(c) take any further action under any other provision of this Part (except this section), in relation to it. (2) Where a complaint referred to in section 2(1) is made prematurely, the Commission need not take any further action under this Part in relation to the complaint (except the giving of notice to the complainer, the practitioner and any other person as may be required by rules made under section 32(1)). (3) For the purposes of subsection (1) or section 9A(3), a complaint is not made timeously where— (a) rules made under section 32(1) fix time limits for the making of complaints; (b) the complaint is made after the expiry of the time limit applicable to it; (c) the Commission does not extend the time limit in accordance with the rules. (4) For the purposes of subsection (2) or section 9A(2), a complaint is made prematurely where— 6 Legal Profession and Legal Aid (Scotland) Act 2007 - Keeling schedule (a) the complainer has not previously communicated the substance of it to the practitioner, the practitioner's firm or, as the case may be, where the practitioner is an employee of another practitioner that other practitioner (referred to in this Part as the “employing practitioner”) the employing practitioner and given the practitioner, the firm or the employing practitioner what the Commission considers is a reasonable opportunity to deal with it; (b) rules made under section 32(1) either— (i) do not provide for circumstances in which the Commission will take the steps and further action referred to in that subsection; or (ii) do provide for such circumstances but none is applicable in relation to the complaint. [316] (5) Where the circumstances referred to in subsection (1) or (2) apply, the Commission must give notice in writing to the complainer and practitioner to that effect. (6) Where the circumstances referred to in subsection (2) apply, notice under subsection (5) must specify whether or not the Commission is proceeding to take the preliminary steps referred to in section 2(4). 5 Determining nature of complaint … 6 Complaint determined to be conduct complaint (1) This section applies where, or to the extent that, the Commission— (a) determines under section 2(1A)(a) that a complaint is a conduct complaint, and (b) proceeds to determine under section 2(4) whether the complaint is frivolous, vexatious or totally without merit and determines that it is none of these things. (1) This section applies where the Commission determines that a complaint referred to in section 2(1) or 2A(1) [317] is— (a) wholly a conduct complaint, or (b) includes one or more elements constituting a conduct complaint. (2) The Commission must— (a) remit the complaint (or the part of the complaint constituting a conduct complaint) to the relevant professional organisation to deal with (and give to the organisation any material which accompanies the conduct complaint); (b) give notice in writing to the complainer and the practitioner by sending to each of them a copy of the determination under section 2(1A)(a) and specifying— (i) the reasons for the determination; (ii) that the conduct complaint is being remitted under this section for investigation and determination by the relevant professional organisation; (iii) the relevant professional organisation to which it is being remitted; (iv) that the relevant professional organisation is under a duty under this Act to deal with the conduct complaint. 7 Legal Profession and Legal Aid (Scotland) Act 2007 - Keeling schedule (3) It does not matter for the purpose of subsection (1) (and the application of this section) whether the Commission’s determination mentioned in that subsection follows its earlier determination that the complaint is a services complaint (to any extent) and, having investigated the complaint, the Commission subsequently determines that it is instead a conduct complaint (to any extent). 7 Services complaint: notice (1) This section applies where, or to the extent that, the Commission— (a) determines under section 2(1A)(a) that a complaint is a services complaint, and (b) proceeds to determine under section 2(4) whether the complaint is frivolous, vexatious or totally without merit and determines that it is none of these things. (2) The Commission must give notice in writing to the complainer and the practitioner by sending to each of them a copy of the determination under section 2(1A)(a) and specifying the reasons for the determination. 7A Complaint determined to be a regulatory complaint (1) This section applies where the Commission determines that a complaint referred to in section 2(1) or 2A(1) [320] is— (a) wholly a regulatory complaint, or (b) includes one or more elements constituting a regulatory complaint. (2) The Commission must remit the complaint (or the part of the complaint constituting a regulatory complaint) to the relevant professional organisation to deal with (and give to the organisation any material which accompanies the regulatory complaint). (3) It does not matter for the purpose of subsection (1) (and the application of this section) whether the Commission’s determination mentioned in that subsection follows its earlier determination that the complaint is a services complaint (to any extent) and, having investigated the complaint, the Commission subsequently determines that it is instead a regulatory complaint (to any extent). 8 Services complaint: local resolution or mediation (1) This section applies where the Commission— (a) determines under section 2(1A)(a) that a complaint by or on behalf of a person referred to in section 2(2)(b)(i) is a services complaint, and (b) proceeds to determine under section 2(4) whether the complaint is frivolous, vexatious or totally without merit and determines that it is none of these things. (1) Subsection (2) applies where the Commission determines that a complaint referred to in section 2(1) that is made by or on behalf of a person referred to in section 2(2)(b)(i)— (a) constitutes (in whole or in part) a services complaint, and (b) either— (i) the complaint has been made prematurely (within the meaning of section 4(4)), or 8 Legal Profession and Legal Aid (Scotland) Act 2007 - Keeling schedule (ii) the practitioner, the practitioner’s firm or the employing practitioner has made no attempt, or an insufficient attempt, to achieve a negotiated settlement with the complainer. (2) Where the Commission considers that either— (a) the complaint has been made prematurely (within the meaning of section 4(4)); or (b) the practitioner, the practitioner's firm or the employing practitioner has made no attempt, or an insufficient attempt, to achieve a negotiated settlement with the complainer, the Commission may, by notice in writing to the complainer and the practitioner refer the complaint back to the practitioner, the practitioner's firm or, as the case may be, the employing practitioner requesting that the practitioner, the firm or the employing practitioner attempt to achieve such a [318] settlement a negotiated settlement with the complainer. (3) Where the Commission refers a complaint back to the practitioner, the practitioner's firm or the employing practitioner under subsection (2), it may, by notice in writing, require the practitioner, the firm or the employing practitioner to give, before the end of such period being not less than 21 days as the notice specifies, an account and explanation of the steps which the practitioner, firm or employing practitioner has taken to attempt to achieve a negotiated settlement. (4) Where the Commission considers it appropriate to do so, it may, by notice in writing to the complainer and the practitioner, offer to mediate in relation to the complaint. (5) The Commission may enter into mediation in relation to a complaint only if both the complainer and the practitioner accept the offer made under subsection (4). (6) The Commission must discontinue mediation in relation to a complaint if either the complainer or the practitioner withdraws consent to the mediation and may do so in any other circumstances; and, if mediation is discontinued, the Commission must give notice in writing to the complainer and the practitioner of its decision. 9 Services complaint: Commission's duty to investigate and determine (1) Where— (a) the Commission does not refer a services complaint back to the practitioner, the practitioner's firm or the employing practitioner under section 8(2) (because it considers that the practitioner, firm or employing practitioner has made a sufficient attempt to achieve a negotiated settlement); (b) the Commission refers a services complaint back to the practitioner, the practitioner's firm or the employing practitioner under that section but— (i) no attempt to achieve a negotiated settlement takes place; (ii) such an attempt takes place but is discontinued or a negotiated settlement is not accepted by both the practitioner and the complainer; (c) mediation by virtue of section 8(5) in relation to the complaint— (i) does not take place; (ii) takes place but is discontinued or the outcome of the mediation is not accepted by both the complainer and the practitioner; 9 Legal Profession and Legal Aid (Scotland) Act 2007 - Keeling schedule (d) the Commission determines under section 2(1A)(a) that a complaint by or on behalf of any person referred to in sub-paragraphs (ii) to (viii) of section 2(2)(b) is a services complaint (in whole or in part), the Commission must[, subject to] this section and [480] section 15(2) and (5), investigate the complaint (or the part of the complaint constituting a services complaint) and after giving the complainer and the practitioner an opportunity to make representations, subject to subsections (2) to (4) (7) [481], determine it by reference to what the Commission considers is fair and reasonable in the circumstances. (1A) The Commission may decide— (a) to discontinue the investigation of a services complaint; (b) to reinstate the investigation of a discontinued services complaint. (1B) Where the Commission discontinues or reinstates the investigation of a services complaint it must give notice in writing to the complainer and the practitioner and specify the reasons for the decision. (2) Where the complainer is a person referred to in section 2(2)(b)(i) the Commission must may, subject to subsection (3), propose to the practitioner and the complainer a settlement as respects the complaint which it considers is fair and reasonable in the circumstances. (3) Where the practitioner was, at the time the services were provided, an employee of an employing practitioner, a proposal under subsection (2) to the practitioner and the complainer must also be made to the employing practitioner. (4) Where the practitioner and the complainer, and where subsection (3) applies the employing practitioner, accept a settlement proposed by the Commission under subsection (2) as respects the complaint, the Commission is not to determine the complaint under subsection (1). (5) Where the practitioner (and, where subsection (3) applies, the employing practitioner) accepts a settlement proposed by the Commission under subsection (2) as respects the complaint but the complainer does not accept the settlement, the Commission may discontinue the investigation of the complaint and not determine it under subsection (1). [319] (6) If subsection (7) applies, the Commission may decide— (a) not to initiate the investigation of a services complaint and determine it under subsection (1), or (b) to discontinue the investigation of a services complaint and not to determine it under subsection (1). [319] (7) This subsection applies if— (a) the Commission considers that the practitioner, the practitioner’s firm or the employing practitioner has offered the complainer a settlement as respects the complaint (“the proposed settlement”) which the Commission considers is fair and reasonable in the circumstances, (b) the complainer has not accepted the proposed settlement, and (c) the Commission is satisfied that the proposed settlement will remain available for acceptance by the complainer for a period of up to 28 days after the complainer receives notice of the Commission’s decision under subsection (6). [319] 10 Legal Profession and Legal Aid (Scotland) Act 2007 - Keeling schedule 9A Services complaint: further provision (1) This section applies where the Commission is investigating a services complaint under section 9(1) and becomes aware of new information from which it determines that the complaint— (a) was made prematurely, (b) was not made timeously, or (c) is frivolous, vexatious or totally without merit. (2) If the complaint was made prematurely, the Commission need not take any further action in relation to it. (3) If the complaint was not made timeously, the Commission is not to take any further action in relation to it. (4) If the complaint is frivolous, vexatious or totally without merit, the Commission must reject it. (5) Where the Commission— (a) does not take any further action in relation to, or (b) rejects, a complaint under this section it must give notice in writing to the complainer and the practitioner and specify the reasons for the decision. 10 Commission upholds services complaint (1) Where the Commission makes a determination under section 9(1) upholding a services complaint, it may take such of the steps mentioned in subsection (2) as it considers fair and reasonable in the circumstances. (2) The steps are, subject to subsection (3)— (a) to determine that the amount of the fees and outlays to which the practitioner is entitled for the services provided to the client and to which the complaint relates, is to be— (i) nil; or (ii) such amount as the Commission may specify in the determination, and to direct the practitioner to comply or secure compliance with such of the requirements set out in subsection (5) as appear to the Commission to be necessary to give effect to the determination; (b) to direct the practitioner to secure the rectification at the practitioner's own expense of any such error, omission or other deficiency arising in connection with the services as the Commission may specify; (c) to direct the practitioner to take, at the practitioner's own expense, such other action in the interests of the complainer as the Commission may specify; (d) where the Commission considers that the complainer has been directly affected by the inadequate professional services, to direct the practitioner to pay compensation of such amount, not exceeding £20,000, as the Commission may specify to the complainer for loss, inconvenience or distress resulting from the inadequate professional services; 11 Legal Profession and Legal Aid (Scotland) Act 2007 - Keeling schedule (e) where the Commission considers that the practitioner may not have sufficient competence in relation to any aspect of the law or legal practice, to report the matter to the relevant professional organisation. (3) Where the practitioner was, at the time when the services were provided, an employee (referred to in this section as an “employee practitioner”) of an employing practitioner— (a) a direction under subsection (2)(a), (b) or (c) must be to the employing practitioner instead of the employee practitioner; (b) a direction under subsection (2)(d)— (i) may be to and direct either the employing practitioner or, if the Commission considers it appropriate, the employee practitioner to pay all of the compensation directed to be paid under that subsection in relation to the complaint concerned; (ii) may be to and direct the employee practitioner to pay such part of the total amount of compensation directed to be paid under that subsection in relation to the complaint concerned as the Commission considers appropriate and if it does so, must be to and direct the employing practitioner to pay the remainder of the total amount; (c) a copy of any report under subsection (2)(e) must be sent to the employing practitioner. (3ZA) Where the practitioner was, at the time when the services were provided, a partner of a firm, a direction under subsection (2)(c) may be given to the practitioner’s firm instead of the practitioner. [331] (3A) In the case where a direction under subsection (2)(c) is made to the employing practitioner or the practitioner’s firm [332], the direction may relate to systems operated by the employing practitioner or the practitioner’s firm [333] that affect the provision of professional services generally by the employing practitioner or the practitioner’s firm [334] where that is relevant to the complaint. (4) The Commission must, in considering what steps to take under subsection (2), take into account any— (a) prior direction by it under subsection (2)(d) that the employee practitioner concerned or, where subsection (3) applies, the employing practitioner, pay to the complainer an amount by way of compensation; (b) award of damages by the court to the complainer; (c) other compensation ordered (whether by determination, direction or otherwise) by a tribunal or other professional body to be paid to the complainer, (d) decision taken by a relevant professional organisation in respect of a conduct complaint, or a regulatory complaint, against the practitioner where the conduct complaint, or the regulatory complaint, arises from the same matter to which the services complaint relates, in relation to the subject matter of the complaint. (5) The requirements referred to in subsection (2)(a) are to— (a) refund, whether wholly or to any specified extent any amount already paid by or on behalf of the client in respect of fees and outlays of the practitioner in connection with the services; 12 Legal Profession and Legal Aid (Scotland) Act 2007 - Keeling schedule (b) waive, whether wholly or to any specified extent, the right to recover the fees and outlays. (6) Before making a determination in accordance with subsection (2)(a), the Commission may submit the practitioner's accounts for the fees and outlays to the Auditor of the Court of Session for taxation. (7) The Scottish Ministers may by order, after consulting— (a) the relevant professional organisations; (b) such groups of persons representing consumer interests as they consider appropriate, amend subsection (2)(d) by substituting for the amount for the time being specified in that subsection such other amount as they consider appropriate. 11 Fair and reasonable: matters to be taken into account by Commission In considering what is fair and reasonable in the circumstances, the Commission is to take into account the relevant law (including levels of damages awarded by courts in similar circumstances) and relevant codes...