SRA BOARD 28 November 2012

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1 Summary Amendment to the SRA Compensation Fund Rules 2011 (CFR 2011) 1. This paper explains the need for the proposed amendments to the SRA Compensation Fund Rules 2011 (CFR 2011) and seeks the Board s approval to the amendment of these rules. 2. The purpose of the amendments is to ensure that CFR 2011 apply to licensed bodies indefinitely pending the outcome of the Compensation Arrangements Review (CAR) by: removing the "sunset clause" removing references to the "transitional period" Background 3. At the time when the Legal Services Act 2007 came into force, the Compensation Fund's statutory framework would not allow the SRA to collect contributions to the Compensation Fund (the Fund) from licensed bodies (ABSs) or to make payments from the Fund to the clients of licensed bodies. 4. As a temporary measure, an Order was made in 2011 under section 69 of the Legal Services Act 2007 (s69) to modify the basis of the Fund so that the SRA was able to collect contributions to the Fund from ABSs and to make payments from the Fund to the clients of ABSs (the 2011 Order). 5. The 2011 Order included a "sunset clause", which takes effect on 31 December This meant that, in the absence of a further Order, the relevant provisions of the 2011 Order would expire on that date and the SRA would no longer be able to collect contributions to the Fund from ABSs or to make payments from it in respect of ABSs. This would mean that clients of ABSs would not enjoy the same level of client protection as the clients of other regulated entities and that a second Fund would have to be urgently established. 6. The sunset clause in the 2011 Order was intended to give the SRA time to review compensation arrangements, but this has not been possible in view of the preceding Financial Protection Review and the implementation of its recommendations. 7. After correspondence and discussion with the LSB, the Compensation Arrangements Review (CAR) has been set up and will report in October The LSB consulted on the proposed changes and received responses from The Law Society (TLS), SRA and ILEX Professional Standards. The consultation document, responses and decision can be found at Annexes 3 and In paragraph 22 of the decision document, the LSB state: "The LSB has some sympathy with the Law Society s position that the current sunset clause should be replaced with another longer one. However, to try to avoid a situation where there is insufficient information to make sensible long term provision for compensation arrangements, on balance, we consider that the change should not be time bound." Page 1 of 29

2 10. On this basis, the LSB have recommended that the Lord Chancellor make an order under s69 removing the "sunset clause" bringing ABSs within the current compensation arrangements indefinitely. 11. The order was laid before Parliament on 15 October 2012 and it must be approved by both Houses. It passed the House of Lords stage on 20 November For this reason, the amendment rules provide that they are made subject to the coming into force of The Legal Services Act 2007 (The Law Society) (Modification of Functions) (Amendment) Order An oral report will be given to the Board on the outcome of the Parliamentary debates and the FPC Meeting. Proposed amendments to CFR The purpose of the proposed amendments is to remove the "sunset clause" and references to the "transitional period, which reflected the sunset clause in the 2011 Order, so that ABSs can remain within the scope of the Fund indefinitely pending the outcome of CAR. 15. The removal of the "sunset clause" will ensure that clients of ABSs enjoy the same protection as clients of other regulated entities without the need to urgently establish an additional fund. 16. The draft SRA Compensation Fund and Handbook Glossary (Amendment) Rules [2012] (the amendment rules) are attached at Annex 1 and the draft CFR 2011 (incorporating those amendments) for Version 6 of the SRA Handbook due to come into force on 1 January 2013 are attached at Annex 2. Recommendations The SRA Board is invited to make the SRA Compensation Fund and Handbook Glossary (Amendment) Rules [2012], subject to the approval of the Legal Services Board Annexes Annex 1: Annex 2: Annex 3: Annex 4: Annex 5: Draft SRA Compensation Fund and Handbook Glossary (Amendment) Rules [2012] Draft CFR 2011 for Version 6 of the SRA Handbook LSB Consultation document LSB responses to consultation document Board Risk Assessment Author Helen Cooper, Policy Executive, Financial Regulation Policy Executive Director Richard Collins Date 15 November 2012 This paper is for decision. Page 2 of 29

3 Annex 1 SRA Compensation Fund and Handbook Glossary (Amendment) Rules [2012] Rules dated [date to be inserted] made by the Solicitors Regulation Authority Board, subject to the coming into force of The Legal Services Act 2007 (The Law Society) (Modification of Functions) (Amendment) Order [2012], under sections 36, 36A, 79 and 80 of the Solicitors Act 1974, section 9 of the Administration of Justice Act 1985, section 83(5)(e) of, and Schedule 11 to, the Legal Services Act 2007, and the relevant provisions of an Order made under section 69 of the Legal Services Act 2007, SI No 2011/1716, with the approval of the Legal Services Board under paragraph 19 of Schedule 4 to the Legal Services Act Rule 1 The SRA Compensation Fund Rules 2011 shall be amended as follows: (a) delete rules 1.2 and 1.3 delete rules 2.3, 2.4 and 2.5 (c) renumber rule 2.6 as 2.3 (d) in rule 2.3 (as renumbered), after Every solicitor, REL, RFL delete and and replace with, and after recognised body insert and licensed body ; (e) delete rule 2.7 (f) renumber rules 2.8 to 2.12 as 2.4 to 2.8 (g) in rule 2.4 (as renumbered), delete 2.6 and replace with 2.3 (h) in rule 2.8(a) (as renumbered), delete 2.10 and replace with 2.6 (i) in rule 2.8 (as renumbered), delete 2.11 and replace with 2.7 (j) delete rule 26 Rule 2 The SRA Handbook Glossary shall be amended as follows: Rule 3 delete rule 4 These amendment rules shall come into force on 1 January Page 3 of 29

4 Annex 2 SRA Compensation Fund Rules 2011 Rules dated 17 June 2011 made by the Solicitors Regulation Authority Board, subject to the coming into force of relevant provisions of an Order made under section 69 of the Legal Services Act 2007, S.I No.?, under sections 36, 36A, 79 and 80 of the Solicitors Act 1974, section 9 of the Administration of Justice Act 1985, sections 21(2) and 83(5)(e) of, and paragraph 19 of Schedule 11 to, the Legal Services Act 2007, and the aforementioned Order, with the approval of the Legal Services Board under paragraph 19 of Schedule 4 to the Legal Services Act Part 1: Rule 1: General Interpretation 1.1 The SRA Handbook Glossary 2012 shall apply and, unless the context otherwise requires: (a) all italicised terms shall be defined; and terms shall be interpreted, in accordance with the Glossary. Part 2: Rule 2: The Fund Maintenance of and contributions to the Fund 2.1 The Society shall establish and maintain the fund called the Solicitors' Compensation Fund ("the Fund") for making grants in respect of compensation claims. 2.2 The Society may hold monies raised for the purposes of the Fund in a single fund, and may distribute any monies, pursuant to the provisions of the SA, LSA and these rules, out of such fund. 2.3 Every solicitor, REL, RFL, recognised body and licensed body shall make contributions to the Fund in such amounts, at such times and in such circumstances, as may be prescribed from time to time by the SRA. Any unpaid contributions may be recovered as a debt due to the Society. 2.4 Rule 2.3 shall not apply to a solicitor, REL or RFL who is a Crown Prosecutor. 2.5 The Society may invest any money which forms part of the Fund in any investments in which trustees may invest under the general power of investment in section 3 of the Trustee Act 2000 (as restricted by sections 4 and 5 of that Act). Page 4 of 29

5 Annex The Society may insure with authorised insurers, in relation to the Fund, for such purposes and on such terms as it considers appropriate. 2.7 The Society may (a) borrow for the purposes of the Fund; charge investments which form part of the Fund as security for borrowing by the Society for the purposes of the Fund. 2.8 The Fund may be applied by the SRA for the following purposes (in addition to the making of grants in respect of compensation claims): (a) payment of premiums on insurance policies effected under rule 2.6; Part 3: Rule 3: (c) (d) (e) repayment of money borrowed by the Society for the purposes of the Fund and payment of interest on any money so borrowed under rule 2.7; payment of any other costs, charges or expenses incurred by the Society in establishing, maintaining, protecting, administering or applying the Fund; payment of any costs, charges or expenses incurred by the SRA in exercising its powers under Part 2 of Schedule 1 to the SA or Schedule 14 to the LSA (intervention powers); payment of any costs or damages incurred by the Society, the SRA, their employees or agents as a result of proceedings against any or either of them for any act or omission of its or theirs in good faith and in the exercise or purported exercise of such powers. Grants and applications Grants which may be made from the Fund 3.1 The primary object of the Fund is to replace money which a defaulting practitioner or a defaulting practitioner's employee or manager has misappropriated or otherwise failed to account for. The applicant need not necessarily be or have been the defaulting practitioner's client. 3.2 It is also an object of the Fund to provide compensation in respect of the civil liability of a defaulting practitioner or a defaulting practitioner's employee or manager who in accordance with the SRA Indemnity Insurance Rules should have had, but did not have, in place a policy of qualifying insurance against which a claim could be made in respect of such civil liability. 3.3 A grant out of the Fund is made wholly at the discretion of the SRA. No person has a right to a grant enforceable at law. Page 5 of 29

6 Annex For any grant to be made out of the Fund (save in respect of a grant made under rule 5), an applicant must satisfy the SRA that: (a) he has suffered or is likely to suffer loss in consequence of the dishonesty of a defaulting practitioner or the employee or manager or owner of a defaulting practitioner; or he has suffered or is likely to suffer loss and hardship in consequence of a failure to account for money which has come into the hands of a defaulting practitioner or the employee or manager or owner of a defaulting practitioner, which may include the failure by a defaulting practitioner to complete work for which he was paid; in the course of an activity of a kind which is part of the usual business of a defaulting practitioner and, in the case of a defaulting licensed body, the act or default arose in the course of performance of a regulated activity. 3.5 For the purposes of rule 3.4: (a) an individual whose dealings with the defaulting practitioner have been in a personal capacity and who has suffered or is likely to suffer loss due to a failure to account shall be deemed to have suffered hardship; and a body corporate, or an individual whose dealings with the defaulting practitioner have been in a business capacity and who has suffered or is likely to suffer loss due to a failure to account must provide evidence to satisfy the SRA that it, he or she (the body or individual) has suffered or is likely to suffer hardship. 3.6 A grant may, at the sole discretion of the SRA, be made as an interim measure. Rule 4: Grants in respect of persons in default of regulatory requirements 4.1 A grant may be made in respect of a defaulting solicitor even if the defaulting solicitor had no practising certificate in force at the date of the relevant act or default, provided that the SRA is reasonably satisfied that the applicant was unaware of the absence of a valid practising certificate. 4.2 A grant may be made in respect of a defaulting REL even if, at the date of the relevant act or default, the registration of that lawyer in the SRA's register of European lawyers had expired or been revoked under the SRA Practising Regulations, provided that the SRA is reasonably satisfied that the applicant was unaware of the expiry or revocation. Page 6 of 29

7 Annex A grant may be made in respect of a defaulting recognised body even if the recognition of that body was suspended or was revoked under the SRA Recognised Bodies Regulations or the SRA Authorisation Rules (as the case may be) on or before the date of the relevant act or default, provided that the SRA is reasonably satisfied that the applicant was unaware of such suspension or revocation. 4.4 A grant may be made in respect of a defaulting licensed body even if the licence issued to that body under the SRA Authorisation Rules has been suspended or revoked on or before the date of the relevant act or default, provided that the SRA is reasonably satisfied that the applicant was unaware of the suspension or revocation. 4.5 A grant may be made in respect of a defaulting RFL even if, at the date of the relevant act or default, the registration of that lawyer in the register of foreign lawyers had expired or been revoked under the SRA Practising Regulations, provided that the SRA is reasonably satisfied that the applicant was unaware of the expiry or revocation. Rule 5: Grants in respect of uninsured defaulting practitioners 5.1 A grant may be made to provide compensation for loss suffered as a result of the civil liability of a defaulting practitioner or a defaulting practitioner's employee or manager who in accordance with the SRA Indemnity Insurance Rules should have had, but did not have, in place a policy of qualifying insurance against which a claim could be made in respect of such civil liability. 5.2 Where an application for a grant is made under rule 5.1 a grant will only be made in circumstances where: (a) (c) the defaulting practitioner should have had, but did not have, in place a policy of qualifying insurance against which a claim could be made in respect of the civil liability of the defaulting practitioner or the defaulting practitioner's employee or manager; the liability of the defaulting practitioner or the defaulting practitioner's employee or manager arises from private legal practice in connection with the defaulting practitioner's practice; and the loss is not covered by the SIF. 5.3 Any grant made under this rule 5 will be made in accordance with these rules and otherwise will be assessed and determined in accordance with the terms, conditions and exclusions of the MTC as though the defaulting practitioner had a policy of qualifying insurance against which a claim in respect of the loss had been made. Page 7 of 29

8 Annex Rules 4, 6, 7, 8.1, 9, 10.3, 14, 15.3 and 20 shall not apply to any grant made under this rule 5. Rule 6: Grants to practitioners 6.1 A grant may be made to a defaulting practitioner who or which has suffered or is likely to suffer loss by reason of his, her or its liability to any client in consequence of some act or default of: (a) (c) in the case of a defaulting solicitor, defaulting REL or defaulting RFL, any of his or her employees or any fellow manager; in the case of a defaulting recognised body, any of its managers or employees or any fellow manager; in the case of a defaulting licensed body, any of its managers or employees or any fellow manager, provided that such act or default arose in the course of performance of a regulated activity; in circumstances where but for the liability of that defaulting practitioner a grant might have been made from the Fund to some other person. 6.2 No grant shall be made under rule 6.1 unless the SRA is satisfied that no other means of making good the loss is available and that the defaulting practitioner is fit and proper to receive a grant. 6.3 A grant under rule 6.1 shall normally be made by way of a loan and shall be repayable by the recipient at the time and upon such terms as shall be specified by the SRA. 6.4 In the case of a defaulting recognised body or a defaulting licensed body, such grant may be payable to one or more of the managers of the defaulting recognised body or defaulting licensed body. If a loan is made to more than one manager, they shall be jointly and severally liable for the repayment of the loan to the Society. Rule 7: Foreign lawyers 7.1 If an REL is exempted from contributing to the Fund on the basis that he or she has completely equivalent cover under home state rules, no grant shall be made: (a) in respect of any act or default of the REL or his or her employee unless, in the case of an employee, the employee is: (i) a solicitor; or Page 8 of 29

9 Annex 2 (ii) the employee of a partnership which includes at least one person who or which contributes to the Fund; or under rule 6, to the REL. 7.2 No grant shall be made in respect of any act or default of an REL or an EEL, or the employee of an REL, where such act or default took place outside the United Kingdom, unless the SRA is satisfied that the act or default was, or was closely connected with, the act or default of a solicitor or the employee of a solicitor, or that the act or default was closely connected with the REL's practice in the United Kingdom. 7.3 No grant shall be made in respect of the act or default of an RFL, or of the employee of an RFL, where such act or default took place outside England and Wales, unless the SRA is satisfied that the act or default was, or was closely connected with, the act or default of a solicitor or the employee of a solicitor, or that the act or default was closely connected with practice in England and Wales. Rule 8: Losses outside the remit of the Fund 8.1 For the avoidance of doubt, a grant will not be made in respect of the following: (a) (c) (d) (e) (f) (g) Losses arising solely by reason of professional negligence by a defaulting practitioner, or the employee or manager of a defaulting practitioner. Losses which are the personal debts of a defaulting practitioner and where the facts would not otherwise give rise to a claim on the Fund. The loss results from, but does not form part of, any misappropriation of, or failure to account for, money or money's worth. The loss results from the trading debts or liabilities of the defaulting practitioner. The loss amounts to a claim for contractually agreed interest between the applicant and the defaulting practitioner. The SRA was not notified of the applicant's loss in accordance with rule 11. The loss occurred in relation to an overseas partnership which does not fall within rule 50.1(c) or 50.2 of the SRA Accounts Rules, unless: (i) (ii) the loss occurred as a result of a solicitor's dishonesty; or the loss occurred as a result of failure to account by a solicitor acting as a named trustee. Page 9 of 29

10 Annex 2 (h) (i) The application is by the Legal Services Commission for loss occasioned through making regular payments under the Commission's contracting schemes for civil and/or criminal work. In the case of a defaulting licensed body, losses incurred other than in the course of performance of a regulated activity. 8.2 For the avoidance of doubt, a grant will not be made under rule 5 in respect of the following: Rule 9: (a) Where there is a policy or policies of qualifying insurance against which a claim could be or has been made in respect of the civil liability of the defaulting practitioner or the defaulting practitioner's employee or manager. Any losses that would not be covered under the terms, conditions and exclusions of the MTC had the loss been subject to a claim under a policy of qualifying insurance. Undertakings 9.1 A grant in respect of a failure by a defaulting practitioner to comply with an undertaking will be considered if it can be shown that the undertaking was given in the course of the defaulting practitioner's usual business acting on behalf of a client, that the recipient acted reasonably in accepting the undertaking and placing reliance on the undertaking and that: (a) the undertaking was given with dishonest intent for the purpose of procuring money or money's worth; or the undertaking, although not given with dishonest intent, is subsequently dishonestly not performed for the purpose of procuring money or money's worth. 9.2 The SRA does not consider the giving of an undertaking in circumstances which amount to the giving of a bare guarantee of the defaulting practitioner's personal liabilities, or the financial obligations and liabilities of a client or third party, to form part of the usual business of a solicitor or other legal practitioner, and in the case of a defaulting licensed body the SRA does not consider such an undertaking to be part of its regulated activities. Rule 10: Multi-party and multi-profession issues 10.1 Where the loss has been sustained as a result of the combined activities of more than one party (e.g. a defaulting practitioner conspires with an accountant or surveyor, or is assisted by a negligent accountant or valuer), the SRA will consider Page 10 of 29

11 Annex 2 the role of each contributing factor in causing the applicant's loss. The SRA will base any grant on its assessment of that portion of the loss primarily attributable to the acts of the defaulting practitioner as opposed to that portion which is primarily attributable to the acts or omissions of the other parties, or to other factors. The SRA may decide to make a grant on a pro-rata basis in accordance with its assessment of the importance of each contributing factor in the loss, or may reject an application in its entirety if it is of the opinion that the loss was primarily due to other factors rather than the defaulting practitioner's conduct When a solicitor, REL or RFL is practising as the manager or employee of a body authorised not by the SRA but by another approved regulator, the SRA will not consider any claim in respect of that individual's act or default, or his or her employee's act or default When an individual authorised not by the SRA but by another approved regulator is practising as the manager or employee of a recognised body, the SRA will in its discretion consider a claim in respect of that individual's act or default In the case of a defaulting licensed body, the SRA will assess the extent (if any) to which the loss is attributable to an act or default in the course of performance of a regulated activity (as opposed to an activity not regulated by the SRA or to other factors). The SRA will take that assessment into account in deciding whether to make a grant and, if so, in what amount. The SRA may refuse to make any grant in a case where it assesses that the loss was primarily attributable to an act or default in the course of performance of an activity not regulated by the SRA or to other factors. Rule 11: Applications: form and time limit 11.1 Every application must be delivered to the SRA, in such form as may from time to time be prescribed by the SRA, within twelve months after the loss, or likelihood of loss, or failure to account, as the case may be, first came, or reasonably should have come, to the knowledge of the applicant. The SRA may extend this period if satisfied that there are circumstances which justify the extension of the time limit. Rule 12: Documentation in support 12.1 The burden of proving a claim rests with the applicant who must provide such documentation as may be required by the SRA including when requested, a statement of truth. Failure to provide such documentation or to co-operate with the SRA will be taken into account when determining the merits of the application. Rule 13: Exhausting other remedies 13.1 A grant may be refused or limited where the loss or part of the loss is an insured risk or where the loss is capable of being made good by some other means. Page 11 of 29

12 Annex The SRA may, before deciding whether to make a grant, require the applicant: (a) (c) (d) to pursue any civil remedy which may be available to the applicant in respect of the loss; to commence insolvency proceedings; to make a formal complaint to the Police in respect of any dishonesty on the part of the defaulting practitioner; or to assist in the taking of any action against the defaulting practitioner In respect of an application for a grant under rule 5, the SRA may, before deciding whether to make a grant, require the applicant and/or the defaulting practitioner to seek indemnity from one or more qualifying insurers under a policy or policies of qualifying insurance In the absolute discretion of the SRA, a grant may be made before requiring the applicant to resort to other means of recovery. Rule 14: Notice to defaulting practitioner 14.1 The SRA shall not make a grant unless: (a) a communication has been sent to the defaulting practitioner at his, her or its last known correspondence address or to his, her or its representative informing the defaulting practitioner of the nature and value of the application; and not less than eight days have elapsed since the date of receipt of such communication, which shall be regarded as the day following the date of the communication If it appears to the SRA that: (a) any communication sent under rule 14.1 will not come to the attention of the defaulting practitioner or his, her or its representative; or a grant should be made urgently as an interim measure to protect the interests of an applicant or potential applicant to the Fund, then the SRA may make a grant notwithstanding failure to comply with the provisions of this rule Where the SRA has made a grant as an interim measure in accordance with rule 14.2, the SRA shall as soon as practicable send the communication referred to in rule 14.1(a) and may (insofar as the failure to communicate before the making of the Page 12 of 29

13 Annex 2 grant has prejudiced the defaulting practitioner) waive in whole or in part the Fund's right of recovery against the defaulting practitioner. Rule 15: Costs Litigation 15.1 Where an applicant intends to or has already instituted proceedings for recovery of his loss and wishes to apply for a grant in respect of the costs of the proceedings, the SRA will only consider such costs where: (a) they can be shown to be proportionate to the loss and the amount likely to be recovered; or the proceedings were necessary for the making of an application to the Fund. Application 15.2 Where a grant is made, the SRA may consider an application for a further grant in respect of the reasonable costs properly incurred by the applicant with either his solicitor or other professional adviser, provided that such costs were incurred wholly, necessarily and exclusively in connection with the preparation, submission and proof of the application. Costs where the defaulting practitioner has failed to complete work 15.3 If the defaulting practitioner did not complete the work for which he was paid, a failure to account shall be deemed to have arisen within the meaning of rule 3.3 of these rules. In such circumstances, the SRA may consider making a grant in respect of the additional reasonable legal costs incurred by the applicant in completing the outstanding work or a grant by way of contribution towards those costs. Rule 16: Interest 16.1 The SRA may consider an application for a supplementary grant by way of a sum in lieu of lost interest on a principal grant. Such interest will be calculated in accordance with the rates prescribed from time to time by the SRA. This will normally be calculated from the day the loss which was the subject of the principal grant was incurred, up to the next working day after payment of the principal grant. Such payment will take into account that a grant is a gift and is therefore not subject to tax Where the application for the principal grant is in respect of a failure to redeem a mortgage, the SRA may also make a grant in respect of the additional interest Page 13 of 29

14 Annex 2 accrued to the mortgage account as a result of the defaulting practitioner's failure to redeem. Rule 17: Maximum grant 17.1 Subject to rule 24 the maximum grant that may be made is 2million. Rule 18: Recovery and subrogation 18.1 Where a grant is made otherwise than by way of loan or if by way of a loan repayment of the loan is waived or otherwise the borrower has failed to repay part or all of the loan, the Society shall be subrogated to the rights and remedies of the person to whom or on whose behalf the grant is made (the recipient) to the extent of the amount of the grant. In such event the recipient shall if required by the SRA whether before or after the making of a grant and upon the SRA giving to the recipient a sufficient indemnity against costs, prove in any insolvency and/or winding-up of the defaulting practitioner and sue for recovery of the loss in the name of the recipient but on behalf of the Society. The recipient shall also comply with all proper and reasonable requirements of the SRA for the purpose of giving effect to the Society's rights and shall permit the SRA to have conduct of such proceedings. Rule 19: Reduction in grants 19.1 Where an applicant or the applicant's servant or agent has contributed to the loss as a result of his, her or its activities, omissions or behaviour whether before, during or after the event giving rise to the application, the SRA may, in the exercise of discretion and to the extent that such activity, omission or behaviour has contributed to the loss, reduce the amount of any grant that may be authorised or reject the application in its entirety. Rule 20: Deduction from grants 20.1 The SRA may deduct from any grant the costs that would have been legally due to the defaulting practitioner so that the applicant will not be in a better position by reason of a grant than he, she or it would otherwise have been in The SRA may within its discretion deduct from any grant all monies already recovered by an applicant and monies which either will be or should have been recovered. Rule 21: Refusal of an application 21.1 If the SRA refuses to make a grant of either the whole or part of the amount applied for, the applicant will be informed in writing of the reasons for the decision. Page 14 of 29

15 Annex The fact that an application has been rejected does not prevent a further application being submitted provided that substantial new relevant evidence, information or submissions are produced in support of the new application. Rule 22: Appeals 22.1 Should the applicant wish to appeal against refusal of an application, written notice of intention to appeal must be delivered to the SRA within thirty days of the date of receipt of the decision, which shall be regarded as the day following the date of the written communication of the decision. Such notice must be accompanied by details of the grounds of appeal together with any additional evidence in support. Rule 23: Notice of requirements 23.1 Any requirement of the SRA under these rules will be communicated in writing. Rule 24: Waivers 24.1 The SRA may waive any of the provisions of these rules except rules 14 and 21 to 25. Part 4: Rule 25: Repeals and commencement provisions Repeals and commencement 25.1 These rules shall come into effect on 6 October 2011, whereupon the Solicitors' Compensation Fund Rules 2009 ("the 2009 Rules") shall cease to have effect save in respect of applications submitted before that date, which shall continue to be subject to the 2009 Rules. Page 15 of 29

16 Annex 3 Section 69 Order: modification of the Solicitors Regulation Authority Compensation Fund A consultation paper under section 70 of the Legal Services Act 2007 on proposals to modify the Solicitors Act 1974 for the purposes of the Law Society making compensation arrangements This consultation will close on 13 July 2012 Page 16 of 29

17 Annex 3 Contents Introduction... 1 Proposed changes to primary legislation... 2 How to respond... 4 Annex A draft section 69 order Page 17 of 29

18 Annex 3 Introduction 1. The Legal Services Board (the LSB ) is one of the organisations created by the Legal Services Act 2007 (the LSA ) and is responsible for overseeing legal regulators, (referred to as the approved regulators ( ARs ) in the LSA) in England and Wales. The LSB s mandate is to ensure that regulation in the legal services sector is carried out in the public interest and that the interests of consumers are placed at the heart of the system. The LSA gives the LSB and the ARs the same regulatory objectives and a requirement to have regard to the better regulation principles. 2. The LSA also makes provision for approved regulators to apply to the LSB to become designated as licensing authorities ( LAs ). As a licensing authority they may issue licences to legal services business that have some element of non-lawyer ownership commonly referred to as alternative business structures ( ABS ). 3. The Law Society acting through its regulatory arm the Solicitors Regulation Authority ( SRA ) and the Council for Licensed Conveyancers ( CLC ) have been designated as LAs able to regulate ABS. This consultation relates to the statutory basis of the SRA. 4. One of the powers that the LSB has is to make recommendations to the Lord Chancellor under section 69 of the LSA. Under that section the Lord Chancellor may by order modify, or make other provision relating to, the functions of an approved regulator.1 This can include modifying provisions made by or under any enactment, instrument or document.2 5. Any order made by the Lord Chancellor under section 69 of the LSA must be made by statutory instrument3 and this must be through the affirmative procedure4 i.e. approved by both the House of Commons and the House of Lords to become law.5 Section 69 sets out a number of grounds under which a recommendation may be made. Section 70 requires that any modification may only be done with the consent of the bodies that the order relates to and only after a draft of the Order has been published for comment. This consultation contains a draft Order at Annex A. 1 LSA 2007 s69(1) 2 LSA 2007 s69(6) 3 LSA 2007 s204(1) 4 LSA 2007 s206(4)(h) Page 18 of 29

19 Annex 3 Proposed changes to primary legislation 6. The Law Society (acting through the SRA) has powers under the Solicitors Act 1974 ( SA ) and the Administration of Justice Act 1985 ( AJA ) to regulate solicitors and solicitor s firms (recognised bodies). On becoming a LA the SRA received more powers that related to the regulation of ABS. 7. Prior to the SRA applying for designation as a LA the LSB worked closely with the SRA to ensure that the underlying legislation is sufficient to meet the needs of the regulatory framework. The requirements of the regulatory framework is set out in the Legal Services Act 2007 and includes a requirement to have suitable compensation arrangements. 8. The SRA already has powers to run a compensation scheme under the SA for sole practitioner solicitors and recognised bodies. The SRA decided that the best approach when acting as a LA was to extend the current compensation fund to cover ABS firms. Given the statutory basis for the existing compensation fund an Order was made under section 69 in 2011 (the 2011 Order ) to modify the basis of the Law Society s compensation fund so that it was also able to receive contributions from ABS firms and pay out compensation grants to the clients of ABS firms. 9. However, as the SRA had indicated and announced that it was undertaking a comprehensive review of the compensation fund, a sunset clause was included in the 2011 Order. This meant that the relevant clauses of the 2011 Order would expire on 31 December 2012, and the Law Society would no longer be able to extend its compensation scheme to cover claims arising from ABS. The SRA consented to this time limited extension. 10. After further consideration the SRA decided that its review should be delayed until it was able to gather robust evidence on the types and scale of claims on the compensation fund that ABS firms would be likely to cause. In order for the current compensation arrangements to remain in place after 31 December 2012 a new order is required to be passed this year. 11. Given the need for a new Order to replace the expiring 2011 Order, two options were considered. The first was to extend the time period of the current sunset clause to allow more time for the SRA to complete its review. The other option was to remove the time based element of the order and make the change permanent. The second option is preferred. 12. There are two reasons for favouring a permanent change. The first is that there will need to be some statutory basis for the compensation fund on an ongoing basis. The LSB is beginning work to look at the wider issue of the statutory basis for compensation funds across current and future regulators. This will require policy work needed to understand the different needs of the 3 different regulators and how these can best be delivered. This may result in a different set of powers that may be preferred to underpin the SRA s compensation fund and other regulator s compensation funds. 13. The second is that while the review will take place over the next two years outcome may lead to various changes, the timing of which cannot be predicted ahead of the review. The SRA has stated that it requires further information on the nature and risks of the ABS it will regulate before it can properly assess the claim profile of the compensation fund. The Page 19 of 29

20 Annex 3 compensation fund may also need to be revised if the SRA begins regulating non-solicitor authorised persons. 14. Given the uncertainty surrounding the timing of the SRA s review and the ongoing need for adequate compensation arrangements, the LSB is of the view that the best proposal is to continue the current arrangements until an alternative is developed. 15. This proposal has not been consulted on by the SRA, as would be in line with our usual approach to section 69 Orders. Due to the lack of time before the current arrangements cease to have effect, the SRA concluded that its stakeholders would have adequate opportunity to respond to its proposals in the course of the LSB s consultation. The LSB considers this to be appropriate given that the change is a continuation of the status quo which was consulted on in the development of the 2011 Order and was met with broad support. 16. The draft statutory instrument that would make the change (at Annex A). We welcome comments on all parts of the draft section 69 order. The Ministry of Justice has advised us that no impact assessment is required for this Order. 17. We consider that this consultation satisfies the requirements of s70 of the Legal Services Act 2007 to publish a draft Order before making a recommendation. Questions 1) What are your views on the proposal to enable the SRA to operate a single compensation fund for ABS and non-abs? 2) Do you agree with the LSB s preferred approach to the drafting of the Order? 3) Do you have any comments about the drafting of the SI on this issue? Page 20 of 29

21 Annex 4 Section 69 Order: modification of the Solicitors Regulation Authority Compensation Fund Summary of responses to consultation and decision document on proposals to make a recommendation to modify the Solicitors Act 1974 for the purposes of the Law Society making compensation arrangements Page 21 of 29

22 Annex 4 Contents Introduction... 1 A single compensation fund for ABS and non-abs... 2 Consultation responses... 3 LSB s decision... 4 Annex A draft section 69 order... 6 Page 22 of 29

23 Annex 4 Introduction 1. The Legal Services Board (the LSB ) is one of the organisations created by the Legal Services Act 2007 (the LSA ) and is responsible for overseeing legal regulators, (referred to as the approved regulators ( ARs ) in the LSA) in England and Wales. The LSB s mandate is to ensure that regulation in the legal services sector is carried out in the public interest and that the interests of consumers are placed at the heart of the system. The LSA gives the LSB and the ARs the same regulatory objectives1 and a requirement to have regard to the better regulation principles2. 2. One of the powers that the LSB has is to make recommendations to the Lord Chancellor under section 69 of the LSA. Under that section the Lord Chancellor may by order modify, or make other provision relating to, the functions of an approved regulator.3 This can include modifying provisions made by or under any enactment, instrument or document.4 On 6 December 2010, the LSB published its Statement of Policy on the use of section 69 orders.5 3. Any order made by the Lord Chancellor under section 69 of the LSA must be made by statutory instrument6 and this must be through the affirmative procedure7 i.e. approved by both the House of Commons and the House of Lords to become law.8 Section 69 sets out a number of grounds on which a recommendation may be made. Section 70 requires that any modification may only be done with the consent of the bodies that the Order relates to and only after a draft of the Order has been published for comment. 4. The LSA also makes provision for approved regulators to apply to the LSB to become designated as licensing authorities ( LAs ). As a licensing authority they may issue licences to legal services business that have some element of non-lawyer ownership commonly referred to as alternative business structures ( ABS ). 5. The Law Society acting through its regulatory arm the Solicitors Regulation Authority ( SRA ) and the Council for Licensed Conveyancers ( CLC ) have been designated as LAs able to regulate ABS. This decision document relates to the statutory basis of the SRA. 1 LSA s1(1) 2 LSA s3(3) and s28(3) 3 LSA s69(1) 4 LSA s69(6) LSA 2007 s204(1) 7 LSA 2007 s206(4)(h) 8 Page 23 of 29

24 Annex 4 6. On 14 June 2012 the LSB published a consultation document9 (under section 70(2) of the LSA) containing a draft section 69 order that, if passed, would enable the SRA to continue to operate a single compensation fund for ABS and non-abs entities that it regulates. This Order would amend an Order10 made under section 69 in 2011 (the 2011 Order ) that modified the basis of the SRA s compensation fund. 9http:// mpensation_fund_13_06_2012.pdf All the consultation responses can be found on our website: 12 Required by LSA s70(1) A single compensation fund for ABS and non-abs 7. The consultation document described the proposed recommendation, outlined the justification and included a draft statutory instrument. 8. We received three responses11 to the consultation paper from: The Solicitors Regulation Authority (SRA) The Law Society ILEX Professional Standards (IPS) 9. This document sets out a summary of those responses and our consideration of them. In considering the responses and in deciding the recommendation to the Lord Chancellor, we have had regard to our Statement of Policy on the use of section 69 orders. A draft order is annexed to this recommendation at Annex A. 10. This proposal was not previously consulted on by the SRA, this is not in line with the LSB s usual approach to section 69 Orders. Due to the lack of time before the current arrangements cease to have effect, the SRA concluded that its stakeholders would have adequate opportunity to respond to its proposals in the course of the LSB s consultation. The LSB considers this to be appropriate given that the Order, if passed, will result in a continuation of the status quo which was consulted on in the development of the 2011 Order and was met with broad support. 11. In making the recommendation the LSB has received the required explicit consent12 of the SRA, which has the necessary delegated authority from the Law Society as Approved Regulator. 12. The SRA already has powers to run a compensation scheme under the Solicitors Act 1974 for sole practitioner solicitors and recognised bodies. The SRA decided that the best approach when acting as a LA was to extend the current compensation fund to cover ABS firms. Given the statutory basis for the existing compensation fund an Order13 was made under section 69 in 2011 (the 2011 Order ) to modify the basis of the SRA s compensation fund so that it was also able to make rules about contributions from ABS firms and pay out compensation grants to the clients of ABS firms. Page 24 of 29

25 Annex However, as the SRA had indicated and announced that it was undertaking a comprehensive review of the compensation fund, a sunset clause was included in the 2011 Order. This meant that the relevant clauses of the 2011 Order would expire on 31 December 2012, and the SRA would no longer be able to require contributions to and make grants from its compensation scheme to cover claims arising from ABS. 14. After further consideration the SRA decided that its review should be delayed until it was able to gather robust evidence on the types and scale of claims on the compensation fund that ABS firms would be likely to cause. In order for the current compensation arrangements to remain in place after 31 December 2012 a new Order is required to be in force this year. 15. The statutory basis of the current compensation fund for traditional law firms means that, without alterations to the Solicitors Act 1974, the SRA cannot continue to extend its use to provide protection for consumers who use ABS and would have to find an alternative approach. Given the SRA s impending review that would not be an effective use of its resources Consultation responses 16. ILEX Professional Standards supported the proposals made in the consultation. It noted its interest in the LSB s wider work that will look at the underlying powers of all regulators. It expressed its interest in using a section 69 Order to create a blanket permission for all regulators to make arrangements related to compensation funds. IPS had no comment on the drafting of the Order. 17. The Law Society in its consultation response set out its view that the sunset clause in the 2011 Order was included for the additional reason that it was not clear whether it was appropriate for ABS and other firms to be covered by the same compensation fund and that the inclusion of the sunset clause would ensure that the issue was specifically considered in the future. The Law Society is of the view that a requirement for a formal review should remain rather than a review at the discretion of the SRA Board. 18. The Law Society supported the introduction of a new section 69 Order but urged the LSB to add a further two years instead of removing the sunset provision. This would have the effect of ending the current arrangements on 31 December The Law Society did not comment further on the drafting of the Order. 19. The SRA agreed with the explanation of the background of this consultation. For the short term, the SRA indicated that it was necessary for the SRA compensation fund to continue to cover ABS firms as the establishment costs of a separate fund for ABS would be prohibitively high. For the longer term, the SRA will review the body of ABS firms and the risks that may lead to compensation claims. It states that it is not in a position to set out its preferred long term arrangements for ABS compensation. It therefore concludes that making a further section 69 Order is a necessary measure. 20. The SRA strongly agreed with the LSB s preferred approach of removing the sunset clause and making the change permanent. The SRA agreed with the drafting of the Order. Page 25 of 29

26 Annex 4 LSB s decision 21. This consultation, while primarily technical, raises a number of issues about compensation funds in the legal services market. However, it remains the case that in order to ensure that there are appropriate compensation arrangements for consumers of SRA regulated ABS after 31 December 2012 an Order needs to be made. 22. The LSB has some sympathy with the Law Society s position that the current sunset clause should be replaced with another longer one. However, to try to avoid a situation where there is insufficient information to make sensible long term provision for compensation arrangements, on balance, we consider that the change should not be time bound. The legislative process required to make this type of modification would require policy decisions to be made in 2013 for implementation on 1 January 2015, this may still be too soon for long term solutions to be found. Even if a longer period was chosen there remains the possibility that the evidence for a different long term solution may not be found and may require yet another extension to the sunset clause. 23. In its response IPS highlighted the wider work the LSB is undertaking. It is right that other regulators should also be thinking about what powers they need to meet the requirements for appropriate compensation arrangements. It is likely that there will be future section 69 Orders about compensation funds, although the IPS proposal for a general power is not possible given the requirement for consent by all the parties in LSA section The LSB supports the SRA s review of the structure of its compensation arrangements and expects to see public indications of its progress against its commitments to review. 25. Given the consultation responses the Board is content to recommend that the Lord Chancellor make an Order under section 69. No comments were received about the draft Order annexed to the consultation paper and no changes have been made. The Order that the Lord Chancellor is recommended to make is attached at Annex A of this document. 14 LSA s70(1) Page 26 of 29