Supreme Court appoints solicitor as Notary Public despite Faculty concerns over office location and availability.

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

12. The first issue which arose on this application was an undertaking by the petitioner not to practise.

13. The petitioner deposed:

“Your Petitioner undertakes not to practise as a Notary Public during the currency of his employment as a solicitor in the

full time service of the State.”

14. The Faculty had regard to the fact that the petitioner had given an undertaking never to practise while continuing to work in the

office of the Chief State Solicitor.

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:-

“The Governing Council of the Faculty of Notaries Public in Ireland has considered your Petition and is very troubled by an

aspect of it. The Faculty makes clear that this does not in any way reflect upon your character or professional standing.

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.”

16. The application was adjourned. There were exchanges of documents, and ultimately the matter came on for hearing on the 15th

December, 2014. At the hearing Mr. Eoin Fitzsimons S.C., appeared on behalf of the petitioner, and Mr. Cormac Ó Dúlacháin S.C. and

Robert Kearns B.L. appeared for the Faculty.

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

19. The Court has received a letter from the Chief State Solicitor, Eileen Creedon, dated the 3rd December, 2014, in which it is stated

that:-

“(i) Jevon Alcock has a public office located at No. 121/122 Capel Street, Dublin 1, from where he can conduct

Notarial Practice, in private.

(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.”

20. Insofar as there is a requirement for an employer’s letter, this letter clearly indicates the position of the petitioner, from the

aspect of the employer, and meets the requirement.

EU law

21. The petitioner raised an issue that his petition engages with EU and domestic competition law and restrictive practices, including

the freedom to provide services and the right of establishment under European Union law. He also drew attention to the decisions of

the European Court of Justice, judgments in cases C-47/08, C-50/08, C-51/08, C-53/08, C-54/08, C-61/08 and C-52/08, Commission

v. Belgium, France, Luxembourg, Austria, Germany, Greece and Portugal. However, I have not found it necessary to consider or

determine the application on this aspect of the submissions in light of the decision I have reached.

Character and qualifications of petitioner

22. The Court was furnished with a series of affidavits and documents filed on behalf of the petitioner and the Faculty in relation to

the issues raised.

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

26. The Court receives no assistance from statutory regulation of the profession of notary public. The statutory provision is sparse.

The Courts (Supplemental Provisions) Act, 1961, provides at s. 10 (1):-

“There shall be exercisable by the Chief Justice –

…

(b) the power of appointing notaries public and commissioners to administer oaths,

…“

27. While previous decisions have been delivered by the Chief Justice of the time on issues arising in the past, I am not aware of any

decision that assists the issues which now arise in this case.

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

31. As was submitted, by the time the application came on for hearing the Faculty raised two issues in relation to the appointment of

the petitioner:-

“(a) Whether it is in the public interest to appoint persons as Notaries Public whose availability and commitment to

this office of important public service is limited in effect to that of ‘spare time appointee’.

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.”

Solicitor in Service of State

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:-

“13. The assertion that I am a public servant is fundamentally misconceived. I belong to a category of approximately 18

professionals, which include Accountants, Auditors, Barristers, Dental Surgeons, Surveyors, Map Inspectors and Solicitors

who work in the service of the State but who are not public servants, unlike, members of An Garda Síochána, Teachers,

Local Authority and Health Service Executive Employees who are public servants. It is this mistaken, albeit honestly held

belief, that your humble Petitioners is a public servant which forms the underlying resistance to my Petition.”

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

37. The Faculty submitted a concern that by reason of the petitioner’s limited availability he does not intend to provide a public office

in the ordinary sense of the word.

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

53. On the issue of the petitioner’s availability to serve, from the documents before the Court and from the submissions of counsel, I

am satisfied that the petitioner will provide a significant degree of public service. An important factor is that this public service will

incorporate service to the Spanish speaking community, including the Mexican community, in the areas in which he has sought to be

appointed.

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

60. The Faculty submitted that the reference to a "public office" is not solely referable to a building having the physical

characteristics of an office. What is meant by "public office", it was submitted, is a suitable location at which the public can generally

expect to access the services of a notary public.

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:-

“I will be available to conduct notarial business, during the day, and weekends, by prior appointment. The office is located

in a modern building with consultation rooms and has the benefit of a Spanish translator (who holds a Masters Degree in

conference interpreting) on site. The office space has enhanced computerised security features and enjoys wi-fi

broadband, photocopier/scanner.”

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

71. It has been made clear by the Faculty that there is no objection to the appointment of the petitioner on the basis of either his

qualifications or character. I am satisfied that he is well qualified and of good character appropriate to the position of notary public.

Conclusion

72. The Faculty ultimately has raised two issues on this application, and has carefully brought them to my attention as they

considered that they were matters of concern. I welcome the assistance of the Faculty, and express my appreciation for their work

and their assistance to myself and to former Chief Justices. The concerns raised by the Faculty were made bona fide.

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.