I refer to the topic of the Foreign and Commonwealth Office Apostille – it seems to me that this is a part of the Notarial process which is misunderstood more than any other. Typically a client is told that the document to be signed in England must be returned to the foreign jurisdiction “with the Apostille”.
Usually this is the first time that the word has ever been heard by my client – who does not know its meaning. Also, it is by no means always the case that the foreign lawyer advising has a full understanding of what is required.
In England and Wales there is a clear distinction between the lawyers who have jurisdiction only here (the Solicitors) and those whose jurisdiction also extends overseas (Notaries).
In many countries in the world, there is no such separation. Particularly in Europe, the lawyers who deal with land transactions are all Notaries. They naturally deal, almost all of the time, with transactions and clients who live in their own country and therefore generally speaking most foreign Notaries have little or no experience of dealing with overseas issues.
This contrasts entirely with the experience of UK Notaries, whose daily work is almost solely concerned with overseas matters. This means that more often than a foreign Notary is likely to want to admit, they have little or no direct experience of acting for clients who need to execute documents in England.
What they do know, is that they need an Apostille and so this is the instruction that a person in England is given.
A problem that arises is that the client in England who has been told that an Apostille is required once he has signed his paperwork in the presence of a Notary, has never heard the word “Apostille” and has probably never heard the word “Notary” used in England.
S/He contacts the foreign Notary to explain that the lawyers in UK are called “Solicitors” and the foreign Notary might say that all that is required is the Apostille anyway. So since neither the client nor the Foreign Notary are aware that Solicitors in England do not have the jurisdiction of Notaries, off the UK resident goes to have the document witnessed and certified by a Solicitor.
At this stage a well informed Solicitor would explain to the client that in fact a Notary is required, but often this does not happen since the Solicitor has no experience of being asked to assist in relation to a foreign transaction and simply does not realise that s/he does not have the necessary authority.
You might think that this catalogue of errors would be brought to a halt when the paperwork is submitted to the Foreign and Commonwealth (FCO) office for the Apostille to be affixed.
However, this is not the function of the FCO – it simply adds the Apostille if satisfied that the the relevant signatory is known to it. The FCO will confirm, by affixing an Apostille, that the signatory is a Notary, or is a Solicitor, or is a Judge, or a Doctor, or a University Vice-Chancellor, etc etc, as the case may be.
It is not the job of the FCO to read the paperwork and advise the client that because a Dentist, or a Solicitor, has acted as witness therefore the foreign jurisdiction is not being given the authentication it requires.
Indeed it is not the job of the Foreign Office to read the paperwork at all. It therefore happens very often that, say, a Power of Attorney for use in France is executed in England before a Solicitor who is not a Notary and the Apostille is added and the document is returned to France for use.
Then its failure to comply with the internationally agreed conventions is noticed at some late stage causing expensive delay. Sometimes the irregularity is not noticed at all and the transaction is “completed” – the money is paid and the new “owner” moves in. In such a case there may be no early end to the legal actions and cost and distress which might arise when the mistake is eventually noted.
Because the paperwork has not been completed correctly may mean in the worst case that title to the property has not passed to the Buyer. As one example, consider the case of a Seller going bankrupt after completing the sale and spending the money. The creditor having inspected the sale paperwork discovers that it was not notarised as required by the law, and will raise claims against the Buyer,(that they are not in fact the owner because the paper title is defective and so they should turn the property over to the creditors), against the Foreign Notary and against the English Solicitor.
The fact of the matter is, that if you are in the position of entering into any documentation for use abroad and which you need to sign in England, then you must protect yourself by having your signatures Notarised.
Only a Notary Public can do this in England. Even though your foreign lawyer may well tell you that the only important thing is the Apostille and that you can obtain this by any means, including having your papers dealt with by a non-Notary Solicitor in England, this is simply not the case. In these circumstances unless you use a Notary, who is the proper legal Officer for the job (and who carries the necessary insurance to protect you) you place your transaction and your wealth at serious risk