In Guernsey, the current professional body of notaries can be traced back to the reformation times where notaries began to practice under the authority of the Archbishop of Canterbury. It may be surprising to find out that Guernsey notaries are still regulated by the Archbishop of Canterbury and the ancient Court of Faculties.
The daily work of a notary has therefore had to transcend many eras and technological revolutions to remain relevant to business needs.
This article will guide you through a few instances where technology killed off the need for a notary to affirm evidential facts whilst explaining what the profession is doing to modernise.
A ship’s protest is a statement or protest written by the captain that outlines an incident that caused damage or loss to the vessel or its cargo while at sea. Guernsey was a busy port in the C18th, local notaries would have had to deal with ship’s protests on a regular basis. For a ship’s protest to be valid, it had to be noted by a notary public in a particular form as soon as the vessel arrived at the port. They were a form of security measure to show that the captain or his crew had not been negligent and had not contributed to the incident reported in the protest. We now have direct communications from ships to their HQs anywhere in the world, CCTV, satellite navigation, satellite monitoring systems, GPS and other technologies that enable us in real time to independently verify this information. As such the services of a notary are in reduced demand and actual shipping protests are now pretty obsolete.
Bills of Exchange
Early mercantile transactions were heavily paper based. Notaries were required globally to perform various functions to ensure that merchants, manufacturers and lenders were all paid or made to fulfil their contracts.
Bills of exchange and the requirements of the Bills of Exchange Act 1882 are still important and many modern automated systems (like bank automats and online banking) are based upon the same principles outlined in the 1882 legislation. However due to the automated nature of such transactions, it is rare to request a notary to protest dishonoured bills. Again, another example where the role of the notary has been removed because of technological advances.
Video Conferencing, retina and finger print identification and Covid
A large proportion of a notary’s business involves the identification of individuals and the authentication and certification of their signatures, authority and capacity relating to documents for use overseas.
Guernsey notaries have strict rules and protocols that must be followed. Notaries must faithfully record what is done by their clients and ensure that the parties to the documents and transactions being authenticated are properly identified, that they understand the legal consequences of what they are doing and that they have made an informed decision to be bound.
When a notarial act is produced, the recipient must be able to rely on it. The recipient must be secure in the knowledge that the document is the one that was signed, that the person who signed it produced satisfactory proof of identity, that the person who signed it was aware of its contents, properly informed as to its consequences, that any requirement of the law for this type of document were met, in particular with regard to documents and deeds executed by companies. The notary’s duty of care is owed to all persons who may place legitimate reliance on his or her notarial acts.
Breaking this down, into parts to do remotely, the notary needs to watch the individual execute or add their digital signature to a document, the notary must be able to identify that person and ensure that they understand what they are doing. The notary must then also receive the digitally signed document and add their own seal and certificate to it. They can only use a digital seal if that seal has been approved as part of their official signature.
Before the pandemic, we had the technological capability to allow for electronic signatures and the software functionality to enable facial or retina identification and/or the ability to verify someone by their finger print. These two functions were rarely seen on the same piece of software. Documents were still regularly executed with wet ink signatures in person (even if copies of the same where circulated by email). So, what has changed?
There is more of an appetite to allow digital execution of documents in principal. The use of DocuSign and other electronic execution software is now commonplace.
Interestingly, a recent survey by the Law Society of England and Wales uncovered a surprising result in that three-quarters of all respondents said they would not use specific legal Covid measures which permitted video witnessing to simplify will making during the pandemic, after the pandemic ended. The measure will expire after January 2022, unless the Ministry of Justice decides to extend it. No such measures relating to the execution of wills was ever granted in Guernsey but the issues raised remain the same across all jurisdictions. The survey respondents cited worries about the heightened risk of undue influence and of future claims against the estates. The results also noted that some lawyers claimed it was more difficult to assess their client’s capacity to make decisions when the process was conducted remotely. Some also said it was more time-consuming than physical witnessing, irrespective of this over 50% of the respondents who actively used the measures during the pandemic said they would continue to use remote witnessing if it continued to be an option. Similarly, for documents that require to be witnessed by a notary in Guernsey, the process has not materially changed in light of the pandemic. The guidance for local notaries follows the guidance in UK notaries and only applies where there is no other option and where meetings in person is impossible.
The Notaries Society issued Covid–19 guidance for notaries on remote notarisation in May 2020. This guidance assists notaries in determining whether it is appropriate to authenticate the signing or execution of a document remotely using video conference technology at a time when social distancing measures or the provisions of additional Covid restriction regulations apply such as to preclude meeting individuals in person.
Under the current guidance, a notary may however only verify, certify and authenticate documents and people within their own jurisdiction, they still cannot for example witness the execution of a document on the other side of the world (even where they are known the notary personally). This is because there remains a limit to the notary’s jurisdiction. So even where we have the technology to show them executing the document in outer space, to identify an individual by their retina or other biometrics and can specify their current GPS co-ordinates of their location, the notary is unable to utilise this to its full advantage.
Notaries in the US have been using digital seals for some time, there is tried and tested software on the market to enable them to do this securely. There is limited use of digital seals in the UK but this trend is increasing. Indeed, the copy of my notary certificate was digitally sealed by the Court of Faculties as it was created during lockdown. The problem arises where the place that requires the document will not accept a digitalised seal and signature. The digital seal and signature must also be recognised and registered with their home authority so that it may form part of that notary’s official signature.
There are some alternative professional bodies who have taken matters into their own hands and created alternative solutions to that of using a notary. For example, the Medallion Signature Guarantee –requires a bank/institution to be affiliated to a Medallion Signature Guarantee programme to identify the individual who wish to sell/transfer US securities. Granted the notary may not have been required by law for this process but they could have been a way of giving independent verification, now you need to use a firm within the programme, this can cause issues in jurisdictions where there are no affiliate members.
Legalisation, Apostilles and E-apostilles
Originally, all documents leaving Guernsey that required legalisation or an apostille for use overseas had to be delivered by hand or sent by post or courier to the Foreign Commonwealth and Development Office (FCDO) in London. In 1999, this process was effectively delegated to the Office of HM Greffier. All apostilles are currently processed using original hard copy documents and an apostille or legalisation certificate is affixed to the documents in question before they are sent on to their final foreign jurisdiction destination. Depending on the country they are to be used in, such documents may also need to be reviewed by that jurisdiction’s embassy in London before they can be used in the country in question.
The idea of an e-apostille has been on the agenda for some time. For the whole process to work it needs to be a global initiative in which preferably the Hague Convention participants are party. The FCDO have been working on this for years. Other countries have been working on similar initiatives but many have been working independently. The global pandemic has thankfully reignited activity in this area. This is something the British government is also keen to implement to simply the legalisation of documents. The FCDO have been working to map out what a digital apostille solution would look like. They have held meetings with foreign authorities, other government departments and external stakeholders to guide the development work, and now report that they will hopefully soon be in a position to begin a private pilot which will see the first UK e-apostilles being issued for circulation shortly.
Initially, the FCDO plan to issue a digital apostille (e-apostille) for documents that are uploaded to their website containing the digital signature of a notary public on a notarial coversheet. There will be a clear audit trail to confirm the digital signatures are authentic and have not been tampered with. They will then provide instructions for the recipient to follow in order to view the e-apostille and verify it. Future developments will look at accepting documents from other government departments or officials directly, providing the relevant digital signature standards are met.
As noted above, in Guernsey the Greffe currently deal with apostilles, there is a local working party looking into the digitalisation of the working practices of the Royal Court and I understand that they are also looking at this issue. Any development that come out of the FCDO will most certainly impact the way apostilles are carried out in Guernsey and will probably mean that the notary’s digital signature and digital seal will become a recognised form of verification. So, it is only a matter of time before we will be able to do this which will speed up the time it takes to deal with an apostille and send it to the place it is required.
Notaries may be the oldest legal profession and they have adapted many times to maintain that accolade. Digital transformation and change are probably faster than it has ever been and so the profession must keep up with the technological pace whist maintaining the independence, integrity and duty to the transaction that they have promised to maintain on under oath.
For some clients these systems and checks appear too archaic and they believe that the notary profession needs to move faster to maintain their usefulness. The e–apostille is only a start. Notaries still need to work with new developments so they are not left behind. However, it is also imperative that any new system is rigorously tested. The main purpose of a notary is authentication. The notary’s duty of care is owed to all persons who may place legitimate reliance on his or her notarial acts irrespective of where they are based even though they can only undertake work from within the Bailiwick. That being said, the negotiation and working with different governments to ensure that any new processes will work on a global level also takes a long time. Hopefully the global pandemic has focussed everyone’s mind, to improve processes and the ability to do business more efficiently, faster and ultimately cheaper.
Should you require the services of a notary in Guernsey, Alderney or Sark please contact Lisa Upham.