B2.2: Applying for waiver

All applications for waiver should be made on the relevant form (see the Forms and Fees related to Rule A5) and addressed to the Secretary of the Rules, Waivers and Guidance Sub-Committee.  Applications may be submitted by email to secrwgsc@lawscot.org.uk.

The Rules, Waivers and Guidance Sub-Committee typically meets on the first Thursday of each calendar month (subject to that being a business day and there being sufficient business for the Sub-Committee to consider).  For an application to be considered by the Sub-Committee all relevant information to be included in the application should be with the Secretary to the Sub-Committee no later than 5pm of the Wednesday of the week preceding the week during which the Sub-Committee is due to meet. 

The Secretary of the Sub-Committee (and in the absence of the Secretary certain other senior members of staff of the Society) may grant certain applications for waiver under authority delegated by the Sub-Committee but this is highly dependent on the precise circumstances and the safest course is to assume that any application may require to be considered at a meeting of the Sub-Committee and time the submission of the application accordingly.  It may not be possible to consider any application outwith the usual monthly meeting schedule.

Is a waiver competent?  Will it allow you to act in all the applicable circumstances?

Before applying for a waiver of any provision within Rule B2.2 you should consider whether the waiver sought, if granted, would be sufficient to allow you to act in the precise circumstances pertaining.   There are rules other than those at B2.2 which may be relevant– see, for example, the Standards of Conduct at B1 – in particular the requirements of B1.7 and B1.8.  Note that those rules are not capable of waiver and no waiver of any practice rule will relieve you of any obligations under any other applicable practice rule (and the Standards of Conduct apply at all times). 

There is clearly no point in applying for a waiver of one practice rule if acting would also breach another rule which cannot be (or has not been) waived. 

Is a waiver necessary?

Conversely, before applying for a waiver you should also consider whether the rules already permit you to act in the manner you wish without any waiver. A waiver will not be granted where it does not appear that the rule would otherwise prevent your acting.

Risk Management

It should be remembered that even the grant of a waiver does not indicate that it is necessarily good practice or effective risk management for you to act in all the circumstances which apply.  Further guidance is available on the website (see Guidance related to Rule B2.2) or from the Professional Practice Department of the Society.  The grant of a waiver obviously does not accord any immunity from complaints or claims.

When applying for a waiver you must have regard to your obligations under GDPR and the Data Protection Act 2018. 

You should not include the personal data of clients, prospective clients or third parties in any application for a waiver unless the sharing of that data with the Society is necessary to allow the Society to consider the application and you have complied with all of your obligations under GDPR and the 2018 Act. 

Note that it is rarely necessary to share the personal data of clients, prospective clients or third parties with the Society in this context.  The Society welcomes applications for waiver which fully outline the relevant facts and circumstances but adopt anonymisation or pseudonymisation techniques to minimise the sharing of personal data.  For example, clients or prospective clients can be referred to by reference to their role in the proposed transaction – e.g. ‘testator’ or’beneficiary’ without disclosing their names. Although the scenario will still need to be fully described and relationships between the proposed parties may still require to be disclosed it is usually possible to do that without identifying the clients or sharing their personal data. 

GDPR, Data Protection Act 2018. For information about how we use your personal data see our privacy policy.

Overarching Waiver Policy

All applications for waivers of practice rules are considered in light of the Society’s overarching waiver policy.

Practice rules are intended to promote compliance with the regulatory objectives and hence waivers are only granted in exceptional circumstances.

An applicant for waiver of any requirement of Rule B2.2 is expected to set out the exceptional circumstances and explain why, in the applicant’s view, those circumstances justify waiver.  Circumstances which may justify waiver may include the fact that application of the standard rule in the precise circumstances would:

• cause an unintended or capricious effect not consistent with the principle intended to be achieved by the rule;
• cause undue hardship to the applicant or client not consistent with principle;
• prevent a benefit to clients or consumers.

The applicant would also be required to establish to the Society’s satisfaction that grant of the waiver requested would not carry any appreciable risks to the interests of clients or consumers or achievement of the regulatory objectives or adoption of best regulatory practice (which requires that regulatory activities are targeted appropriately and carried out effectively, and in a manner which is transparent, accountable, proportionate and consistent).

Waivers will also not be granted where to do so would prejudice the integrity of the principle which the standard rule seeks to achieve.

The circumstances which may apply to any application for waiver of a requirement of Rule B2.2 may obviously be many and diverse and it is neither appropriate or practicable to attempt to set out, in advance, detailed and exhaustive information in relation to what factors will be considered relevant in every possible scenario or the weight likely to be accorded different factors in every different situation.  Each application will be considered on its own individual facts – but the following paragraphs attempt to provide some assistance in relation to identifying factors which have been considered significant when considering previous applications for waiver in certain circumstances. 

Applications for Waiver of Rule B2.2– general principles

It is clearly not the intention of the rule to prevent testamentary writings being made – but to prevent such writings being drafted by any regulated person who could be argued to have an interest which might be in conflict with the interest of the client (or be perceived to be influenced by a connection to a person who might benefit from the writing in a manner which could be argued to be unfair).  Where there is any doubt as to the appropriateness of a regulated person drafting a will, the simplest and safest solution will often be to advise the client to consult another practice unit. 

Some Examples

Apparent imbalance reflects previous gifts

A waiver was granted to allow a solicitor to draft a will containing a bequest which, on first consideration, appeared to disproportionately benefit a connected person when compared with another person in the same degree of relationship to the testator as the Sub-Committee was satisfied that the purpose of the apparent imbalance was to achieve equivalence, taking into account lifetime gifts – the explanation was included in the will concerned.

Absence of appropriate provision

An application for waiver was refused where the applicant wished to draft wills for the solicitor’s employee (E) and E’s co-habitant with bequests in favour of connected persons but where neither testator proposed making appropriate provision for their own children.

Avoiding Costs

The fact that the client may be able to avoid costs if the regulated person is granted a waiver will not be sufficient grounds to constitute exceptional circumstances justifying grant.