Nihil
prius fide ?
["No
more reliable testimony" ?]
The
recent amendment to the Civil Procedure Rules
An
article by
Nigel Ready
Scrivener Notary, London
Editor of Brooke's Notary
In
her foreword to the 12th edition of Brooke’s Notary
(2002), the Master of the Faculties, The Right Worshipful
Sheila Cameron QC, referred to the anomalous position of
the notarial act in English domestic law: by this, she
meant that the lack of statutory recognition of the
probative value of the notarial act placed English notaries
at a disadvantage in relation to their colleagues in Europe
and elsewhere. She expressed the hope that this anomaly
would be removed during the lifetime of the edition. Owing
in large part to the efforts of the Master of the Faculties
(ably aided and abetted by Robert Turner, the Senior Master
of the Queen’s Bench Division), the new rule 32(20)
of the Civil Procedure Rules, which came into force on 1
October 2005, has gone some way towards correcting the
anomaly by providing that “a notarial act or
instrument may be received in evidence without further
proof as duly authenticated in accordance with the
requirements of law unless the contrary is proved”.
Position
at common law
English
and Welsh notaries will be familiar with the famous dictum
of Lord Eldon in Hutcheon v. Mannington that “a
notary by law of nations has credit
everywhere….”. The faculty which a notary
receives on his appointment decrees that “full faith
ought to be given as well in judgment as thereout to the
instruments from time to time made by you…”.
However, despite these resonant words, the position at
common law is as elucidated by Lord Tenterden in R. v.
Scriveners Co. : “…many documents pass before
notaries under their common seal which gives effect to them
and renders them evidence in foreign countries, though
certainly not in our courts of common law…”.
Indeed, at common law the acceptance of notarial acts as
proof of the matters which they record would offend against
two fundamental principles of evidence, namely that of
orality, i.e. that proof of fact is made by the oral
testimony of witnesses in open court, and the rule against
hearsay, i.e. that an assertion of fact other than one made
by a witness in the proceedings in question is inadmissible
as evidence of the matters asserted. In 1870, in Nye v.
McDonald, Lord Cairns stated that “…the mere
production of the certificate of a notary stating that a
deed has been executed before him will not in any way
dispense with the proper evidence of the execution of the
deed…”.
Position
in civil law
The
traditional approach of the English courts to notarial
evidence contrasts markedly with that in civil law
jurisdictions where legal proceedings are conducted mainly
on the written record and the acts of notaries there enjoy
both probative and executory status. Probative status means
that a notarial instrument is proof both of the provenance
of the document and of the statements of the parties and
other facts which the notary attests to have taken place in
his presence or to have been done by him; executory force
means that an acknowledgment or contract embodied in an
instrument authenticated by a notary is judicially
enforceable like a judgment even though no action is
brought.
Paradoxically, in spite of the common law attitude towards
the evidentiary status of notarial instruments, many
categories of overseas notarial acts are directly
enforceable in the United Kingdom as authentic instruments
under the Brussels and Lugano conventions on Jurisdiction
and Enforcement of Judgments in Civil and Commercial
Matters which were given effect to in the United Kingdom by
the Civil Jurisdiction and Judgments Act 1982 and
1991.
Market
distortion
One
effect of the status quo was to create a distortion in the
provision of notarial services within the European Union
since the lack of status of the instruments of English and
Welsh notaries domestically meant that foreign courts and
authorities were reluctant to accord them the same measure
of trust as those of notaries in civil law jurisdictions.
For example, although many categories of English notarial
acts are accepted throughout Germany, those relating to
certain high value transactions (e.g. capital increases of
companies, securitisations etc.) are not accepted for
registration by the German courts if executed in this
country. This is a somewhat bizarre situation, since the
German courts will readily accept such instruments when
executed in front of Swiss notaries, before whom many of
such acts are signed in order to avoid high ad valorem
charges levied by German notaries. One of the reasons cited
for this policy is that the acts of English notaries are
not considered to be on the same level as those of notaries
in Switzerland and we must assume that this relates to the
probative value of such acts.
The
position after the entry into force of the new rule
The
recent amendment to the Civil Procedure Rules represents an
important step forward in enhancing the probative (but not
executory) force of English and Welsh notarial acts and,
although not going so far as to accord them the status of
public documents, does confer on them a particular
evidential status. However, the wording of the rule
indicates that the courts will retain a discretion in
admitting notarial evidence, and the presumption of
authenticity of the act and the veracity of the statements
made therein is of course rebuttable.
In
approving rule 32(20), the Rules Committee of the Supreme
Court took into account the following advantages which
would flow from the conferment of probative status on
notarial acts :-
- Trustworthy proof of the execution of documents.
- Reduction of fraud, particularly in areas of real
property conveyances and lenders’ security
documentation, e.g. personal guarantees, mortgages.
- Reduction in possibility of disputes concerning contents
of contractual documents, intentions of the parties and
chronology of events.
- Expectations of parties (particularly in the commercial
sphere) as to the legal effect of executing documents
before notaries would be met.
- The development of electronic (paperless) commerce would
be encouraged since this is an area in which notaries (as
trusted third parties and certifying authorities) are
likely to play an important role.
- In the context of anti-money laundering regulations,
notaries could expand the valuable rôle which they
undertake in positively identifying individuals and
confirming the existence and good standing of legal
entities (whether established under the law of England and
Wales or a foreign law) and certifying the powers of the
persons entitled to represent such entities. This assists
financial institutions and their customers by avoiding the
need for individuals to attend in person at the
institutions concerned in order to produce documentary
proof of their identity and removes a considerable
administrative burden from the institutions themselves.
The
above list of advantages is probably the best guide to the
future approach of the English courts in determining the
range of notarial evidence which will fall within the ambit
of rule 32(20). In the view of the writer of this article,
the opportunities for English and Welsh notaries afforded
by the new rule will largely relate to the proof of the due
execution of documents (i.e. matters lying within a
notary’s traditional field of expertise), but it
remains to be seen to what extent the courts will rely on
notarial evidence as proof of fact in a broader context
(for example in matrimonial disputes or in support of
personal injuries claims), as some commentators have
suggested. One area where greater use of notaries would
produce a considerable public benefit is the proof of
signatures on documents submitted for filing at Companies
House, e.g. directors’ appointments, changes of name,
capital and registered office. The lack of signature checks
at Companies House (a situation which contrasts markedly
with that in many European registers where notarial
intervention is a frequent prerequisite for the acceptance
of a document for filing) is leading to corporate identity
theft on an ever-increasing scale.
The
execution of wills and security documents - particularly
personal guarantees, where the need for impartial evidence
of the fact that the guarantor understood the nature and
effect of the guarantee would seem to be paramount - is
another area where notarial evidence could enable issues of
due execution to be speedily resolved. Furthermore, in view
of the fact that the new rule makes no distinction between
the acts of English and Welsh notaries and those admitted
outside the jurisdiction, the courts will be able to place
far greater reliance than hitherto on the acts of foreign
notaries as evidence of the matters which they record,
particularly in relation to the due execution of documents
and matters such as inheritance entitlement, thus enabling
parties to avoid the expense of foreign legal opinions.
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