Notaries as “Expert Witnesses”

The 2006 amendments to the Civil Procedure rules include a new rule 32.20 which gives probative force to Notarial Acts.

The rule says “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”

What does it mean? Well, as with all new law, the Judges will no doubt tell us in due course!

What seems to be certain is that the Certificate of an English and Welsh Notary made in England and Wales is now accepted in the Courts as prime facie evidence of the truth of the statement contained in it.

Two obvious uses to which the new powers can be put immediately are

• in recording facts for future litigation, particularly where there are elderly or infirm witnesses

• in the making of Wills (perhaps with recourse to the Testator’s doctor or other relatives) where the Notary is able to record at the making of the Will that the Testator is of full age sound mind fully aware of the extent of his family to whom he may or may not have allegiance and that the Will is made of free will and without undue influence.

The point is that the Notary is an independent third party lawyer owing a duty of care to the overall “Transaction” and not merely to the party paying him. Our Certificates are intended to be of great assistance to any Judge since to mount a successful challenge to the Certificate would be to impugn the integrity of the Notary himself.

The likelihood is that the use of Notarial certificates and acts having true Probative Force will increasingly be of service to the administration of Justice and thereby to the service of the public.

One of my colleagues has emailed me to say “I thought that you would be interested to know that I have prepared a certificate today with the intention that it might be used in court proceedings in this Country. I was asked to view some pages from a website, print them off, confirm what I had done in a certificate and attach the printed web pages to that certificate. It struck me that this was an ideal introduction to the new world of probative acts. I was preserving evidence of something that is transient. I had only to record what I had done and I did not have to express any opinions whatsoever. My client took the view that the website contained misleading information; but that is a matter for him and the Courts. ”

Another case might be to prove rights of authorship – send me a CD or MP3 of your music and a statutory declaration can be made – a very cost effective way to prove copyright.

This change in the law is of obvious benefit to any party or solicitor involved in or contemplating litigation. If you fear that one day in the future you may need to prove as fact any matter which I can properly certify today (remember that I am able to certify anything which I can personally verify as a fact – this does not however mean that I can record my mere opinion since, as before, opinions are a matter for your expert witness) then give me a call and I can provide a suitable notarised certificate.

I leave it to your own ingenuity to devise further uses for this new facility – it seems to me that there is huge potential for Notarial assistance in litigation under the new rule.