|First||Previous (FOURTH SCHEDULE. Form of Practising Certificate.)||Next (SIXTH SCHEDULE. Applications for which Fees may be prescribed.)|
SOLICITORS ACT, 1954
Provisions relating to the Compensation Fund.
1. In this Schedule “the Fund” means the Compensation Fund.
2. (a) As respects losses which, in the opinion of the Society, arose during the period beginning on the 6th day of January, 1955, and ending on the 5th day of January, 1960, the making of grants out of the Fund and the amounts of such grants shall be at the absolute discretion of the Society.
(b) As respects losses which, in the opinion of the Society, arose on or after the 6th day of January, 1960,—
(i) the making of grants out of the Fund and the amounts of such grants shall be at the absolute discretion of the Society in cases in which the Society are of opinion that there has been negligence on the part of the loser, or of any person for whom he is responsible, which has contributed to the loss in question;
(ii) in all other cases a grant shall be made out of the Fund if the Society are of opinion that the loss in question is established and the amount of the grant shall be such as represents in the opinion of the Society full indemnity for the loss.
(c) This paragraph is without prejudice to any other provisions of or made under the subsequent provisions of this Schedule.
3. A grant may be made out of the Fund notwithstanding that the solicitor has, after the act of dishonesty, died, had his name removed from or struck off the roll, ceased to practise, been suspended from practice, or had his practising certificate suspended.
4. A grant may be made out of the Fund whether or not the solicitor had a practising certificate in force when the act of dishonesty occurred.
5. A grant shall not be made out of the Fund unless notice of the loss is received by the Society—
(a) in the prescribed manner, and
(b) within the prescribed period after the loss came to the knowledge of the loser.
6. A grant shall not be made out of the Fund in respect of a loss which, in the opinion of the Society, arose before the 6th day of January, 1955.
7. (a) A grant out of the Fund may, at the discretion of the Society, be paid either in one sum or by instalments.
(b) The Society may, if they are of the opinion that the financial stability of the Fund so requires, postpone payment of any grant out of the Fund payable in one sum or payment of any instalment of a grant out of the Fund.
8. (1) The Society may borrow for the Fund and, for the purpose of giving security with respect to such borrowing, may charge investments of the Fund.
(2) The total amount which shall at any time stand borrowed under this paragraph shall not exceed ten thousand pounds.
9. The Society may invest moneys of the Fund in securities in which trustees are authorised by law to invest trust funds.
10. The Society may insure against a risk relating to the Fund.
11. The following shall be paid into the Fund:
(a) interest, dividends and other income and accretions of capital arising from investments of the Fund,
(b) the proceeds of the realisation of investments of the Fund,
(c) moneys borrowed for the Fund,
(d) sums received by the Society under any insurance effected by the Society in relation to the Fund,
(e) other moneys belonging to or accruing to the Fund or received by the Society in respect thereof.
12. The following shall be paid out of the Fund:
(a) expenses incurred in establishing, maintaining or administering the Fund,
(b) premiums on insurance effected by the Society in relation to the Fund,
(c) repayments of moneys borrowed by the Society for the Fund and payments of interest on such moneys,
(d) expenses incurred by the Society under or in exercise of powers conferred by or under this Schedule,
(e) other sums properly payable out of the Fund.
13. The Society, for the purposes of inquiry into any matters which may affect the making or refusal of a grant from the Fund, may take evidence on oath, and administration of such oath is hereby authorised.
14. Where a grant is made out of the Fund—
(a) the Society shall, to the amount of the grant, be subrogated—
(i) to any rights or remedies to which the grantee was entitled on account of the loss against the solicitor or any other person or against the estate of such solicitor or other person,
(ii) to any rights or remedies to which the solicitor, or his clerk or servant, was entitled on account of the loss against any other person or against the estate of such other person,
(iii) to all other rights and remedies (if any) of the grantee or such solicitor, clerk or servant in respect of the loss,
(b) the grantee or his representatives shall not have a right under bankruptcy or other legal proceedings to receive any sum out of the assets of such solicitor or other person in respect of the loss until the Society has been reimbursed for the full amount of the grant.
15. (1) Where the Society have reasonable cause to believe that dishonesty of a solicitor has occurred, they may by notice require the production or delivery to any person appointed by the Society, and may take possession of, all or any documents in the possession or control of such solicitor or his firm, or relating to any trust of which such solicitor is the sole trustee or of which the trustees are such solicitor with a partner, clerk or servant of his or with more than one of such persons.
(2) Where a person, having possession or control of documents which he has been required under this paragraph to produce or deliver, refuses or fails to produce or deliver them in accordance with the requirement—
(a) he shall be guilty of an offence under this paragraph and shall be liable on summary conviction thereof to a fine not exceeding fifty pounds, and
(b) the Society may apply to the High Court and that Court may by order require such person to produce or deliver the documents.
(3) Where the Society take possession of documents produced or delivered under a requirement under this paragraph, they shall serve, on the solicitor and on every other person from whom the documents were received, a notice giving particulars of the documents and the date of taking possession thereof.
(4) Within fourteen days after service of a notice under subparagraph (3) of this paragraph on a solicitor or other person, he may apply to the High Court for an order directing the Society to return the documents received by the Society to the person or persons from whom they were received or to such other person or persons as the applicant may require and the High Court may make the order applied for or such other order as the Court thinks fit.
(5) Where an application is not made in accordance with subparagraph (4) of this paragraph or the High Court on such application directs that the documents shall remain in the custody or control of the Society, the Society may make inquiries to ascertain the person or persons to whom the documents belong and may deal with the documents in accordance with the directions of such person or persons.
(6) In this paragraph, the word “documents” includes deeds, wills, papers, books of account, records, vouchers and documents constituting or evidencing the title to any property.
16. The following provisions shall have effect for the purposes of subparagraph (5) of paragraph 15 of this Schedule:
(a) the Society, on receipt of an application for the delivery of documents from a person claiming to be entitled to the possession or custody thereof, may either—
(i) investigate the claim of such person to the possession or custody of the documents, or
(ii) require such person to nominate a solicitor to take delivery of the documents on his behalf,
(b) the Society shall not be bound to investigate the claim of any person who applies for delivery of documents in the possession of the Society or to schedule or list such documents save at the expense of such person, and payment of such sum as the Society may require as a deposit in respect of the costs and expenses of the investigation, scheduling or listing shall be a condition precedent to the undertaking of the investigation or to the delivery of such documents to such person by the Society,
(c) the Society or the person making a deposit as aforesaid may, after the claim has been investigated, require the costs and expenses to which the deposit relates to be taxed by a Taxing Master of the High Court (subject to appeal to the High Court), and the amount found due on such taxation after allowing all just credits shall be a simple contract debt due by such person to the Society or by the Society to such person (as the case may be) and recoverable in any court of competent jurisdiction,
(d) if the Society, in lieu of investigating the claim of the person applying for delivery of documents, requires such person to nominate a solicitor to take delivery thereof on his behalf, the Society may retain the documents until the nomination is duly made,
(e) on the nomination of a solicitor to take delivery of documents, the Society may deliver the documents to the solicitor in exchange for—
(i) a receipt for the documents,
(ii) a statutory declaration by the solicitor that, to the best of his knowledge and belief, the person on whose nomination he is acting is lawfully entitled to possession of the documents and that no other person has any prior title thereto or claim thereon by way of mortgage, charge, lien or otherwise,
(iii) a statutory declaration by the person applying for delivery of the documents to the same effect, and
(iv) an undertaking by the solicitor to return the documents to the Society if it should be ascertained, while the documents are in his possession, that his client was not so entitled at the date of the declaration,
and such receipt, declarations and undertaking shall constitute a full discharge to the Society for the documents,
(f) no action or claim shall lie against the Society by any person claiming to be entitled to documents or to any property to which they relate, or to any mortgage, charge or lien in respect of such documents or property, for any loss or injury occasioned by the taking of possession of the documents by the Society, or by the delivery of the documents by the Society in accordance with this paragraph,
(g) the Society shall have a lien over documents for all costs and expenses, if any, incurred by the Society in connection therewith (including, where appropriate, the costs and expenses of investigating the claim of any person claiming to be entitled thereto).
17. Where the Society are satisfied that dishonesty of a solicitor has occurred, they may apply to the High Court for, and the High Court may make, an order directing either—
(a) that no banking company shall, without leave of the High Court, make any payment out of a banking account in the name of the solicitor or his firm, or
(b) that a specified banking company shall not, without leave of the High Court, make any payment out of a banking account kept by such company in the name of the solicitor or his firm.
18. (1) In this paragraph—
“the corresponding society” means the Incorporated Law Society of Northern Ireland,
“corresponding certificate” means a certificate issued by the corresponding society and corresponding to a practising certificate,
“corresponding practitioners” means persons holding corresponding certificates.
(2) Where a scheme operated by the corresponding society requires corresponding practitioners controlled by that society to contribute to any fund or insurance policy, or to take out any insurance policy, for the compensation or indemnification of clients for or against losses due to defalcations of such practitioners or their clerks or servants, the Society may make arrangements and agreements with the corresponding society in regard to persons who are entitled both to take out practising certificates and to take out corresponding certificates, and any such arrangement or agreement may provide—
(a) for the payment by each such person of one combined annual contribution and the manner in which the combined contribution is to be applied for the purposes of the Fund and any fund or insurance policy maintained for the purposes of the said scheme,
(b) for the manner in which claims in respect of defalcations by any such person, or his clerk or servant, shall be treated and the extent, if any, to which those claims shall be paid by the Society and the corresponding society respectively,
(c) for any consequential or incidental matters.
19. Regulations made with the concurrence of the Chief Justice may—
(a) provide for procedure (other than court procedure) to be followed in giving effect to the provisions of section 69 of this Act and of this Schedule,
(b) make provisions ancillary or supplemental to the provisions of this Schedule,
(c) make provisions giving effect to any arrangement or agreement pursuant to paragraph 18 of this Schedule or ancillary or supplemental thereto.