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. 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 EXPERT INSIGHT 73
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