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NOTARIES (QUALIFICATION) RULES 1998 as amended by the Notaries (Access to

Justice Act) (Consequential Provisions) Rules 1999

Part I : Preliminary

1 Citation and Commencement

1.1 These rules may be cited as the Notaries (Qualification) Rules 1998.

1.2 Part I of these rules and rules 7 and 8 with the exception of rule 8.1 shall come into force on the date these rules are made and the remaining rules shall come into force on the 1st day of February 1999.

2 Interpretation

In these rules:

'the Board' means the Qualifications Board established under rule 7;

'the Company' means the Incorporated Company of Scriveners of London;

'Degree' means a qualification awarded following a post secondary course of at least three years' duration (or of an equivalent duration part time) at a university or an establishment of higher education or an establishment of similar level;

'the Directive' means the Council Directive of 21st December 1988 (89/48/EEC);

'the Examination Regulations' means the Regulations made by the Master on 8th July 1991 pursuant to his Order dated 1st July 1991;

'the Faculty Office' means the Registry of the Court of Faculties;

'the Master' means the Master of the Faculties;

'the Operative Date' means the 1st day of February 1999; and

'the Registrar' means the Registrar of the Court of Faculties.

Part II : General Provisions as to Admission

3 Qualification for Admission as a Notary Public

No person shall be admitted as a notary public to practise in England and Wales unless such person:

3.1 Is at least 21 years of age and has satisfied the requirements of these rules,

3.2 Has taken the oath of allegiance and the oath required by Section 7 of the Public Notaries Act 1843 and;

3.3 Is, except where such application is made under rule 4 (ecclesiastical notaries) or rule 9 (European Economic Area notaries) either a solicitor of the Supreme Court, or a barrister at law or holds a Degree.

4 Ecclesiastical Notaries

Any person appointed as registrar of either of the provinces of Canterbury or York, as registrar to the Archbishop of Wales, as legal adviser to the General Synod to the Church of England, as legal secretary to the Governing Body of the Church in Wales, as registrar of any diocese in England or Wales, as an officer of the ecclesiastical court in Jersey or Guernsey or (being a solicitor) as chapter clerk in any cathedral church in England and Wales, or as the deputy to any such officer, may apply for admission as a notary public for ecclesiastical purposes only, upon satisfying the Master of the fact of such an appointment.

5 General Notaries

Any person who satisfies the requirements of rule 3 and who has obtained the qualifications required under Part III of these rules may apply for admission as a general notary to practise in England and Wales.

6 [Revoked]

Part III: Qualifications

7 Qualifications Board and Fees for Applications

7.1 There shall be established a Qualifications Board constituted in accordance with schedule 1.

7.2 The functions of the Board shall be:

7.2.1 To advise the Master whether a degree or other qualification should be approved by him for the purpose of these rules.

7.2.2 To advise the Master on the standard of the qualifications of any person applying for admission as a general notary under these rules.

7.2.3 To advise the Master on the qualifications and experience of persons applying for recognition that they are eligible for admission as a general notary under rule 9.

7.2.4 To advise any other body concerned with the administration or regulation of the notarial profession in England and Wales or any part of it on matters relating to qualifications and experience.

7.3 The Master may by Order delegate to the Board any of his functions under these rules relating to the approval or recognition of degrees, qualifications and experience.

7.4 The Master may from time to time by Order prescribe fees or the maximum fees which may be charged in respect of any application to the Master under these rules and such fees may be applied by the Faculty Office towards meeting the expenses of the Board but subject thereto the expenses of the Board and of its members shall be paid from and such fees shall form part of the general notarial

income of the Faculty Office.

8. Practical Qualifications

8.1 Any person wishing to be admitted as a general notary under rule 5 shall have followed and attained a satisfactory standard in a course or courses of studies covering all of the subjects listed in schedule 2.

8.2 Whether a particular course of studies satisfies the requirements of these rules and whether a person has obtained a satisfactory standard in that course shall be determined by the Master after seeking the advice of the Board.

8.3 The Master after seeking the advice of the Board may by order direct that the award of a particular qualification meets the requirements of these rules as to some or all of the subjects listed in schedule 2.

8.4 The Master may as a condition of making a direction under rule 8.3 require the body by which the qualification is awarded to issue those pursuing a course of studies leading to that qualification with such information about the notarial profession, these rules and other rules made by the Master and the Company as the Master may specify.

8.5 The Master may by Order add any subjects to the list in schedule 2 or remove any subjects from that list or alter any of the provisions of that schedule but before doing so he shall consult the Board.

9. European Economic Area Notaries

9.1 This rule applies to a person who:

(a) holds the office of notary public in a member state of the European Economic Area other then the United Kingdom,

(b) holds all the qualifications and has completed all the practical training necessary for appointment or admission to that office in such a member state but has not yet been so appointed or admitted, or

9.2 Any person to whom this rule applies may apply to the Master for recognition that he is qualified for the purposes of rule 10.1 for admission as a general notary to practise anywhere in England and Wales and such application shall be made to the Faculty Office in such form and accompanied by such information as the Master may from time to time by Order prescribe.

9.3 The Master shall after consultation with the Board examine any application made under rule 9.2 in accordance with the procedures set out in articles 3 and 4 of the Directive. If compensatory measures are required, the applicant may be required to pass an aptitude test in accordance with the derogation in the final sub-paragraph of article 4.

9.4 Where an application is made to the Master under rule 9.2 he shall determine the application as soon as possible and communicate the outcome to the applicant in a reasoned decision within four months of the production of all the certificates and documents relating to the applicant referred to in article 8.1 of the Directive.

9.5 If the Master refuses an application under rule 9.2 or has not determined the application within the time prescribed by rule 9.4 the Master shall be deemed to have refused an application for a faculty and the applicant may pursue the remedy provided for in the Ecclesiastical Licences Act 1533 and mentioned in section 5 of the Public Notaries Act 1843.

Part III : Procedure for Admission

10 Application for Admission

10.1 A person qualified for admission as a notary under these rules shall apply in writing to the Faculty Office on such form as the Master may from time to time specify.

10.2 The application shall be accompanied by:

(a) A certificate of fitness in such form as the Master may from time to time prescribe to be given by a notary public to the effect that the applicant is known to him and that having made due enquiry to the best of his knowledge and belief the applicant is a fit and proper person to be created a notary public, and;

(b) A certificate of good character in such form as the Master may from time to time prescribe to be given by a person who is qualified under paragraph 10.3 testifying to the good character, honesty, reliability, diligence and trustworthiness of the applicant and stating that the person giving the certificate knows of no reason why the applicant should not be created a notary public.

10.3 A person is qualified to give the certificate of good character required by paragraph 10.2(b) of this rule if he is a person of good standing and character, he has known the applicant for a period of not less than five years, he is not related to the applicant by blood, marriage or adoption, and he is not a professional partner, employer or employee of the applicant.

10.4 In the case of a person qualified under rule 4 the certificate of fitness shall further state that the applicant is conformable to the doctrine and discipline of the Church of England as by law established (or, in the case of a person qualified only by reason of holding an ecclesiastical appointment in Wales, the doctrine, discipline and constitution of the Church in Wales).

10.5 The application shall be accompanied by such fee as the Master may from time to time prescribe.

11 Publicity, Refusal of Applications and Admissions

11.1 The Master may give, or require an applicant to give, such publicity to an application made under rule 10 as in the circumstances appear to the Master to be necessary.

11.2 Any representations made to the Master following such publicity shall be notified to the applicant, and the Master shall consider any response thereto made by the applicant before deciding whether a faculty shall be granted.

11.3 Any decision by the Master to refuse an application under rule 10 shall be notified to the applicant by the Registrar in writing to enable the applicant to pursue (if so advised) the remedy provided for in The Ecclesiastical Licences Act 1533 and mentioned in Section 5 of the Public Notaries Act 1843.

11.4 Upon the Master deciding to grant an application under rule 10, the Registrar shall cause a faculty to pass the seal in accustomed form. The applicant shall appear personally before the Registrar to make the oaths mentioned in rule 3.2 and the Registrar shall then admit him by delivering the faculty to him and causing his name to be entered upon the roll of notaries. The Master may appoint a Commissioner to act in place of the Registrar for this purpose.

Part V : Transitional Provisions Repeals and Amendments

12 Transitional Provisions

12.1 Subject to rules 12.2 and 12.3 these rules shall not apply to any person who on the Operative Date has given notice under regulation 4 of the Examination Regulations and such person may if qualified make application under rule 9(2) of the Public Notaries (Qualification) Rules 1991 within two years of the Operative Date.

12.2 These rules shall apply to any person to whom rule 12.1 applies if he so requests in writing to the Faculty Office.

12.3 Any person who had, before the Operative Date, entered an apprenticeship agreement in accordance with Rule 5 of the Scriveners (Qualification) Rules 1991 may within five years of the Operative Date apply for admission under Rule 5 upon producing a certificate of freedom of the Incorporated Company of Scriveners of London and a certificate from the Clerk of that Company that he has passed Parts I and II of the examinations and completed the period of apprenticeship prescribed under the Scriveners (Qualification) Rules 1991.

13 Repeals and Savings

13.1 Save as provided in rule 12 the Public Notaries (Qualification) Rules 1991 and the Examination Regulations are hereby revoked.

13.2 Subject to the further Order of the Master the certificates of fitness and good character prescribed by the Master's Orders of 27th August 1992 and 13th September 1993 respectively shall be the certificates prescribed for the purposes of rule 10.2.1 of these rules

14 Notaries (Post-Admission) Rules 1991

The Notaries (Post-Admission) Rules 1991 shall be amended as follows:

14.1 In Rule 3(1) after the words "other than" there shall be inserted "Notaries to whom Rule 10 applies and".

14.2 The following additional rule shall be added:

"European Economic Area Notaries 10. The provisions of these Rules shall not apply to any Notary who, immediately prior to his admission, was recognised by the Master as qualified for admission under the provisions of rule 9 of the Notaries (Qualification) Rules 1998."

SCHEDULE 1

QUALIFICATIONS BOARD

1 The Board shall comprise not more than 10 persons appointed by the Master after consultation with the Company, the Society of Public Notaries of London, the Notaries' Society and the Association of Solicitor Notaries in Greater London and such other persons or bodies as the Master may consider appropriate.

2 The Master shall appoint one member of the Board to be Chairman for such period as the Master may determine.

3 Members of the Board, including the Chairman, shall hold office for such period as the Master may determine and may be removed from office by the Master at any time.

4 The Registrar shall act as Clerk to the Board or may appoint or nominate another person to act as Clerk in his place.

5 The Board shall meet as often as may be necessary and in any event not less than once each year.

6 The Board may delegate any of its functions under these rules to a subcommittee comprising not fewer than three of its members.

SCHEDULE 2

PRESCRIBED SUBJECTS

1. Public/Constitutional Law

Characteristics and sources of the constitution

The legislature

Introduction to the objectives and structure of the European Union

Implications of membership of the European Union

The citizen and the state

Administrative Law: control of administrative powers, including non-judicial

forms of control; judicial review

2. The Law of Property

The nature of legal and equitable interests

Principles relating to the transfer of legal estates and interest in land, and enforceable equitable contracts

Capacity and incapacity of individuals, corporations, charities and infants

Registered and unregistered land

Estates and interest in land: freehold, leases, mortgages, easements, covenants relating to land, licences

Trusts of land, the Trusts of Land and Appointment of Trustees Act, 1996, including, pre Act settled land, joint tenancies and tenancies in common

3. The Law of Contract

Formation of a contract: offer, acceptance, consideration, etc.

Contents of a contract: express and implied terms; rules on exemption clauses and unfair terms

Viciating factors: duress, undue influence, non-disclosure, misrepresentation, mistake

Discharge of contracts: performance, agreement, breach, frustration

Remedies: damages, specific remedies, etc.

4. The Law of the European Union

European institutional structures, functions and powers

Constitutional structures of the European Union; its law and the law-making process; the role of the European Court of Justice

Sources and hierarchy of law in the European Union

Relation of the Law of the European Union to national laws, and associated constitutional issues

Introduction to key aspects of the substantive law of the European Union, e.g. the internal market, competition law, free movement of labour, free movement of goods, etc.

5. Roman Law

Sources of law: legal development through the grant of new remedies. Equity jurists in Roman Law

Persons: family and marriage in Roman Law

Property: category of thing in Roman Law

Obligations: contracts, quasi-contracts and delicts

Succession

European legal history: the revival of Roman Law, Roman Law in England.

Developments in France, Germany and elsewhere

Unjustified enrichment

or Civil Law

The legal systems, institutions and principles of a modern Civil Law jurisdiction

6. Equity and the Law of Trusts

What the trust does

Creation of the trust: formalities, transfer to trustees, certainty

Powers of appointment

Discretionary trusts

Secret trusts

Constructive and resulting trusts

Charitable trusts

Appointment and removal of trustees

Trustees duty to maintain equality between beneficiaries

Maintenance and advancement

Powers of investment

Breach of Trust

Tracing and proprietory remedies

Specific performance and injunctions

7. Conflicts of Law

Structure of Conflict of Laws

Proof of foreign law

Domicile and residence

Jurisdiction of English Courts at common law

Staying of actions and restraint of foreign proceedings

Recognition and enforcement of foreign judgments at common law

Jurisdiction and judgments under the Brussels Convention

Obligations: Contract and Tort

Property: immovables and movable

Husband and wife, other family partnerships (unmarried partners), children

Wills and Succession in civil law and other jurisdictions

Renvoi

8. Conveyancing

A typical conveyancing transaction

Conflict of interests - between clients/client-lender. Reporting to client

Contract: formation and enforceability

Particulars of sale - property rights and incumbrances

Conditions of sale: title, vacant possession, time, price and chattels (apportionment), deposit, Standard Conditions and other special conditions

Pre contract searches and enquiries before contract. National "Protocol" Scheme

Tax implications: Capital Gains Tax, Inheritance Tax, Stamp Duty

Financing. Charges and Mortgages

From contract to completion - exchange methods, Requisitions on Title

Pre completion searches - nature and effect

Investigation of Title - registered and unregistered

Registration, Land Registration Act 1987

Conveyancing remedies

Post completion - redemption of mortgage and account to client

Conveyancing practice and the drafting of standard conveyancing documents

9. Business Law and Practice

Partnerships - characteristics of a partnership; partnership management and finance; liability of partners; termination of and retirement from a partnership Companies - limited companies and their formation; Directors and secretary; shareholders; company finance; disposal of shares; company meetings and resolutions

The law relating to the sale of goods and international sales

The European Union - the right to establish, to provide services, and free movement of goods; Treaty of Rome Articles 85 and 86

Insolvency - bankruptcy; company insolvency proceedings

10. Wills Probate and Administration

Wills: nature and validity, mental element, formal requirements, revocation, alteration, re-publication, revival, incorporation

Testamentary gifts: principles of construction, legacies and devises Intestate succession

Family provision

Principles of probate

Powers and duties of Personal Representatives

Administration, including grants of representation, dealing with the estate, oaths, Inland Revenue accounts, affidavit evidence, caveats, citations and other court proceedings, variation, disclosures and other post death changes

Distribution of the estate

Beneficiaries rights and remedies

Inheritance Tax, Capital Gains Tax, Income tax, taxation of trusts and settlements

The drafting of wills

11. Notarial Practice (including Bills of Exchange)

History, authority and organisation

Notarial equipment and records

Professional practice and records

Notarial statutes and rules

Notarial Acts - formalities, evidential status and executive force

Attestation of signatures

Execution of documents by individual and company documents

Powers of attorney

Registration of British ships and shipping protests

Bills of Exchange - definitions, time, acceptance, payment, dishonour