) The Council shall not issue a registration certificate to a registered European lawyer while his registration is suspended or withdrawn.

24C

• (1) In any case where this section has effect, the applicant shall, unless the Council otherwise order, give to the Council, not less than 6 weeks before he applies for a renewal of a registration certificate, notice of his intention to do so; and the Council may in their discretion–

• (a) grant or refuse the application; or

• (b) decide to issue a registration certificate to the applicant subject to such conditions as the Council may think fit.

• (2) Subject to subsections (3) and (4) below, this section shall have effect in any case where a registered European lawyer applies for a renewal of a registration certificate–

• (a) not having held a registration certificate in force within the period of 12 months following the date of his registration; or

• (b) when a period of 12 months or more has elapsed since he held a registration certificate in force; or

• (c) without having paid in full any fine imposed on him under Part IV; or

• (d) without having paid in full any expenses for which he has been found liable under section 62A or Part IV; or

• (e) when, having been suspended from practice, the period of suspension has expired; or

• (f) when, having had his registration withdrawn, he has been registered again; or

• (g) after his estate has been sequestrated or he has granted a trust deed for behoof of creditors, whether he has obtained his discharge or not; or

• (h) when, after a complaint has been made–

• (i) relating to his conduct of the business of a client his attention has been drawn by the Council to the matter, and he has not replied or has not furnished a reply which would enable the Council to dispose of the matter; or

• (ii) of delay in disposal of the business of a client he has not completed that business within such period as the Council may fix as being a reasonable period within which to do so,

and in either case has been notified in writing by the Council accordingly; or

• (i) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (3) Where a registration certificate free of conditions is issued by the Council under subsection (1) to a registered European lawyer to whom that subsection has effect by reason of any such circumstances as are mentioned in paragraphs (a), (b), (e), (f) or (g) of subsection (2), this section shall not thereafter have effect in relation to that registered European lawyer by reason of those circumstances.

• (4) Where the Council decide to issue a registration certificate subject to conditions, they may, if they think fit, postpone the issue of the registration certificate pending the hearing and determination of an appealunder section 24D.

24D

• (1) Where–

• (a) an application for a registration certificate is duly made to the Council otherwise than in a case where section 24C has effect and the Council refuse or neglect to issue a registration certificate, the applicant;

• (b) the Council refuse to recognise a body corporate as being suitable in terms of section 34(1A) (b), the body corporate,

may apply to the court, who may make such order in the matter as it thinks fit.

• (2) Where the Council in exercise of the power conferred on them by section 24C, refuse to issue a registration certificate, or issue a registration certificate subject to conditions, the applicant may appeal to the court against that decision within 14 days of being notified of it.

• (3) On an appeal to the court under subsection (2) the court may–

• (a) affirm the decision of the Council; or

• (b) direct the Council to issue a registration certificate to the applicant subject to such conditions if any as the court thinks fit; or

• (c) make such order as it thinks fit.

24E

• (1) Every registration certificate issued in November of any year shall bear the date of 1st November in that year, and every other registration certificate shall bear the date on which it was issued.

• (2) Every registration certificate shall have effect from the date it bears under subsection (1).

• (3) Subject to subsection (4), every registration certificate shall expire on 31st October next after it is issued.

• (4) On the name of a registered European lawyer being withdrawn from the register or on a registered European lawyer being suspended from practice as a registered European lawyer, any registration certificate for the time being in force of that registered European lawyer shall cease to have effect, but in the case of suspension, if he ceases to be so suspended during the period for which the registration would otherwise have continued in force, the registration certificate shall thereupon again have effect.

24F

• (1) If–

• (a) in pursuance of the Mental Health (Care and Treatment) (Scotland) Act 2003 a registered European lawyer is, by reason of mental disorder, detained in hospital;

• (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (c) the estate of a registered European lawyer is sequestrated;

• (d) a registered European lawyer grants a trust deed for behoof of creditors;

• (e) a judicial factor is appointed on the estate of a registered European lawyer;

any registration certificate for the time being in force of that registered European lawyer shall cease to have effect, and he shall be suspended from practice as a registered European lawyer.

• (1A) The Council may suspend from practice a registered European lawyer who—

• (a) has been convicted of an offence involving dishonesty, or

• (b) in respect of an offence, has been—

• (i) fined an amount equivalent to level 4 on the standard scale or more (whether on summary or solemn conviction), or

• (ii) sentenced to imprisonment for a term of 12 months or more.

• (2) On the occurrence of any of the circumstances mentioned in subsection (1) or (1A) , the registered European lawyer in question shall intimate those circumstances to the Council in writing immediately.

• (3) On the occurrence of the circumstances mentioned in paragraph (d) or (e) of subsection (1) the trustee or as the case may be the judicial factor shall intimate his appointment to the Council in writing immediately.

24G

• (1) The provisions of this section shall have effect in relation to a registration certificate which has ceased to have effect by virtue of section 24F during the period when that registration certificate would, but for that section, have continued in force.

• (2) A registration certificate which has ceased to have effect by virtue of paragraph (c) or (d) of section 24F(1) shall again have effect on the registered European lawyer being granted his discharge.

• (3) A registration certificate which has ceased to have effect by virtue of paragraph (e) of section 24F(1) shall again have effect on the judicial factor being granted his discharge.

• (4) Where a registered European lawyer is suspended from practice as a registered European lawyer by virtue of paragraph (a) . . . of section 24F(1), the period of suspension shall, for the purposes of section 24C(2)(e), expire on the registered European lawyer ceasing to be detained. . . .

• (4A) A suspension from practice arising by virtue of section 24F(1A) expires if the grounds for it no longer apply.

• (4B) On the occurrence of any of the circumstances mentioned in subsections (2) to (4A), the lawyer concerned must notify the Council in writing (and without delay).

• (5) Where a registered European lawyer is suspended from practice as a registered European lawyer by virtue of paragraph (c), (d) or (e) of section 24F(1) or by virtue of section 24F(1A) , he may at any time apply to the Council to terminate the suspension.

• (6) On an application under subsection (5), the Council may either–

• (a) grant the application with or without conditions; or

• (b) refuse the application.

• (7) If on an application by a registered European lawyer under subsection (5) the Council refuse the application or grant it subject to conditions, the registered European lawyer may appeal against the decision to the court, who may–

• (a) affirm the decision; or

• (b) vary any conditions imposed by the Council; or

• (c) terminate the suspension either with or without conditions.

25A

• (1) Subject to regulations 6 and 11 of the European Communities (Lawyer’s Practice) (Scotland) Regulations 2000 as those regulations have effect by virtue of regulation 6 or 7 of the Services of Lawyers and Lawyer's Practice (EU Exit) (Scotland) (Amendment etc.) Regulations 2019 and without prejudice to section 103(8) of the Criminal Procedure (Scotland) Act 1995 (right of solicitor to appear before single judge) and section 48(2)(b) (extension of rights of audience by act of sederunt) of the Court of Session Act 1988, a solicitor who—

• (a) seeks a right of audience in, on the one hand, the Court of Session, the Supreme Court and the Judicial Committee of the Privy Council or, on the other hand, the High Court of Justiciary and the Judicial Committee of the Privy Council; and

• (b) has satisfied the Council as to the requirements provided for in this section,

shall have a right of audience in those courts or, as the case may be, that court.

• (2) The requirements mentioned in subsection (1), in relation to the courts or, as the case may be, the court in which a solicitor seeks a right of audience, are that—

• (a) he has completed, to the satisfaction of the Council, a course of training in evidence and pleading in relation to proceedings in those courts or that court;

• (b) he has such knowledge as appears to the Council to be appropriate of—

• (i) the practice and procedure of; and

• (ii) professional conduct in regard to, those courts or that court; and

• (c) he has satisfied the Council that he is, having regard among other things to his experience in appropriate proceedings in the sheriff court, otherwise a fit and proper person to have a right of audience in those courts or that court.

• (3) Where a solicitor has satisfied the Council as to the requirements of subsection (2) in relation to the courts or, as the case may be, the court in which he seeks a right of audience the Council shall make an appropriate annotation on the roll against his name.

• (4) The Council shall make rules under this section as to—

• (a) the matters to be included in, the methods of instruction to be employed in, and the qualifications of the person who will conduct, any course of training such as is mentioned in subsection (2)(a); and

• (b) the manner in which a solicitor’s knowledge of the practice and procedure and professional conduct mentioned in subsection (2)(b) is to be demonstrated,

and separate rules shall be so made in relation to, on the one hand, the Court of Session, the Supreme Court and the Judicial Committee of the Privy Council and, on the other hand, the High Court of Justiciary . . . .

• (5) The Council shall make rules of conduct in relation to the exercising of any right of audience held by virtue of this section.

• (6) Where a solicitor having a right of audience in any of the courts mentioned in subsection (1) is instructed to appear in that court, those instructions shall take precedence before any of his other professional obligations, and the Council shall make rules—

• (a) stating the order of precedence of those courts for the purposes of this subsection;

• (b) stating general criteria to which solicitors should have regard in determining whether to accept instructions in particular circumstances; and

• (c) securing, through such of their officers as they think appropriate, that, where reasonably practicable, any person wishing to be represented before any of those courts by a solicitor holding an appropriate right of audience is so represented,

and for the purposes of rules made under this subsection the Inner and Outer Houses of the Court of Session, and the High Court of Justiciary exercising its appellate Jurisdiction, may be treated as separate courts.

• (7) Subsection (6) does not apply to an employed solicitor whose contract of employment prevents him from acting for persons other than his employer.

• (8) Subject to subsections (9) and (10), the provisions of section 34(2) and (3) apply to rules made under this section as they apply to rules made under that section and, in considering any rules made by the Council under subsection (5), the Lord President shall have regard to the desirability of there being common principles applying in relation to the exercising of rights of audience by all practitioners appearing before the Court of Session and the High Court of Justiciary.

• (9) The Council shall, after any rules made under subsection (4) have been approved by the Lord President, submit such rules to the Secretary of State, and no such rules shall have effect unless the Secretary of State, after consulting the CMA in accordance with section 64A, has approved them.

• (10) The Council shall, after any rules made under subsection (5) have been approved by the Lord President, submit such rules to the Secretary of State.

• (11) Where the Secretary of State considers that any rule submitted to him under subsection (10) would directly or indirectly inhibit the freedom of a solicitor to appear in court or undertake all the work preparatory thereto he shall consult the CMA in accordance with section 64A.

• (12) The Council may bring into force the rules submitted by them to the Secretary of State under subsection (10) with the exception of any such rule which he has, in accordance with section 64B, refused to approve.

• (13) Nothing in this section affects the power of any court in relation to any proceedings—

• (a) to hear a person who would not otherwise have a right of audience before the court in relation to those proceedings; or

• (b) to refuse to hear a person (for reasons which apply to him as an individual) who would otherwise have a right of audience before the court in relation to those proceedings, and where a court so refuses it shall give its reasons for that decision.

• (14) Where a complaint has been made that a solicitor has been guilty of professional misconduct in the exercise of any right of audience held by him by virtue of this section, the Council may, or if so requested by the Lord President shall, suspend him from exercising that right pending determination of that complaint under Part IV.

• (14A) Where the Commission makes a determination under section 9(1) of the 2007 Act upholding a services complaint against a solicitor, the Council may, if they consider that the complaint has a bearing on his fitness to exercise any right of audience held by him by virtue of this section and that it is appropriate to do so, suspend or revoke the right.

• (15) Where a function is conferred on any person or body by this section he or, as the case may be, they shall exercise that function as soon as is reasonably practicable.

Rights of practising.

Privilege of incorporated practices from disclosure etc.

33A

• (1) Any communication made to or by an incorporated practice in the course of its acting as such for a client shall in any legal proceedings be privileged from disclosure in like manner as if the body had at all material times been a solicitor acting for the client.

• (2) Any enactment or instrument making special provision in relation to a solicitor or other legal representative as to the disclosure of information, or as to the production, seizure or removal of documents, with respect to which a claim to professional privilege could be maintained, shall, with any necessary modifications, have effect in relation to an incorporated practice as it has effect in relation to a solicitor.

33B

• (1) Any communication made to or by a registered foreign lawyer in the course of his actings as such for a client shall in any legal proceedings be privileged from disclosure in like manner as if the registered foreign lawyer had at all material times been a solicitor acting for a client.

• (2) Any enactment or instrument making special provision in relation to a solicitor or other legal representative as to the disclosure of information, or as to the production, seizure or removal of documents, with respect to which a claim to professional privilege could be maintained, shall, with any necessary modifications, have effect in relation to a registered foreign lawyer as it has effect in relation to a solicitor.

39A

• (1) This section applies where the Council are satisfied, in the case of any solicitor or incorporated practice, after inquiry and after giving the solicitor or incorporated practice an opportunity of being heard, that the solicitor or incorporated practice has issued an account for professional fees and outlays of an amount which is grossly excessive (whether or not the account has been paid by or on behalf of the client or debited by the solicitor or incorporated practice to the account of any sums held on behalf of the client).

• (2) Where this section applies the Council may—

• (a) in the case of a solicitor, withdraw his practising certificate; or

• (b) in the case of an incorporated practice, withdraw the practising certificates of all or any of the solicitors who are directors of the incorporated practice;

and a certificate so withdrawn shall cease to have effect and the solicitor shall be suspended from practice as a solicitor.

• (3) On being satisfied by the solicitor or, as the case may be, incorporated practice that he or it has complied with the requirements of subsection (4) the Council, unless they are of the opinion that the solicitor or incorporated practice is liable to disciplinary proceedings under Part IV, shall terminate the suspension from practice of the solicitor or solicitors concerned and shall restore to him or them any practising certificates held by him or them for the practice year then current.

• (4) The requirements referred to in subsection (3) are—

• (a) to submit the account to the Auditor of the Court of Session for taxation together with all documents in the possession or control of the solicitor or incorporated practice which relate to the matters in respect of which the account was issued; and

• (b) to refund to the client a sum not less than the relevant amount.

• (5) The Council shall be entitled to be represented at a diet for taxation by virtue of subsection (4)(a) and to make representations to the Auditor of Court.

• (6) Where, on taxation of an account by virtue of subsection (4)(a), the amount due in respect of the account as taxed is the amount specified in the account as issued, the fee of the Auditor of Court shall be paid by the Council; but in any other case the fee shall be paid by the solicitor or, as the case may be, the incorporated practice.

• (7) In subsection (4)(b) “the relevant amount” is the amount (if any) by which the sum received by the solicitor or incorporated practice in respect of the account exceeds the amount due in respect of the account as taxed.

• (8) A solicitor may, within 21 days of receiving written notice of a decision of the Council under subsection (2) to withdraw his practising certificate, appeal to the Court against that decision; and on any such appeal the Court may give such directions in the matter, including directions as to the expenses of the proceedings before the Court, as it may think fit; and the order of the Court shall be final.

• (9) The withdrawal of a solicitor’s practising certificate under subsection (2) shall be without prejudice to the operation of section 35(3) or section 37(8).

• (10) The Council shall notify the Commission of any case—

• (a) where any of the following things occur—

• (i) they withdraw a practising certificate under subsection (2);

• (ii) they terminate a suspension from practice and restore a practising certificate under subsection (3);

• (iii) the Court makes an order under subsection (8); and

• (b) which does not involve a complaint remitted to the Council under section 6(2)(a) or 15(5)(a) of the 2007 Act.

Offence for solicitors to act as agents for unqualified persons.

42ZA

• (1) Where a conduct complaint suggesting unsatisfactory professional conduct by a practitioner who is a solicitor is remitted to the Council under section 6(2)(a) or 15(5)(a) of the 2007 Act, the Council must having—

• (a) investigated the complaint under section 47(1) of that Act and made a written report under section 47(2) of that Act;

• (b) given the solicitor an opportunity to make representations,

determine the complaint.

• (2) Where a complaint is remitted to the Council under section 53ZA, the Council—

• (a) must—

• (i) notify the solicitor specified in it and the complainer of that fact and that the Council are required to investigate the complaint as a complaint of unsatisfactory professional conduct;

• (ii) so investigate the complaint;

• (iii) having so investigated the complaint and given the solicitor an opportunity to make representations, determine the complaint;

• (b) may rely, in their investigation, on any findings in fact which the Tribunal makes available to them under section 53ZA(2) as respects the complaint.

• (3) Where the Council make a determination under subsection (1) or (2) upholding the complaint, they—

• (a) shall censure the solicitor;

• (b) may take any of the steps mentioned in subsection (4) which they consider appropriate.

• (4) The steps are—

• (a) where the Council consider that the solicitor does not have sufficient competence in relation to any aspect of the law or legal practice, to direct the solicitor to undertake such education or training as regards the law or legal practice as the Council consider appropriate in that respect;

• (b) subject to subsection (6), to direct the solicitor to pay a fine not exceeding £2,000;

• (c) where the Council consider that the complainer has been directly affected by the conduct, to direct the solicitor to pay compensation of such amount, not exceeding £5,000, as they may specify to the complainer for loss, inconvenience or distress resulting from the conduct.

• (5) The Council may, in considering the complaint, take account of any previous determination by them, the Tribunal or the Court upholding a complaint against the solicitor of unsatisfactory professional conduct or professional misconduct (but not a complaint in respect of which an appeal is pending or which has been quashed ultimately on appeal).

• (6) The Council shall not direct the solicitor to pay a fine under subsection (4)(b) where, in relation to the subject matter of the complaint, the solicitor has been convicted by any court of an act involving dishonesty and sentenced to a term of imprisonment of not less than 2 years.

• (7) Any fine directed to be paid under subsection (4)(b) 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.

• (8) The Council shall intimate—

• (a) a determination under subsection (1) or (2);

• (b) any censure under subsection (3)(a);

• (c) any direction under subsection (4),

to the complainer and the solicitor specified in it by sending to each of them a copy of the determination, censure or, as the case may be, the direction and by specifying the reasons for the determination.

• (9) A solicitor in respect of whom a determination upholding a conduct complaint has been made under subsection (1) or (2), or a direction has been made under subsection (4) may, before the expiry of the period of 21 days beginning with the day on which the determination or, as the case may be, the direction is intimated to him, appeal to the Tribunal against the—

• (a) determination;

• (b) direction (whether or not he is appealing against the determination).

• (10) A complainer may, before the expiry of the period of 21 days beginning with the day on which a determination under subsection (1) or (2) not upholding the conduct complaint is intimated to him, appeal to the Tribunal against the determination.

• (11) Where the Council have upheld the conduct complaint but have not directed the solicitor under subsection (4)(c) to pay compensation, the complainer may, before the expiry of the period of 21 days beginning with the day on which the determination upholding the complaint is intimated to him, appeal to the Tribunal against the Council's decision not to make a direction under that subsection.

• (12) A complainer to whom the Council have directed a solicitor under subsection (4)(c) 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 Tribunal against the amount of the compensation directed to be paid.

• (13) The Scottish Ministers may by order made by statutory instrument—

• (a) amend subsection (4)(b) by substituting for the amount for the time being specified in that subsection such other amount as appears to them to be justified by a change in the value of money;

• (b) after consulting the Council and such groups of persons representing consumer interests as they consider appropriate, amend subsection (4)(c) by substituting for the amount for the time being specified in that subsection such other amount as they consider appropriate.

• (14) A statutory instrument containing an order under—

• (a) subsection (13)(a) is subject to annulment in pursuance of a resolution of the Scottish Parliament;

• (b) subsection (13)(b) is not to be made unless a draft of the instrument has been laid before, and approved by resolution of, the Scottish Parliament.

• (15) In this section, “complainer” means the person who made the complaint and, where the complaint was made by the person on behalf of another person, includes that other person.

42ZB

• (1) The Council shall, by notice in writing, require every solicitor who is specified in—

• (a) a direction made under section 42ZA(4); or

• (b) such a direction as confirmed or varied on appeal by—

• (i) the Tribunal; or

• (ii) the Court,

to give, before the expiry of such period being not less than 21 days as the notice specifies, an explanation of the steps which he has taken to comply with the direction.

• (2) Where an appeal is made under section 42ZA(9) or (12) or 54A(1) or (2) against a direction made under section 42ZA(4), any notice under subsection (1)(a) above relating to the direction shall cease to have effect pending the outcome of the appeal.

42ZC

• (1) Where the Council receive a report from the Commission under section 10(2)(e) of the 2007 Act as respects a practitioner who is a solicitor, they may direct him to undertake such education or training as regards the law or legal practice as the Council consider appropriate in the circumstances.

• (2) The Council shall by notice in writing—

• (a) intimate a direction under subsection (1) to the solicitor;

• (b) require the solicitor to give, before the expiry of such period being not less than 21 days as the notice specifies, an explanation of the steps which he has taken to comply with the direction.

• (3) Where an appeal is made under section 42ZD(1) or (3) against a direction under subsection (1), any notice under subsection (2)(b) relating to the direction shall cease to have effect pending the outcome of the appeal.

42ZD

• (1) A solicitor in respect of whom a direction has been made under section 42ZC(1) may, before the expiry of the period of 21 days beginning with the day on which it is intimated to him, appeal to the Tribunal against the direction.

• (2) On an appeal to the Tribunal under subsection (1), the Tribunal may quash, confirm or vary the direction being appealed against.

• (3) The solicitor may, before the expiry of the period of 21 days beginning with the day on which the Tribunal's decision under subsection (2) is intimated to him, appeal to the Court against the decision.

• (4) On an appeal to the Court under subsection (3), the Court may give such directions in the matter as it thinks fit, including directions as to the expenses of the proceedings before the Court and as to any order by the Tribunal relating to expenses.

• (5) A decision of the Court on an appeal under subsection (3) shall be final.

42A

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

42B

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

42C

• (1) Where the Council are satisfied that it is necessary for them to do so for the purpose of investigating a complaint made to them or remitted to them by the Tribunal alleging—

• (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (b) the failure of an incorporated practice to comply with any provision of this Act or of rules made under this Act applicable to that practice; or

• (c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

the Council may give notice in writing in accordance with subsection (2) . . . to the incorporated practice . . . .

• (2) A notice under subsection (1) may require—

• (a) the production or delivery to any person appointed by the Council, at a time and place specified in the notice, of all documents to which this section applies which are in the possession or control of the . . . incorporated practice and relate to the matters to which the complaint relates (whether or not they relate also to other matters); and

• (b) an explanation, within such period, not being less than 21 days, as the notice may specify, from the . . . incorporated practice regarding the matters to which the complaint relates.

• (3) This section applies to the following documents—

• (a) all books, accounts, deeds, securities, papers and other documents in the possession or control of . . . the incorporated practice;

• (b) all books, accounts, deeds, securities, papers and other documents relating to any trust . . . of which the incorporated practice or one of its employees is a sole trustee or of which the practice is a co-trustee only with one or more of its employees.

.

• (4) Part II of Schedule 3 shall have effect in relation to the powers conferred by subsection (1) to require the production or delivery of documents as it has effect in relation to the powers conferred by sections . . . , 45 and 46, but with the following modifications—

• (a) for the references in that Part to sections . . . , 45 and 46 there shall be substituted references to this section; and

• (b) for the reference in paragraph 5(1) in that Part to a person failing to produce or deliver documents immediately on being required by the Council to do so there shall be substituted a reference to a person failing to produce or deliver the documents within the time specified in the notice under subsection (1) of this section.

• (5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Rules as to professional practice, conduct and discipline.

53ZA

• (1) Where, after holding an inquiry under section 53(1) into a complaint of professional misconduct against a solicitor, the Tribunal—

• (a) is not satisfied that he has been guilty of professional misconduct;

• (b) considers that he may be guilty of unsatisfactory professional conduct,

it must remit the complaint to the Council.

• (2) Where the Tribunal remits a complaint to the Council under subsection (1), it may make available to the Council any of its findings in fact in its inquiry into the complaint under section 53(1).

53ZB

• (1) On an appeal to the Tribunal under section 42ZA(9) the Tribunal—

• (a) may quash or confirm the determination being appealed against;

• (b) if it quashes the determination, shall quash the censure accompanying the determination;

• (c) may quash, confirm or vary the direction being appealed against;

• (d) may, where it considers that the solicitor does not have sufficient competence in relation to any aspect of the law or legal practice, direct the solicitor to undertake such education or training as regards the law or legal practice as the Tribunal considers appropriate in that respect;

• (e) may, subject to subsection (5), fine the solicitor an amount not exceeding £2000;

• (f) may, where it considers that the complainer has been directly affected by the conduct, direct the solicitor to pay compensation of such amount, not exceeding £5,000, as it may specify to the complainer for loss, inconvenience or distress resulting from the conduct.

• (2) On an appeal to the Tribunal under section 42ZA(10) the Tribunal—

• (a) may quash the determination being appealed against and make a determination upholding the complaint;

• (b) if it does so, may, where it considers that the complainer has been directly affected by the conduct, direct the solicitor to pay compensation of such amount, not exceeding £5,000, as it may specify to the complainer for loss, inconvenience or distress resulting from the conduct;

• (c) may confirm the determination.

• (3) On an appeal to the Tribunal under section 42ZA(11) the Tribunal may, where it considers that the complainer has been directly affected by the conduct, direct the solicitor to pay compensation of such amount, not exceeding £5,000, as it may specify to the complainer for loss, inconvenience or distress resulting from the conduct.

• (4) On an appeal under section 42ZA(12) the Tribunal may quash, confirm or vary the direction being appealed against.

• (5) The Tribunal shall not direct the solicitor to pay a fine under subsection (1)(e) where, in relation to the subject matter of the complaint, the solicitor has been convicted by any court of an act involving dishonesty and sentenced to a term of imprisonment of not less than 2 years.

• (6) Any fine directed to be paid under subsection (1)(e) 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.

• (7) A direction of the Tribunal under this section is enforceable in like manner as an extract registered decree arbitral in favour of the Council bearing a warrant for execution issued by the sheriff court of any sheriffdom in Scotland.

• (8) The Scottish Ministers may by order made by statutory instrument—

• (a) amend subsection (1)(e) by substituting for the amount for the time being specified in that subsection such other amount as appears to them to be justified by a change in the value of money;

• (b) after consulting the Council and such groups of persons representing consumer interests as they consider appropriate, amend subsection (1)(f) by substituting for the amount for the time being specified in that subsection such other amount as they consider appropriate.

• (9) A statutory instrument containing an order under—

• (a) subsection (8)(a) is subject to annulment in pursuance of a resolution of the Scottish Parliament;

• (b) subsection (8)(b) is not to be made unless a draft of the instrument has been laid before, and approved by resolution of, the Scottish Parliament.

• (10) In this section, “complainer” has the same meaning as in section 42ZA.

53ZC

Where a solicitor fails to comply with a direction given by the Council under section 42ZA(4) (including such a direction as confirmed or varied on appeal by the Tribunal or, as the case may be, the Court) before the expiry of the period specified in the notice relating to that direction given to him under section 42ZB(1), or such longer period as the Council may allow, the direction shall be enforceable in like manner as an extract registered decree arbitral in favour of the Council bearing a warrant for execution issued by the sheriff court of any sheriffdom in Scotland.

Unqualified persons not entitled to fees, etc.

53A

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53B

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53C

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

53D

• (1) Where, in accordance with rules made under this Act, the Council suspend or withdraw an investment business certificate or impose conditions or restrictions on it the solicitor, firm of solicitors or incorporated practice to whom it was issued may, within 21 days of the date of intimation of the decision of the Council, appeal to the Tribunal against that decision.

• (2) On an appeal to the Tribunal under subsection (1) the Tribunal may quash, confirm or vary the decision being appealed against.

• (2A) The solicitor, firm of solicitors or, as the case may be, the incorporated practice may, before the expiry of the period of 21 days beginning with the day on which the decision of the Tribunal under subsection (2) is intimated to him or, as the case may be, it, appeal to the Court against the decision.

• (2B) The Council may, before the expiry of the period of 21 days beginning with the day on which the decision of the Tribunal under subsection (2) is intimated to them, appeal to the Court against the decision.

• (2C) On an appeal under subsection (2A), the Court may give such directions in the matter as it thinks fit, including directions as to the expenses of the proceedings before the Court and as to any order by the Tribunal relating to expenses.

• (2D) A decision of the Court under subsection (2C) shall be final.

54A

• (1) A solicitor in respect of whom a decision has been made by the Tribunal under section 53ZB(1), (2), (3) or (4) may, before the expiry of the period of 21 days beginning with the day on which the decision is intimated to him, appeal to the Court against the decision.

• (2) A complainer may, before the expiry of the period of 21 days beginning with the day on which a decision by the Tribunal under section 53ZB to which this subsection applies is intimated to him, appeal to the Court against the decision.

• (3) Subsection (2) applies to the following decisions of the Tribunal under section 53ZB—

• (a) a decision under subsection (1)(a) quashing the Council's determination upholding the complaint;

• (b) a decision under subsection (1)(c) quashing or varying a direction by the Council that the solicitor pay compensation;

• (c) a decision under subsection (1)(f) directing the solicitor to pay compensation;

• (d) a decision under subsection (2)(b) not to direct the solicitor to pay compensation;

• (e) a decision under subsection (2)(c) confirming the Council's decision not to uphold the complaint;

• (f) a decision under subsection (3) confirming the Council's decision not to direct the solicitor to pay compensation;

• (g) a decision under subsection (4) quashing the Council's direction that the solicitor pay compensation or varying the amount of compensation directed to be paid.

• (4) On an appeal under subsection (1) or (2), the Court may give such directions in the matter as it thinks fit, including directions as to the expenses of the proceedings before the Court and as to any order by the Tribunal relating to expenses.

• (5) A decision of the Court under subsection (4) shall be final.

• (6) In this section, “complainer” has the same meaning as in section 42ZA.

55A

• (1) In the case of unsatisfactory professional conduct by a solicitor the Court may—

• (a) fine the solicitor an amount not exceeding £2000;

• (b) where it considers that the complainer has been directly affected by the conduct, direct the solicitor to pay compensation of such amount, not exceeding £5,000, as it may specify to the complainer for loss, inconvenience or distress resulting from the conduct;

• (c) find the solicitor liable in any expenses which may be involved in the proceedings before it.

• (2) A decision of the Court under subsection (1) shall be final.

• (3) The Scottish Ministers may by order made by statutory instrument—

• (a) amend subsection (1)(a) by substituting for the amount for the time being specified in that subsection such other amount as appears to them to be justified by a change in the value of money;

• (b) after consulting the Council and such groups of persons representing consumer interests as they consider appropriate, amend subsection (1)(b) by substituting for the amount for the time being specified in that subsection such other amount as they consider appropriate.

• (4) A statutory instrument containing an order under—

• (a) subsection (3)(a) is subject to annulment in pursuance of a resolution of the Scottish Parliament;

• (b) subsection (3)(b) is not to be made unless a draft of the instrument has been laid before, and approved by resolution of, the Scottish Parliament.

• (5) In this section, “complainer” has the same meaning as in section 42ZA.

56A

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59A

• (1) Subject to subsections (2) and (3), the Council may, if they think fit, make rules for regulating in respect of any matter the admission, enrolment and professional practice of notaries public.

• (2) The Council shall, before making any rules under this section—

• (a) send to each notary public a draft of the rules; and

• (b) take into consideration any representations made by any notary public on the draft.

• (3) Rules made under this section shall not have effect unless the Lord President, after considering any representations the Lord President thinks relevant, has approved the rules so made.

• (4) If a notary public fails to comply with any rule made under this section that failure may be treated as professional misconduct or unsatisfactory professional conduct on the part of the solicitor who is the notary public.

60A

• (1) Subject to the provisions of this section, solicitors and incorporated practices may enter into multi-national practices with registered foreign lawyers.

• (2) The Council shall maintain a register of foreign lawyers, and may make rules with regard to registration; and, without prejudice to the generality of the foregoing, such rules may include provision as to—

• (a) the manner in which applications for registration are to be made;

• (aa) the information which shall accompany such applications;

• (b) the fees payable in respect of such applications;

• (c) conditions which may be imposed in respect of registration; and

• (d) the period for which any such registration is to run.

• (3) Section 34(2) and (3) apply to rules made under subsection (2) as they apply to rules made under that section.

• (4) A foreign lawyer may apply to the Council to be registered as such for the purposes of—

• (a) subsection (1); or

• (b) having an interest in a licensed legal services provider as a solicitor investor within the meaning given by section 67(6) of the 2010 Act.

• (4ZA) Where an application is made under subsection (4), the Council are to enter the lawyer’s name on the register of foreign lawyers if they are satisfied that the legal profession of which the applicant is a member is so regulated as to make it appropriate for the applicant to be registered for those purposes.

• (4A) Any person may inspect the register of foreign lawyers during office hours without payment.

• (4B) A registered foreign lawyer who wishes his name to be removed from the register of foreign lawyers may make an application to the Council in that behalf, and the Council shall, if the registered foreign lawyer satisfies the Council that he has made adequate arrangements with respect to the business that he has then in hand, remove the name of that foreign lawyer from the register of foreign lawyers.

• (4C) On an application to the Council by a foreign lawyer whose name has been removed from the register of foreign lawyers under subsection (4B), the Council may, after such inquiry as they think proper, restore the name of the foreign lawyer to the register of foreign lawyers.

• (4D) A foreign lawyer whose name has been removed (other than pursuant to an application made under subsection (4B)) from the register of foreign lawyers shall have his name restored to that register only if, on an application in that behalf made by him to the Tribunal and after such inquiry as the Tribunal thinks proper, the Tribunal so orders.

• (4E) Rules made by the Tribunal under section 52 (procedure on complaints to the Tribunal) may–

• (a) regulate the making, hearing and determining of applications under subsection (4D); and

• (b) provide for payment by the applicant to the Council of such fee in respect of restoration to the register of foreign lawyers as the rules may specify.

• (4F) Where, following an application under subsection (4), the Council decide not to enter the name of a foreign lawyer in the register of foreign lawyers the applicant may, within three months of the notification to him of the Council’s decision (or later with the permission of the court), appeal to the court against the decision and, on such an appeal, the court may–

• (a) order the Council to register the foreign lawyer;

• (b) refuse the appeal; or

• (c) remit the matter to the Council with such directions as it sees fit.

• (4G) Sections 24A to 24G (registration certificates for registered European lawyers) shall apply to registered foreign lawyers as they apply to registered European lawyers and any reference in those sections (as so applied) to a registration certificate shall be construed as a reference to a registration certificate for a registered foreign lawyer.

• (5) Subject to subsection (6), the Secretary of State may by order made by statutory instrument provide that any enactment or instrument—

• (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (b) having effect in relation to solicitors; and

• (c) specified in the order,

shall have effect with respect to registered foreign lawyers as it has effect with respect to solicitors.

• (6) Before making any order under subsection (5), the Secretary of State shall consult the Council.

• (7) An order under subsection (5) may provide for an enactment or instrument to have effect with respect to registered foreign lawyers subject to such additions, omissions or other modifications as the Secretary of State specifies in the order.

• (8) No order shall be made under subsection (5) unless a draft of the order has been approved by both Houses of Parliament.

Qualifications for practising as a solicitor.

61A

• (1) Subject to the provisions of this section, and without prejudice to—

• (a) section 32(1)(i) of the Sheriff Courts (Scotland) Act 1971; or

• (b) section 5(h) of the Court of Session Act 1988,

where a solicitor and his client have reached an agreement in writing as to the solicitor’s fees in respect of any work done or to be done by him for his client it shall not be competent, in any litigation arising out of any dispute as to the amount due to be paid under any such agreement, for the court to remit the solicitor’s account for taxation.

• (2) Subsection (1) is without prejudice to the court’s power to remit a solicitor’s account for taxation in a case where there has been no written agreement as to the fees to be charged.

• (3) A solicitor and his client may agree, in relation to a litigation undertaken on a speculative basis, that, in the event of the litigation being successful, the solicitor’s fee shall be increased by such a percentage as may, subject to subsection (4), be agreed.

• (4) The percentage increase which may be agreed under subsection (3) shall not exceed such limit as the court may, after consultation with the Council, prescribe by act of sederunt.

62A

• (1) Without prejudice to the Society’s entitlement under section 46(4) to recover expenses, the Council shall be entitled to recover from a solicitor or incorporated practice in respect of whom it has taken action under section . . . 45, or 46, any expenditure reasonably incurred by it in so doing.

• (2) Expenditure incurred in taking action under section . . . 45 or 46 is recoverable under subsection (1) above only where notice has been served under paragraph 5(2) of Schedule 3 in connection with that action and—

• (a) no application has been made in consequence under paragraph 5(4) of that Schedule; or

• (b) the Court, on such an application, has made a direction under paragraph 5(5) of that Schedule.

64A

• (1) Before considering any rule—

• (a) made under section 25A(4) or (5)...

• (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

the Secretary of State shall send a copy of the proposed rule in question to the CMA .

• (2) The CMA shall consider whether the rule in question would have, or would be likely to have, the effect of restricting, distorting or preventing competition to any significant extent.

• (3) When the CMA has completed its consideration, the CMA shall give such advice to the Secretary of State as it thinks fit.

• (4) The CMA may publish advice given under subsection (3).

• (5) The CMA shall, so far as practicable, exclude from anything published under subsection (4) any matter—

• (a) which relates to the affairs of a particular person; and

• (b) the publication of which would, or might in the CMA's opinion, seriously and prejudicially affect the interests of that person.

• (6) For the purposes of the law of defamation, the publication of any advice or report by the CMA under this section shall be absolutely privileged.

64B

When he has received advice under section 64A(3) in relation to a rule made under section 25A(4) or (5) ..., the Secretary of State may, having considered—

• (a) that advice;

• (b) whether the interests of justice require that there should be such a rule; and

• (c) in relation to a rule made under section 25A(5), any relevant practice obtaining in the sheriff court,

approve or refuse to approve the rule.

64C

• (1) For the purpose of investigating any matter under section 64A, the CMA may by notice in writing—

• (a) require any person to produce to the CMA or to any person appointed by the CMA for the purpose, at a time and place specified in the notice, any documents which are specified or described in the notice and which—

• (i) are in that person’s custody or under that person’s control; and

• (ii) relate to any matter relevant to the investigation; or

• (b) require any person carrying on any business to furnish to the CMA (within such time and in such manner and form as the notice may specify) such information as may be specified or described in the notice.

• (2) A person shall not be required under this section to produce any document or disclose any information which he would be entitled to refuse to produce or disclose on the grounds of confidentiality between a client and his professional legal adviser in any civil proceedings.

• (2A) A notice under this section may be issued on the CMA's behalf by any member of the CMA Board.

• (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

64CA

• (1) The court may, on an application by the CMA , enquire into whether any person (“the defaulter”) has refused or otherwise failed, without reasonable excuse, to comply with a notice under section 64C(1).

• (2) An application under subsection (1) shall include details of the possible failure which the CMA considers has occurred.

• (3) In enquiring into a case under subsection (1), the court shall hear any witness who may be produced against or on behalf of the defaulter and any statement which may be offered in defence.

• (4) Subsections (5) and (6) apply where the court is satisfied, after hearing any witnesses and statements as mentioned in subsection (3), that the defaulter has refused or otherwise failed, without reasonable excuse, to comply with a notice under section 64C(1).

• (5) The court may punish the defaulter as it would have been able to punish him had he been guilty of contempt of court.

• (6) Where the defaulter is a body corporate or is a partnership constituted under the law of Scotland, the court may punish any director, officer or (as the case may be) partner of the defaulter as it would have been able to punish that director, officer or partner had he been guilty of contempt of court.

64CB

• (1) A person commits an offence if he intentionally alters, suppresses or destroys a document which he has been required to produce by a notice under section 64C(1).

• (2) A person who commits an offence under subsection (1) shall be liable—

• (a) on summary conviction, to a fine not exceeding the statutory maximum;

• (b) on conviction on indictment, to imprisonment for a term not exceeding two years or to a fine or to both.

64D

• (1) Without prejudice to the power of the Council to review any rule made by them, where the Secretary of State has approved a rule under section 64B he may, and if so requested by the Lord President shall, require the Council to review its terms.

• (2) When they have reviewed a rule following a requirement made under subsection (1), the Council may revise the rule in the light of that review, and shall then submit the rule as revised or, if they have not revised it, as previously approved to the Lord President and the Secretary of State.

• (3) Where the Lord President and the Secretary of State are agreed that the terms of the rule as submitted to them are satisfactory, the Secretary of State shall approve the rule, and may direct the Council to bring it into force as soon as is practicable.