Solicitors (Scotland) Act 1980

PART VIS Miscellaneous And General

MiscellaneousS

61 Protection of banks.S

(1)Subject to the provisions of this section, no bank [F2or building society] shall, in connection with any transaction on any account of a solicitor [F3or an incorporated practice] kept with it or with any other bank [F2or building society]—

(a)incur any liability, or

(b)be under any obligation to make any enquiry, or

(c)be deemed to have any knowledge of any right of any person to any money paid or credited to the account,

which it would not incur, or be under, or be deemed to have (as the case may be) in the case of an account kept by a person entitled absolutely to all money paid or credited to it; but nothing in this subsection shall relieve a bank [F2or building society] from any liability or obligation under which it would be apart from this Act.

(2)In subsection (1) “account” does not include an account kept by a solicitor [F3or an incorporated practice] as trustee for a specified beneficiary.

(3)Notwithstanding anything in the preceding provisions of this section a bank [F2or building society] at which a solicitor [F4or an incorporated practice] keeps a special account for clients’ money shall not, in respect of any liability of the solicitor [F4or, as the case may be, the incorporated practice] to the bank [F2or building society] (not being a liability in connection with that account) have or obtain any recourse or right, whether by way of set-off, counter-claim, charge or otherwise, against money standing to the credit of that account.

[F561A Solicitors fees.S

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

(a)section 32(1)(i) of the M1Sheriff Courts (Scotland) Act 1971; or

(b)section 5(h) of the M2Court 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.]

62 Charge for expenses out of property recovered.S

(1)Where a solicitor has been employed by a client to pursue or defend any action or proceeding, the court before which the action or proceeding has been heard or is depending may declare the solicitor entitled, in respect of the taxed expenses of or in reference to the action or proceeding, to a charge upon, and a right to payment out of, any property (of whatsoever nature, tenure or kind it may be) which has been recovered or preserved on behalf of the client by the solicitor in the action or proceeding; and the court may make such order for the taxation of, and for the raising and payment of, those expenses out of the said property as the court thinks just.

(2)Where a declaration has been made under subsection (1) any act done or deed granted by the client after the date of the declaration except an act or deed in favour of a bona fide purchaser or lender, shall be absolutely void as against the charge or right.

[F662A Council’s power to recover expenses incurred under section 38, 45 or 46.S

(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 38, 45, or 46, any expenditure reasonably incurred by it in so doing.

(2)Expenditure incurred in taking action under section 38 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.]

GeneralS

63 Penalties and time limit for prosecution of offencesS

(1)Any person guilty of an offence under this Act shall be liable on summary conviction to a fine not exceeding [F7[F8level 4] on the standard scale][F9 . . ..]

(2)Notwithstanding any provision of the M3Criminal Procedure (Scotland) Act 1975, the prosecution of any offence under this Act shall be commenced within 6 months of its first discovery by the prosecutor or in any event within 2 years after the commission of that offence.

[F10(3)Where an offence under this Act is committed by a body corporate and is proved to have been committed with the consent or connivance of or to be attributable to any neglect on the part of—

(a)any director, secretary or other similar officer of the body corporate; or

(b)any person who was purporting to act in any such capacity,

he (as well as the body corporate) shall be guilty of the offence and shall be liable to be proceeded against and punished accordingly.

(4)Where an offence under this Act is committed by a partnership or by an unincorporated association (other than a partnership) and is proved to have been committed with the consent or connivance of a partner in the partnership or, as the case may be, a person concerned in the management or control of the association, he (as well as the partnership or association) shall be guilty of the offence and shall be liable to be proceeded against and punished accordingly.]

64 Service of notices etc.S

Any notice or other document which is required or authorised under this Act to be given to, or served on, any person shall be taken to be duly given or served if it is delivered to him or left at, or sent by post to, his last-known place of business or residence [F11or, in the case of an incorporated practice, it is left at, or delivered or sent by post to, its registered office].

[F1264A Advisory and supervisory functions of the Director General of Fair Trading.S

(1)Before considering any rule—

(a)made under section 25A(4) or (5); or

(b)such as is mentioned in section 34(3A),

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

(2)The Director 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 Director has completed his consideration he shall give such advice to the Secretary of State as he thinks fit.

(4)The Director may publish any advice given by him under subsection (3).

(5)The Director 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 Director’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 Director under this section shall be absolutely privileged.]

[F1364B Duty of Secretary of State.S

When he has received advice under section 64A(3) in relation to a rule made under section 25A(4) or (5) or such as is mentioned in section 34(3A), 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.]

[F1464C Investigatory powers of the Director.S

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

(a)require any person to produce to him or to any person appointed by him 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 him (whithin 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.

(3)Subsections (5) to (8) of section 85 of the M4Fair Trading Act 1973 shall apply in relation to a notice under this section as they apply in relation to a notice under subsection (1) of that section.]

[F1664D Review of rules approved by the Secretary of State.S

(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.

(4)Where either the Secretary of State or the Lord President is of the view that any rule, as submitted to them, is not satisfactory, but they do not agree as to what the terms of the rule should be, the rule shall continue to have effect as previously approved.

(5)Where the Secretary of State and the Lord President agree both that any rule submitted to them under subsection (2) is not satisfactory, and as to what the terms of the rule should be, the Secretary of State may direct the Council—

(a)to amend the rule in such manner as he and the Lord President consider appropriate; and

(b)to bring the rule, as so amended, into force as soon as is practicable.

(6)The provisions of sections 64A and 64B apply to rules submitted to the Secretary of State under this section as they apply to rules submitted to him under sections 25A(9) or (10) and 34(3A).]

65 Interpretation.S

(1)In this Act, except in so far as the context otherwise requires—

• “accounts rules” has the meaning given by section 35;

• “accountant’s certificate rules” has the meaning given by section 37(3);

• “advocate” means a member of the Faculty of Advocates;

• [F17“building society” means a building society within the meaning of the M5Building Societies Act 1986;]

• “client account” means a current or deposit or savings account [F18at a bank or with a building society], or a deposit receipt, at a bank, being an account or, as the case may be, a deposit receipt in the title of which the word “client”, “trustee”, “trust” or other fiduciary term appears, including—

  (a)

  an account or deposit receipt for a client whose name is specified in the title of the account on deposit receipt, and

  (b)

  an account such as is mentioned in paragraphs (a) and (b) of section 35(1);

• “the Council” has the meaning given by section 3;

• “the Court” means the Court of Session;

• [F19“the Director” means the Director General of Fair Trading;

• “foreign lawyer” means a person who is not a solicitor or an advocate but who is a member, and entitled to practise as such, of a legal profession regulated within a jurisdiction outwith Scotland;]

• . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F20

• “functions” includes powers and duties;

• [F21“inadequate professional services” means professional services which are in any respect not of the quality which could reasonably be expected of a competent solicitor, and cognate expressions shall be construed accordingly; and references to the provision of inadequate professional services shall be construed as including references to not providing professional services which such a solicitor ought to have provided;]

• [F22“incorporated practice” has the meaning given by section 34(1A)(c);]

• “judge” includes sheriff;

• [F23“law centre” means a body—

(a)established for the purpose of providing legal services to the public generally as well as to individual members of the public; and

(b)which does not distribute any profits made either to its members or otherwise, but reinvests any such profits for the purposes of the law centre;]

• [F24“lay observer” has the meaning given by section 49;]

• “Lord President” means the Lord President of the Court of Session;

• [F25“multi-disciplinary practice” means a body corporate or a partnership—

(a)having as one of its directors or, as the case may be, partners, a solicitor or an incorporated practice; and

(b)which offers services, including professional services such as are provided by individual solicitors, to the public; and

(c)where that solicitor or incorporated practice carries out, or supervises the carrying out of, any such professional services as may lawfully be carried out only by a solicitor;

• “multi-national practice” means—

(a)a partnership whose members are solicitors or incorporated practices and registered foreign lawyers; or

(b)a body corporate whose members include registered foreign lawyers, and membership of which is restricted to solicitors, incorporated practices, registered foreign lawyers and other multi-national practices;]

• “notary public” means a notary public duly admitted in Scotland;

• “practice year” means the year ending on 31st October;

• “practising certificate” has the meaning given by section 4;

• “property” includes property, whether heritable or moveable, and rights and interests in, to or over such property;

• [F26“registered foreign lawyer” means a foreign lawyer who is registered under section 60A;]

• “the roll” has the meaning given by section 7;

• “the Society” has the meaning given by section 1;

• [F27“Scottish legal services ombudsman” means the ombudsman appointed under section 34 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990;]

• “solicitor” means any person enrolled or deemed to have been enrolled as a solicitor in pursuance of this Act;

• “the Tribunal” has the meaning given by section 50;

• “unqualified person” means a person [F28, other than a multi-disciplinary practice,] who is not qualified under section 4 to act as a solicitor.

(2)Unless the context otherwise requires a reference—

(a)in any enactment to law agents includes solicitors;

(b)in any enactment to the register of law agents kept in pursuance of the M6Law Agents (Scotland) Act 1873 includes the roll;

(c)in any enactment or instrument to the Solicitors Discipline (Scotland) Committee shall be construed as a reference to the Tribunal;

(d)in any enactment or instrument or other document to the General Council of Solicitors in Scotland shall be construed as a reference to the Council;

(e)in any enactment to a solicitor’s being entitled to practise in the Court, or in any other court, or to act in any matter, by reason of his being enrolled in, or of his having subscribed, the list of solicitors practising in that court, shall be construed as a reference to his being entitled so to practise or act be reason of his name being included in the appropriate list provided under section 20.

(3)In this Act references to any enactment shall, except in so far as the context otherwise requires, be construed as references to that enactment as amended, extended or applied by or under any other enactment, including any enactment contained in this Act.

(4)In this Act, except in so far as the context otherwise requires,—

(a)any reference to a numbered Part, section or Schedule is a reference to the Part or Section of, or the Schedule to, this Act so numbered;

(b)a reference in a section to a numbered subsection is a reference to the subsection of that section so numbered;

(c)a reference in a section, subsection or Schedule to a numbered or lettered paragraph is a reference to the paragraph of that section, subsection or Schedule so numbered or lettered; and

(d)a reference to any provision of an Act (including this Act) includes a reference to any Schedule incorporated in the Act by that provision.

66 Transitional and savings provisions, and repeals.S

(1)Schedule 6 (Transitional and savings provisions) shall have effect, but the provisions of that Schedule shall not be taken as prejudicing the operation of section 16 of the M7Interpretation Act 1978 (general savings in respect of repeals).

(2)The enactments specified in Schedule 7 are hereby repealed to the extent shown in column 3 of that Schedule.

67 Citation, extent and commencement.S

(1)This Act may be cited as the Solicitors (Scotland) Act 1980.

(2)This Act extends to Scotland only.

(3)This Act shall come into operation on the expiration of one month from the date on which it is passed.