HL Deb 22 October 1985 vol 467 cc964-7

[References are to [Bill 115] as first printed by the Commons.]

1 Clause 1, page 3, line 10, leave out subsection (4).

The Lord Chancellor

My Lords, perhaps I may say in advance that I propose to ask the House to agree with the Commons in all the Government amendments which have come up from the Commons. Of course the amendments will be moved separately, but in moving this Motion I should like to speak also to Amendments Nos. 3, 42, 43, 92, 95 and 96.

3 After Clause 2, insert the following new clause: ("Powers of lay observers and Solicitors Disciplinary Tribunal in relation to inadequate professional services. .—(1) After section 45(5) of the Solicitors Act 1974 (investigation by lay observers of Law Society's treatment of complaints) there shall be inserted—

"(5A) Where it appears to a lay observer, in examining any such allegation as is mentioned in subsection (1)—

  1. (a) that there arises out of the complaint in respect of which the allegation has been made both—
    1. (i) a question as to the professional conduct of a solicitor, and
    2. (ii) a question as to the quality of any professional services provided by him; and
  2. (b)that it would be appropriate for the latter question to be considered by the Tribunal with a view to determining whether to exercise any of its powers under section 47A in relation to the solicitor,

the lay observer may make an application to the Tribunal with respect to the solicitor.".

(2) After section 47 of that Act there shall be inserted— "Power of Tribunal to impose sanctions for inadequate professional services.

47A.—(1) The powers conferred on the Tribunal by this section shall be exercisable on the hearing of—

  1. (a) any application or complaint made to the Tribunal under this Act by or on behalf of the Society; or
  2. (b) any application made to the Tribunal under section 45(5A) by a lay observer.

(2) Where, on the hearing of any such application or complaint with respect to a solicitor, it appears to the Tribunal that the professional services provided by the solicitor in connection with any matter in which he or his firm had been instructed by a client were in any respect not of the quality that could reasonably have been expected of him as a solicitor, then (subject to subsection (4)), the Tribunal may, if it thinks fit, do one or more of the following things, namely—

  1. (a) determine that the costs to which the solicitor shall be entitled in respect of those services shall be 965 limited to such amount as may be specified in its determination and by order direct the solicitor to comply, or to secure compliance, with such one or more requirements falling within subsection (3) as appear to it to be necessary in order to give effect to its determination;
  2. (b) by order direct the solicitor to secure the rectification, at the expense of the solicitor or his firm, of any such error, omission or other deficiency arising in connection with the said matter as it may specify;
  3. (c) by order direct the solicitor to take, at the expense of the solicitor or his firm, such other action in the interests of the client as it may specify.

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

  1. (a) a requirement to refund the whole or part of any amount already paid by or on behalf of the client in respect of the solicitor's costs in respect of his services in connection with the said matter;
  2. (b) a requirement to remit the whole or part of those costs;
  3. (c) a requirement to waive, whether wholly or to any specified extent, the right to recover those costs.

(4) The Tribunal shall not exercise any of its powers under this section unless it is satisfied that it would in all the circumstances be appropriate to do so; and in determining whether in any case it would be appropriate to exercise any of those powers the Tribunal may have regard—

  1. (a) to the existence of any remedy that could reasonably be expected to be available to the client in civil proceedings; and
  2. (b) where proceedings seeking any such remedy have not been commenced by him, to whether it would be reasonable to expect him to commence such proceedings.

(5) Where the Tribunal has given a direction under subsection (2)(a) in order to give effect to a determination by it under that provision as to the costs of a solicitor in respect of any services provided by him, then—

  1. (a) for the purposes of any taxation of a bill covering those costs the amount charged by the bill in respect of those costs shall be deemed to be limited to the amount specified in the Tribunal's determination; and
  2. (b) where a bill covering those costs has not been taxed in accordance with paragraph (a), the client shall, for the purposes of the recovery of those costs (by whatever means) and notwithstanding any statutory provision or agreement, be deemed to be liable to pay in respect of those costs only the amount specified in the Tribunal's determination.

(6) Where a bill covering those costs has been taxed in accordance with subsection (5)(a), the Tribunal's direction under subsection (2)(a) shall, so far as relating to those costs, cease to have effect.

(7) In subsections (2)(c) and (4)(a) "client", in relation to any matter in which a solicitor or his firm has been instructed, includes any person on whose behalf the person who gave the instructions was acting.".").

42 Clause 40, Page 30, line 30, leave out ("provided in subsections (2) to (4) of this section") and insert ("follows").

43 Page 32, line 3, leave out subsections (5) and (6).

92 Schedule 6, page 63, line 35, at end insert— ("SOLICITORS ACT 1974 (c. 47)

2A. In section 47(2) (jurisdiction and powers of Solicitors Disciplinary Tribunal), after "section 43" insert "or 45(5A)".

2B. In section 48(2) (orders of Tribunal), for "section 47(2)" substitute "subsection (2) of section 47, or was made under subsection (2B) of that section or under section 47A,".

2C. In section 49(3) (appeals from Tribunal), at the end add ", and an appeal against an order under section 47 excluding any person or persons from legal aid work (within the meaning of that section) shall lie only at the instance of any person so excluded.".").

95 Schedule 7, page 64, line 24, column 3, after ("8") insert ("(2)").

96 Schedule 8, page 65, line 3, at end insert— ("Powers of lay observers and Tribunal in relation to inadequate professional services

2A. In section (Extension of powers of lay observers and Solicitors Disciplinary Tribunal in relation to inadequate professional services)—

  1. (a) subsection (1) applies in relation to a complaint whether it was made before or after the commencement of that section; and
  2. (b) subsection (2) applies in relation to services provided by a solicitor whether they were provided before or after that commencement.".).

At present, both the Law Society and the Solicitors' Disciplinary Tribunal are restricted to complaints of professional misconduct alone. The new powers introduced by Clause 1 of the Bill will enable the society to impose certain sanctions for shoddy or inadequate work. There will continue to be cases in which professional misconduct will be the main issue, and these will be for the Solicitors' Disciplinary Tribunal. However, in cases where both misconduct and shoddy work arise, rather than leave misconduct to the tribunal and shoddy work to the society, I suggest that it must be sensible to empower the tribunal to deal with both elements at the same time. These amendments, which introduce a new clause into the Solicitors Act 1974 and make some minor consequential and drafting changes, achieve this. I beg to move that this House do agree with the Commons in the said amendment.

Moved, That this House do agree with the Commons in their Amendment No. 1.—(The Lord Chancellor.).

Lord Elwyn-Jones

My Lords, this seems to me to be a sensible provision to add to the jurisdiction and powers of the tribunal, and we on this side of the House agree with the amendment.

Lord Denning

My Lords, this is a strange amendment. When we last had the Bill before us the Law Society were to be investigator, prosecutor and judge as to inadequate professional services. Some of us tried to sever the investigative procedure from the disciplinary and judicial procedure, but without success.

This amendment is rather strange. It is brought into a clause which is not about discipline at all but about the lay observer's functions. If you look at it, it repeats a great deal—two full pages—of what was in the earlier section. I do not object to it because it means that the Law Society will not be judge in its own cause. The matter can be investigated by the lay observer and I hope it will be. Then he need not go to the society but may go to the tribunal itself with. the necessary grounds. So the tribunal, which is a judical body with lay representation, will be dealing with the matter. This is a helpful amendment, though it does not go nearly as far into the question as I should like. On the other hand I shall not oppose it because it does go a little way in the right direction.

The Lord Chancellor

My Lords, I thought that I had made it clear that this amendment deals with a very small point, which is the mixed case where the complaint relates both to shoddy work and to professional misconduct. It therefore gives concurrent jurisdiction. I am glad to think that the noble and learned Lord on the Cross-Benches thinks that is a good amendment.

On Question, Motion agreed to.