We hear from experienced notaries Michael Lightowler and Jonathan Hewitt, who provide an in-depth guide to the notarial profession and its role in the legal sphere.
What is a notary?
In England and Wales, a notary is a legally trained public official who operates as part of the ‘preventative justice’ apparatus of the state. They create under their seal of office impartial, accurate records of agreements, statements and facts with enhanced evidential status.
When creating their records (‘notarial acts’), the notary also seeks to verify and authenticate matters such as the identity of the parties appearing before them, their authority to do so, their capacity, free will and understanding of the nature and effect of what they are doing. In this way, the notary’s act creates legal certainty in the form of reliable documentary evidence of the informed and voluntary participation of a party in a legal act or transaction.
The notary’s aim is to prevent disputes arising in relation to the validity or accuracy of the matters recorded by them. Notaries cannot, of course, prevent breaches of agreements recorded by them which are left to the courts to deal with.
In some circumstances, notaries also play a role in the enforcement of obligations by verifying and making records of non-compliance with an existing agreement. In English law, for example, notaries may be required to be involved in producing a record of non-payment of certain financial instruments that is then used by a claimant as evidence in court proceedings.
In this way, notaries play a niche but important role in the administration of justice in England and Wales.
Where do notaries come from?
Notaries have their roots in Roman law and its renaissance in medieval Europe. At a time where few people could read or write, the precursors of the modern notary created written records of agreements between parties upon request.
Over time, notaries came to be public appointees and their acts came to be recognised as public records and so have trusted status. Different jurisdictions use notaries in different ways, but all have the same roots.
The notary’s aim is to prevent disputes arising in relation to the validity or accuracy of the matters recorded by them.
How is a notary different to a solicitor, barrister or other lawyer?
Notaries are an entirely separate profession and, in fact, are the oldest surviving legal profession in England and Wales, pre-dating solicitors and barristers.
Solicitors, barristers and other legal professionals are private legal practitioners whose principal duty is to act in the best interests of their client as opposed to any other person. This is reflected in their professional conduct rules, which include obligations such as strict confidentiality and a prohibition against acting for more than one party.
The notary’s role is quite different. As a public official, a notary’s duty is to the public in general. Through a combination of the notary’s oath of office and their professional conduct rules, notaries are required to act impartially in the public interest and can issue a notarial act recording the agreement of various parties to a matter before them. They are also required to retain copies of certain public agreements indefinitely (even being required to transfer them to public archives upon retirement) and to issue copies of them to any person who can show a sufficient interest in them.
There is also the added difference that, as an impartial public official whose object is the prevention of litigation, notaries cannot, unlike solicitors, conduct litigation and do not, unlike barristers, have audience rights in the courts.
What is ‘notarisation’?
‘Notarisation’ does not have a specific meaning in English law. It is something of an Americanism. In most US states, it refers to making a specific form of declaration in front of a notary who then certifies that you have done so; similar but not identical to an English statutory declaration.
In England and Wales, the meaning is quite different and is a broad term that would essentially cover the notary issuing any notarial act. However, quite what that act consists of and the form it takes depends on the circumstances.
What types of things are recorded in a notarial act?
The core traditional function of the notary is to record agreements and statements made by members of the public. For historical reasons relating to the various parallel English legal systems that have applied for many centuries, in England and Wales formal notarial acts are generally (but not exclusively) voluntary. In other legal systems, especially continental European legal systems, they are compulsory in certain areas of law. As a result, English notaries are often asked to issue notarial acts to deal with matters in other jurisdictions, liaising with local lawyers to ensure compliance with local requirements. These often relate to dealings with land, companies, wills and inheritance, which are areas in which continental jurisdictions require notarial acts to be used.
As a public official, a notary’s duty is to the public in general.
In addition, notaries are often asked to issue notarial certificates in relation to other documents, in which case the notary adds a separate certificate to the document. The nature of the certification depends on what is required by the recipient. In the case of contracts, declarations of consent to travel and forms, this often includes confirmations of the identity of a signatory to a document - it having first been signed before the notary- the authority of a signatory to sign on behalf of a company, compliance with company laws etc. In other cases, it can include confirmations of the authenticity of a qualification or other certificate (the notary having taken steps to verify it with the issuer).
What is the evidential value of a notarial act?
In English law, as in most jurisdictions where notaries exist, notarial acts, having been created by a public official, are presumed to be truthful and accurate and a judge can rely on and take as read the matters recorded by the notary, unless a party is able to prove they are incorrect. This is referred to as ‘probative force’.
This effectively flips the burden of proof so that a person wishing to challenge the content of a notarial act must prove that the notary is wrong in a matter that they have recorded in their act, rather than being able to require the notary to prove that what they have recorded is correct.
In this regard, the notary can be said to play a ‘quasi-judicial’ role. The European Parliament has described notaries being given the power to create acts with probative force as being a partial delegation of state sovereignty to notaries.
The probative force of notarial acts is quite a powerful tool in the preventative justice armoury of English law, either in avoiding court proceedings in the first place or allowing for quicker and more efficient proceedings where they are not avoidable.
Why are notaries not more widely used in England and Wales?
This mostly comes down to historical reasons and traditions. Notaries were principally used by the Ecclesiastical courts, admiralty courts and other courts that applied, in one form or another, Roman-based civil law, and which dealt with matters relating to family, marriage, wills, probate, shipping and international trade.
Whereas, contract law and property law, which are key areas of practice for notaries in continental Europe, were matters dealt with in England by the common law and equity courts that did not always recognise the evidential status of notarial acts, preferring oral testimony from witnesses over written acts produced by notaries. Therefore, common law practitioners such as solicitors (and their predecessors) came to dominate in these areas and, over time, most areas of law.
As a result, notaries came to concentrate on areas in which their acts had the greatest use and effect, principally relating to shipping and international trade, as well as performing functions relating to citizens’ affairs in other jurisdictions in order to satisfy the legal requirements of receiving countries. However, notaries can and do practice in all areas of non-contentious law.
Ultimately, the probative force of notarial acts was definitively extended to all areas of law in 2005. However, it takes a long time to change the habits of many centuries and educate members of the public (and legal practitioners) about the benefits of voluntarily recording agreements of all kinds in the form of a notarial act.
Notaries can and do practice in all areas of non-contentious law.
How are notaries appointed and regulated?
As you might expect of the oldest legal profession in England and Wales, the appointment process is quite historical. Originally, notaries were appointed either by the Holy Roman Emperor or the Pope.
During the break with Rome, in 1531 Henry VIII claimed the Pope’s powers for the Crown. In 1534, he delegated the royal authority to appoint notaries (along with other powers) to the Archbishop of Canterbury. The Archbishop continues to appoint notaries to this day on this basis and the senior judge of the Archbishop’s court, the Master of the Faculties (currently Morag Ellis KC), is the profession’s regulator.
The historic roots of the profession, combined with the fact that notaries are public officials, results in the appointment of notaries being a rather grand affair with candidates being required to swear the oath of allegiance to the King and a statutory oath of office and then being granted a ‘faculty of office’ prepared on vellum by a calligrapher and sealed with the Archbishop’s seal. Of course, this historic setup is supplemented by modern practice and qualification rules.
In order to qualify, notaries are required to undertake similar legal studies as solicitors, as well as further post-graduate study in the areas of Roman law, private international law (the conflict of laws) and notarial practice. In addition, for a notary’s first two years of practice, they must be supervised by an experienced notary approved by the regulator.
Finally, although appointment as a notary is officially an appointment for life, modern regulations require notaries to hold an annual practising certificate and undertake annual professional development training.
What is legalisation? Do all of your notarial acts need this?
Legalisation is the process by which the authorities of one jurisdiction verify the authenticity of a public document for use in another jurisdiction. It is often a mandatory step before a public document can be accepted in other jurisdictions. Public documents include court orders, birth, marriage and death certificates, registry extracts and notarial acts.
Traditionally, this involved a chain of authentications by each of the UK government, the embassy or consulate of the receiving jurisdiction in the UK and then occasionally the domestic authorities of the receiving jurisdiction, and sometimes even by one or more trade bodies in the UK. Each step involves the authentication of the previous authentication. For example, the UK government authenticates a signature or seal on a UK public document (e.g. a notarial act), the receiving jurisdiction’s embassy authenticates the UK government’s authentication and then the domestic authorities of the receiving jurisdiction authenticate their embassy’s authentication.
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However, many countries have now signed up to an international convention which seeks to simplify this rather arduous process by signatory countries accepting a single authentication certification in agreed form issued by the jurisdiction in which the public document is issued. The certificate is called an ‘apostille’.
Not all notarial acts (and other public documents) need to be ‘legalised’ or ‘apostilled’. Whether this is necessary depends on the requirements of the receiving jurisdiction. In some cases it is a mandatory requirement, in other cases it is not mandatory but is requested for reasons of certainty and in other cases it is not required at all. It is important to check what is required in each case.
Is electronic or remote ‘notarisation’ possible in England and Wales?
In theory, it is possible to issue notarial acts in electronic form and it is possible to do so without the client being physically present by using video call technology and remote singing platforms.
In certain circumstances, either the requirements of English law or the law of a receiving jurisdiction may mean that either remote or electronic acts are not permitted, such as when the notary is required to physically witness the signature of a client or where there is a specific requirement for a paper document. It is particularly important that whenever a notary is dealing with a document for an overseas jurisdiction, they check with lawyers in that jurisdiction whether or not remotely signed or electronic documents will be accepted.
What are the challenges facing the profession?
While at first glance the advent of remote technology, ‘secure’ digital signatures and AI might seem like a threat to the profession, they also provide opportunities. The much lauded EU e-IDAS QES provides a level of certainty beyond that of a traditional basic electronic signature on a document. However, after initial setup where ID checks are undertaken, the QES guarantees that a person with access to a password and a mobile phone applied a digital signature. This may be sufficient for certain purposes and recipients. However, it does not provide the level of certainty that a notary who has supervised a signing process and has taken steps to ensure identity, capacity, understanding, free will and compliance with legal requirements can provide which will, in some cases, be necessary or preferred. Therefore, there remains a need for notaries where the highest level of certainty is required.
In addition, the fact that notarial acts now definitively have probative force in all areas of English law provides a fantastic opportunity for notaries to play a greater role in domestic transactions. English law is often characterised by a lack of certainty and litigation in England can be very expensive, effectively leaving some people without real legal remedy. Through the recording of agreements in their acts, notaries can play a key role creating certainty and preventing disputes before they happen, thus bringing justice to greater numbers on a preventative basis at a fraction of the cost of litigation after the fact.
This provides a stage to demonstrate to government the positive role that notaries can play in the domestic justice system in reducing the burden on the courts at no cost to the public purse. This could, over time, lead to notaries being used more extensively in the English justice system.
Therefore, while the new century with its new technologies may seem like a challenge to notaries (as with many other professions) there are also plenty of opportunities for the profession and we see a bright future ahead.
Where can information about joining the profession be found?
The Notaries Society (of which we both sit on the Council) is a professional representative body for notaries in England and Wales and provides detailed information on the qualification process on its website:
https://www.thenotariessociety.org.uk/pages/becoming-a-notary
Michael Lightowler and Jonathan Hewitt, Notaries
E: ml@notaryservices.co.uk | Jonathan.Hewitt@harbottle.com
www.notaryservices.co.uk | www.harbottle.com
Michael Lightowler is a notary with over 30 years’ experience in providing a wide variety of notarial services , usually in connection with clients’ affairs outside of the UK. He has been closely involved in encouraging new entrants to the profession, the improvement of professional standards and the transition to digital practice, including the adoption of modern technologies to assist notaries in their daily work. He has represented the profession at numerous events and conferences both within the UK and abroad. Recently, he has also been a member of the Ministry of Justice working group on electronic signatures.
Jonathan Hewitt is a notary and a Managing Associate at Harbottle & Lewis. As a notary, he produces notarial acts for clients and advises on the requirements for use of their legal documents in other jurisdictions. As a solicitor, he advises businesses and individuals on a broad range of property matters such as acquisitions and disposals, property development and re-financing.
