Single witness permitted to collectively attest for three signatories on a deed

The High Court (Chancery Division) has decided in Euro Securities & Finance Ltd v Barrett [2023] EWHC 51 (Ch) that a deed of guarantee executed by three directors and a single witness was valid, despite the execution block containing no words to indicate that the witness had observed the act of signing nor that the witness’ single signature indicated it had witnessed all three signatures. The High Court accepted the claimant’s case that the conditions for the deed of guarantee being properly attested were met based on the evidence and inferences drawn from the documents at face value.

The case involved a deed of guarantee which was signed by the three defendants, each with the same witness who only signed the deed once. As can be seen from the picture, the defendants each had a separate execution block but there was just one witness execution block at the bottom of the page. The defendants argued that the guarantee was not executed as a valid deed and was, therefore, a simple contract, meaning that the reduced six-year limitation period would apply to the guarantee and the claim would be out of time (unless extended under the Limitation Act 1980).

The defendants’ argument was based on the execution wording.  Each defendant had signed the guarantee with a separate execution block stating that the document was “signed and delivered as a deed by…“. The witness then signed once at the bottom of the page, using an execution block which stated “and witnessed by…“. The defendants argued that the witness’ attestation was invalid as the execution block did not state that the directors had signed in the presence of the witness, nor that the witness was witnessing all three of the directors’ signatures.

The case delved into the meaning of the requirement in section 1(3)(a)(i) of the Law of Property (Miscellaneous Provisions) Act 1989 (“the 1989 Act”) for the deed to be signed “in the presence of a witness“. The Court found that the deed of guarantee had been validly attested by the witness and had thus been executed as a deed.

The key points to take away from this case are:

  • As long as a deed is validly witnessed, a single witness’ signature can be interpreted as attesting the signature of multiple directors where the witness signs beneath all of the signatures in the deed and there is only one witness attestation clause.
  • Witness execution blocks do not need to contain specific words, and it is enough for a witness to sign under a rubric which indicates that the signature is that of a witness. Signing under the words “witnessed by” presupposes (in the absence of any contrary indication) that a witness is present when the signatories sign the deed.
  • Whether signatories sign together or separately, as long as each signatory signs under the observation of the witness who then attests, this will comply with the requirement in section 1(3)(a)(i) of the 1989 Act.
  • “Witnessing” means observing the signature rather than merely being in the same room as the signatories.

In my judgment, Ms Money signing under ‘and witnessed by’, itself under the three signatures of the three guarantors, themselves under ‘signed and delivered as a deed by’ was a valid ‘attestation’ of all three signatures, which complied with s.1(3)(a)(i) LPMPA...

https://www.bailii.org/ew/cases/EWHC/Ch/2023/51.html
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