My responsibility as a Notary
It is the Notary’s responsibility to make sure that any document presented to him for Notarisation will be acceptable in the country in which it is to be used.
The oath a Notary takes when he becomes a Notary requires him to exercise his duties faithfully and to the best of his skill and ability, and to make contracts or other documents for or between any parties without adding or altering anything that may alter the substance of the facts set out in the document without the approval of the parties. He must not make any such contract or document if violence or fraud is involved
How does a Notary authenticate or “notarise” a document?
He must always check the identity of the signatory by the production of “proper documents”,
[ a passport and something else that confirms the address ] and his or her capacity and intention. In nearly every case he will witness the signature of the individual involved and ensure that the document is signed in accordance with English Law and also in accordance with the requirements of the country for which the document is required.
A Notary’s work is all about verifying facts and he must take the greatest of care to ensure that all necessary checks are made concerning the contents of the document and to verify relevant facts and information so that his act is reliable. Those who receive a Notary’s document will assume that he has checked all the facts in it and taken the responsibility for them, unless he makes it perfectly clear that this is not the case.
Independence and Rules
A Notary is an independent officer and must not do anything to compromise this. He should not act in matters where he has a personal interest. He is subject to professional rules and standards to ensure the protection of his clients. There are also rules on the prevention of money laundering. All Notaries must be properly insured against negligence and dishonesty.
Conflicts of interest
The Notary has to act independently and impartially. A notary may act for both parties to a contract [ unlike a solicitor ], but he has a duty to identify potential conflicts of interest if they exist and he should try to resolve them, if possible, by advice, negotiation or otherwise.
Foreign languages and communication
Documents that come to a Notary are for use overseas, and may be in a foreign language. If so the Notary must ensure that both he and the client understand the meaning or effect of a document or transaction. It is important that the client shows the Notary any correspondence or advice that he has been given by others. In most cases the Notary may find it necessary to insist upon a translation being provided if there is any doubt as to the client’s understanding of the content of a particular document or documents that he/she is seeking to have Notarised.
It may be possible for the Notary to arrange a translation but this will have to be at the client’s cost.
MY TERMS OF BUSINESS
- BASIS OF THE RETAINER - I contract only on the basis of these conditions
- FEES AND DISBURSEMENTS - I charge fees based on the time taken for the whole matter [ including making the appointment travelling and waiting time and the time taken to make the record ] at the rate of £180/200 per hour. Currently I do not charge VAT. I make a minimum charge of £60. There are also some fixed fees, for example, the charge for legalisation is £30/50 regardless of the number of documents requiring legalisation [at the same time] I reserve the right to substitute a reasonable charge for legalisation where the complexity of the matter or the number of documents involved or any other substantial reason makes this reasonable. I also charge out of pocket expenses /disbursements such as fees of the FCO, postages, faxes, agents or couriers charges. My bill must be paid on presentation or within 7 days if sent by post and documents will not be released until payment in full has been made. I also reserve the right to seek and obtain a payment on account of my professional fees and disbursements before work commences. I also reserve the right to cease acting in the event of a requested payment on account not being received by me.
- LEGAL OWNERSHIP OF DOCUMENT (S) PREPARED BY ME AND MY LIEN IN RESPECT OF UNPAID FEES - Legal ownership of or title to any document or series of documents prepared by me does not pass to you or to the person or persons who gave instructions to me or to the person or persons or organisation to whom I was directed to submit my bill until my bill and/or any disbursements has been paid in full. Similarly I shall hold a lien over any such documents and all other working papers and items of value that have come into my possession directly or indirectly as a consequence of your instructions.
- CHANGE OF FEES - I reserve the right to change my fees from time to time and without notice although as much notice as can be given in the circumstances will be given.
- INTEREST ON UNPAID FEES - I reserve the right to charge interest on all unpaid fees and the current rate of interest is 8% per annum or 2% above the base lending rate of Barclays Bank plc whichever shall be the higher.
- DISHONOURED CHEQUES AND/OR FAILED OR STOPPED DIRECT DEBITS OR STANDING ORDERS - if any cheque/direct debit/standing order in respect of monies payable to me is dishonoured or stopped a charge of £50 plus all and any bank charges incurred by me will be made and treated as compensation for all and any loss incurred by me as a result of your failure to ensure payment of monies due to me.
- CLIENT’S MONEY - If I am asked to hold client’s money I will do so in accordance with the relevant Notaries’ Practice and Accounts Rules paying interest when required to do so by the Rules. To comply with my obligations under the Criminal Justice Act 1993, the Proceeds of Crime Act 2002 (as amended) and the Money Laundering Regulations 1993, 2001 and 2003 (as amended) I reserve the right to ask for evidence of the source of any funds provided to me or involved in the transaction.
- COMPLETION OF FORMS REQUIRING NOTARISATION - Except where I am instructed under a separate contract or arrangement to prepare a document or documents [ for example a Power of Attorney ] and to Notarise such document or documents as part of the same contract or arrangement, it is not any part of my duty or function as a Notary to complete forms or documents that are presented to me for notarisation, prior to notarisation. If I voluntarily choose to do so or you request me to do so for any reason then this is done at your own risk and I will not accept any liability whatsoever for any loss or damage to include consequential loss that may occur as a result of any error or omission or inaccuracy on the face of the document.
- VERIFICATION OF FACTS - part of the Notary’s role is to check the facts in the documents he notarises for his clients, and this sometimes involves obtaining evidence or proof from sources independent of the client. In this I need the client’s full co-operation. If I have to add disclaimers to the document to make it clear that there are facts I have not been able to verify the document may become useless or of less benefit to the client and I will not accept liability if this is the case.
- CEASING TO ACT - in some circumstances, I may consider that I ought to stop acting for the client, for example, if the client cannot give clear or proper instruction on how I am to proceed. I may decide to stop acting only with good reason, for example, if the matter on which I am instructed involves fraud or violence, or if the client does not pay a bill.
- STORAGE OF DOCUMENTS - I will store without charge to the client the original of any notarial act in the “public form” and a copy of every notarial act in the “private form” as a permanent record. I will not always keep a full copy of the client’s own document or documents but I reserve the right to do so.
- LEGALISATION AT FOREIGN AND COMMONWEALTH OFFICE AND OTHER FOREIGN EMBASSIES AND CONSULATES - whilst every care is taken to preserve any document entrusted to me I cannot accept any responsibility for any loss or damage that occurs if any document or documents are delayed lost or damaged or destroyed whilst in transit either through or by Royal Mail or such similar organisation or the Document Exchange system.
- ITEMS POSTED OR SENT ABROAD - I cannot accept any responsibility for any item sent or posted abroad by me on your behalf or at your request under any circumstances whatsoever.
- LIMITATION OF LIABILITY - I maintain professional indemnity insurance at an appropriate level. Save as provided under the Unfair Contract Terms Act 1977, my liability to the client for any loss, injury or damage of any nature whatever whether direct or consequential including without limitation in respect of negligence or breach of my duty to the client, is hereby limited to such sum [i.e. the ‘appropriate level’ referred to above] in respect of any one claim or series of related claims [save in the case of fraud, where no such limit shall apply]
- OTHER EXCLUSIONS - All liability arising out of legal actions instituted within the jurisdiction of the United States of America and Canada are excluded.
- FOREIGN LAW - We do not advise on foreign law but act in an evidential authentication capacity only.
- RIGHTS OF THIRD PARTIES - Save as otherwise specifically agreed, John accepts no liability for the rights of third parties resulting from any notarial act provided by him.