People do ask – what is the difference between a Notary and a Solicitor?

People do ask – what is the difference between a Notary and a Solicitor? [a -Training and Exams]– Why must this document for use abroad be made by a Notary? [a -Because Foreign Law says so]

The situation in England is further complicated in people’s minds by the fact that there are few if any Notaries who are not or have not also been Solicitors. So what difference does it make which hat they have on?

One of the most fundamental differences, is the mental attitude which is brought to bear.

When S/he is a Solicitor, Mr/s NP will approach your documents with the aim of ensuring that they achieve your purpose. S/He is acting for you and for your best interests. Whilst s/he will not lie for you, s/he will keep your secrets and release information only after you have authorised doing so. If there are aspects to your documents which are very much to your advantage, and which s/he reasonably suspects are aspects which “the other side” may not have noticed, s/he will not point out any bear traps to them.

When S/he is a Notary, Mr/s NP should not act for you if s/he is also your solicitor.

When S/he is a Notary, Mr/s NP is acting for “the Transaction” regardless of who is actually paying the fees.

That means – not giving advice to anyone. Checking that the person in my room tells me that they fully understand the significance of the paper they wish to sign and has taken all legal advice they consider necessary.

Then the Notary will give a certificate without regard to the interest of anyone or anything other than the truth.

An example from my mailbag is an enquiry from a Notary who asks what should be done in this case:-
“The Managing Director of a large Public Limited Company has made a Statutory Declaration relating to setting up an overseas company before me yesterday. The content is the document was typed in by his staff. Now it transpires there was a small* typo –an error in his Date of Birth. His secretary is quaking (apparently God answers to this Managing Director rather than the usual arrangement) and as he has flown to USA this morning he cannot simply make a fresh Declaration today. They want to know if they can hand-amend the Date of Birth, having checked with the receiving party that would be acceptable to them. My strict view is that if – as he has – the declarant has declared the information contained in the Declaration to be “true, accurate and complete” then no amendment should be made. Am I correct?”

*NB “small” – his words, not mine!

Now wearing the Solicitor’s hat you might think this is an answer:-
“If, as I assume would be the case,
1. You would have been happy to simply add your initials (together with those of the declarant) to a correction, by hand, to the date, at time of its declaration and
2. The recipient is happy to accept the correction with the initials of the declarant alone, then I really don’t see a problem, as long as you obtain a copy of the final version for your own records.
And – Why re-date it? If I understand you correctly, the MD is in the US, with the Stat Dec (dated yesterday), and the recipient will be happy with the manuscript amendment being initialled by the Declarant alone. What’s the problem?”

As a Notary however, my reply must be:-
It is your sad duty to explain to him that, he having made a false statutory declaration, he must now serve a prison sentence.
No exceptions, not even for God’s boss, who is too important to read the words of his own Declaration.

Or, less flippantly,

Why can a new Statutory Declaration not be made in USA? There are Notaries in every coffeehouse, very reasonable fees.

AND the problem is that the date is now different, all that happened yesterday, and today God’s boss is in the States and cannot initial the amendment nor its re-dating.

BECAUSE – the inconvenience of the situation is neither here nor there to the Notarial mindset. All that matters is the truth of the transaction and the paperwork surrounding it,

And BECAUSE A statutory declaration is an oral statement made in front of a Notary. The fact of the oral statement is documented on paper. Therefore, no change to the paper can alter what was declared orally in my room; alteration can only provide a false documentation of the oral declaration.

If a man has made a statutory declaration in my presence, he has averred something to be true and has accepted that if he speaks falsely then he is in peril of jail for perjury.

If he later sees that because of carelessness, the statement contains a falsehood such as an incorrect date of birth then the way to correct this is to destroy the false document and make a new true one.

And certainly, if he instead chooses to make and initial an amendment to the false one then that is nothing to do with the Notary and I certainly don’t want him to tell me about it.

He cannot expect me to replace my protocol copy of what actually took place, with a copy of his defaced – he would say corrected – original, which now appears to document a declaration which in fact never took place.

I mean – if I gave him a fiver in his change, he can cross out £5 and write £10 and initial it if he wants. Nothing to do with me though is it?

There is no place in notarial work for the somewhat solicitorial perception that the correct thing is to do “what is needed to get the job done”, acting from the point of view of the “client”.

Maybe I was never cut out to be a Solicitor. When I was one, some years ago, I once was asked by a client to give advice after he discovered that he had bought a plot of land which did not have the rights of way he thought it had. And he thought it had, because he had not read the paperwork and had refused to let me “waste time and increase the bill” by explaining everything to him before he went ahead with the purchase.

My advice to him was that he “should now live with the consequences of his mistake”.

That went down well.

Hey ho, it’s Christmas, goodwill to all etc. So here –Link Here – is a splendid song: Have a Happy Christmas and New Year.

I will blog again in 2018.

Remember, if you require our services or if you have any queries on any of the services that we offer then please so not hesitate to email us louise@atkinsonnotary.com and notary@atkinsonnotary.com.

Or alternatively please telephone on 0113 8160116 or 07715608747. Please also feel free to visit our website www.atkinsonnotary.com

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Morrison Supermarkets Dropped In It Again! Look Out Data Controllers. Look Out Insurance Companies. And Indeed, Look Out, Everyone Who Pays For Insurance.

Morrison Supermarkets Dropped In It Again! Look Out Data Controllers. Look Out Insurance Companies. And Indeed, Look Out, Everyone Who Pays For Insurance.

The Court case described in this Blog is very timely, for me, since it directly deals with the obligations and liabilities of Companies and individuals in relation to Data Handling, Data Storing and Data Protection, the subject of my most recent two Blogs, Link Here and Link here.

And also you may remember my fairly recent Blog when I wrote about what seemed on the face of it to be a very unfair case from the point of view of the Supermarket. Link to my Blog. Link to the case report. Mr Mohamud –v- WM Supermarkets plc

This was the case of an employee of Morrison working in one of their petrol service stations who seemed to take exception to being asked if he would be willing to print out from a USB stick. A polite “No” would have done it. But, he attacked and beat his customer.

Hardly what he was employed to do.

However I suppose that if Morrison had not been held liable then the poor customer victim would probably have been quite unable to obtain compensation for his injuries. Possibly, as a rule of thumb, maniacs who work in petrol stations and subject random customers to random violence, are not the kind of people most likely to have “high net worth”.

Now this month it turns out that Wm Morrison Supermarkets plc doesn’t seem to be the luckiest when it is comes to defending claims of vicarious liability – just now in the past week they have lost another one, this time in the area of Data Protection.

The facts seem similar – an employee who was trusted to do his job properly, suddenly turned rogue.

In this case, Mr Skelton was a trusted employee in the IT and data handling department of Morrisons, trusted to liaise with the Company accountants and supply sensitive data when necessary.

Although the Company knew that Mr Skelton had recently been disciplined for sending his own personal postage through the firm’s post room [even though he had paid for the stamps he used] and also knew that he felt that the treatment he had received was unnecessary and unfair, it had no reason to suppose that ideas of revenge would lead him to release the entire employee personal database contents onto the internet.

The Court heard that Mr Skelton has been jailed for eight years. He has denied the charges, but the Courts are satisfied that he deliberately intended to cause financial and reputational harm to Morrisons.

Indeed, Morrisons has already spent over £2million in rectifying the data breach both internally and on the internet, so he has deliberately cost them that money.

Of course, he also risked causing untold damage to the over 100,000 supermarket employees whose salaries, bank detail and NI Numbers he sent to newspapers and posted on data sharing websites, exposing each and every one of them to the risk of data theft which is on-going.

A full transcript of the Court case decision is here – link here – I found it fascinating, almost like a novel, in setting out what has happened, and what should be done about it and why.

The first Court decision is, that Morrisons are not themselves in breach. Of all the possible reasons why they might have been found in breach of the Data Protection rules, only one stood up to merit any kind of examination, this an alleged breach of Data Protection Principal No. 7.

Which says “Appropriate technical and organisational measures shall be taken against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data”

And after considering that in the context of the particular case, the Judge found that – yes – there is room to criticise Morrisons in that PP No 7 requires “appropriate technical and organisational measures” and in this case the court did not find a measure in place to require Mr Skelton to both delete the sensitive data after a reasonable time nor that he was required by Morrisons to prove that he had done so. BUT see paragraph 120 of the judgment: the Court also found that this “failure” neither caused nor contributed to the data breach.

So, there is it, – subject to only one failing which was not material , the Court found that Morrisons had done nothing wrong.

But that is not the end of the case. Just like in the case of Mr Mohamud, where Morrisons had done nothing wrong either.

Because the law is the law, and it includes the concept of vicarious liability —-
For example, in an engineering works, imagine that the Management requires machines to be used only with safety guards in place. Staff are regularly reminded of this, there are signs all over the place. Then, because he is under pressure, or whatever, a worker A uses a machine without a guard and worker B passing by is hit by hot metal from the machine and blinded. A guard in place would have prevented that. Worker A is behaving in a way the management would never condone. Worker A will get into trouble, might be sacked, and management has tried as hard as it reasonably can to prevent this happening, but the management is vicariously liable.

Unfair on management, fair on worker B, it’s the law.

What may send a quiver of worry through businesses and insurance companies alike is the rather scant regard the Judge gives to worries that these data protection cases might bankrupt your business, or cause huge increases to your insurance premiums.

He says in para 158 – “I note that I have not been referred to a single case in which it is said that vicarious liability had overwhelmed a company. I HAVE NO DOUBT THIS IS BECAUSE MANY COMMERCIAL ENTITIES WILL COVER THE POTENTIAL LOSSES BY APPROPRIATE INSURANCE WITHIN THE ORDINARY COURSE OF TRADING.”

So that’s all right then, eh?

Motto is, eyes like hawks at all times.

But managing employees is an exercise in herding cats, and the cleverer they are the harder it can be.

If your employees are holding mad grudges and are determined to fool you and to “take revenge upon you”, for the time being at least [pending an appeal] it seems that you will have to pay in the end.

No doubt insurance companies are sharping their pencils to increase premiums on data protection insurance matters, as you are reading this.

Final thoughts: – there is no doubt the Judge has real concerns about all this.

He has not failed to notice that in finding against Morrisons, he is doing exactly as Mr Skelton hoped he would.

Para 198, “The point which most troubled me in reaching these conclusions was the submission that the wrongful acts of Skelton were deliberately aimed at the party whom the claimants seek to hold responsible, such that to reach the conclusion I have may seem to render the court an accessory in furthering his criminal aims.”

Food for thought, when it is the law which is giving this criminal what he wanted.

The case decision contains the words that “no earlier case of vicarious liability has gone quite so far as this one in holding an employer liable for the consequences of an act of an employee designed specifically to harm that employer.”

[Compare the more usual case, of the unguarded machine say. There, the careless worker would probably have been trying to maximize production and minimise delays, which would ultimately benefit the employer. Also, the management could have done more. Machines can be set up to be inoperative if the guards are not in place.]

The Judge is clearly not pleased to be Mr Skelton’s accomplice. Nor that the facts of this case might give comfort to malcontents nutters and even terrorists seeking ideas to undermine the financial stability of companies from within.

Funny old world, innit.

Here’s the song [ It’s not my fault ]

And as ever – our message to you is, for documents for use around the world do contact me or Louise Morley here at AtkinsonNotary E7 Joseph’s Well Leeds LS3 1AB, phone 0113 8160116 and email notary@atkinsonnotary.com or via the website http://www.atkinsonnotary.com