Office of Public Sector Information
PART III continued
(1) In section 23 of the [1974 c. 47.] Solicitors Act 1974 (preparation of papers for probate etc. by unqualified persons), the following subsections shall be substituted for subsections (2) and (3)—
“(2) Subsection (1) does not apply to—
(a) a barrister;
(b) a duly certificated notary public;
(c) the Public Trustee;
(d) the Official Solicitor;
(e) any institution which—
(i) is authorised by the Bank of England, under Part I of the [1987 c. 22.] Banking Act 1987, to carry on a deposit-taking business ; and
(ii) satisfies the conditions mentioned in subsection (2A);
(f) any building society which—
(i) is authorised to raise money from its members by the Building Societies Commission under section 9 of the [1986 c. 53.] Building Societies Act 1986; and
(ii) satisfies those conditions;
(g) any insurance company which—
(i) is authorised under section 3 or 4 of the [1982 c. 50.] Insurance Companies Act 1982; and
(ii) satisfies those conditions;
(h) any subsidiary (as defined by section 736(1) of the [1985 c. 6.] Companies Act 1985) of a body falling within paragraph (e), (f) or (g)—
(i) whose business, or any part of whose business, consists of acting as trustee or executor; and
(ii) which satisfies those conditions.
(2A) The conditions are that the body is a member of, or otherwise subject to, a scheme which—
(a) has been established (whether or not exclusively) for the purpose of dealing with complaints about the provision of probate services; and
(b) complies with such requirements as may be prescribed by regulations made by the Lord Chancellor with respect to matters relating to such complaints.
(3) Subsection (1) also does not apply to—
(a) any act done by an officer or employee of a body corporate at a time when it is exempt from subsection (1) by virtue of any of paragraphs (e) to (h) of subsection (2) or by virtue of section 55 of the Courts and Legal Services Act 1990 (preparation of probate papers etc.); or
(b) any act done by any person at the direction and under the supervision of another person if—
(i) that other person was at the time his employer, a partner of his employer or a fellow employee; and
(ii) the act could have been done by that other person for or in expectation of any fee, gain or reward without committing an offence under this section.
(4) For the avoidance of doubt, where a person does any act which would constitute an offence under subsection (1) but for an exemption given to him by this section or by or under any other enactment, he shall not be guilty of an offence under section 22 by virtue of having done that act.”
(2) In section 115 of the [1981 c. 54.] Supreme Court Act 1981 (grants to trust corporations) the following subsection shall be added at the end—
“(4) Subsections (1) to (3) shall also apply in relation to any body which is exempt from the provisions of section 23(1) of the Solicitors Act 1974 (unqualified persons not to prepare papers for probate etc.) by virtue of any of paragraphs (e) to (h) of subsection (2) of that section.”
(3) If a person who applies for any grant of probate or letters of administration—
(a) makes a statement in his application, or supports his application with a document, which he knows to be false or misleading in a material particular; or
(b) recklessly makes a statement in his application, or supports his application with a document, which is false or misleading in a material particular,
he shall be guilty of an offence.
(4) Any person guilty of an offence under subsection (3) shall be liable—
(a) on conviction on indictment, to imprisonment for a term not exceeding two years or to a fine or to both;
(b) on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding the statutory maximum or to both.
(5) In subsection (3) “letters of administration” includes all letters of administration of the effects of deceased persons, whether with or without a will annexed, and whether granted for general, special or limited purposes.
(1) The provisions of section 23(1) of the [1974 c. 47.] Solicitors Act 1974 (preparation of papers for probate etc. by unqualified persons) shall not apply to any person to whom exemption from those provisions is granted by an approved body.
(2) An approved body may only grant such an exemption to a person who is one of its members and who satisfies it—
(a) that his business is, and is likely to continue to be, carried on by fit and proper persons or, in the case of an individual, that he is a fit and proper person;
(b) that he, and any person employed by him in the provision of probate services, is suitably trained;
(c) that satisfactory arrangements will at all times be in force for covering adequately the risk of any claim made against him in connection with the provision of probate services by him, however arising;
(d) that he is a member of, or otherwise subject to, a scheme which—
(i) has been established (whether or not exclusively) for the purpose of dealing with complaints about the provision of probate services; and
(ii) complies with such requirements as may be prescribed by regulations made by the Lord Chancellor with respect to matters relating to such complaints; and
(e) that he has in force satisfactory arrangements to protect his clients in the event of his ceasing to provide probate services.
(3) In this section “approved body” means a professional or other body which is approved by the Lord Chancellor under Schedule 9.
(4) The approval of any body under Schedule 9 may be revoked under that Schedule.
(1) Every justice shall have power to administer any oath or take any affidavit which is required for the purposes of an application for a grant of probate or letters of administration made in any non-contentious or common form probate business.
(2) A justice before whom any oath or affidavit is taken or made under this section shall state in the jurat or attestation at what place and on what date the oath or affidavit is taken or made.
(3) No justice shall exercise the powers conferred by this section in any proceedings in which he is interested.
(4) A document purporting to be signed by a justice administering an oath or taking an affidavit shall be admitted in evidence without proof of the signature and without proof that he is a justice.
(5) In this section—
“affidavit” has the same meaning as in the [1889 c. 10.] Commissioners for Oaths Act 1889;
“justice” means a justice of the peace;
“letters of administration” includes all letters of administration of the effects of deceased persons, whether with or without a will annexed, and whether granted for general, special or limited purposes; and
“non-contentious or common form probate business” has the same meaning as in section 128 of the [1981 c. 54.] Supreme Court Act 1981.
(1) Public notaries shall no longer be appointed to practise only within particular districts in England, or particular districts in Wales.
(2) It shall no longer be necessary to serve a period of apprenticeship before being admitted as a public notary.
(3) Accordingly, the following enactments relating to public notaries shall cease to have effect—
(a) section 2 of the [1801 c. 79.] Public Notaries Act 1801 (which provides that no person shall be admitted as a public notary unless he has served as an apprentice for seven years);
(b) section 1 of the [1833 c. 70.] Public Notaries Act 1833 (which restricts the requirement to serve an apprenticeship to London and an area of ten miles from the Royal Exchange);
(c) section 2 of the Public Notaries Act 1833 (appointment of public notaries to practise within particular districts in England);
(d) section 3 of the [1843 c. 90.] Public Notaries Act 1843 (which reduced the period of apprenticeship to five years);
(e) section 37 of the [1914 c. 91.] Welsh Church Act 1914 (appointment of public notaries to practise within particular districts in Wales); and
(f) section 29 of the [1969 c. 58.] Administration of Justice Act 1969 (which reduced the period of apprenticeship for public notaries in London).
(4) The Master may by rules make provision—
(a) as to the educational and training qualifications which must be satisfied before a person may be granted a faculty to practise as a public notary;
(b) as to further training which public notaries are to be required to undergo;
(c) for regulating the practice, conduct and discipline of public notaries;
(d) supplementing the provision made by subsections (8) and (9);
(e) as to the keeping by public notaries of records and accounts;
(f) as to the handling by public notaries of clients' money;
(g) as to the indemnification of public notaries against losses arising from claims in respect of civil liability incurred by them;
(h) as to compensation payable for losses suffered by persons in respect of dishonesty on the part of public notaries or their employees; and
(i) requiring the payment, in such circumstances as may be prescribed, of such reasonable fees as may be prescribed, including in particular fees for—
(i) the grant of a faculty;
(ii) the issue of a practising certificate by the Court of Faculties of the Archbishop of Canterbury; or
(iii) the entering in that court of a practising certificate issued under the [1974 c. 47.] Solicitors Act 1974.
(5) The repeal of section 2 of the Act of 1833 and section 37 of the Act of 1914 by this Act shall not affect any appointment made under either of those sections; but the Master may by rules make such provision as he considers necessary or expedient in consequence of either, or both, of those repeals.
(6) Rules made under subsection (5) may, in particular, provide for the grant by the Master of a new faculty for any person to whom the Notary Public (Welsh Districts) Rules 1924 applied immediately before the commencement of this section, in place of the faculty granted to him by the Clerk of the Crown in Chancery.
(7) Subsections (4) to (6) shall not be taken to prejudice—
(a) any other power of the Master to make rules; or
(b) any rules made by him under any such power.
(8) With effect from the operative date, any restriction placed on a qualifying district notary, in terms of the district within which he may practise as a public notary, shall cease to apply.
(9) In this section—
“Master” means the Master of the Faculties;
“the operative date” means the date on which subsection (1) comes into force or, if on that date the notary concerned is not a qualifying district notary (having held his faculty for less than five years)—
the date on which he becomes a qualifying district notary; or
such earlier date, after the commencement of subsection (1), as the Master may by rules prescribe for the purpose of this subsection;
“prescribed” means prescribed by rules made under this section; and
“qualifying district notary” means a person who—
holds a faculty as a notary appointed under section 2 of the Act of 1833 or section 37 of the Act of 1914; and
has held it for a continuous period of at least five years.
(10) Section 5 of the [1533 c. 21.] Ecclesiastical Licences Act 1533 (which amongst other things now has the effect of requiring faculties to be registered by the Clerk of the Crown in Chancery) shall not apply in relation to any faculty granted to a public notary.
(11) Nothing in this section shall be taken—
(a) to authorise any public notary to practise as a notary or to perform or certify any notarial act within the jurisdiction of the Incorporated Company of Scriveners of London or to affect the jurisdiction or powers of the Company; or
(b) to restrict the power of the Company to require a person seeking to become a public notary within its jurisdiction to serve a period of apprenticeship.
(1) In this section “a conditional fee agreement” means an agreement in writing between a person providing advocacy or litigation services and his client which—
(a) does not relate to proceedings of a kind mentioned in subsection (10);
(b) provides for that person’s fees and expenses, or any part of them, to be payable only in specified circumstances;
(c) complies with such requirements (if any) as may be prescribed by the Lord Chancellor; and
(d) is not a contentious business agreement (as defined by section 59 of the [1974 c. 47.] Solicitors Act 1974).
(2) Where a conditional fee agreement provides for the amount of any fees to which it applies to be increased, in specified circumstances, above the amount which would be payable if it were not a conditional fee agreement, it shall specify the percentage by which that amount is to be increased.
(3) Subject to subsection (6), a conditional fee agreement which relates to specified proceedings shall not be unenforceable by reason only of its being a conditional fee agreement.
(4) In this section “specified proceedings” means proceedings of a description specified by order made by the Lord Chancellor for the purposes of subsection (3).
(5) Any such order shall prescribe the maximum permitted percentage for each description of specified proceedings.
(6) An agreement which falls within subsection (2) shall be unenforceable if, at the time when it is entered into, the percentage specified in the agreement exceeds the prescribed maximum permitted percentage for the description of proceedings to which it relates.
(7) Before making any order under this section the Lord Chancellor shall consult the designated judges, the General Council of the Bar, the Law Society and such other authorised bodies (if any) as he considers appropriate.
(8) Where a party to any proceedings has entered into a conditional fee agreement and a costs order is made in those proceedings in his favour, the costs payable to him shall not include any element which takes account of any percentage increase payable under the agreement.
(9) Rules of court may make provision with respect to the taxing of any costs which include fees payable under a conditional fee agreement.
(10) The proceedings mentioned in subsection (1)(a) are any criminal proceedings and any proceedings under—
(a) the [1973 c. 18.] Matrimonial Causes Act 1973;
(b) the [1976 c. 50.] Domestic Violence and [1984 c. 42.] Matrimonial Proceedings Act 1976;
(c) the [1976 c. 36.] Adoption Act 1976;
(d) the [1978 c. 22.] Domestic Proceedings and Magistrates' Courts Act 1978;
(e) sections 1 and 9 of the [1983 c. 19.] Matrimonial Homes Act 1983;
(f) Part III of the [1984 c. 42.] Matrimonial and Family Proceedings Act 1984;
(g) Parts I, II or IV of the [1989 c. 41.] Children Act 1989; or
(h) the inherent jurisdiction of the High Court in relation to children.
(1) Nothing in this Part shall affect the right of a person who is represented in proceedings in the Supreme Court or the House of Lords under the [1988 c. 34.] Legal Aid Act 1988 to select his legal representative.
(2) The power to make regulations with respect to representation under section 2(7) or 32(8) of that Act shall not be exercised so as to provide that representation in any such proceedings may only be by a single barrister, solicitor or other legal representative (but that is not to be taken as restricting the power to make regulations under section 34(2)(e) of that Act).
(1) The Lord Chancellor may by regulations prescribe circumstances in which, and conditions subject to which, a practitioner who is qualified to practise in Scotland or Northern Ireland may, in such capacity as may be prescribed, exercise in England and Wales—
(a) prescribed rights of audience; or
(b) prescribed rights to conduct litigation,
without being entitled to do so apart from the regulations.
(2) The Lord Chancellor may by regulations make provision for the purpose of enabling practitioners who are qualified to practise in Scotland or Northern Ireland to become qualified to practise in England and Wales on terms, and subject to conditions, corresponding or similar to those on which practitioners who are qualified to practise in member States may become qualified to practise in that jurisdiction.
(3) Regulations made under subsection (1) may, in particular—
(a) prescribe any right of audience which may not be exercised by a person in England and Wales unless he is instructed to act together with a person who has that right of audience there;
(b) prescribe legal services which may not be provided by any person practising by virtue of the regulations;
(c) prescribe the title or description which must be used by any person practising by virtue of the regulations;
(d) provide for the means by which the qualification of any person claiming to be entitled to practise by virtue of the regulations is to be verified;
(e) provide for such professional or other body as may be prescribed to have power to investigate and deal with any complaint made against a person practising by virtue of the regulations.
(4) Regulations made under subsection (1) or (2) may modify any rule of law or practice which the Lord Chancellor considers should be modified in order to give effect to the regulations.
(5) In this section “practitioner” means—
(a) a member of the Bar of Northern Ireland or a solicitor of the Supreme Court of Northern Ireland or an advocate or solicitor in Scotland; and
(b) any person falling within such category as may be prescribed.
(1) Any rule of law which prevents a barrister from entering into a contract for the provision of his services as a barrister is hereby abolished.
(2) Nothing in subsection (1) prevents the General Council of the Bar from making rules (however described) which prohibit barristers from entering into contracts or restrict their right to do so.
(1) A person—
(a) who is not a barrister; but
(b) who lawfully provides any legal services in relation to any proceedings,
shall have the same immunity from liability for negligence in respect of his acts or omissions as he would have if he were a barrister lawfully providing those services.
(2) No act or omission on the part of any barrister or other person which is accorded immunity from liability for negligence shall give rise to an action for breach of any contract relating to the provision by him of the legal services in question.
(1) This section applies to any communication made to or by a person who is not a barrister or solicitor at any time when that person is—
(a) providing advocacy or litigation services as an authorised advocate or authorised litigator;
(b) providing conveyancing services as an authorised practitioner; or
(c) providing probate services as a probate practitioner.
(2) Any such communication shall in any legal proceedings be privileged from disclosure in like manner as if the person in question had at all material times been acting as his client’s solicitor.
(3) In subsection (1), “probate practitioner” means a person to whom section 23(1) of the [1974 c. 47.] Solicitors Act 1974 (unqualified person not to prepare probate papers etc.) does not apply.
(1) The following shall be inserted in the [1975 c. 65.] Sex Discrimination Act 1975 after section 35—
(1) It is unlawful for a barrister or barrister’s clerk, in relation to any offer of a pupillage or tenancy, to discriminate against a woman—
(a) in the arrangements which are made for the purpose of determining to whom it should be offered;
(b) in respect of any terms on which it is offered; or
(c) by refusing, or deliberately omitting, to offer it to her.
(2) It is unlawful for a barrister or barrister’s clerk, in relation to a woman who is a pupil or tenant in the chambers in question, to discriminate against her—
(a) in respect of any terms applicable to her as a pupil or tenant;
(b) in the opportunities for training, or gaining experience, which are afforded or denied to her;
(c) in the benefits, facilities or services which are afforded or denied to her; or
(d) by terminating her pupillage or by subjecting her to any pressure to leave the chambers or other detriment.
(3) It is unlawful for any person, in relation to the giving, withholding or acceptance of instructions to a barrister, to discriminate against a woman.
(4) In this section—
“barrister’s clerk” includes any person carrying out any of the functions of a barrister’s clerk; and
“pupil”, “pupillage”, “tenancy” and “tenant” have the meanings commonly associated with their use in the context of a set of barristers' chambers.
(5) Section 3 applies for the purposes of this section as it applies for the purposes of any provision of Part II.
(6) This section does not apply to Scotland.”
(2) The following shall be inserted in the [1976 c. 74.] Race Relations Act 1976 after section 26—
(1) It is unlawful for a barrister or barrister’s clerk, in relation to any offer of a pupillage or tenancy, to discriminate against a person—
(a) in the arrangements which are made for the purpose of determining to whom it should be offered;
(b) in respect of any terms on which it is offered; or
(c) by refusing, or deliberately omitting, to offer it to him.
(2) It is unlawful for a barrister or barrister’s clerk, in relation to a pupil or tenant in the chambers in question, to discriminate against him—
(a) in respect of any terms applicable to him as a pupil or tenant;
(b) in the opportunities for training, or gaining experience which are afforded or denied to him;
(c) in the benefits, facilities or services which are afforded or denied to him; or
(d) by terminating his pupillage or by subjecting him to any pressure to leave the chambers or other detriment.
(3) It is unlawful for any person, in relation to the giving, withholding or acceptance of instructions to a barrister, to discriminate against any person.
(4) In this section—
“barrister’s clerk” includes any person carrying out any of the functions of a barrister’s clerk; and
“pupil”, “pupillage”, “tenancy” and “tenant” have the meanings commonly associated with their use in the context of a set of barristers' chambers.
(5) This section does not apply to Scotland.”
(1) The following shall be inserted in the [1975 c. 65.] Sex Discrimination Act 1975 after section 35A (as inserted by this Act)—
(1) It is unlawful for an advocate, in relation to taking any person as his pupil, to discriminate against a woman—
(a) in the arrangements which he makes for the purpose of determining whom he will take as his pupil;
(b) in respect of any terms on which he offers to take her as his pupil; or
(c) by refusing, or deliberately omitting, to take her as his pupil.
(2) It is unlawful for an advocate, in relation to a woman who is a pupil, to discriminate against her—
(a) in respect of any terms applicable to her as a pupil;
(b) in the opportunities for training, or gaining experience, which are afforded or denied to her;
(c) in the benefits, facilities or services which are afforded or denied to her; or
(d) by terminating the relationship or by subjecting her to any pressure to terminate the relationship or other detriment.
(3) It is unlawful for any person, in relation to the giving, withholding or acceptance of instructions to an advocate, to discriminate against a woman.
(4) In this section—
“advocate” means a member of the Faculty of Advocates practising as such; and
“pupil” has the meaning commonly associated with its use in the context of a person training to be an advocate.
(5) Section 3 applies for the purposes of this section as it applies for the purposes of any provision of Part II.
(6) This section does not apply to England and Wales.”
(2) The following shall be inserted in the [1976 c. 74.] Race Relations Act 1976 after section 26A (as inserted by this Act)—
(1) It is unlawful for an advocate, in relation to taking any person as his pupil, to discriminate against a person—
(a) in the arrangements which he makes for the purpose of determining whom he will take as his pupil;
(b) in respect of any terms on which he offers to take any person as his pupil; or
(c) by refusing, or deliberately omitting, to take a person as his pupil.
(2) It is unlawful for an advocate, in relation to a person who is a pupil, to discriminate against him—
(a) in respect of any terms applicable to him as a pupil;
(b) in the opportunities for training, or gaining experience, which are afforded or denied to him;
(c) in the benefits, facilities or services which are afforded or denied to him; or
(d) by terminating the relationship or by subjecting him to any pressure to terminate the relationship or other detriment.
(3) It is unlawful for any person, in relation to the giving, withholding or acceptance of instructions to an advocate, to discriminate against any person.
(4) In this section—
“advocate” means a member of the Faculty of Advocates practising as such; and
“pupil” has the meaning commonly associated with its use in the context of a person training to be an advocate.
(5) This section does not apply to England and Wales.”.
Courts and Legal Services Act 1990