Question :- It is the job of Notaries to make the preparation and execution of documents for use abroad, as easy as possible. True or false?
Well, true I suppose but sometimes it is the “as possible” bit which needs to be emphasized. Sometimes stuff just is complicated.
Take Limited Companies. Who can be a Director?
At present s. 155 of the Companies Act 2006 says that at least one of the directors of a Company must be a “natural” person. (A natural person is a human being, a corporation is a legal person but not a human being so not a natural person.)
Yebbut, the Government has created the “Small Business, Enterprise and Employment Act 2015” which is not yet the law, but presumably will be one day.
S87 of the 2015 legislation says that “The Companies Act 2006 s. 155 shall be omitted and the following added
“156A Each director to be a natural person
“(1)A person may not be appointed a director of a company unless the person is a natural person.”
So it is clear that the days of Corporate Company Directors are numbered. But today they are fine.
My point is, there is no “common sense” here. You cannot guess what is OK and what is not with Company Law, you have to read the law – and the law can change anytime. What is right today is wrong tomorrow.
Also and perhaps especially in the case of Company Documents there are rules which need to be followed, and you won’t be able to guess what they are. Or if you can once then you are lucky, but you won’t be lucky three times in a row if you are guessing.
It is rare for a successful business Director to be too interested in the detailed requirements of the thousands of rules and regulations which govern the activities of their Companies: no doubt it can be the bane of their lives to be told by their Notary that a document cannot be executed by Fred because Fred is not an authorised signatory.
But if Fred is in charge of supervising the Dubai office, they say, who else should sign a Power of Attorney to assist in the Dubai operation? No. Fred may have a job description as “Middle Eastern Affairs Director” or some such. And the young school leaver may call himself the “Director of Paperclip Procurement”. But these are just job titles. And only Officers of the Company, as defined in the 2006 Act, are authorised signatories.
So the Notary will have to tell that successful business Director [the sbD] that because Fred is not actually a Company Board Director, therefore he must not sign the Deed, because it will expose him to personal liability and will not bind the Limited Company to its terms anyway.
And egos come into this. Sometimes sbDs may consider that their godlike status within the organisation is being challenged rather than enhanced, when being told that Plan A is unworkable.
A fellow Notary has written to say that he recently “had the European Head of a global enterprise email me to ask me what I was going on about when I had suggested to the UK people that they were proposing to execute a Power of Attorney incorrectly.”
He felt as if he was being invited onto the naughty step.
“What are you going on about?”, – bit alarming?
Not quite the same as, “Thank you very much, I nearly made an expensive blunder, you have saved my expensive bacon”.
Here is a case link – click here – to the Katana case.
Basically, a contract was entered into which included an agreement that any dispute arising would be dealt with by English Law.
Trouble was, it eventually was discovered that none of the parties or their advisors actually knew any English Law.
One of the companies involved purported to sign the contract by using as its signatory a person who had been appointed an Attorney of it, under what everyone believed to be a Deed of Power of Attorney. The Power of Attorney however was not a Deed. It was not properly witnessed as a Deed.
No English Notary was involved.
Because the “Deed” was defective, the Claimant’s case was dismissed.
If an English Notary had been consulted, it might have taken half an hour of reading the papers to see that the Deed was defective. I charge £120.00 plus vat for half an hour.
The Claimants dismissed claim was for €65 million
Perhaps I don’t charge enough? HMmm. Only me then?
At any rate, I promise to charge less than €65 million, so 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 firstname.lastname@example.org and email@example.com.
Or alternatively please telephone on 0113 8160116 or 07715608747. Please also feel free to visit our website http://www.atkinsonnotary.com