01 July 2010 Issue 7 Anthony Northey

Notaries public

What are notaries in England and Wales and what do they do?

Recent research has indicated that the general public in England and Wales has very little knowledge of solicitors, barristers and legal executives and what they do. The research by the Legal Services Board in England and Wales, which revealed this, did not, of course, make any enquires about what the general public or the legal or other professions know about notaries public, who are also known as notaries, practising in England and Wales.

Nevertheless, it is clear that the knowledge of the public and professionals about notaries practising in England and Wales is even less, although, on the other hand, the public and professionals may have more idea about what notaries do in mainland Europe.

Accordingly, the purpose of this article is to explain to readers of the STEP Journal and trust and estate practitioners generally about notaries in England and Wales.

Notaries: the oldest branch of the legal profession

Notaries in England and Wales form the oldest branch of the legal profession in the United Kingdom. Their origins can be traced back to the time of the occupation of Britain by the Romans. Just like notaries in countries with Civil-Law jurisdictions, notaries in England and Wales carry out all kinds of non-contentious legal work. They are effectively Civil-law lawyers or notaries practising in a Common-Law jurisdiction and a bridge between the various Civil-Law jurisdictions and the Common-Law jurisdiction of England and Wales.

Qualifying as a notary public in England and Wales

In order to qualify as a notary, one must have a University degree and pass the Postgraduate Diploma in Notarial Practice, Roman Law and International Private Law provided by Cambridge University. Graduates who have passed relevant legal examinations, in addition to solicitors and barristers, can qualify as a notary. Once the potential notary has passed this postgraduate diploma, he or she may petition the Court of Faculties for a ‘Faculty.’

A ‘Faculty’ grants a notary his/her authority to practice. This is followed by two years supervision under an experienced notary and only when this has been satisfactorily completed is it possible to practice without supervision. Notaries are required to have full professional indemnity and fidelity insurance.

In the city of London there are also about 30 scrivener notaries who are not solicitors or barristers, but who have also passed the further examinations set by the Scriveners Livery Company. All notaries are regulated by the Faculty Office.

What does a notary do in England and Wales?

A notary prepares Notarial Acts, including Authentic Acts, mainly being documents executed in England and Wales for use everywhere else in the world. This includes drafting, reviewing and the explanation of legal documents for use outside the UK. There are two basic types of Notarial Act; those in private form and those in public form, which are Authentic Acts/Instruments.

The private form applies when a notary annexes a Notarial Certificate by way of authentication of a document and its contents, thus converting it into a Notarial Act.

The public form is an Authentic Act/Instrument drafted by a notary, which includes verification of identity, legal capacity and understanding of the document and awareness of the contents, confirming authority to enter into the transaction for example, in the case of a corporate body. The notary also authenticates the contents, after verifying the same.

Notaries are authorised and empowered to carry out all types of legal work that is carried out by solicitors, other than contentious work, as do notaries in Civil-Law jurisdictions. Accordingly notaries deal with conveyancing, probate and wills and all other types of non-contentious commercial and private legal work.

History and role of the Notaries Society

The Notaries Society is the organisation that represents approximately 900 notaries or notaries public in England and Wales. Membership of the Society is open to all notaries in England and Wales and to other notaries, whose Faculty is derived from the Court of Faculties. The Society was founded in 1882 and was incorporated in 1907.

The Notaries Society has an extensive role, which includes: education, continuing professional development and international representation, as well as the development of professional rules. The Notaries Society is run by its Council of approximately 25 members, headed by the President. There is also a Secretary, in charge of administration, and an Education Officer. 

The official seal of the notary

A notary holds an official seal and Notarial Acts in England and Wales have probative force. Notarial Acts under the signature and seal of a notary are recognised as evidence of a responsible official legal officer in all countries of the world. The Civil Procedure Rules of the Senior Courts of England & Wales, rule 32.20, provide that: ‘A Notarial Act or Instrument may be received in evidence without further proof as duly authenticated in accordance with the requirements of the law unless the contrary is proved.’

Notaries public have been appointed by legal authority in England and Wales since the 13th century. Since the Ecclesiastical Licences Act 1533, created by the Court of Faculties, notaries have practised under the authority of the Archbishop of Canterbury. Since then they have been regulated by the Court of Faculties, the oldest Court in England and the Faculty Office, which is presided over by the highest ecclesiastical Judge, the Master, who is often a Judge of the High Court of England and Wales. The Court has the power to appoint notaries public acting through its President, the Master. The Courts and Legal Services Act 1990 and The Legal Services Act 2007confirm these powers of the Master. As officers of the law and holders of the Public Office of the notary public, the duties of notaries public are wide ranging and include the preparation and drawing up of private and public Authentic Acts and Instruments under their signatures and official seals, which are accepted and recognised throughout the world.

Notaries abroad

In all likelihood, readers may be more aware of notaries outside England and Wales. In essence notaries fall into three categories: Commonwealth notaries or former British Commonwealth notaries, Civil Law notaries and US type notaries.

Firstly, Commonwealth or former British Commonwealth notaries are more akin to those in England and Wales in that they are legally qualified lawyers, who are principally involved in the preparation and completion of Notarial Acts and Instruments for use abroad. An international representative body for such notaries, including notaries throughout the British Isles, is in the process of being formed and will be known as the World Organisation of Notaries (WON).

Secondly, Civil Law notaries are much more central to the legal processes in their countries, normally having a monopoly in respect of non-contentious legal work. In mainland Europe and most parts of the Americas (notable exceptions being the USA and all Canadian provinces except Québec) most countries have legal systems based on the Code Napoléon, into which the role of the notary is deeply embedded. The Union Internacional del Notariado Latino (UINL) is the international body, which represents such notaries.

Thirdly and lastly, US type notaries are for the most part not legally qualified and are merely state appointed officers, who certify identification.

A serious warning

Solicitors and barristers and other legal practitioners are ill-advised to act as Commissioners for Oaths or in their capacity of solicitor or barrister or otherwise in completing documentation for use abroad. There have been many incidents and there continue to be many incidents of such documents being completed and/or attested by solicitors or barristers or legal executives and then being rejected. It is only a matter of time before such a document for use abroad, which should have been completed before and by a notary public or notary, is rejected and a time limit is missed. There will then be a substantial negligence claim against the solicitor, barrister or legal executive or other legal practitioner who has completed the document, for the losses incurred. The message must be that in the case of any documents for use abroad, one should refer the documents to a notary or notary public before completion. Details of notaries public or notaries are available on the Notaries Society website www.thenotariessociety.org.uk

Authors

Anthony Northey