Code of Practice

Chapter Text

A notary’s authority to administer oaths, long established at common law, and to take affidavits and statutory declarations, is governed both by statute and by the notary’s professional regulations.  It is important for notaries to be aware how acting in these matters may differ from the rest of their notarial practice, and to understand which obligations may apply in which circumstances.

For the purposes of this chapter the word “declarant” includes an affiant, deponent or anyone making an affidavit, declaration or sworn statement, and “declaration” also includes an affidavit, statutory declaration or any other document in which it is stated that a signatory has been duly sworn. In certain jurisdictions, a sworn acknowledgment may form part of a document that has no other characteristics or features of an affidavit or declaration.

The administration of oaths is one of the six reserved legal activities in its own right, separate from notarial activities.  When a notary takes an affidavit or declaration, this in itself is not a notarial act within the meaning of the Practice Rules but it is notarial activity, as it is part of the notary’s practice.

In addition, a notary is an authorised person to act as, and use the title of, commissioner for oaths.

Subject to certain exemptions when a notary acts as a commissioner for oaths (see below), the notary must therefore comply with the Oath of a Notary and the Practice Rules when carrying out the administration of oaths in the same way as with all other notarial activities.

Capacities in which a notary may act:

as commissioner for oaths

A notary is an authorised person who may exercise the powers of a commissioner for oaths where the declaration is for use in connection with a matter within England or Wales, in accordance with the Commissioners for Oaths Act 1889.

The fees that “shall be charged” as a matter of law when so acting are currently £5 per declarant for taking a declaration, and £2 per exhibit thereto for marking such exhibits (in each case inclusive of VAT) [Commissioners for Oaths (Fees) Order 1993 (S.I. 2297), which applies to notaries by virtue of the Courts and Legal Services Act 1990].  As this is a statutory requirement, a notary who is instructed by a client simply to act as a commissioner for oaths may not charge any higher fees for so acting, as it would be an offence to do so.  The statutory charges must be displayed on the notary’s website if he or she has one [Practice Rule 23].  In these circumstances Practice Rules 8, 18 and 24 do not apply (although notaries may still find it prudent to keep at least a brief record).  Applying a notarial seal is unnecessary and potentially incorrect.

The above does not prevent a notary from offering additional services at his or her usual rate, but he or she must bear in mind that the Practice Rules in their entirety will apply to any such services, and the declarant should understand, where relevant, what is covered by the statutory fee and should be provided with information on such additional costs and services in accordance with Practice Rule 8.  Nor does a notary act solely as a commissioner for oaths, for these purposes, if the client instructs him or her to provide or draft any wording of the declaration.

Formal requirements for affidavits for proceedings within England and Wales (although now rarely required) are set out in Rule 32 of the Civil Procedure Rules.

as notary for overseas oaths or declarations

The authority conferred by the Commissioners for Oaths Act 1889 is limited to oaths and affidavits for the purpose of any court or matter in England and Wales.  Declarations for use overseas, including for this purpose other parts of the UK and the British Isles, should therefore be taken in the capacity of a notary, notwithstanding the fact that some common-law based jurisdictions also use the term ‘commissioner for oaths’ to refer to officers who are so appointed or authorised under their own laws.

The formal requirements set out in Rule 32 of the Civil Procedure Rules do not apply but the notary may still wish to have regard to them.

General principles

The principal duties of a notary, in either capacity, are to ensure that the declarant personally appears and is identified; to ascertain that he or she is competent, knows that he or she is to declare or swear to the truth of the relevant statements and understands the consequences of so doing; to administer the oath or declaration; and to complete the jurat and to mark any exhibits.

In accordance with the oath as a notary, the notary may not administer a declaration if he or she knows that it involves violence or fraud.  However, in the absence of any such indication and any suggestion of an over-riding concern relating to matters such as money laundering, the contents of an affidavit are a matter for the declarant and the notary is not required to establish their veracity or enquire into the background of the document or transaction; nor (unless the wording of a notarial statement requires it) to establish whether the deponent is authorised to represent a body corporate.

The Perjury Act 1911 provides that, in English law, ‘the forms and ceremonies used in administering an oath are immaterial’ as long as they are such that the declarant ‘has accepted without objection, or has declared to be binding on him’.

Miscellaneous

A notary may need to consider whether a document which is entitled or described in places as a sworn statement, affidavit or similar but does not contain a jurat or any other indication that it needs to be sworn or declared, should in fact be treated as such.

Notaries may also be instructed to take depositions for use in overseas jurisdictions, in which case the notary’s involvement is likely to be recorded by audio-visual means only and without documentation.  This should not prevent the notary keeping a brief written record of the matter in accordance with Practice Rule 24.2.

Outcomes

• You understand and comply with your oath of office and your statutory and regulatory obligations when dealing with the administration of oaths, especially if these differ from other notarial activities
• Declarants are aware that declarations are binding on their conscience, and of the consequences of making a false declaration
• You maintain the principles of diversity and equality
• Where relevant, the correct statutory fee is charged

Positive Indicators

• Declarants fully understand the consequences of making statements under oath, or by solemn declaration
• You are aware of the manner in which declarations may be made by people of particular faiths, or none, and you act accordingly and sensitively
• Jurats and other attestation clauses are correctly completed and always bear the place at which and date on which the oath was made, and the capacity in which the notary is acting
• Exhibits are correctly marked and each one is securely fastened (or, if appropriate, the exhibits are bound together with the declaration).

Negative Indicators

• If relevant, a declarant is unaware or unsure of the distinction between your acting as a notary and as a commissioner for oaths
• An affidavit is sworn, or declaration made, which is incomplete in itself or in respect of the exhibits referred to
• You attest a document containing the words ‘sworn to’ or equivalent without having so sworn the declarant
• A jurat is incomplete in terms of date or place, and/or a jurat or exhibit sheet bears a date other than that the date on which the declarant made the declaration.