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Supreme Court of Ireland Decisions |
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You are here: BAILII >> Databases >> Supreme Court of Ireland Decisions >> IAlcock, seeking to be appointed a Notary Public, Re [2015] IESC 3 (23 January 2015) URL: http://www.bailii.org/ie/cases/IESC/2015/S3.html Cite as: [2015] IESC 3 |
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Judgment
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THE SUPREME COURT 21/2014 In the matter of Jevon Alcock, seeking to be appointed a Notary Public and In the matter of the Courts (Supplemental Provisions) Act, 1961 Judgment delivered on the 23rd day of January, 2015, by Denham C.J. 1. Jevon Alcock, the petitioner, and herein after referred to as “the petitioner”, brought forward a petition requesting to be appointed a notary public for the City of Dublin and the administrative areas of South Dublin, Fingal and Dun Laoghaire - Rathdown, and the Counties of Kildare, Wicklow and Meath. 2. In his petition, filed on the 30th June, 2014, he set out the facts relating to his application. These facts included that he was 40 years of age, he was admitted to practise as a solicitor in 2002, he has also been admitted to the Roll of Solicitors in England and Wales, Northern Ireland and New South Wales, although he has not practised in these latter three jurisdictions. 3. Since 2002 the petitioner has been deemed to be in continuous practice in the service of the State in the Chief State Solicitor’s Office. 4. The petitioner has obtained a Certificate of Competency from the Faculty of Notaries Public in Ireland. 5. The petitioner has a Bachelor of Laws degree from the University of Wales, a Master of Laws degree from the University of Wolverhampton, and a post graduate diploma in Legal Practice from the University of Bristol. 6. The petitioner deposed that by virtue of the qualifications and his experience, he had a good understanding of the law and practice in the areas of business and commerce with which a notary public is most likely to be concerned. He added that he had a good understanding of the law and practice in regard to bills of exchange, promissory notes, bills of lading, banking, transport, carriage of goods, shipping, and contracts and documents of a mercantile and commercial nature generally in relation to which the services of a notary public are required. 7. Also, the petitioner deposed that he is knowledgeable in maritime matters and holds the International Certificate of Competence (ICC) created by Resolution 40 of the United Nations Economic Commission for Europe (UN ECE INC), having passed the examination in the necessary competence for pleasure craft operations, which sets out nautical, regulatory and technical competency requirements, for seagoing vessels (not exceeding 80 gross tonnes or 24 metres in length), which he is competent to skipper. 8. The petitioner deposed that in his practice as a solicitor he is in regular contact with members of the business and professional community. 9. The petitioner filed a certificate of fitness signed by six persons representative of the local business community, together with a certificate of fitness signed by six solicitors certifying as to his fitness. 10. The petitioner deposed that he is competent to conduct notarial business in the English language and the Spanish language. He deposed also that he is married to a Mexican national, has a good spoken and written Spanish, and that he was keenly aware of the significant Spanish speaking community in Dublin. 11. The petitioner deposed that if appointed a notary public he would observe the Code of Conduct for Notaries Public adopted by The Faculty of Notaries Public in Ireland on the 21st November, 1986, and such other rules, regulations and bye-laws governing the professional practice and procedure of Notaries Public in Ireland, and the standards to be observed by them as shall from time to time be made and published by the Faculty of Notaries Public in Ireland. Undertaking not to practise 13. The petitioner deposed:
15. Following consultation within the Governing Council, on the 9th July, 2014, David Walsh, the Registrar of the Faculty, wrote to the petitioner. Inter alia, the letter stated:-
You are unable to practise as a Notary Public and will not be for the foreseeable future. The Faculty considers that a bar to your appointment. The Faculty considers that this issue is unsurmountable. Appointment subject to an undertaking not to practise would change the nature and essence of the appointment to what is a public office, change it from being such an appointment to a mere qualification. Adjourning the Petition until circumstances may change throws up other problems, for instance that the academic standards required of incoming Notaries is expanding exponentially, and indeed the standard has risen enormously since you studied. In the absence of daily practice, no amount of Continuing Education would fill the gap. In the event that you wish to continue this application, please so advise, and in that case the Faculty will request an adjournment to deal with the matter on affidavit.” 17. Over the intervening months there were factual changes in the application of the petitioner. 18. A most significant change was that, after consultation with Ms. Eileen Creedon, Chief State Solicitor, the petitioner on the 10th July, 2014, withdrew his undertaking not to practise. Thus, this matter which had troubled the Governing Council of the Faculty of Notaries ceased to be an issue. Employer Letter
(ii) He can meet clients at that address during business hours on his own time. (iii) The provision of notarial services is a separate private professional practice of his. The fees are his to retain subject to him complying with all/any taxation requirements. (iv) He is not covered by Professional Indemnity Insurance of this office, and as such, he will require to take out his own Professional Indemnity Insurance cover, as a notary. I understand that he has obtained a quotation for such Insurance. (v) I understand that the notarial code of conduct will prevent him from ever supplying notarial services to any person in connection with matters relating to this Office. (vi) This Office would not, ordinarily, have any requirement for notarial services. In the event that such a requirement could arise then such services will be procured elsewhere. Jevon is enrolled as a Solicitor in a number of common law jurisdictions including England and Wales and New South Wales (Australia). He has a good knowledge of foreign law, international law, and overseas jurisdictions. He would be well suited to the role of notary. I again confirm that I have no objection to Jevon Alcock’s appointment.” EU law Character and qualifications of petitioner 23. The Court heard oral submissions from Mr. Eoin Fitzsimons on behalf of the petitioner, and from Mr. Cormac Ó Dúlacháin S.C. on behalf of the Faculty. 24. The Faculty took no issue with the character or qualifications of the petitioner. It is quite clear that the petitioner is a solicitor who has all the necessary professional qualifications to become a notary public. 25. The Faculty did take issue with the undertaking of the petitioner not to practise. However, as set out above, the petitioner has withdrawn this undertaking and thus this aspect of the petition is no longer an issue. Law
… (b) the power of appointing notaries public and commissioners to administer oaths,
… “ 28. However, it is clear from the jurisprudence that each application is considered on its own facts and circumstances. 29. Thus, in relation to one concern expressed by the Faculty, I am satisfied that there is no reasonable possibility of a proliferation of appointees who may view the service as an after-hours ancillary occupation. 30. This petition is decided on its own facts and circumstances. Two issues
and
(b) Whether it was in the public interest that an Applicant should, when seeking appointment, have to establish that he has a public office to which members of the public could have general recourse to seek out a Notary, as compared to an accommodation address or an office to which recourse could only be had from time to time and by prior appointment only.” 32. The first significant factual issue that concerned the Faculty was that the petition was unprecedented, coming from a public servant in the full time employment of the State. 33. The petitioner is a solicitor who works in the Office of the Chief State Solicitor. 34. In his affidavit sworn on the 8th September, 2014, he deposed:-
35. I am satisfied to accept the petitioner’s explanation that he is a solicitor, a professional, who works in the service of the State, but who is not a public servant. 36. This issue overlaps the second issue, where the issue of his public service is addressed. Availability to Serve 38. The Faculty submitted that the office of notary public requires a public service commitment that is not properly served by the appointment of persons whose commitment to this important public service is limited by the dominant employment they hold. The reputation and standing of the office of notary public will not be well served in the long term, it was submitted, by a proliferation of appointees who view the services as an after-hours ancillary occupation. 39. The Faculty submitted that the functions discharged by a notary public are far more complex and onerous than, for example, those provided by commissioners for oaths, and that the maintenance of standards and competence requires that a notary public be regularly engaged in practice. 40. The Faculty submitted that the requirements for appointment should be informed by an appreciation of the work done by notaries which goes beyond what might appear to be mundane and routine. The importance of the work and consequences of getting things wrong cannot be understated. In corporate work the underlying value of the transaction can be very significant. In personal work, such as foreign adoptions, considerable personal commitment and expense may be incurred only to find it unravel because of unsatisfactory documentation. Persons may be travelling abroad to take up appointments e.g. in the medical field, on the faith of documents having been properly authenticated. Most notarial acts travel outside Ireland and with them travels the State’s reputation. 41. While not taking any particular issue with the petitioner in this case, the Faculty submitted that petitioners should be generally available for the conduct of notarial business. 42. The Faculty readily acknowledged that notaries do not spend all their time notarising documents, but in practice it is a service that is generally available through their offices as a seamless integrated extension of their dominant employment. 43. The Faculty has not previously objected to the appointment as notaries of persons who are engaged in part-time employment that excludes notarial practice, provided that the petitioner is committed to provide a significant degree of public service. 44. The Faculty submitted that as a matter of common sense a person in full time professional employment as a solicitor (whose work excludes notarial practice) will not objectively be in a position to commit to a significant degree of public service. 45. The Faculty submitted in this regard that the test for appointment should be an objective one and not one that involves a consideration of what a particular petitioner says that they aspire subjectively to achieve in their own individual case. 46. The Faculty submitted that the requirement that a person be committed to a reasonable degree of public service is consistent with the public interest in maintaining a skilled and well qualified profession. It was submitted that this is consistent with the work done by the Faculty in recent years in furthering professional education, supporting a programme of continuous professional development and providing a forum for sharing and learning amongst notaries. 47. The Faculty submitted that it was conscious that there is no statutory regulation of the profession of notary and no requirement that a notary be a member of the Faculty. As there are no annual establishment costs involved in being a notary and no annual certification, commercial pressures of themselves will not ensure that only those with a reasonably active practice remain willing and able to notarise on occasion. 48. Mr. Fitzsimons S.C., making submissions on behalf of the petitioner, addressed these issues, inter alia, pointing out that the petitioner is a solicitor, a Spanish speaker, has made arrangements for an office, and has made arrangements for insurance. 49. Counsel pointed out that there were comparators, for example a retired member of the Attorney General’s Office who practised from his home. Also other retired solicitors who continued to practise as notaries public in their homes and/or in their erstwhile offices. 50. Counsel took exception to the concept of the petitioner being a “spare time appointee”. He argued that notaries are paid for what they do. 51. Counsel for the petitioner submitted further that the Faculty was seeking to confine appointees to the office of notary public to solicitors in full time practice. 52. Counsel submitted that the petitioner would be practising as a notary public in his own time during the day, and at weekends, and that he could give a significant degree of public service. The Spanish element of his practice, and serving the Mexican community, he submitted, would be important. The Court’s attention was brought to the employer’s letter, which is set out previously. Public Service 54. The functions discharged by a notary public are important, complex and onerous, and the maintenance of standards and competence require that a notary public be regularly engaged in practice. I am satisfied that the petitioner has the knowledge and skills to meet the complex and onerous functions of a notary public and that his qualifications and knowledge, and his plans for his practice, are that he will be regularly engaged in practice so as to maintain standards and competence. 55. The petitioner has indicated that, if appointed, his first step would be to take up his warrant of appointment and that then he would formally apply to the Faculty. He understands that not all notaries in Ireland are members of the Faculty. However, he would very much like to be a member (if voted in). In addition to the facts which I have found, this indicates a clear wish to maintain the best standards of the profession. 56. As the Faculty acknowledged, notaries do not spend all their time notarising documents. In the circumstances I am satisfied that he would be committed to a significant degree of public service. 57. In the absence of statutory regulation, and as a notary public is a venerable profession, with all the consequences under law, with the benefit of the Faculty of Notaries working with the profession, and as I am not a legislator, I do not set out a general test to be met, but rather take into consideration the facts and circumstances of each case, and the jurisprudence which has been established previously. 58. In assessing each petition I am very well served by the Faculty, which, most professionally, draws my attention to issues which warrant consideration. 59. Thus, on the facts and circumstances of this case, I am satisfied that the petitioner will provide a significant degree of public service. Public Office 61. By custom and practice the affidavit grounding applications for appointment contains an averment that the applicant has a public office at a specified location. This reflects the fact that the person to be appointed has a permanent establishment, to which people could have recourse in seeking out a notary, and that the services of the notary would be generally available at that place to the population intended to be served. This also reflects the distinction between solicitors engaged in private practice and what might be referred to as in-house solicitors, a distinction between a public office and a private office. Solicitors in private practice generally maintain public offices. In-house solicitors can and do provide notarial services from their place of employment with the consent of the employer, effectively constituting the employer's offices as the public office of the notary for the purpose. On behalf of the Faculty it was submitted that this petitioner does not have such consent. 62. The Faculty stated that twelve of the forty six notaries appointed by myself are employees of solicitors' firms or of corporate entities, and every one of them has the consent of their employer to practise from their desk without having to go elsewhere. It was submitted that no notary has ever been appointed to the knowledge of the Faculty without the ability and intention to immediately commence practice. 63. The Faculty submitted that the requirement that an applicant have an established public place of business is important. The public office provides a backbone for the provision of the service. The Faculty submitted that there are often enquiries made beforehand, matters to be clarified as to the documents to be brought, directions given as to how and where to source originals and at times repeat visits have to be organised. Further, the fact that a notary has a public office provides the additional advantage that a recipient of a document with enquiries concerning the transaction generally, the document, its execution, its bearer or its signatory, should they wish to, can contact the notary’s place of business to confirm matters. If that place of business is no more than an accommodation address then it does not achieve that considerable advantage. The member of the public is not alone concerned with having the documents notarized, but is equally concerned that those documents are properly complete for the purpose for which they are required. 64. The Faculty submitted further that it required its members to maintain detailed records of all documents notarized, including scanned or photocopies of the document as notarised and copies of identification papers. The Faculty requires that these copies be maintained for a minimum of six years. Money laundering and terrorism related regulations generate similar requirements. While with modern technology it may be possible to maintain these records without a physical office, the very fact that such records need to be maintained, and even audited, is consistent with the reasonableness of requiring a petitioner to have a public office. 65. The Faculty submitted also that it does have amongst its members those who have retired from practice as solicitors but who continue to practise as notaries either from their former offices or from home. While in some limited circumstances they may not have what might be perceived as a public office, the Faculty regards this as a special exception that should not take from the reasonableness of the general requirement to have a public office. 66. The petitioner has deposed that he has retained office space on the third floor, 121/122 Capel Street, Dublin 1, where notarial practice can be conducted. He deposed:-
67. The petitioner has also indicated that he would be available, by appointment, at his home at No. 2, Chieftains Drive, Balbriggan, Co. Dublin. 68. However, the Faculty raised concerns as to the ambiguity of the situation. The Faculty indicated that it was genuinely concerned that the petitioner’s representation of his availability lacked reality. The Faculty characterised the petitioner’s Capel Street address as in the nature of an “accommodation address” rather than a “public office” as ordinarily understood: see affidavit of the registrar sworn on the 11th December, 2014. 69. As to his home in Balbriggan, on which the petitioner has stated that he will be available, strictly by prior appointment, the Faculty’s position was that this was true of all notaries. 70. I am satisfied that the petitioner is providing for a public office. It is not an accommodation address. It is true that he will be giving his professional service by appointment, but I do not regard this as undermining the nature of his public office. He will be engaged in practice at his Capel Street address and at his home address. As indicated by the petitioner, and his employer, he can hold appointments at his office during business hours, in his own time. In addition, he could deliver the service after business hours in his office and at his home. Qualifications and character Conclusion 73. However, as set out in the judgment above, I am satisfied that the petitioner has addressed the concerns raised. The facts establish special circumstances in this case. I am satisfied that the public interest would be well served by the appointment of the petitioner. 74. Thus, for the reasons given, I would appoint the petitioner a notary public. Consequently, I make that appointment.
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