Legalize / United Kingdom / Statutory-Instrument

The Legal Services Act 2007 (the Chartered Institute of Patent Attorneys and the Institute of Trade Mark Attorneys) (Modification of Functions) Order 2014

Type Statutory-Instrument

Publication 2014-12-08

State In force

Department King's Printer of Acts of Parliament

Source legislation.gov.uk

Reform history JSON API PDF

Made: 8th December 2014

Coming into force in accordance with article 2

In accordance with section 206(5) of that Act, a draft of this instrument was laid before Parliament and approved by a resolution of each House of Parliament.

PART 1 — General

Citation and interpretation

1

(1) This Order may be cited as the Legal Services Act 2007 (the Chartered Institute of Patent Attorneys and the Institute of Trade Mark Attorneys) (Modification of Functions) Order 2014.

(2) In this Order—

“the 1988 Act” means the Copyright, Designs and Patents Act 1988[^f00003];

“the 1994 Act” means the Trade Marks Act 1994[^f00004];

“the 2007 Act” means the Legal Services Act 2007;

“CIPA” means the Chartered Institute of Patent Attorneys;

“CIPA-registered body” means a body (corporate or unincorporate) which is entered on the register kept by CIPA under section 275 of the 1988 Act and in relation to which CIPA is a relevant approved regulator within the meaning of section 20(4) of the 2007 Act;

“ITMA” means the Institute of Trade Mark Attorneys;

“ITMA-registered body” means a body (corporate or unincorporate) which is entered on the register kept by ITMA under section 83 of the 1994 Act and in relation to which ITMA is a relevant approved regulator within the meaning of section 20(4) of the 2007 Act.

Commencement

2

(1) Except as provided by paragraphs (2) to (4), this Order comes into force on the day after the day on which it is made.

(2) Articles 6 to 8 and paragraph 10 of Schedule 2—

(a) do not come into force unless a relevant designation order is made in relation to CIPA; and

(b) where such an order is made, come into force at the same time as that order.

(3) Articles 13 to 15 and paragraph 10 of Schedule 4—

(a) do not have effect unless a relevant designation order is made in relation to ITMA; and

(b) where such an order is made, come into force at the same time as that order.

(4) Paragraph 11(1)(b) and (c) of Schedule 2 and paragraph 11(1)(b) and (c) of Schedule 4 (“the relevant provisions”) do not have effect unless each of CIPA and ITMA is designated by a relevant designation order in relation to at least one activity which is the same reserved legal activity and—

(a) if each is designated by the same order in relation to that activity, the relevant provisions come into force at the same time as that order; and

(b) if each is designated by a separate order in relation to that activity, the relevant provisions come into force at the same time as whichever is the later of those orders.

(5) In paragraphs (2) to (4), any reference to a relevant designation order, in relation to CIPA or ITMA, is to an order designating CIPA or ITMA (as the case be) as a licensing authority under Part 1 of Schedule 10 to the 2007 Act in relation to one or more reserved legal activities.

PART 2 — Functions of CIPA

CIPA acting as an approved regulator

Interpretation

3

In articles 4 and 5 references to CIPA are to CIPA acting in its capacity as an approved regulator (other than in its role, if any, as a licensing authority).

Management and control of CIPA-registered bodies

4

(1) CIPA may make regulations under section 275A(2)(b) of the 1988 Act[^f00005] (requirements as to registration of a body corporate or unincorporate and its management and control) which require each CIPA-registered body to have—

(a) a Head of Legal Practice;

(b) a Head of Finance and Administration.

(2) Regulations made by virtue of paragraph (1) must include the provisions specified in Schedule 1.

Appeals to the First-tier Tribunal and the High Court

5

(1) CIPA may make regulations under section 275A(2)(i) of the 1988 Act which provide for appeals against decisions made by CIPA under regulations made under section 275A of the 1988 Act (including regulations providing for a decision on such an appeal to be final and for orders as to payment of costs) to be made to the First-tier Tribunal or the High Court.

(2) Regulations made by virtue of paragraph (1) may include provision for appeals against decisions made by CIPA under this Order.

CIPA acting as a licensing authority

Interpretation

6

In articles 7 and 8—

(a) references to CIPA are to CIPA acting in its role as a licensing authority; and

(b) references to a licensed body are to a licensed body in relation to which CIPA is a relevant licensing authority within the meaning of Part 5 of the 2007 Act[^f00006].

Power to require payment of investigation costs

7

(1) In this article—

“disciplinary measure”, in relation to a relevant person, includes an arrangement where— the relevant person gives to CIPA an undertaking to do or not to do (or to cease doing) anything specified in the undertaking; and any breach of that undertaking is liable to result in the imposition by CIPA of one or more other disciplinary measures on that relevant person;

“relevant person” means— a licensed body; or any manager or employee of a licensed body.

(2) Where—

(a) CIPA imposes a disciplinary measure on a relevant person; and

(b) the measure is imposed following an investigation conducted by CIPA,

CIPA may, in accordance with licensing rules, also require that relevant person to pay an amount to CIPA in respect of the whole or any part of the costs incurred by CIPA in conducting the investigation.

(3) For the purpose of giving effect to paragraph (2), CIPA must make licensing rules which make provision—

(a) as to the criteria and procedure to be applied by CIPA in determining—

(i) whether to require a relevant person to make a payment under paragraph (2); and

(ii) the amount of any such payment;

(b) as to arrangements for payment, including the time within which the payment is to be made; and

(c) for appeals to be made to the First-tier Tribunal or the High Court against any decision made by CIPA under this article.

(4) If the whole or part of any payment required under paragraph (2) is unpaid at the time by which it is required to be paid, CIPA may recover the unpaid balance as a debt due to it from the relevant person.

Power to issue a notice, warning or reprimand

8

(1) CIPA may issue a notice, warning or reprimand in respect of any breach of the terms of a licensed body’s licence and cause this to be noted against any record (public or private) of that licence.

(2) CIPA may, if it considers it appropriate to do so in any particular case, communicate to the public that it has issued a notice, warning or reprimand to a licensed body under paragraph (1).

(3) For the purpose of giving effect to paragraph (1), CIPA must make licensing rules which specify—

(a) the breaches of the terms of a licensed body’s licence in respect of which CIPA may issue a notice, warning or reprimand under paragraph (1);

(b) the criteria and procedure to be applied by CIPA in determining whether to issue any such notice, warning or reprimand;

(d) the criteria and procedure to be applied by CIPA in determining whether it is appropriate to communicate any such notice, warning or reprimand to the public.

Powers to make further provision

Powers to make further regulatory arrangements

9

(1) Schedule 2 contains further provision about regulatory arrangements in relation to —

(a) registered persons and regulated persons; and

(b) licensed bodies (see paragraphs 10 and 11(1)(b) and (c)).

(2) The powers conferred on CIPA by this Order are not to be taken to prejudice—

(a) any other power which CIPA may have to make rules or regulations (however they may be described and whether they are made under an enactment or otherwise); or

(b) any other rules or regulations made by CIPA under any such power[^f00007].

PART 3 — Functions of ITMA

ITMA acting as an approved regulator

Interpretation

10

In articles 11 and 12 references to ITMA are to ITMA acting in its capacity as an approved regulator (other than in its role, if any, as a licensing authority).

Management and control of ITMA-registered bodies

11

(1) ITMA may make regulations under section 83A(2)(b) of the 1994 Act[^f00008] (requirements as to registration of a body corporate or unincorporate and its management and control) which require each ITMA-registered body to have—

(a) a Head of Legal Practice;

(b) a Head of Finance and Administration.

(2) Regulations made by virtue of paragraph (1) must include the provisions specified in Schedule 3.

Appeals to the First-tier Tribunal and the High Court

12

(1) ITMA may make regulations under section 83A(2)(i) of the 1994 Act which provide for appeals against decisions made by ITMA under regulations made under section 83A of the 1994 Act (including regulations providing for a decision on such an appeal to be final and for orders as to payment of costs) to be made to the First-tier Tribunal or the High Court.

(2) Regulations made by virtue of paragraph (1) may include provision for appeals against decisions made by ITMA under this Order.

ITMA acting as a licensing authority

Interpretation

13

In articles 14 and 15—

(a) references to ITMA are to ITMA acting in its role as a licensing authority; and

(b) references to a licensed body are to a licensed body in relation to which ITMA is a relevant licensing authority within the meaning of Part 5 of the 2007 Act[^f00009].

Power to require payment of investigation costs

14

(1) In this article—

“disciplinary measure”, in relation to a relevant person, includes an arrangement where— the relevant person gives to ITMA an undertaking to do or not to do (or to cease doing) anything specified in the undertaking; and any breach of that undertaking is liable to result in the imposition by ITMA of one or more other disciplinary measures on that relevant person;

“relevant person” means— a licensed body; or any manager or employee of a licensed body.

(2) Where—

(a) ITMA imposes a disciplinary measure on a relevant person; and

(b) the measure is imposed following an investigation conducted by ITMA,

ITMA may, in accordance with licensing rules, also require that relevant person to pay an amount to ITMA in respect of the whole or any part of the costs incurred by ITMA in conducting the investigation.

(3) For the purpose of giving effect to paragraph (2), ITMA must make licensing rules which make provision—

(a) as to the criteria and procedure to be applied by ITMA in determining—

(i) whether to require a relevant person to make a payment under paragraph (2); and

(ii) the amount of any such payment;

(b) as to arrangements for payment, including the time within which the payment is to be made; and

(c) for appeals to be made to the First-tier Tribunal or the High Court against any decision made by ITMA under this article.

(4) If the whole or part of any payment required under paragraph (2) is unpaid at the time by which it is required to be paid, ITMA may recover the unpaid balance as a debt due to it from the relevant person.

Power to issue a notice, warning or reprimand

15

(1) ITMA may issue a notice, warning or reprimand in respect of any breach of the terms of a licensed body’s licence and cause this to be noted against any record (public or private) of that licence.

(2) ITMA may, if it considers it appropriate to do so in any particular case, communicate to the public that it has issued a notice, warning or reprimand to a licensed body under paragraph (1).

(3) For the purpose of giving effect to paragraph (1), ITMA must make licensing rules which specify—

(a) the breaches of the terms of a licensed body’s licence in respect of which ITMA may issue a notice, warning or reprimand under paragraph (1);

(b) the criteria and procedure to be applied by ITMA in determining whether to issue any such notice, warning or reprimand;

(d) the criteria and procedure to be applied by ITMA in determining whether it is appropriate to communicate any such notice, warning or reprimand to the public.

Powers to make further provision

Powers to make further regulatory arrangements

16

(1) Schedule 4 contains further provision about regulatory arrangements in relation to—

(a) registered persons and regulated persons; and

(b) licensed bodies (see paragraphs 10 and 11(1)(b) and (c)).

(2) The powers conferred on ITMA by this Order are not to be taken to prejudice—

(a) any other power which ITMA may have to make rules or regulations (however they may be described and whether they are made under an enactment or otherwise); or

(b) any other rules or regulations made by ITMA under any such power[^f00010].

SCHEDULE 1 — CIPA-registered bodies: Head of Legal Practice and Head of Finance and Administration

Head of Legal Practice

1

Paragraphs 2 and 3 apply to regulations made by CIPA by virtue of article 4(1)(a) which require each CIPA-registered body to have a Head of Legal Practice.

2

(1) The regulations referred to in paragraph 1 must include the requirements in sub-paragraphs (2) to (11) and paragraph 3.

(2) Subject to sub-paragraph (3), a CIPA-registered body must at all times have an individual—

(a) who is designated as Head of Legal Practice; and

(b) whose designation is approved by CIPA.

(3) The requirement in sub-paragraph (2) may be suspended until such time and subject to such conditions as may be specified by CIPA.

(4) A designation of an individual as Head of Legal Practice has effect only while the individual—

(a) consents to the designation;

(b) is an authorised person in relation to one or more of the reserved legal activities which the CIPA-registered body is authorised by CIPA to carry on; and

(c) is not disqualified from acting as Head of Legal Practice by virtue of a disqualification under a provision specified in sub-paragraph (5).

(5) The specified provisions are—

(a) paragraph 3 of Schedule 2 (disqualification by CIPA);

(b) paragraph 3 of Schedule 4 (disqualification by ITMA); and

(6) CIPA may approve an individual’s designation as Head of Legal Practice of a CIPA-registered body in the course of determining an application for registration of the body made pursuant to regulations made under section 275A of the 1988 Act.

(7) CIPA may approve an individual’s designation as Head of Legal Practice of a CIPA-registered body only if it is satisfied that the individual is a fit and proper person to carry out the duties set out in sub-paragraphs (9) and (11) in relation to that CIPA-registered body.

(8) CIPA may withdraw its approval of an individual’s designation as the Head of Legal Practice of a CIPA-registered body if it is satisfied that that individual has breached one or more of the duties set out in sub-paragraphs (9) or (11) in relation to that CIPA-registered body.

(9) The Head of Legal Practice of a CIPA-registered body must—

(a) take all reasonable steps to ensure compliance with the requirements of patent attorney regulations, and regulations made by CIPA under this Order, which apply to that CIPA-registered body; and

(b) as soon as reasonably practicable, report to CIPA any failure to comply with such a requirement.

(10) Sub-paragraph (9) does not apply to any requirement imposed by virtue of regulations made under—

(a) section 275A(2)(h) of the 1988 Act (records and accounts); or

(b) paragraph 13 of Schedule 2 (treatment of money).

(11) The Head of Legal Practice of a CIPA-registered body must—

(a) take all reasonable steps to ensure that that CIPA-registered body and any of its managers or employees who are regulated persons, comply with the duties imposed by section 176 of the 2007 Act (duties of regulated persons); and

(b) as soon as reasonably practicable, report to CIPA such failures by those persons to comply with those duties as may be specified in regulations made under this paragraph.

3

The regulations referred to in paragraph 1 must make provision—

(a) about the procedures and criteria to be applied by CIPA in determining for the purposes of regulations under paragraph 2(7) whether an individual is a fit and proper person to carry out the duties set out in paragraphs 2(9) and (11);

(b) for a review by CIPA of a determination that an individual is not a fit and proper person to carry out those duties;

(c) about the procedures and criteria to be applied by CIPA in determining whether to withdraw its approval of an individual’s designation as a Head of Legal Practice;

(d) for a review by CIPA of a determination to withdraw its approval of such a designation; and

(e) about the procedures which are to apply where a CIPA-registered body ceases to comply with the requirement to have a designated Head of Legal Practice.

Head of Finance and Administration

4

Paragraphs 5 and 6 apply to regulations made by CIPA by virtue of article 4(1)(b) which require each CIPA-registered body to have a Head of Finance and Administration.

5

(1) The regulations referred to in paragraph 4 must include the following requirements.

(2) Subject to sub-paragraph (3), a CIPA-registered body must at all times have an individual—

(a) who is designated as Head of Finance and Administration; and

(b) whose designation is approved by CIPA.

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