India – Powers of Attorney – the correct process! – Time to make a stand?

India – Powers of Attorney – the correct process! – Time to make a stand?

We see many people who require our Notarial services to witness and certify Powers of Attorney for use in India.

Clients attend here with their document received in hard copy or by email from their Lawyers in India, and with instructions about what further legalisation stamps are required.

Often, the instructions are outdated and do not comply with the International Law which is in place – and has been since 2008!  Long enough you would have thought, for Indian lawyers to come to terms with it.

India has signed the Hague Convention 1961 – it signed in 2008 – and the correct procedure is that the Power of Attorney should be executed in the presence of a Notary Public and also two independent witnesses and then it should go to the Foreign Office in Milton Keynes to obtain the Apostille stamp [an Apostille is a further stamp which confirms to India that the document has been dealt with by a Notary] – this is a postal service and no personal attendance is allowed.  It usually take around 3-4 days to obtain the Apostille stamp.

However, this is still often not understood by the Indian lawyers in India.

What we still tend to see is that the client has been instructed to execute the document with the Notary plus two witnesses and then the request is for the client physically to take the document to the Indian High Commission in Birmingham for them to stamp the document also.

This is outdated and does not follow the law and does not comply with the Hague Convention – however trying to get this message across to India has been difficult! In addition, if the client is not an Indian citizen, the High Commission will no longer stamp the document in any event.

It is very frustrating that the majority of Indian advisors seem to require that the paperwork they receive is in accordance with the pre-2008 law. Presumably this is done on the basis that this is what their Dad taught them?

It just may be that the tide is turning now. There are one or two encouraging signs that the message might just be getting through and this is encouraged by an increasing number of guidance messages on official Indian websites. Here is one of the first of them from Punjab about four years ago!

For the client, this is still a problem. The question is, Do I stand up for the correct procedure, or do I just do it the way I have been asked?

Often clients do not have the time to argue the point with their adviser/lawyer in India: they simply want to provide a document which will be accepted.  Time is usually of the essence and delaying the procedure to argue the point is not an option for clients.

The recent decision of the Indian High Commission in Birmingham that they will not stamp the documents of non-Indian citizens is quite helpful in all this. More helpful still would be a refusal to counter-stamp any notarised documents at all, and this may be their next step.

I have written previous blogs on this subject which you may find of interest – see links here and here

As ever, I am in Leeds ready to assist, please do get in touch whenever you have a legal document, or question, which has any foreign element notary@atkinsonnotary.com or phone me or Louise +44 (0) 1138160116

Companies. New Law, New Crimes!

Companies. New Law, New Crimes!

There is a new act of Parliament coming soon – [Click here] The Small Business, Enterprise and Employment Act 2015

The Act is already law in the sense that it has received Royal Assent in March 2015, but October 2015 is the stated date for many of its provisions. As so often these days, the new law will actually be brought into force a little bit at a time

There seem to be two provisions which will be the biggest changes to the present regime

First, it will be illegal – a new criminal offence [as if the world needs more of them], to register as a Director of a company, another Company. Also the appointment will be void. So, No more “Corporate Directors”. [At present the rule is that at least one Director of a Company has to be a human being, but the others or some of them can be Companies],

As usual, this new rule will not be easy to understand or implement or adhere to. Because the Government doesn’t mean it. In fact, there will be exceptions to the new rule. Guess what. No-one knows what the exceptions will be! They will be announced probably after the new Law is in place.

What have we learned?:

• If you already have a Corporate Director in your Company – watch closely for news of the permitted exceptions
• If you already have a Corporate Director, then this appointment will lapse one year after the Law takes effect, unless an exception is granted
• The likelihood is that exceptions will be decided case by case
• Even if an exception is granted, the existing law that there must be at least one Human Director will still apply
• The New Law will not apply to LLPs

Moving smartly on, the new Law also makes provision for the creation of a public register of “Persons With Significant Control” of a Company. Whilst there are examples of who is such a person – one is, a person holding 25% or more of the shares, – there is no attempt before the Act comes into force to define an exhaustive list. That will be left to “secondary legislation” but the Act does make it a criminal offence [really there just aren’t enough of those] both to provide false information and to withhold true registerable information. Both the Company and the “Person” can be prosecuted.

So the new Law is clear:-

• Corporate Directorships are illegal unless they are not, to be decided by criteria which are as yet unknown.
• Persons With Significant Control of Companies are a largely undefined group of people who exercise “significant influence or control over the Company.” The meaning of the phrase is not defined, yet they can be prosecuted if their details are not added to the new statutory register.
• As the Companies House commentary has it, the New Law will “reduce Red Tape”.

My own view is that the introduction of a raft of new criminal offences, complete with provision for exceptions and defences which are not yet written and probably will have to be decided case by case, will gladden the hearts of bureaucrats, lawyers and, in particular, red tape manufacturers throughout the land

Here I am in Leeds, do get in touch whenever I can assist and in particular whenever you have a legal issue which has any foreign element notary@atkinsonnotary.com or phone me or Louise +44 (0) 1138160116

Data Protection – New Rights – New Risks

Data Protection – New Rights for the Data Owner. New Risks for the Data Controller.

There is notice this week of a Judgment in the Court of Appeal which seems to me to be very important. I have not seen very much mention about it in the Press or even in specialist Legal Magazines but I think that will change.

The link is here .

It is an unsuccessful appeal by Google on a preliminary question which is – Does a Data Controller risk paying money compensation for mis-using Data even if the misuse causes only Mental Distress and not any Money Loss?

The ruling relates to the powers of the Courts to punish Data Controllers.

The Data Protection Act has been in force for many years and it states that where Data is misused by persons who should control it (in this case Google) then compensation can be ordered for “Damage” suffered.

But what is “Damage”? The Law has always been understood to mean that it is only actual money lost that should be compensated. So if a Data Protection breach can be shown to have caused lost contracts or a dismissal from employment, which are losses that can be valued in money terms, then the order could be made.

But for hurt feelings? For the hard-to-define “Distress”? Section 13(2) of the Act said No.

Well, it used to say that, until last month!

Now the Court of Appeal has said, “Wrong – the English Law has not been listening to Europe”.

The relevant EU directive is
“Member States shall provide that any person who has suffered damage as a result of an unlawful processing operation or of any act incompatible with the national provisions adopted pursuant to this Directive is entitled to receive compensation from the controller for the damage suffered”

Well, it’s that word again. “Damage” But in Europe, the word means something else.

So the Court is saying, “in England we understand “Damage” to mean, quantifiable money loss. In Europe, the word may have a wider meaning, and, if it does, then that wider meaning should be applied.”

This is another example of the now accepted legal proposition that a term used in European Law may well not have, or be intended to have, the meaning that it has in England. And that the meaning which was intended, is the meaning which it has.
[It is many years since Lord Atkins complained (in 1942) that this is a method of legal construction which follows only the authority of Humpty Dumpty*]

The Judge went on “In view of the fact that the Directive employs the term ‘Damage’ in a general sense without any restrictive connotation, it must be inferred – and on this point I find myself in agreement with the observations of the Commission and the Belgian Government – that the concept should be interpreted widely, that is to say in favour of the argument that, at least in principle, the scope of the Directive was intended to cover all types of damage which have any causal link with the non-performance or improper performance of the contract.”

The Court has found that s13 (2) is incompatible with the Law of Europe and as such has refused to apply it.

Does it matter? I think so. Because now, you do not have to show what money you have lost if your data has been misused. You don’t have to have lost any. It is sufficient to have been “distressed”. And, no doubt, the law will tell us what that word means in due course!

What to do? If you have been distressed because your data has been misused, see your Lawyer and join the queue.

Or, if you personally or in your Business are a Data Controller registered (or who ought to be registered!) with the ICO, the extent of your responsibility and risk has just got much, much, worse.

Go back to basics, review your Data Protection Compliance. Learn about the new European Data Protection Regulation coming at you.

*”When I use a word,” Humpty Dumpty said, in rather a scornful tone, “it means just what I choose it to mean, neither more nor less.” “The question is,” said Alice, “whether you can make words mean so many different things.” “The question is,” said Humpty Dumpty, “which is to be the master, that’s all.”

Please do contact me whenever you need Notarial Certification or Legalisation – at http://www.atkinsonnotary.com or phone me on 0113 816 0116 (internationally 0044 113 8160116)

Notarisation? In Swahili? Probably.

Notarisation? In Swahili? Probably.

Early last year my Blog addressed the issue of Notarising documents not written in English but an update is in order, to raise the matter again to my readers and to the wider world, via Google and social media.

The point is, that nine times out of ten, I can notarise paperwork in any language.

Since May 2014 the Rules of the Faculty Office by which Notarial practice is governed in England and Wales have been updated and clarified.

The old Rule 9 has been superseded by new rule 12, but there is no change to the practical consequences – which are that, so long as you and I both understand the meaning of the document in whichever language it is written, then we can proceed.

This is perhaps not widely understood and I have very often seen paperwork produced for use abroad, in say, Poland, where the Polish clients have gone to the expense and trouble of translating the text of their Power of Attorney, or whatever it is, from Polish into English before our meeting.

They do this so that I can understand the Deed and then after I have Notarised stamped and sealed it, the intention is to spend more money with translators into order to translate the final English document back into Polish.

Not Necessary at all.

Bring me your document in Polish Arabic, whatever language the eventual jurisdiction uses. As long as you understand it clearly, it can in most cases be used.

There are exceptions as with everything “legal” Please do re-read my earlier blog here

The new Rule 12 in full:-
12. Language
12.1 Notarial acts shall normally be drawn up in the English language.
12.2 A notary may upon request or in appropriate circumstances prepare a notarial act in a language other than English if he has sufficient knowledge of the language concerned.
12.3 A notary may not authenticate by means of a notarial act a document drawn up in a language other than English unless he has satisfied himself as to its meaning but this does not prevent a notary from authenticating the execution or signature of a document in any language.
12.4 A notary may not certify the accuracy of a translation that has been made by someone other than himself unless he has knowledge of the language sufficient to satisfy himself as to the accuracy of the translation but this does not prevent a notary from attesting a translator’s affidavit or authenticating a verification.

Do get in touch whenever I can assist and whenever you have a legal issue which has any foreign element, in whatever language. notary@atkinsonnotary.com or phone me or Louise +44 (0) 1138160116