Commentary on Sections Part 2 – Conduct Complaints: Other Matters Section 20ZB of the 1990 Act
127.New section 20ZB mirrors new section 42ZA of the 1980 Act (inserted by section 53). Where a complaint of unsatisfactory professional conduct is remitted to the Council by the Commission under section 6(a) or 15(5)(a) of the Act, or by the Tribunal under section 20ZA (2) of the 1990 Act, and the Council has investigated, determined and upheld the complaint, it must censure the conveyancing or executry practitioner. The Council may also take any of the following steps which it considers appropriate: (a) where the Council considers that the practitioner does not have sufficient competence in relation to conveyancing law or legal practice, or as the case may be, executry law or legal practice, to direct the practitioner to undertake such education and training as regards the relevant law or legal practice concerned as it considers appropriate; (b) to direct the practitioner to pay a fine not exceeding £2,000; and (c) where it considers that the complainer has been directly affected by the conduct, to direct the practitioner to pay the complainer compensation of up to £5,000 for loss, inconvenience or distress resulting from the conduct.
128. In considering the complaint, the Council may take account of any previous determination by it, the court or the Tribunal upholding a complaint against the practitioner of unsatisfactory professional conduct. The Council may not impose a fine where, in relation to the subject matter of the complaint, the practitioner has been convicted by any court of an offence involving dishonesty and sentenced to a term of imprisonment of at least 2 years. This is akin to the double jeopardy rule. Any fine is to be payable to and recoverable by the Treasury, as if it were a fine imposed in the High Court for the purposes of section 211(5) of the Criminal Procedure (Scotland) Act 1995.
129.The Council is required to intimate its determination and any direction or censure to both the complainer and the practitioner by sending them a copy. The Council must also give them reasons for its determination and any direction it makes.
130.Practitioners are given a right of appeal to the Scottish Solicitors’ Discipline Tribunal against a determination or direction by the Council. Complainers are given a right of appeal to the Tribunal against a Council determination not to uphold a complaint, or against a Council decision not to award compensation or against the amount of compensation awarded.
131.The Scottish Ministers may, after consultation with the Council and such consumer interest groups as they consider appropriate, vary by affirmative order the maximum level of compensation payable. The Scottish Ministers may also, by order subject to negative procedure, adjust the maximum amount of fine in line with inflation.